our second case this morning is ruben sanchez versus the city of chicago used excessive force in doing so he alleged in particular that during the arrest officer garcia punched him and then violently threw him to the ground even though mr sanchez had a very visible stomach injury i'll address three main issues but i'm happy to take any questions on any of our briefing first the district court told the jury that it had to accept as conclusively proven that mr sanchez was drunk at the time of the arrest even though mr sanchez argued he was not second it excluded key evidence a report from another officer that supported mr sanchez a story that he was not drunk the night at the arrest and third it admitted hearsay evidence or other witnesses  recounted statements that officer garcia had told them after the arrest each of these errors requires a new trial but here they combined in the particularly prejudicial way this was a trial that was all about credibility officer garcia's versus mr sanchez and in this case all three of the all of the errors undermined mr sanchez's credibility while reinforcing officer garcia's first all address the jury instruction the district court told the jury that it had to accept as conclusively proven that because of mr sanchez's dui conviction that it had to accept that mr sanchez was drunk at the time of the arrest now according to officer garcia this instruction was based on fact versus humphrey different ways first he proposed an alternative instruction which denied the application of issue preclusion it only would have admitted that mr sanchez had been convicted not any of the underlying facts and according to right miller proposing alternative instruction can be a sufficient objection second during the trial at a sidebar mr sanchez started to testify about the unfairness of the district court of the original state trial and mr sanchez  sought to admit that testimony on the basis that mr sanchez was arguing that the previous trial was unfair the district court prevented him from doing so well that's not a challenge to the jury instruction mister it's a challenge to the application of issue preclusion that was the basis for the jury instruction and then mr sanchez also filed a new trial motion where it was clear from the district court's reasoning that it had understood the objection that mr sanchez was trying to make both the both the what he was objecting to instructing the jury about that he was drunk and also the basis for it which was the the the post conviction challenge this illinois state law collateral stoppel the illinois collateral estoppel is an equitable doctrine it only applies where the district court conducts an equitable analysis and decides among several factors it has to consider whether the state proceedings were fair and before the district court mr sanchez repeatedly argued death to dismiss the state proceedings were not fair that he was so are you asking for remains that the court can balance the equities the district court has to in applying and disc discretionary doctrine like that the district court has to use its discretion and in this case it had to consider the merits of mr sanchez argument that he didn't get to get a fair trial in the first kids returning to that collateral stoppel should not be applied automatically or mechanically there is a list of factors that the courts court and put must consider and the district court simply didn't can do the analysis here so  let's go through those now why do you win so what one of the main relevant factor here is whether mr sanchez received a full and fair opportunity to litigate  question of his intoxication in the dui trial mr sanchez asserted in the post conviction motion and also in before the district court that he did not receive a fair trial because he didn't receive adequate representation right but he lost on that cl state courts yes he lost on the claim in state court but under under issue preclusion the reviewing court the court in which issue preclusion is asserted must conduct an independent analysis of those equitable unfairness in a criminal trial whether it's styled as an ineffective assistance of counsel claim or otherwise ergo you suggesting that the precludes of effect was due to the post conviction petitions about to the extent that your argument is that the state proceedings for circuit generically unfair so the the the true that the trial itself obviously  the district court could not rely on the fact that the trial had happened to meet its independent obligation to review the fairness of the trial the post conviction petition which denied mr sanchez's post conviction challenge had not been decided or was pending before the illinois supreme court at the time the district court conducted this analysis all right that's discretionary review you had already lost in the court of appeals your client lost his challenge as to his conviction court in which field and byrd said much of the same thing which is that one hundred eighty three gives lip against a federal forum to try to enforce their federal constitutional rights and the fact that the state court system in illinois found that the state trial was fair might be bears on issue preclusion but respectfully in this case where you have the countervailing concerns of allowing a federal court to make that decision  satisfy the statutory in custody requirements the collateral consequences cases that officer garcia cites actually address a different issue which is when a petitioner files while still incarcerated a hideous petition but then is released whether that case becomes moot and that addresses the case in controversy requirement of article three not the statutory in custody requirement i'll briefly address unless there's any other questions on this issue will move on regarding the arrest report the district court excluded an arrest report or officer cox wrote that mr sanchez did not appear drunk when he was in lockup that excluded the report because mr sanchez tried to authenticate the report through officer garcia and the district court concluded that because of his of course he had not prepared that particular port harmless your honor one of the issues here that isn't isn't directly an issue but kind of was a factual question that poor on all of the parties testimony was blood mr sanchez intoxicated officer garcia and officer eddy basically testified that he was fall down drunk and this report is the report of a third officer who said that he wasn't intoxicated or did not visibly appear to be intoxicated and so in this case the the report of officer cox could have swayed the jury's verdict into disbelief the way you do klein to accept your position on the collateral question of officer of mr sanchez's intoxication matters is relevant in two different ways first officer mr sanchez argues that he was allowed to contest the fact of his intoxication but as the district court noted mr sanchez could also argue he might have met the legal requirements for intoxication under illinois law but he wasn't so intoxicated that he was running red lights and swerving around the road or he wasn't so intoxicated that officer garcia was justified  using a high level of force to arrest him the jury could have believe when you're dealing with a belligerently intoxicated individual more force could be necessary to effectuate the arrests you think it's relevant probative on the issue of fla degree of force three four eighty s four sorry forty four through forty six sometime after two of five am she testified that mr sanchez was so drunk that she was worried he was over intoxicated to be in custody and that at four forty am two and a half hours later officer cox stated on his report that he did not appear visibly intoxicated now the amount of time that passed between the arrest and when officer eddie said that he was over intoxicated to be in custody was about two and a half hours but then two and a half hours after that he was not visibly intoxicated so we're talking about five hours after his contact that's in question in this litigation we have sort of we're talking about five hours after the arrest but the observation taken two and a half hours after officer eddy's goes to the credibility of officer eddie's testimony about how intoxicated he was during lockup or during the interrogation that happened at two o good morning and may it please the court of this morning i'd like to first address the applicability of tech and then address to related issue of the district court's instruction for the remaining issues will rest on our briefs unless this court has any questions on appeal mr sanchez claims that heck is it applicable as a matter of walt but he never raised this issue in the district court nor did he provide a factual basis for his present objection or to the contrary mr sanchez's motion for a new trial in vote gilberte a to exclude evidence of the and of the result of his dui trial except to exclude that in our response we noted a number of problems with relevance and so on but also noted that heck would bar the false arrest claim in his response in his reply mr sanchez just said that wouldn't bar his excessive force claim but said nothing on the general applicability of hec nothing about custody nothing about anything else the district court concurred in and said in its ruling and this is where the jerk this is actually i believe the genesis of the jury instruction that the city was correct that that the court said as mark issued preclusion that mr sanchez would be barred from challenging the fact of his intoxication at this trial and then it proceeded to questions about the proper instruction and on from there so it became an eviden at trial the question of hec arose again and the district court said this as more of a categorical bar to the false arrest claim not to the excessive force claim and the district court said no there is a possibility of navigating the straits that you can say even if i mr sanchez could say even if i were and this is me paraphrasing greatly even if mr said even if mr sanchez had to accept that he were intoxicated he could still say i didn't exhibit any visible signs i was driving i didn't run the walk run the stop sign didn't swear wildly so on and so forth it was a question of probable cause that the fact that he was intoxicated didn't mean the officers necessarily knew had a reasonable basis to believe he was intoxicated so it's a a more categorical results here that because the entire claim rests on this idea that mr sanchez is claiming he wasn't intoxicated that the whole thing  falls but that's it maybe i misunderstood your argument to clarify our point was that as this case was litigated in the district court there was a quote that it seems i actually believe the district court was correct to say that there wasn't a categorical bar but on appeal mr sanchez took such and he abandoned the basis that the district court in vote for not applying a categorical bar the district court said you can make these claims without challenge or this particular claim false arrest claim without challenging court clearly recognized as objection but that's not that's just reading the district court's ruling on the motion for the trial it's apparent that that's not true the district court addressed the concerns about finality and believe that mr set seems to believe mr sanchez there's nothing to indicate that finality is affected by post conviction titian this court said nothing to indicate that it believed that mr sanchez was saying that his the finding of the fact of his intoxication was unfair and that is or had no reason to believe that mr sanchez clarified during the pretrial of one of the pretrial conferences that his post and conviction petition concerned the aggravating factors that came up during his aggravated do you walk in it under illinois typical do you why is a misdemeanor but certain aggravating factors can bump it up to a felony and in this case mr sanchez's dui was bumped attack grade level by the fact that he was under a suspended license at the time and mr sanchez counsel represented at the pretrial hearing that that was the basis of this post election petition and you can even see this in the district court's rulings that it noted that the posting the action petition only had to do with those aggravating factors so how it could to challenge the fairness of the determination of the fact of the intoxication there's just nothing in this record that would have given the district or the or the city fair notice that they needed to litigate that issue  you so why the district court would have thought that just a patently baseless challenge to the to any aspect of the conviction would affect the fact of intoxication is beyond frankly beyond me just on the question of preclusion under illinois law i was just in response to judge sykes question regarding the routine nature it is in fact routine to apply issue preclus on the basis of a criminal prosecution that's the still annoy supreme court's decision in american family insurance versus outkast where the court says it actually makes more sense to apply issue preclusion when you're coming off of a criminal conviction because of the incredible stakes that it's high stakes it has and the facts are just proven by preponderance that it's you know as we all know that's beyond reasonable doubt so in part and that particular case and also the court gave a little substance to what it means to say that it's but clearly the issue of intoxication is not a sideshow it's not a side story to a dui conviction that's the central fact in every case and mr sanchez can't possibly claim to get no incentive to litigate the fact of his relevance or any property to the statement of the turnkey if there is probative value it's it's so minimal as to be clearly harmless i mean the standard for showing prejudice in a civil case is already pretty high  there has to be a substantial injurious effect on the jury's consideration and this is a literally away heard it's was there a visual that on a visual inspection of mr sacha's was a very visible sign of intoxication and there was a no and  to which there was this this issue was so passed by by mr sanchez below there is nothing on any of that this came up in his rebuttal case for the irish times and the lock up keeper for that reason we noted in our objection below that the lock up keeper wasn't procedure but we don't know he could have said for all we know he smelled like a brewery but he didn't look visibly intoxicated that's all i was writing about so shorn from context the jury could really only speculate exactly what the import rebuttal your honor all address two points very briefly in rebuttal a first officer garcia said that the district court clearly did not understand that mr sanchez was was challenging the fairness of the dui trial if you look at essay twenty nine through thirty the district court raises the question specifically addresses that mr sanchez said that the state trial was not fair and that it's and then says that those facts are relevant but they were