claim had been coached here oh yes that's correct the defendant himself raised the issue in his papers that mr the more included facts relating to the search in his statement of facts to show the context of the events of that day but he didn't raise any arguments about it or put it before the court he raised the issue of whether or not he was a trespasser or whether there was permission officers had consent to enter the home or that that issue was relevant to the issue of excessive force because it related to why the officers were in the house without a warrant and then suddenly the alt ensued but he didn't mr zamora never the issue of whether he was a you know he had been residing in his parents house for four months he had all his things there none of that was in any way discussed has his consent no as a pro se litigant incarcerated and not a lawyer he received the district court's order saying the same had been thrown out and i understand the proceedings have problems we still have rules we have to learn the district court of what our problem is not wait till later on so my question is did he indicated at that time that he had something else he wanted to submit or any type of object after receiving the order he did not formally move for reconsideration i didn't formally move you know he did raise the issue saying he informally moved he did in numerous conferences in papers and in pretrial proceedings attempt to raise issues relating to the search and was repeatedly told by the court that that issue had been disposed of during summary judgment proceed and how did the district court respond to his numerous motions to reopen again he didn't file formal motions to reconsider reopen the issue he merely he he brought it informally to the court's attention by trying to discuss it and the court not seeing any formal motion to reopen it and there was also a change of judge at some point  issue the court then dismissed that issue before any record had been made on it before the parties either party in fact knew that it was being considered by the court and then beyond that mr is a more a failed to reinject the dismissed search issue into the proceedings but he certainly pled a search claim it's undisputed that he pled a search claim in some form the scope of that claim is disputed on appeal but because there was no opportunity to make a record on it below we don't have much information right well let me ask you in the excessive force claim that a nine hundred eighty three statute provides nominal damages where there is a constitutional violation as well as punitive damages the record is not at all developed as to other damages that isn't more and suffered because again of the stage at which it was thrown out before discovery had been conducted on the question of damages before mr zamora had any opportunity to submit anything regarding damag person in effect the seizure of the person does not then also provide officers with the ability even after the person is long removed to continue with an evidentiary search and rummage around seeking whatever they might be able to find in the house after the person is long gone and that is what occurred here well very far there was no standing in the course or any indication was the there for several months that is is in the record through the parents affidavits and through various indications of papers in support of summary judgment however what is not in the record is that the parents ever kicked him out and told him not to come back we have the police officer is hearsay statement which would have been admitted for the purpose of showing the officer of state of mind when they entered the house but not for the truth of the matter asserted that the mother had said she had had a fight with her son and said get out get out what we don't have is anything more concrete even if we looked at that inadmissible statement in the context of the fight the same morning that the police officers came and it could mean get out and never come back or it could mean get out and take a walk around the block i can't stand to look at you right now there was nothing saying remove your possessions don't come back i know you and your son have been staying here for months but i don't want you living here anymore there is no no record whatsoever on those issues and i don't think  possessions and as i understand it and this is a little bit outside the record created considerable havoc in the house and they also seized a shotgun and seized a baby blanket mr the more a there  was no ok criminal you know but yes there were things were seized and there were further proceedings and so forth again there's not much record on this and what record there is is to a certain extent hearsay because none of that was  was too quiet and apologising i represent the defendant smith and we're holding with respect to the summary judgment motion your honor there's a power of suggestion i'd like to overcome here which is where the plaintiffs say well look at the court  order throwing out a search claim there's nothing there that gave the plaintiff notice that this search for the shotgun was going to be disposed of you have to start from the complaint your honor when you look at the pla it complaint there's no reference to any search for a shock and that's what their briefs based on the amended complaint is a single count for excessive force within the factual allegations underlying that there's a reference there to a search where plaintiff says that they forced the front door open and entered without consent that's the only claim that was there and when you look at the motion for summary judgment it follows a similar pattern it's addressed to excessive force and in facts stated in support of the motion the defense counsel sets forth back showing that there was consent to enter that the parents who owned the residence had asked the deputies to remove their son and given them a key there's no reference to a shotgun because there's been no plea pleading about any claim search for a shotgun when you look at their feet all these things yes there was a search in the sense of entering to remove plaintiff that is the only thing in the complaint well maybe you could help me a little with how this arose did you try this case i did not your honor ok but you're familiar with the record i am here on at some point judge campbell decided that this issue was one that should be handled on summary judgment correct your honor so at some point judge campbell made a decision that this issue should be handled by summary judgment because the motion addresses the se ok so i was that's my second question it's my second question is what is it that triggered judge campbell's action i apologize if i wasn't clear i just explained that that was my intent with the explanation that summary judgment just like the complaint is labeled is for excessive force and addresses and the facts the search claim you can win more than i want to know who motion and judge campbell i think was the trial judge will never have and then was that motion served upon the defendant the defense motion was served upon the plaintiff i mean on the yes it was served on the plaintiff yes your honor was there any response filed by the plaintiff certainly or r and in his response the plaintiff does address the search claim by arguing that there was a failure of the defendants to have a written consent signed by his parents and a failure to have his parents present during the search and that is his argument on the search and i'd like to also point out your honor that while there is no claim in the opposition to the summary judgment with respect to a search and additional search for a shotgun it's the plaintiff who then attempts to use that evidence to his favor he does make a reference to the shock on in the sense that he points out that a eviden revealed no fingerprints therefore none of his own which he argued bolster his claim so he's the one using the shotgun in his attempt to further his excessive force claim but he's not making any claim at all thought there was an illegal search for the shotgun he's only claiming that the consent from his parents was insufficient because it wasn't in writing and i'd also like to point out your honor that you're going on to get to the merits which is you can it's interesting but what i wanted to get to is this so called who is spontaneity and was there anything different from your motion your client's motion for summary judgment the opportunity for the defendant to respond it's cetera was there anything different than the rules usually call for other than perhaps problems of work occurred because he happens to be pro se i apologize i do not understand your decision him so if that's the argument the opposition makes yes and i'm trying to find out specifically without arguing the merits the procedure and you told us that you brought your clients brought a motion for s properly served and on the defendant there was a response from the defendant and the judge made the decision correct ok thank you ok well your honor the evidence that we have here that we're all arguing that the plaintiffs and defendants are arguing about before you all comes from that summary judgment record as far as what was the consent and what was the nature of the search so when the plaintiff pardew's that this wasn't there wasn't any notice well certainly there must have been notice how else did he know to put in the affidavits of his parents which he's the one who put in and he's the one that filed a supplemental fax statement with all the deposition testimony and nowhere in there does he address and he claimed search for a shotgun he only challenges the entry and his only challenge to the entry is based upon whether it was necessary for that if that is to have more than the parents verbal consent and the handing to them of the key but whether they had to have their written signature on a form along with their presence during the search and that was not necessary also the while the in showed that his mother had directed the plaintiff to leave and that both parents had given the defendants the key and that provides consent which is sufficient for their entry whether or not the plaintiff might have objected because there's a honor the only argument that i read from the plaintiff's brief is that they're trying to create a a lack of fairness for their client because a search for a shotgun wasn't disposed of by the motion for s judgment they cannot get around the fact that the parents consent was sufficient by itself for the entry to search for and seize him wesson there is subsequent affidavit filed by the mother saying that she gave permission to enter but not to search the affidavit says it has the word ransack it says not to search and ransack the residence that does not address the search for a shotgun either and furthermore i'd suggest that arguing that the a conceding that the parents have asked them to remove the son and then trying to put conditions on it such as you may not use your weapons in my house but you may go in and remove my son if their son had the shotgun and had tried to shoot the officers i don't think that the parents could have limited the consent in that way in the same thing here the ransacking of the residence apparently is a reference to that fight that ensued when the plaintiff struggled to escape from the officers after he had been handcuffed and they were trying to get him out of the premises i don't believe that's fair to of attach that or to let the mother argument the record shows that they told the deputies that he had fired a shotgun during the night that he threatened his mother taken the car keys from her and refused to leave i haven't addressed the jury instruction issue at all your honor a couple of citations on this issue of this search be artificially divided into the search for the person and the search for the shotgun it's clear that consent to go into a house and search for a person does not  then implicitly also permit police officers to go and search for evidence the evidence that the defendant if apple is claim was submitted on this issue is in their opposing pages thirty nine to forty and if you look in the record that really does only cite two incidental paragraphs in mr zamora's statement of facts in his brief opposing summary judgment on the instructions issue but it went to the core of the factors that really guided the jury's consideration of the core issue in the excessive force claim misters more did preserve it  numerous ways as discussed in our brief and when you think about the constitutional violations that occurred here where the police hit a man who was already prone and handcuffed and then proceeded to a non consensual warrantless evidentiary search it's really clear that this is not the system of justice that we provide to anyone per se or otherwise and that the jury instruction the failure in giving the jury all the factors to be considered in presenting only three factors that were not as relevant to this case i think clearly explain how that happened so thank you for your time again we've