we begin with the actual arguments that we set forth in our briefs i would like to just give some brief factual background about this case if i may this happened in august of two thousand and twelve it was a reverse sting operation that actually was was killed by agent hansen was not part of this investigation at all what happened was they had a pre operational meeting with dozens of a t f agents with city of st louis police force and they knew that there was going to be a bucket truck that would come in to disable a car they knew where everyone's going to be stationed people were secret in the a t f agents were in a u haul they were given orders when to come out etc what happened that morning was there was a set up out for cameras by special agent or or technical assistant french that were set up two of them were underneath a tractor trailer one of them was on a pole that was set up a few days in advance and the other one was in the surveillance vehicle the one on the pole was just video the want to underneath the tractor trailer where video and audio and the one in the surveillance was also video and audio that  morning band by the name of demetrius creighton went and picked up myron pollard who was a friend of his myron was not part of this investigation and drove to the pre determined spot parked up against the wall put it in park and at a certain point that morning then flash bangs went off and the a t f was dispatched to come out of the u haul truck they lined up agent hansen was all the way to the right and the next agent hanssen shoulder to shoulder were fact the testimony from every single agent was they didn't even know who he was until after he was shot until they identified two of us he was not partisan they suggest a geisha and all they jumped out they were shoulder to shoulder the only one to fire a lethal weapon that day was agent hansen so they're all similarly situated they all saw a vehicle they all saw the situation they knew there was a bucket truck coming in from an adjacent parking lot to disable the vehicle if they tried to escape  then it went about two and a half the car lengths back only about forty four feet until the bucket truck disabled it the bucket truck is the video show and i hope the court has seen these videos that it shows the bucket truck  before the car begins to reverse and this was part of the pre operational meeting that they had with all of the a t f agents knowing there is going to be a bucket truck to disable this it should be noted also that agent manson's only threat that he perceived this is his testimony was the vehicle that had nothing to do with weapons it had nothing to do with anyone else on foot it was just the vehicle that he thought was a danger to him he also testified that when he shot three times into the car he as far as the video cameras and then we'll get to the actual argument the video cameras there were four that were set up as i mentioned there were two under the tractor trailer one of them had the best position the best  didn't film anything it had about a minute or so before the car even pulled up into the lot and the testimony was in must of malfunction the nd one was the one that froze at the moment that the st shots r out and again there was a discrepancy between the two sides who shots they were with a handsome shots when the car was backing up the two and half car lengths or was it the baton shots that were shot by agent hall which are non lethal just to break out the windows but the frame froze during that period the audio keeps going but you don't see it think it skips from here to here and shows a part jumping from one position to another  video then stops as soon as the bucket truck hits it and then you hear bang bang bang and then it just stops immediately and i'm going to dress in the nd the pole camera was just video and if you look at that it shows the car parked up against the wall and then there are four seconds about four and a half seconds missing and then you see the next frame is a bucket truck hit it forty four feet away there is nothing in between showing the path of the car or when the agents jump out of the vehicle that part is missing as well and finally the surveillance video shows the the bucket truck come in and unfortunately because of where this position the bucket truck obscures the view of the shots being rung out but it shows you could hear the impact with the bucket truck from behind and then that's it cuts out those bang bang bang shots afterwards and the in the import of this is the following agent meyer was the head of this operation agent meyer was with the technical assistant french who is the one who's in charge of shutting off these these videos and burning them to a d v d agent myers testimony was that he was with agent french in the surveillance vehicle he i heard flash bangs i heard the screech of the car i heard gunshots i heard the bang of the the impact of the vehicle along with the bucket truck he said i went out to assess the scene then i told agent french to shut off the video but that's not what the video show the video show as soon as a bucket truck hits it they're cut off so we asked for the original recordings that were before they're burned to a d v d for the original cordy's and the government said they're gone we raced them and they said because we normally just do a routine erase and we didn't know that there was going to be any litigation  they knew that there were four criminal defendants who were alive who were arrested at the scene so they needed that nd they knew that where a death is involved that agent hanson was probably going to be investigated by the circuit attorney's office or the u s attorney's office and rd they knew where there's a death involved there's most likely going to be either bivins claim an f t c a claim or both which in this case there were so there was a reasonable expectation to preserve that original recording that was on the server one of the servers in the poll camera was twenty miles away where french was the one who could shut it off the technical assistance but you see him at the end of the video on the scene and he said that he's the one who could shut it off twenty miles away so if it takes him twenty miles to get there about thirty minutes or so or forty minutes to shut it off where's the rest of the video if he's shown at the end of the video at the scene so we went through th went through a lot of arguments with the court at st judge limbaugh here in the district court said there was quote a serious concern that the four hundred and fifty four seconds of the video during the shooting itself were somehow lost and he then  he ordered the government to look up those files those original servers and see actually if they could find those files before they were burned to d v d s and incidentally there were about ten days or twenty days that the d v d s couldn't be accounted for they were put in a temporary locker from that day and they weren't put in a permanent locker until twenty days later and again that's part of the evidence in this case and part of the trial  some point later on the judge then said that we are allowed to argue an inference to the jury he wasn't going to instruct them but just that we were going to be able to argue the inference as opposed to a presumption that the missing parts of the video would have been detrimental to defendants and then on the eve of trial there was a motion in limine that was filed by the the defendants and then the judge and we argued this before the judge and that same day  judge reverse that and said that he's not going to allow us to argue and inference and then a trial when all of these things came out about when meyer said when friend should shut off the video because those parts are missing there should be at least and twenty seconds at a minimum past when all these videos are the judge said and i'm going to quote the judge quote maybe he meaning me maybe he is right about it about there's a problem here with when these things were shut off and had the judge known to judge limbaugh known about these is decision probably would have been something different i'm going to bring to the court's attention now rule thirty seven easy was enacted the new rule  fifteen and the government does cite some cases that are pre two thousand and fifteen pre rule thirty seven and really it's a two pronged test the st one is the failure to preserve electronically stored information if electronically stored information that should have that should have been preserved in the end to subpoena or conduct of litigation is lost because the party failed to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery the court and then there are two prongs one upon finding prejudice to another party from loss of the information may order measures no greater than necessary to cure the prejudice that's at a bare minimum where we were when the judge  i would be allowed on behalf of plaintiffs to at least argue an inference not given instruction but at least tell the jury hey these things are missing you can then have an inference and have st inference why these tapes are missing and why those crucial portion of not one not two not three but all four videos are missing in this but if there is an intent to deprive another party in other words if we could find some you know intention then the court can go even further and that is presume that the last information was unfavorable or instruct the jury it may or must presume it would be unfavorable or dismiss the actions we're not asking that the action be dismissed obviously but at least argue be allowed to argue before the jury about that but the judge didn't allow us to do that was it prejudicial absolutely that those missing parts of those tapes are the crux of our case it shows when the shots rang out how many shots were fired where they were fired and to say that one malfunctioned but we destroyed the server the information the server the next one that shows frozen videos of the rd one that just shows the bucket truck with no shots afterwards and the final one the poll camera showing or have seconds missing from the time it was parked to the time the bucket truck hit it is extremely prejudicial to our case what are the facts that would be missing would it be the location of the of the officers for which or for which one  four you say there's prejudice right and not so i'm trying to drill down on that a little ok is the prejudice the fact that you weren't able to place the officers i soon you would want to say outside the path of the car of the vehicle right so that there really there are two aspects to it and one of them is where were the officers in relation to the vehicle when the shot fired and when the shot was fired so when the vehicle was parked and their testimony was that they lined up about twenty one feet away shoulder to shoulder the poll cam shows nothing it doesn't show where they were how they were lined up from an overview of the of the scene so that's missing the nd thing was because it was shut off when french was still there so he went back to his office and then only burn the part up to the time a little bit after the crash it doesn't show where the evidence markers replacing where the search for the casings were because all we see is after the fact that oh here's a casing and we don't know who put what where and where the casings were that's how it's gone for the parts that were the tractor trailer it's the actual shooting one of them totally malfunction had the best view and there is no video they said it malfunction the one that did function there was the part that was missing of who who made those shots because you see a car jump from here over here but you hear bang bang bang and then you see the bucket truck at the end and then you hear at the end another bang bang bang after it was already disabled and finally the prejudice from the surveillance video was as soon as the bucket truck hits it you don't hear anything because they shut it off at that point had you heard this is the essence of the prejudice everyone agrees that if you have a disabled car with a bucket truck you can't shoot in the car and try to kill somebody because it's already disabled and that part is gone from the video and according to agent meyer he didn't instruct french to turn it off until way after that he said after  got out to assess the scene then i told him then he shut it off and that's missing so head judge grounder if we would have had that the sound of the bang bang bang and the scene at least one thousand and fifteen seconds later we could have unexplained failure to record knows that the failure to preserve was these were recorded onto a server and they erased the server they said we do we burn copies st of all we all know that with burning are glitches and burning copies sometimes things get sometimes they don't record if they destroyed the original server and all of these things than and none of them show the actual shooting or what happened afterwards as i mention in my brief once it's a glitch twice it could be a coincidence three it starts raising eyebrows four times i don't think there's a question what happened here because they destroyed the original serv not right we had a right we had no i offered to indy to look at the original recording because they destroyed it and their explanation was an agent that was not connected with the investigation  it or destroyed it no he was it was it was wasn't god was there testimony about the circumstances of the of the destruction of the video so if you have people involved  judge shepherd there it during the deposition of agent french which was part of our motion to judgment on the district court we have his entire testimony where he explains and he goes through that and that's and that's in the record during the testimony at trial when i ask agent french about that he actually went into that about you know when they did it and i believe and don't quote me but i believe the government than ask further questions about you you routinely go through these after a period of time and then you know make room for other things and cetera so it was someone who was part of this investigation he was the one who set up the cameras he was one to burn the d v d s he was the one who turned off the cameras and he was the one who actually recorded over these things look the reason i asked the question that way the government's brief says that during routine maintenance an a t f agent who was not involved in the undercover erast deleted the car interior of the serve it please the court i'm assistant united states attorney karen shooty and i'm here on behalf of the a pelleas the united states of america and special agent bernard hanson your honour's we are not here today to decide the facts that was what the trial court did that is what the jury d were here to review the decisions that were made by the district court during the course of the trial so it's really important to keep in mind the standard of review the vast majority of the claims of error that have been alleged by ms white are to be reviewed under the abus discretion or clearly erroneous standard and these are high burden to meet the district court had wide latitude in reviewing the evidence and in light of the circumstances making those rulings there are two claims here there's a bevins claim that was asserted against agent hanson and an f t c a claim that was asserted against the united states those claims were tried together in a bifurcated trial and it's important to remember that the there are certain evidence that goes to the claim there's other evidence that goes to the f t c a claim and that we need to remember the different standards to be applied for each of them now i want to talk to the court about the f t c a claim st because the district court entered judgment in favor of the united states on that claim and if this court affirms the f t c is judgment bar applies by operation of law and prevents a begins judgment against agent hanson so therefore there's no need to dive into the weeds about the evidence sherry wanted a jury instruction regarding the adverse inference so that would only apply to the bivins claim which was against agent hansen so there would be no need then under his claim to address it on the f t c a claim that yes and i will then address the spoliation issue because it could potentially go to the united states it would be in a different manner obviously because it would not be an a jury instruction would not go to the judge on the spoliation claim there has to be intent and prejudice in order to enter sanctions and again this is reviewed for abuse of discretion with regard to intent there was no evidence that anyone whether it was agent hanson or anyone was deleted as part of routine maintenance by someone who was not involved in this investigation and the reason why the server was deleted that it was a piece of equipment that was no longer being used by a t f and they were getting rid of it so the person that deleted it st checked with all the case agents to make sure that they had copies of the contents and confirm that they did and deleted it now a t f standard procedure for handling videos is to record them onto a server and then download the contents on to desk and those disks go to the case agent they get an evidence tag they go into the chain of custody and that's how they handle the evidence for criminal cases the duty to preserve in th deleted the server provided a declaration that was submitted to the district court prior to trial in connection with a motion for sanctions and then the employee of a t f who actually set up the cameras and was in charge of doing the downloading he testified by deposition and then he testified live at trial and out trial he specifically stated and it's in the trial transcript in volume two on pages one  hundred and thirty but he downloaded the files directly from the server onto d v d s without cutting editing or deleting any footage that's the only evidence from anyone about what happened everything else is speculation about whether there was a glitch there was no testimony from anyone that there was in flapped a glitch between the downloading and the saving yes there were glitches with the functioning of the camera and the placement of the cameras but that is a police separate issue then an issue and over the government's objections ms white was allowed to argue very vigorously and elicit quite a bit of testimony about the set up of the camera the malfunctions and whatnot so while she was not allowed to actually argue an adverse inference she was given great latitude to at least movement crucial that there were issues with the transmission of the video the all of the cameras were remote so they were they were recording and it was being transmitted either through the internet or through cellular service excuse me were there as other omissions there were yes there were there were on the different videos there were a couple different places where there were interruptions in the streaming of the video and that was based in part due to slow internet service and then with the movement of the cars there was a bucket truck that came in and disrupted one of the signals and the a t f employee who set up the cameras testified about that and explained say he just got it wrong yes but the evidence that was put forth to judge limbaugh prior to trial or and throughout trial does not raise the level of any sort of inference or excuse me any sort of inten an abuse of discretion standard and the judge in the at the trial level looks at the evidence to at least determine if there is some intent of a desire to suppress the truth and in this case the district court judge found that there was no evidence of intent to suppress the truth so that is entitled to deference and when you look beyond what he said and actually at the at the facts in the record there are no facts that would of any sort of ill will or bad faith and it's important to remember that we have d v d s that have the video footage on them this is not a situation where there is nothing left we have the d v d s that the agent downloaded directly from the server they are an exact duplicate and there was no evidence offered by any witness that said that there is a possibility of a degradation of the quality or some sort of mishap that has been an argument what happened on this day in question so there is every other evidence available there were multiple witnesses that testified throughout the case about what they saw what happened the government had an called the driver of the car who is a convicted felon and admitted to lying under oath the district court found him not to be credible but importantly there was an independent witness an eyewitness who was near the scene who is not associated with anyone in this case the ms white called that witness in her case in chief and that witness his events were perfectly aligned with what agent hansen said happened and that witness said that there were no shots fired after the crash and the district court found that that witness was credible do any of the videos that remained collect the position of the of the officers at the time of the shooting there are it is difficult because there are different angles and so there are certain videos where even ms white's own expert witness said the angle was deceptive but the pole camera is that was the video that was up high looking down into the parking lot and that one gives a better a better angle and there were still photos that the attorneys used as still frames from that video that do show some of the positioning and it is hard to tell exactly what time all of that happened all of this happened in about four seconds but using those photos agent hansen was able to describe where he was standing when he fired the shot and the district court heard that the jury heard that and both of them found in favor of agent hanssen and the government on the claims one but i have one final quick question if you can clear up one matter on th deletion or the racing of the server and you said that the person responsible for that prepared a declaration yes what was there ever an opportunity an opportunity for may be stated differently was there anything to prove prevent that person from being call'd at some point in the proceeding as it is and in person witness to be subject to cross f and could have come in to testify but the the focus of ms white's arguments at trial were on the quality of the footage the placement of the camera the downloading and that was not done by the person that deleted the server that was done by jason french and he did testify live a trial and in fact was on the witness stand i think longer than anyone else in the entire trial on the issue of the f t c a claim the district court correctly entered judgment in favor of the united states by finding that there was no duty that was owed to myron pollard by agent hansen under this claim we look to missouri law and duty is usually established by statute or by some kind of special relationship between the person accused of the negligent act and the person injured here or the missouri has never held that a private citizen owes a duty to safeguard another citizen absent some kind of special relationship and here d the normal situations where a special relationship is found is with doctors and patients with jailers and detainees landowners and invitees mr pollard was not in federal custody he hadn't been arrested this didn't happen on federal property there was no duty that agent ha the district court further held that even if there was a duty owed that there was no breach of a duty and that is a decision that is reviewed under the clear air standard the district court made many factual finding in its memorandum in order regarding the f t c a claim and the vast majority of those are credibility to terminations those are entitled to even greater deference one of the determinations that the district court made was that the credible evidence  supports the conclusion that the car appeared to be reversing directly at the agents when it st started rehearsing and that it was traveling quite fast in a confined space the district court also adopted the version of event that agent hanson testified to on the stand the district court found that the government's expert witness was credible the only witness that the district court found to be not credible was demetrius created and that is the only witness that actually supports the version of events the ms white argued in the case in addition mr shallots made a comment about there being a photo of the agents being lined up shoulder to shoulder his own expert witness at trial said that that camera angle w cute and that it was not accurate the district court have unique opportunity to observe the witnesses at trial to pick up maybe on visual are tonal to cues and their testimony things that may not be reflected in the transcript so therefore those findings of credibility are entitled to great deference and that's why we don't need to dive into those facts here and fight about who said what because it's in the transcript and the district court found every witness to be credible except for demetrius craig let me ask you the missouri public duty doctrine does not apply just to public employees under missouri law yes so how does that work visa v the tort claim act that's liable to the extent of private person it is unclear your honor this circuit has not specifically ruled that the public duty doctrine is in a place a bowl an f t c a claims other circuits have ruled that and because of that i'm not asking the court to apply the public duty  analysis can be used just looking at whether a private individual would go a duty in this situation and it is difficult in these situations where we have a law enforcement officer and it's something that is unique to government that there are not going to be many or any missouri cases where they are looking at a negligence claim of a person that shot another person while the cars were given the sort of convoluted you know play here what standard do you think we are supposed to apply what standard here applies and why it's the traditional standard of care that is used in missouri and negligen is some kind of foreseeable risk then the person who is accused of the negligent act needs to try to avoid that too they don't want to injure the person if there is some kind of foreseeable risk that that injury could occur and that ri shooting in a car is of course suitable risk you're going to end up passing right it's not in this situation your honor because it also the foreseeable risk depends on the relationship between the parties where there is a very clear special relationship between a doctor and a patient for example does the risk of injury or some sort of damage are very foreseeable because of that relationship but in this situation where there is no relationship between agent hanson and the passenger in the car there is no foreseeable it's instructive on the application of the judgment bar it's an ambiguous statute there's no need to look beyond the plain language it's the complete bar to any action by the claimant that by reason of the same subject matter which is what we have here your honor  me please court judge effort to answer your question i looked through the brief and on page eleven there are various times during the trial on the nd day of trial where agent french was the one who said that he did not compare the d v d s with the original recording on the server and destroy the original recordings on the server that was in the van that's on the nd day of trial page fifty three lines seventeen through twenty three page fifty four lines five hundred and twenty one page fifty five again page two hundred and twenty two page one hundred and twenty eight this is all several times during his testimony that he was the one who actually destroyed that and he was one who set up the cameras he works for a t f with regard to what ms shooty just said there were three people who reviewed all of the videos upon judge limbaugh's these as far as we were allowed to argue it at all so to delve into this to answer your question we could we have delved into why and when and where this was all if we weren't allowed to argue it before a jury what would be the purpose of testimony trial was it was agent french who was the one who set up the cameras and who burned the d v d s gave it to someone else they were not in the permanent locker for twenty days i mean this whole case with this is just laden with just the bad stuff to put it in o the vernacular i did want to touch on some things that we didn't touch on i understand her bottle about the jury instructions about more dear with the not being allowed to ask the insurance question that's already been briefed and we would ask the core to look at that but i did want you to take a look at exhibits three thousand seven hundred and thirty nine and it shows the pictures of the agents lined up while the car is just starting to reverse and then thirty eight where you see the side view mirror and they're aiming toward the side of the car with nothing discharge of that point and then the side of the car where they're still lining up at that point is taken off of the video camera and then finally this is where the shot is fired and we don't know again handsome shooting in the side of the car which is what the government says or if it's hall with the baton around shooting out the window but what is essential here is that there clearly was not a full recording that was made the server was destroyed so we can't look at it the d v d was not downloaded of the entire incident according to my or agent meyer who was the chief guy on this entire operation we would ask that  the court reversed the district court and remand for a new trial with specific instructions to allow a jury instruction on assurance but more significantly to allow at least having me argue an inference of spoliation of evidence an adverse inference or a direct order from the court from judge limbaugh to then instruct the jury that if they could presume an adverse inference i thank you very much free time and well counsel leave appreciate your appearance and arguments today