thank you very much your honor and with regard to this particular case we address three specific areas that we contend to be indicative of error and when we look at what occurred in this case we're looking at the cumulative effect when you look at the issues related to the photographs you have to understand that when we're talking about issues involving the objective reason but us of law enforcement officers actions the jury is only permitted to consider things that the officer saw things that they personally perceived things that would allow the jury to determine whether a reasonable officer in the position of these officers would have concluded that about things that they were told credit really persons absolutely your honor anything that's in their state of mind however the issues with regard to these photographs will miss through bracy was carryin gun would he do the stickups they were told that but the photographs that we don't apologise that's what the photographs show the photographs also depict other things that they weren't told bill your other specifically the matter in which he will do the firearm the fact that he held it in one of these photographs at the head of a female patron the fact that he was using this in a manner that specifically threatened some of the individuals who were in the check but checking go check cashing store at the time and when we see these things we understand that categorically speaking the concept of them seeing this and the jury seeing this when the officers never saw this produces a very significant prejudicial impact that is very difficult to to overcome when we tape limited to some still images so why wasn't that within the district court's broad discretion in trying to balance the probity of nature of the steals versus the prejudice permissible under four zero three and we do understand that the district court did not let in the whole video and we do under stress understand that the district court let in only three photographs but this does not change the fact that the officers that were involved simply did not see these things and the this court has held over and over again that was regard to the officers perceptions the jury is entitle to hear what they saw and what they heard and they never saw or heard any of these things and was brought  examination it was it was repeatedly ironic but nevertheless there's a saying that you can't unring certain belts and this these photographs were shown a periodic lead throughout the course of the trial from opening statement to closing argument independently enough to warrant a reversal or is it the cumulative effect of all three together the three being the photographs the testimony protective rouleau and the testimony of surgeon once again great point independently our position is that any of these would would constitute reversible error the issue that we have however your honor is exacerbated by the fact that all three of these errors came that all three of these issues came in and we talk about what is admissible and what's not admissible i'm sure the court is well aware of the concept of harmless error if this would not have changed the outcome of the court or the jury's decision i can completely understand that even if it were erroneously admitted for example these kinds of things  would constitute a harmless error but when we look at even the second aspect of what we were talking about your honor and specifically the gang expert testimony and i think there's a quote in our brief that specifically is from that this court the ninth circuit and its from the case of wiese are versus city of anaheim and it states and i quote if a party challenging the introduction of gang evidence and expert testimony is willing to stipulate to the fact of gang membership no expert testimony about gangs failure on behalf of the plaintiff to concede to this and only when you take a situation like this when the ninth circuit even one year before the trial has said an expert testimony should not be it should not be admitted we have to understand the consciousness behind that which didn't directly relates to how prejudicial this but if you're willing to stipulate to hear evidence that the police want to admit and gain involvement where's the committed and further incidental gang activity there's simply no evidence of that and their expert conceded this but why is it prejudicial i think what when an expert gets in front of the jury and starts testifying under the cloak of his expertise and he's talking about his training and experience with regard to dealing with gang members he's talking about homicidal behavior of other gang members the fact that gang members are caught with guns brutalize each other in the context of disciplinary procedures  that they have a problem with and when you look at this if he testifies for an hour to a jury about all the horrible things going members do and all of the aspects of gang subculture that are related when there's absolutely nexus to mr bracy what he is essentially saying is that all gang members do the same thing or they all think the same way or they all act the same way and that simply is not going out like the other finally when we get to the issue of he was going to be turned into a bloodstain transfer expert and any references to the fact that we open the door in that regard are misplaced because we specifically did not in fact that testimony came through the direct examination of file a motion eliminate to keep in such testimony from coming when we were under the assumption that the expert that they hired and paid who we deposed would be the one that was coming in it wasn't that person and said it was a police practices person and so we were caught off guard in that regard and with regard to the concept of whether this is expert testimony or whether it isn't practices they're usually individuals who don't even have a law enforcement agrees i mean law enforcement that's what officers are scientists and when he gets in front of the jury and starts talking about the concept of a transfer stain that's a very critical issue in this case because it's not that he stashed the position  and without going into too much detail we were very effective i believe in the deposition and we figured that based on that deposition testimony we would be able to has such a doubt on the credibility of your prepared for her that for him if you had known that there was not going to be testimony from this expert do you think you would have hired an expert to come in and we would have at a minimum seriously considered it your hon mean these decisions are very difficult to to look at years later but we thought that we did such a good job that at it as it said attacking the credibility of this one expert so we were of course surprised and if the court is over the questions talks about the king with the fact except that the these three that the three things that they point out don't overlap in the sense that they don't they're not cumulative and they're not the same issues of all that they're not they're not overlapping in the sense that they belong to other the completely separate issues and deal with separate eventually well first of all the there's the issue of the stipulation as to whether he actually used the gun or that was the same gun that was in the car counsel conceded himself that that was the same gun there's no there's no evidence there's no stipulations so that was still a potentially open issue that needed properly addressed by evidence but they also showed his his comfortable his comfort infelicity and using the gun his use of the gun aggressively on that same day and these go to deprive composites on the on the other side that the implication in  the use of the gun that i was i can tell you that by the same gun in fact that was not of the car that was always our contention yes then if the defense was stipulating that the robberies had been done by bracy by the use of a gun what was the purpose again of showing the photographs to jews well that was something out of that was always the defense contention without a stipulation from plaintiffs and it was no stipulation before the jury's there was no actual evidence of that we had to show that it was the same guy it wasn't a question i stipulating that was something we needed to prove so we were we were but that's one of the initial purpose of the pictures about my house i'm much more familiar with cases a civil cases that involve an admission of liability when there's an admission of liability that removes as being relevant all the acts and omissions which lead to the negligence which caused the damages and it's a common defense tactic to admit liability and go to damages so that all of that stuff of negligence doesn't come out right if the plaintiff in this case admitted to the use of a gun in the robberies and admitted that he was a gang member i'm having difficulty understanding the relevance i understand the prejudice but i don't understand the relevance of the photographs or the testimony of sergeant case comes down to two competing narratives first of all do you concede that the defendant conceded i think you mean the plaintiff but yes i mean you thin evidence of those things and to the jury counsel made argument of why in the face of concessions by the plaintiff counsel that the gun was used in the robbery same gun right and that he was a member of again why do you need the photographs or moral right so the except to prejudice the plaintiff well you know you are the core dispute in the case because it was they couldn't possibly have put the gun in the a z event after the support of other police that didn't happen the photographs and where all of testimony both go to his felicity with a gun his training of gun practices the it all goes to the that point i mean isn't that relevant to the argument you're making at the time that he if your theory is correct that he stashed the gun after the shooting he had substantial injuries somewhere on his body he was seriously injured right and i think i'm sure that  exact timing of i mean i was there was a lot of things happening very quickly you know but doesn't go to his expertise in handling a weapon the photographs absolutely not the photograph the fact that he was injured i'm trying to add to your list of reasons why it's relevant me there was no foundation laid as to how this particular officer was familiar with the gang specific gang that mr bracy belong to that was global gang testimony and it went into exactly the press site scenario that was faced in this case without to me any foundation that the officer had any prior experience along these lines with gang members they had a rest again members and saying in some listen ariel's had interviewed a number of gang members from this gang and found out the practices it was just kind of a gestalt telling about what gang members do why generally because a lot of things follow the same practices it would be the same in a product liability lawsuit talking about the practices of pharmaceutical companies you wouldn't necessarily mean obviously you can target a particular company but the interest as a whole has certain practices it that the industry as a whole follows and that's true of gangs as well and he says well you know really in the pharmaceutical rep pharmaceutical expertise test to find it will say i have experience with this company this company this company and i was i did it for this many years and that's how i there's a foundational requirement in terms of an expert if you're going to qualify as an expert there's a foundational requirement that your expertise matches your testimony and i'm not sure that was done in this case because he talked about you know why gang members want in what they're taught to do with weapons and i didn't see how just saying that you've you've been on the gang task force for so many years doesn't necessarily mean that you've acquired this type of information how how what type of information acquired i think that's exactly where things are he told his testified at length in fact plaintiff complains about the fact that he testified at lancaster his expertise in and in dealing with the lack of specificity regarding how that knowledge was acquired anybody can get up and say i know this but tell me how you know it tell me specifics about this particular gang that you dealt with because  broader scope of testimony he was going to give it was a very much narrowed to just gun practices the the more general testimony about games was was it was exactly what you're saying you're out of his expertise and how he came to all this knowledge and all the the hundreds of cases he dealt with  marut testifying on the basis that he didn't have any expertise as to this particular gang i don't recall that objection your honor counsel i like that i don't want to but that would have been playing with our expert your hundred just to identified as an expert on the use of force policy of the department and the training on use of force that these officers would happen and it's clearly relevant and to be expected given the nature of this case but then when he took the stand he wandered well off the path of that expertise and talked about blood transfer versus blood spatter i'm not sure that's the main issue but for me the main issue is and then he recreate the incident and said based on everything he looked at this ladies and gentlemen of the jury this is what happened why was he allowed to do that when that clearly was not in his expert report well both police practices experts plaintiffs and  defendants based their opinion on reasonable force on their conclusion of whether or not mr bracy had the gun out at the time the police pulled him over both experts testified as to their conclusions as to whether or not he had the gun out at that time and what the basis for that conclusion was because that of course then defines reasonable force after that so that's a both parties agree on that doesn't have to i mean his testimony based on his report was that here's help police officers are trained if they see a gun th can react in a way if they don't see a gun they have to react in different way and here's the department's use of force policy but now you're saying both the detective and the sergeant went way beyond that and said ladies and gentlemen here's what happened in other words accepting i accept it was true that all five of these police officers saw a gun so maybe they did or they didn't but that's up to the jury to decide why is the why are these witnesses being allowed to say that that's in fact what happened w think both it's not necessary for their expert testimony well i think both experts opined that the indian players case that for the force was unreasonable in our case of course the force was reasonable and the basis for that a part of the basis for that opinion was their conclusion as to whether he did or did not have a gun so part of that opinion then becomes what is the evidence that he did or did not have a gun and both experts went into that territory in terms of why not put that in the expert report and that's why you that's that's why we have reports is we give the other side notice this is the testimony we're going to present the other side can look at that evaluate that plan accordingly and bring motions in limine me if they'd feel that that's necessary but here at least i'm more familiar with sergeant marcus testimony i think this was all considered supporting evidence for the conclusions the report and it was testified in detail at his deposition explaining this this was the basis for his opinions including the blot on the a c that this was that i don't see looked at and this is how we came to the conclusion i think the case is for a number of years thirty years in which i actually defended police officers and i made works with a lot of experts and i told them i want you to put in your report exactly what you looked at exactly what you considered and exactly what your opinions are and what they're based on this wasn't here testified to a similar scope that his understanding of the that the basis for his opinion is there was not a gun and the facts that led him to collusion there was not a gun our expert not at that point was following suit i think it was our understanding that was within the scope of the reasonable force opinion that was that essentially including the blood was just supporting evidence he didn't have an opinion about the blood his observation he was in well he had an observation that was part of the support that supported his opinion about reasonable force his actual opinion was that the force w nothing in the record that describes that at all and then i have a different question if an individual testifies as an expert and also as a lay witness which he was for the blood spatter evidence because he's not an expert really know how how does the jury know how to filter that evidence if the court doesn't instruct on the difference between expert testimony because if an expert if an expert instruction is given and there is no instruction that tells them how to deal with all of the testimony that's given that the expert the natural inclination of the jury is to treat it all as expert testimony because he's been designated as an expert that's why it's so important for the court to delineate for this part he's testifying as a late witness and you treat the testimony as you would in the other lay witness for this part he's testifying as an expert i can give conclusions blood and that was part of the basis for his opinion that the gun was stashed after the words but i think he repeated it several times i don't see how that isn't remotely ambiguous to the jury that he was not going to be like that anyway so the jury what to do with it they were on directed as to what to do with that evidence without instruction from the court but i have a factual question if you could help me and perhaps i missed it in the briefing so i apologize but i understand it's clear that all of the police officers at the scene who fired their weapons clearly testified they saw a gun before the shooting that  plaintiff was holding a gun before the shooting near zero looking into the car the saw gun and that's why the shot but then a number of minutes went by before they got into the car the plaintiff was seriously critically injured did we have any testimony trial as to what they saw between when they shot and when they got in they couldn't see him because it was below the top of the seat so they couldn't see him with him and what he was doing which is why they didn't really go into the car they weren't sure if he still had the gun that weren't sure if they were in danger they kept calling as a non routine expert pursuant to federal rules of civil procedure twenty six and two on the grounds that because he was an employee he didn't have to provide a report so the scope of his testimony was designated if the court would like to see it said page five ninety three in the evidentiary record and essentially in summary it talks about that he is going to reference issues regarding police practices and the objective reasonableness of the police actions just to review this was something in writing right he did he was never designated as an accident reconstruction expert he was never letting it as a blood transfer expert he was never designated to talk about anything that happened after the fact in other words he issues related to crime scene analysis this evidence is necessary to show what mr brace he could have done because other gang members have done this in the past we were doing everything we could to stipulate to mr brace's gang membership just stipulate that he used the gang there he's a gun that they found during this robbery all those things we tried to to get the court to to tell the jury by stipulation but i think that the reason why they wanted these photographs for example and the reason why we've done with this appeal that's exactly what we had a problem with is that there are the four corners of the last thing to have been the state because all of this testimony that came in we either didn't know what was coming it provided expert testimony that didn't exist or it showed things to the jury that the officers didn't see and for those reasons this had a tendency a cop killer that tendency to