right now first case callahan versus count winning your honors may please the court my name is donald and i represent the callahan's in this manner your honors the jury instruction that was given in this case clearly violated this court's precedent in responding versus joe that case stated quote the jury must officer or others say so in this case instructed to the jury that a police officer called a police officer may use deadly force against a person if a police officer has probably cause to believe that the person poses a significant threat of death or serious physical injury to the officer alters i don't explain to me that charge is inconsistent with  other words the restriction says that you can you cannot use deadly physical force unless in this case the charge that was given here it was a permis of instruction so what the court allowed the jury to do here is allow the jury to find that deadly physical force is permitted if there is probable cause to believe as your other stated but it may also be permitted in other circumstances if you look at the totality of the circumstance or argue the act but you know i don't know if in context  charge will support that and moreover i'm not sure if it's put in light of the context of the entire trial no one or or suggested any other justification success for the force here then the presence of probable cause and then there was all kinds of arguments over whether there was probable cause so you're suggesting that the permissive invited the jury to think about bases other than probable cause doesn't seem to have any support in this record i'm i'm missing something really ron i think it does because i think just like in respond and actually even more so than in that case in respondent the situation was that you had a court said it was a closer call it really was here or there was no testimony by the officer that he actually saw weapon that he actually even saw the person behind the door there was no testimony in this case that anybody grabbed his gun and if that's not a challenge to the charge it's still all an argument about probable cause right but it goes to the heart of the charge because what the jury could have done as a practical matter is it could have said ok we find that there was no probable cause to believe and there is reason to think that they might have found that on this record but nonetheless it was reasonable he said that he thought he saw some type of object he couldn't say what it was he couldn't say that it was a weapon and that in terms of the impact this would have had on the verdict which is the harmless error standard in terms of the impact there was no item that was found next to the body so that actually didn't make a lot of sense and didn't have a lot of corroboration and the other hand thrusting towards him with an object he did testified to that that he thought there might be an object when he was pressed on whether he saw what that object was he said no so under those circumstances again with respect to the jury charge not to the sufficiency we don't raise a sufficiency argument but in terms of the harm to answer judge roger's question this really is a situation that is not nearly as close as it was in resigning because there is a very real probability i would say probability all that i need to show is a possibility but there is a very real probability here that the jury found clearly there was no actual threat there was no and that was conceded that there was no actual threat here clearly in this case the jury had reason to believe that there was not probable cause under the circumstances when if you'd all the evidence but under the charges given it could have still found that the the circumstances to the officer rendered his action his actions reasonable and that is what the supreme court for closing garner and that is what this court expressly foreclosed in respondent so this is not an equivalent charge someone calls and there was a did hear that he testified to that however he also testified that he knew that the mother was not aware that he heard the transmission that the mother was not in the house and if you look at the nine one one calls on the record actually those calls came in saying this guy likes  stories we're not really sure if we should even be calling nine one one it's probably just a cry for help and the officers testified that they knew when they came to the scene that he was not a dangerous person and really again in this case we're not challenging the sufficiency but the impact of the court's charge really was clear clearer tha car through significant through because the charge that the police officer may use deadly force under these circumstances under probable cause but then never says that's the only circumstance you can do that and that is precisely allowed other other reasonable circumstances to be identified by the jury where is wrist responded said that they had to be told that it was the only only one director and that the charges the omission of from the charging respondent is much greater than here well but not on the material issues so the analysis and responded charge about probable causes they were not but i think it was no charge on probable cause that was the sure to twenty four i don't think so seven on any seven twenty three if there are three i'm sorry it's got to be three let me find it let me find it in a different place right why don't you just tell it to us well we'll it ok so the quote is that the jury must be instructed consistent with garner no heard that the use of force highly likely to have deadly effects is unreasonable unless the officer had probable cause and the key there being the court at least five times said that this charge is required that the jury must be instructed of this this was a permissive language so when the defendant say that resign and made a suggestion that this is the charge that should be and i would also say that one of the things that came up in were son in was the with respect to judge rogers question about where respondent talks about the restrictive as opposed to the permissive in point three right before the conclusion so i'm looking at page see if i can find the page here three thirty seven it looks like the court talks about the fact that there were manual provisions that were put in that highlighted different standards and that highlighted the reasonable belief to defend yourself or another person from the eminent use of force and the court says even if the manual provisions had reproduced the governor verbatim the court statement provisions merely applying to the case of the hand does not substitute for an instruction that the garner rule is binding as a matter of constitutional law and then the court says in the case before us a germ a well find on the basis of the manual provisions that brown's conduct departed from protocol but the journeyed not find as a necessary corollary the browns conduct the violated the plaintiff's constitutional rights so it was actually central to the court's decision and resign and that part of the reason that the charge that was given was not tantamount where the functional equivalent to the charge that was required is precisely because of this shift this usage didn't hinge on probable cause it he on the necessary if language versus the required unnecessary or unreasonable unless and that is not just a semantical decision according to this court of reason and i know my time is up i just you with respect to the the evidentiary issues regarding the preclusion of testimony from the plaintiff's expert and the preclusion of testimony relating to the officers prior use of force by shooting at dogs one of the errors and i just wanted to clarify this that the defendant makes is the defendant says that the reason the protocol should not have come in in the court found the reason the protocols were not relevant was because they only relate to the mono claim they only relate to whether protocols were followed and therefore whether there was a failure to train and that misses the point the reason that the protocols were relevant is because in fact those protocols showed that the wilson was likely to have actually acted the way he testified he did in other words they cast doubt on the credibility and voracity of his testimony specifically if you look at the record at page a one fifty six to one fifty seven where the protocols are listed in paragraph fourteen there the expert said that wilson stated he actually thought there was a man with a gun on the scene but the expert would have said if he really thought such a threat existed proper protocol would have required calling the supervisor requesting additional units requesting yes you requesting a message him t the failure to do those things doesn't just mean protocol wasn't followed it allows the jury to find that objectively from a credibility standpoint his testimony that he believed there was a man with a gun at the scene was just not true what was properly from correct your honor but again that's credibility question for the jury so the question of whether it was a failure of training or failure to follow protocol or whether it was that his story was just not true should have been left to the jury to decide at a proper septic cross examination of the officer specifically where you you took training and where you were you trained that if x you do y if y you do see whatever and that that's what the expert gives you is the is the basis for cross examination expert testimony to come in to establish the protocols and to allow their use in question now is does the officer have an objectively reasonable basis to think yes probable cause right and apple and the protocols by themselves don't answer that question the question becomes are the protocols become probably prevalent only once you establish that the officer knows of them and doesn't act consistently with them well to the extent that the jury was told to indeed that's that's the protocol because this was decided in the motion in limine i guess there was never an opportunity for the foundation to be laid because the corporate clue did it from the outset work in print could you from asking the officer whether or not he had been trained to do these things that you say you should have done right the corporate clued in the expert testimony as to what the protocols actually were to me that if you'd got me officer to say he'd been trained you wouldn't have needed the expert at previously discharged his gun in that case it to dogs that too was relevant and actually the defendant's acknowledged what it was relevant to his state of mind and to show that there were unusual characteristics with acts alleged and in this case the statistics that we provide and we also provided to the lower court actually show that at these are in page nine and ten you can find them in our brief but these actually show that it is highly unusual for an officer to fire his gun in the line of duty and all in two thousand and twelve when you were offering this to show propensity that he's trigger happy that would win the argument dogs he shoots a human being he shoots we were offering it to show a pattern of relevant conduct or an aggravated state of mind which was how does the shooting of the dog bear state of mind at the time of the shooting of the individual because this officer in the the dog's carriage but it was a threat to himself and this is the way that he acted and so it shows the aggravated state of mind that this court has found is ok additionally it's also relevant separately because it shows evidence abuse of discretion where there can be a question about it as i said he will argument about his state of mind is that his state of mind he's got a propensity to be to be trigger happy i mean i think you're just trying to recast what you're not allowed to do which is offer this kind of evidence for propensity in some way voting state of mind i was actually just like you know he has a state of mind to rob banks because he dropped three before well i was actually looking at a decision so i was quoting to prove relevant conduct or an aggravated state of mind which was from a decision ismail versus cohen which was a southern district decision that was ultimately affirmed and also this court's decision in o'neal vs kaminski which is cited in our brief facts of the state of mind there is that it's state of mind but not propensity it's well again the quote was aggravated state of mind in other words that it tended to show it's not a propensity to commit a bad act it's just that when he's faced with a situation that would normally not cause and other officer to fire thank you has a tendency to do it obviously addressing the initial issue before the court what i call the main issue regarding the jury charge it's the defendant's position that what is necessary is that the jury be given adequate legal legal guidance so that they can reach a rational decision on the cases fundamental issue in your honor i think you pointed out the fundamental issue is when viewing the facts in this case is whether there was probable cause for the officer to believe that there was he was facing a threat of death or serious  injury siri says that if less is charged in the less language that there's a risk that the jury all think that something other than probable cause can support a reasonable basis yes and judge i think the issue in respect to that is whether the jury properly charged on the justification that's necessary when deadly physical force is used and in contrast to resign and in your honor pointed out in this particular case the court gave a specific instruction on the justification of when deadly physical force may be used where a senator or so that was your request to charge right i mean your request to charge basically tracks with the district court charge the jury in this and you cited the tennessee versus garden but you didn't use the or the resin language why was that why didn't choose why didn't you submit to church when reznor makes it so clear that this is what you're supposed to tell the jury judge the charge that i submitted to the court was a charge that i put together during the trial and i agree with your honor that i didn't have the specific language however during the jury charge and when it was discussed and judge wexler brought it up at that point i did submit it proposed charge the track resume the players council did right and i saw that  was a charge conference and he ruled against the plaintiff and said you can take it to the circuit if you don't agree with me but was there a reason why you thought this was the kind of case that the overcharge shouldn't be given and the judge when judge wexler indicated that he charge the jury i was satisfied that he did meet the standard that the plaintiff was asking for that resign and said i had no i did not think that the judge should not charge it notwithstanding my my proposed jury charge your honor quite frankly it was something that i had put together from an old charge and while we're trying our cases we get to jury instructions the issue came up i had a conference in my office is charge callahan charge satisfies rescues i do judge i think because because what i think it does is it in the manner that the jury was charged one when compared to the evidence in the case which judge reggie indicated there's really no other way to look at what happened this wasn't something where the facts were were brought it was an instantaneous action and happened in a doorway police officer and the deceased behind the door that went when in light of the jury charge compared to what the evidence showed and compared to what the what mr birkhead argued on his summation as well as my summation that the jury that the jury was adequately instructed again on this concept of what's the fundamental issue so i think that yes i do believe it was satisfactory beyond that i believe even if there is that the concept of it wasn't satisfactory was at the the equivalent the fundamental functional equivalent and i think that's quite clear in and in the court said it wasn't a functional equivalent because it was it referred and went back to what would be the general reasonable this concept that's when judge spat plugged in deadly force essentially took the general reason force charge that we have in instances where there isn't deadly physical force use and just want to want to plug in deadly physical force and in doing so he kept the standard at that general reasonable subjective reasonable knows where hugh we've got judge w were intending to aware as the record indicates ms marion brought it up several times and he indicated he was aware of it and intended to do that very thing of giving the jury a specific charge regarding the concept of probable cause not just reasonable judge so what we agree with your honor but not to that but that but that is the way you doing there is your instructing the jury when they are conducting the the analysis of whether something is reasonable in this instance whether this problem was those are factors they consider that's not an instruction on what reasonableness is that's not an instruction i what what probable cause is it's an instruction on you make when reaching that consideration conducting that analysis you may consider that officers are often faced with tense situations where they have to act let me ask you since you can use twenty twenty five all the trojans that even when they use probable probable cause there's no further definition of that right in the church what is probable cause m in this case judge no it was the judge just only mentioned that did not define probable cause and i agree your honor usually will be instructions on reasonable miss and then a probable cause that was not here but i don't think it misled the jury given to the jury in a specific fashion and i mentioned at one point about in my brief about how you say that it wasn't a request to charge him probably because i thought there was probable cause in this context means that a reasonable weevil be prudent police officer w where the judge in about a paragraph says he goes from a person may not be subjected to one reasonable force and then he gets more specific and says officers may use reasonable force that's what i was referring to in that sort of four or five bullet point ways that the judge narrow did to the jury from the broad to the narrow and then ultimately ending with an officer may use deadly physical force if the officer has probably cause to believe he's facing death or serious physical injury and judges if i may just in the house and i disagree with counsel officer wilson i had a belief that there that the mother may be in the home and that there may be a gun there and as far as actual threat there was a belief that the go there was a gun in the house and he engaged by this person by the door that not only it was a left hand and he had his gun in the door and it in a manner that he couldn't control it not only could that the seized his own gun there was a fear that the person behind the door was armed as well and could have shot the officer through the door so there really was an actual threat in the facts of the case and if i may just briefly address the two points the two remaining points and the first one is that the expert that they want to call his testimony we're going to procedure it's it's the officers that was it objectively reasonable at the time that the officer acted when this immediately occurred whether he was trained properly and followed his training flawlessly or whether denied all the motions all of our motions without prejudice to renew the motions renewed renewed there was a discussion in chambers regarding the motions i just don't have an independent recollection of what they don't point that last point in fact it actually was preserved because the motions in limine the that were made at the beginning of the first trial were decided in chambers and the transcript was provided to the court subsequently in a supplemental appendix so that