has the right to submit their state tort claim of intrusion of seclusion to the jury now and i think that the reason why the district court did this head to do with a flawed rationale on the part of the district court that believes i think that the th amendment is somehow the ceiling of protection  to be given to individuals rather than merely else lore because what the district court found when it granted the defendants rule fifty a motion was that because the conduct of the law enforcement officers here to a great extent complied with the th amendment  point mini state supreme courts say this kind of thing and then typically if you look at their analysis they revert to the same analysis the same words the same cases as the us supreme court as the federal law so what you need to do here is show a iowa state supreme court case you might get about aquarter bills but you really need and i would state supreme court case that tells us d that it's different than the th amendment and i well on the can be submitted in compliance with the th amendment has taken place but i was suggested the court at the other case law in iowa does suggest that that very kind of claim can happen for example the case of beach vs city of waverly i mean if the same reasoning applied at the district court applied in this case that is if the th amendment is complied with and therefore that precludes amendment was complied with here therefore there's nothing more for us to decide but that's not what they did in fact they made a point of saying that simply because you comply with the th amendment doesn't mean you're complying a law enforcement officer is complying with state law and so therefore they went through an analysis of whether or not the statutory grounds of search and seizure were still complied with and whether or not the plaintiff could maintain their false arrest cause of action and they only found that the statutory groundwork complied with but the point is is that they ate i think i believe you were stating and very clearly stating that you can still that state law does standers are aren't necessarily the same as the th amendment and you have to look at what was the grounds of your counsel this is just does let me take this just a little bit different direction stated many many times that just because something doesn't constitute a constitutional violation for purposes of section i can't be true that doesn't mean that it couldn't constitute a tort claim under state law and i think that's what you're arguing wilson and his son were detained from their moving vehicle i think that's very clear that's a privacy interest but more so than nat i mean he is person was searched and without his consent his vehicle was search without his consent to those are all obviously i think privacy interest the other part of the intrusion of seclusion claim has to do more with the aisle as opposed to the what that is it has to be done in a  in a way or at a manner that's highly offensive to a reasonable person and i think that what the jury was would have been able to find here and i think this is supported by this court's opinion bill versus mckinley is that simply because it was permissible constitutionally to act this way on the part of the law enforcement officers it doesn't mean it was necessary that they did this so in other words for example the jury i think could have found that it was highly offensive to a reasonable person to keep pointing this gun at mr wilson even though he complied with the request of the long force and also to put his hands out the window and that was after he was discovered to not even be the person they were searching for so i think a jury could result of that in his favor right one of the officers stated that the jury could believe that so we take that as a fact ok go if you are yes the jury could believe that but but the jury could also believe and i would assume we should also believe that same lobster testified that she identified him as the person who was not the individual they were looking for and told agent lamp that very thing but he didn't land continued to keep his weapon pointed at   my argument that the jury on the excessive force claim was not properly instructed that the court required essentially too much of the pla prove in order to prove that claim that instruction as to excessive force was taken from the language of this court's prior opinion and wills and one and i think that the court didn't give it a fair reading because i think what obviously this court will be able to tell us what they intended with that language but what the district court believed was that the language that this court used in wilson one was basically setting forth these are these are all of the facts that have to be proven in order to qualify as excessive force and i don't think that's the tears reading of this case i think what the court said wilson one was simply that the the pointing of the weapons as they approach the vehicle that is the defendants was not excessive force but this court didn't make a finding that well keeping the weapon pointed at the plate of even though after he complied with the request to put his hand up the window he didn't the court didn't say that was not excessive or that after it was he was identified to be lead by wilson as opposed to david wilson the  didn't say that's not excessive cute a gun pointed at at that point but instead what the district court latched onto was the allegations that the plaintiff was making a cur and i think the jury well what have been able to find excessive force still occur even though they didn't find that each and every allegation of fact took place that the plaintiffs were claiming because something short of having the weapons pointed at mr wilson throughout the entire duration of the incident doesn't mean it couldn't be excessive force in that case  xact i think actually the court's holding in will someone supports that as well because when the court denied the defend request for a qualified immunity on the part of the excessive force claim i mean one of the cases that the court cited to deny that and wilson one was a case of teamster versus densher which the court quoted that and officers use of any force is unreasonable when the individual quote quietly submit and there was no evidence of any resistance in this case i mean the evidence was clearly that mr wilson complied with all the requests made so i do believe that the court was mistaken and i took the language exactly as stated in the opinion and used it as the instruction for the jury i think what should have been done by the court is to tailor the language more to the model instruction where the jury simply needed to find that was the force used more than necessary to ensure officer my name sam like bolts i represent the state of iowa and d the agent lamp in this case before jumping to the discussion that you were engaged in with mr jacobson it's important to step back and remember that this court's already decided four central questions when this case was before it several years ago the stop of mr wilson's truck did not violate the u s constitution that pat down mr wilson did not violate d the u s constitution the search of mr wells instructed not by d late the u s constitution and the approach of agent lamp in office or door opening in with firearms point it did not violate the u s constitution unless it was found that they were threshold d with the tort threshold you know that they are two different standards the twin mark requires an intrusion on seclusion thrown about you know the per that was thrown up on their person or affairs and that was highly offensive to a reasonable person there's two reasons why when there's a whole thing of no federal constitutional violation here are rather in fact that there was a constitutional seizure that occurred here that that tort d you know was appropriately dismissed as a matter of law in the st is the one that the court focused on that because there was a constitutional seizure and it's not that the court was using a th amendment analysis and deciding there was no intrusion based on the th amendment which is what the of appeals in the davenport case concluded was error what the iowa court of appeals concluded was air it's because they're the court was looking at you know in an instance when an officer was driving by a house and peering in that person's you know house that there hadn't been any search at all there but that back and still when it was done over and over d and given the nature that it was intruding on the person's house you know could rise to d a tort level but here th finding was not there there was no seizure there clearly was a seizure but it was a constitutional one supported by reasonable suspicion and in that situation it would not be highly offensive to a reasonable person as a matter of law you know a constitutional d seizure supported by reasonable suspicion would not be highly offensive also given the nature of the facts that this was you know not someone in their house this was someone driving their vehicle on a public roadway you  possibly a tort claim you know i don't want to state broadly that there would be no tort claim they could arise there but not this tort claim not an intrusion on claim where you know it's based on intruding on someone's seclusion you know that they've thrown upon them in a highly offensive in an objective and reasonable manner  of that same question i asked the other your opponent what i what case you got that helps us on this and looks to me like the iowa federal courts are retreating to the constitution that's i think that's clear in the in the orders here and also what judge minute previously any way from the federal standard and you know there is you know a number of recent cases you know we cited in our twenty eight j letter earlier this week here on that that can question about the  constitutional standards between the state constitutional standard and the federal constitutional standard being the same state peace through which was just recently done recently decided by the iowa supreme court you know and analyzed you know search  investigatory stop question you know similar to this one it identically between the state and federal constitution we certainly have some earlier precedent that was hotly debated amongst members of the court  it's been shifting you know more now in the direction of following you know state and federal constitutional constitutionally identically and there are you know i question with my questions a lot simpler bad what's the what's the most invasion of privacy or whatever you want to call it and how it's interpreted under iowa law and they've been i think they threw in some comparison the u s constitution go ahead mary to take this case which is an iowa supreme court case i think does it very nice of what the requirements of this court are and certainly would be what we rely on and i think both parties rely on and yes i know but no law enforcement in that case right that that's correct  and you know it's really you know there is no case that says you know in the law enforcement context that that this would be found to to be an investigator stop that's been expressly held to be constitutional based on reasonable suspicion that that would give rise to a torrent i think the closest to addressing those issues we have is the court of appeals case relied on by by have sought you know certification on this question of the constitutional question and did not do so you know in a at least in a timely manner when there could have been done and so the district court appropriately attempted to understand what the iowa supreme court you know law on this question is plaintiff has not put forth any argument or it's not put forth any case you know that would show that the district court you know gets so wrongly i c m near me and my time and court attempted to do to ensure that it was complying with the binding law of the case and that case as we pointed out in our brief you know this should be considered you know under plain error you know this issue was not preserved  by the plaintiffs you know they had the opportunity to object to these questions you know in the formal process this was an appropriate instruction to try to give meaning to every every operative you know holding of this court you know prior decision and it's also correct as a matter of st principles you know based on the facts that you know were before the court after hearing this trial and as an appropriate point to drop the legal violation and that it would be different if different facts had come out at trial if there had been some basis to conclude that there had been an additional excessive force that had been in the summary judgment d record you know before if the phantom your rd officer had reappeared and had allegations against them but that's not the case the facts were substantially identical to the summary judgment record the district court you know believe that there is any legal basis for this court to overturn of the district court's instruction i'm on excessive force i'm sure this court disagreed there is no evidence that any alleged error in this instruction had this is also corroborated by both the testimony of agent land and officer gore out fanning it with regard to levi wilson's claim of excessive force of and specifically concerning my client just  and there is no evidence of any continuous pointing on the part of jessica at levi wilson just because testimony i was that she holds thirty or weapon when she came around at the vehicle into the lamp supports this version of the events the invasion of privacy and you know what the federal courts have been doing they've been taking the marriage it thinks case and taking the st analysis appears to be a reasonable expectation of privacy and then they've been jumping the federal courts a bit proceeding out of me critical rabid proceeding to say that that means that it is the same as the federal now st of all that's got to be analytically wrong but what can you tell us about marriage or davenport or any of these cases that tells us what i will believe is on thi claim we also point to the case of veach versus the city of waverly which you know because the conduct of the law enforcement officer to make the arrest was permissible under both the th amendment and iowa law and that the common law tort claims in that investigatory or to make a stop isn't reasonable suspicion is probable cause and count as you want to respond to the beach point just made because that is standard state court law that if it's lawful police stuff it can't be an invasion of anything you want to reply that well i just think that's an erroneous analysis of veach i mean the each was under the search and seizure of state law and the court no it didn't you're i referred to the state statutory law on search and seizure and analyze whether the conduct of the police complied with the state statutory law and search and seizure to determine that in