trial he simply said an injury occurred and likewise the violation of the eighth amendment prohibition on excessive force occurred as well in making that leap from injury to constitutional violation he neglected to acknowledge that the plaintiff did not meet his burden of proof in two ways and the first was the plaintiffs never pointed to our particular officer who pushed him and without pointing to a particular officer the jury was not given the opportunity to inquire into that officers mental state because it's sort of unfair because these officers and in the beginning of the extraction video they all lifted their fee shields they identified themselves by name and they also announced to which they would be assigned once they got into the cell so the plaintiff did have the benefit of knowing who those five extraction team members were and throughout the course of the first trial in testimony those officers testified about their position in t subsequent retaliation in the facility is that not the case that is the case your honor and and we know prisons are are dangerous places and for the protection of prisoners and for the officers they do w jumpsuits they wear a protective shield but in it in order to protect officers from situations like this they were the shield but the identify themselves on camera so that identification effect was available for this type of litigation but wasn't of a hopeful to the prisoner otherwise but before trial he was he i mean but even the litigation right but let me ask you this because you started out by by talking about a failure of proof but you're not challenging the result of the second trial you're challenging the granting of the new trial and so there was not a failure of proof in the sense that a jury one jury might not have believed the particular officer's right because there were several officers who said he did it he did it so that's it that's enough proof in the second jury seemed to be willing to believe some of it in the first jury wasn't is that a fair representation we haven't challenged the the anything having to do with second trial was the second trial in your view in any way significantly different than the first trial was significantly different because the plaintiff after having seen the first verdict in favor of all nine defendants really changed the entire theory of their case to incorporate  specified who the conspiracy involved but i would submit that that's not it is you here and that that wasn't ever raised in the first trial summarize the second trial involved these three people were as the first trial that involved a larger number it did and that's where the district court judge abused his discretion in the first trial the plaintiff had the burden as every plaintiff does in pursuing and ate them in excessive force claim of showing two things who the officer was that pushed him and then that there's the objective and subjective component in order to satisfy the subjective component you must point to a particular officer and then give the jury the opportunity to enquire into that officers mental state because in the first trial the plaintiff never pointed to a particular defendant the jury wasn't able to make that determination the jury wasn't now what happened to is it mccall did he settle out before this appeal or if you just did not participate in the appeal but i thought there was something i thought i saw something in the record that that he was dismissed from the case of my wrong the judgment was entered against him and i'm not sure what the status of that is ok he didn't participate in the subpoena those for you know that judgment is still valid and on appeal that's correct so i would go back to the reason why the judge abused his discretion in usurping the jury's role questions about credibility and you're correct your honor that that officers were pointed to each other those are all questions for a jury not for a judge that's why i asked about the two trials with respect to at least the crucial part as i think i'm looking at the district court below but that mccall said dawson stewart did it doest said  mccall did it stored another guy also said we called it it was that testimony pretty much the same in both trials generally speaking it was your honor but regardless of the conflicting testimony that is still the jury's role and the judge abused his discretion in in greeting the new trial because the play did not meet their burden i mean usually that language is when you grant a directed verdict or something of that sort so it is that that he abused  discretion because you shouldn't even let it go to the jury hears of that he abused his discretion because there was no basis for overturning the jury that's correct your honor i haven't made myself clear the plaintiffs couldn't satisfy the objective and subjective elements that are required for every eight them in mclean of excess of painters couldn't do it but the second jury found that he did i mean to me and maybe i'm just wrong tell me that it's a difference of judgment among a couple of different sets of human beings the defense cleared the technical hurdle but then the juror the first jury didn't believe them enough to to grant judgment the second because if it was really true that he didn't meet his burden meaning you and i as a matter of law say that it shouldn't have gone to the jury should it i don't i don't disagree that should have gone to the jury i'm just saying the fact that it did go to the jury evidence is the district court judges that you threw we didn't build the first jury didn't believe that he had sufficiently met his burden that's correct that as a matter of law he didn't read his bird he didn't he didn't satisfy the objective and subjective elements which are required to meet your burden of proof and the judgment of the jury honey you're in the opinion of the pushing you on it but because we went to the jury and the jury reached a reasonable character based on the evidence and which comported with the law the abuse of discretion was the judge usurping that world and substituting his opinions  or or his idea of a reasonable jury verdict for that of the jury in this case but what do you say i mean i'm reading from the district court's opinion he says the core conclusion of the jury's verdict he's talking about the your honor we knew from the seminal u s supreme court case of wilson v sider that even objective lee serious injuries suffered by prisoners without the requisite mens rea and did not comprise constitutional injury and that's by not articulating is that why should we do what the ninth circuit did i guess is a case called dubner versus city and county of san francisco from one two thousand and one where the ninth circuit shifted the burden of production to the defendants in a situation somewhat like this where the playing of his at a loss to the dentist which one did it well one of them did it so why not put the burden on the defendants to show that there was not but each one was not the person who pushed mr w i'm not familiar with the case that you're citing and i don't i can't speak to that but the burden of proof is on the plaintiff and i'm not aware of authority that shifts that burden to the defendant to prove they weren't the individual who committed the excessive force the burden remains with the plaintiff in this case has decided this this court excuse me has decided this case in comes we will consider in two thousand and two we're in a similar situation where the officers were  d and this court held that without the jury's ability to determine which specific officer committed the force there's no way for the for the jury determine well you could argue that but my argument today is that he disregarded his mandatory theory which says when you can't identify an officer the plaintiff can't meet its burden of proof because the the the jury is not given the opportunity to to inquire as to that officers in syria wilson beside her says you have to be able to inquire into that mens rea even if you have a constitutionally significant injury you don't you can you do have a constitutional claim if you can't meet that subjective component which is the man's r part of the district court judge we know that in a perfect world we don't want jury verdicts tampered with but trial court judges not only have the ability but i think the duty to do so when a jury verdict is on reasonable meaning that it is against the weight of the evidence is there any significant difference in the the two trials not in my opinion your honor i think the judge would have been authorized to overturn the second verdict as well not much different all they were there were fewer defendants for sure but the proof was essential the same and when when judge gilman read from the judge gilman read it correctly but was the trial court correct when he says the jury's verdict was the plaintiff was not subjected to excessive force wasn't the verdict that as to each of the officers the jury you know found under the instructions it was not more likely than not that this officer did it the way the jury verdict form read in the first trial it kind of went defendant by defended a do you believe so and so committed use excessive post could be done that way right and of course the jury said no at all but that's where we arrive at this on a reasonable verdict because what what the district court judge did was rely obviously on the undisputed testimony and the door so they could remove items from his cell he was compliant when they arrived they still went in performed the cell extraction after instructing him to go to the back of his cell kneel down on his knees on the bottom face the wall which he did everybody situation yes or got three people here but it could have been five or ten or twenty who were potentially liable ok let's suppose we've got three officers with  buzzer and one of them gives a man an electric shock but nobody has any evidence which one of the three but you're trying to get individual liability can you meet the more likely than not standard suppose there's five or ten or twenty can you hold each of the twenty individuals libel rather than holding the prison liable can you hold the individual officer other words my example of the extreme is you've got twenty officers each of whom might have pushed a button and given the man an electric shock unconstitutional and we know he was shocked can you say the jury's unreasonable if they don't hold any one of the twenty liable i believe you can your honor i'm sorry i think you can find the jury it's all twenty would have been liable under your well i just i think at least they would have had a chance to go to the second jury of are going to i think comes in is very very different from this case and comes to be woke us and there was basically a prison riot on death row where the inmates had basically seized control of the prison there were certain inmates who were not taking part in the in the overrunning of the facility and so they were basically hiding themselves in there and their cells at the same time there were guards who were breaking windows to those cells from the outside throwing  tear gas in there this wasn't the same kind of situation as a cell attraction these were absolutely unknown unidentified officers from outside the facility throwing tear gas into the cells and then once they got in and removed these inmates from their cells they were beating them to a point were two of them in particular lost consciousness so as in this case where we know who we're dealing with on the cell extraction team and we know the three individuals who  closest to mr wyden had the opportunity to use excessive force colmes be wilkinson your honour's very very different from this case because none of those officers were identified at all it was basically it was basically a john doe situation again like somebody did it somebody harm the plaintiffs the inmates and yet they didn't know who they were trying to hold them all labile in the door and said no they granted summary judgment for all that well they were basically trying to hold it basically get liability from responding a superior or  theory that we don't know who the officers were but we know they work for the prison and so we're going to get liability from some kind of city have a tort claims act kind of thing where you could go against the prison as being responsible for th states and say federal tort claims act you could do that yes or we can pass that but let me ask you this then suppose the first jury had said ok we're going to hold mccall liable would you have been able to appeal to ask for a new trial against stewart in dos the evidence was just exactly the same if you were entitled or you if you it was not an abuse of discretion to bring stewart dos back why would it have been just the same if the jury found a verdict against recall yes or i think i think if the jury had come out and found one of the individuals and not all three in that situation then i think the district court granting a in just interject their own opinion i don't know if the jury found anybody guilty in the first one if if the motion on the new trial would been ruled sane but i think that's the difference is that when there is clearly excessive force and th undisputed to hold nobody libel is what was it what was was was an reasonable maybe the problem here is nobody asked for specific in iraq and tories to the jury maybe it should have been set up was the excessive force used against mr white yes or no they said no then that be the end of it maybe to grant a new trial based on clear but if they had said yes probably they would have said yes the next question all right who done it yes or a law and done that why it's a good question and i don't know the answer to that because that was basically what the second trial was about was he not because imus i'm thinking that maybe where the court went wrong is the court says the court concludes the jury's verdict that the plan of one subject to excessive force was against the clear what of the others but i'm not sure the jury found that because it was a general verdict just as the each individual defend well i think the reason that it was against the clear weight of the evidence is because even the two defendants the two appellants all the way up to the captain and the internal affairs investigator all testified that what happened to mr white was excessive force there was no doubt about that was the verdict improper if the possibility exist determine a clear violator would have been against the weight of the evidence because we have identified the the three individuals who who could have done it you just said not being able to identify a clear violator would have been against the weight of the evidence so you're saying that they had to be able on this evidence to have picked out who mccall what goss i mean because in the end they they found all three of them libel which could could be individually liable some combination of two or the third well but you are the third jury but you're the second juror but you were your predecessor wanted to find these other guys libel which the judge didn't seem to let him go forward let me ask you this were the instructions essentially the same at the two trials the instructions were essentially the same the jury verdict forms a little bit different on one it was a jury with regard to mccall your adversary just didn't seem to have any idea what happened to him i had the idea and am i wrong that he was old timidly dismissed in some way possibly by settlement but i might my wrong that that's actively paying on his portion of the judgment and he was on represented for through both trials  ok if i could mention one thing to regarding the mens rea i'm sorry i wasn't asked about mccall regarding the mens rea as it's been made an issue here in the fact that we couldn't or the the the plaintiff in this matter couldn't have established that that excessive force actually took place because we can't satisfy the mens rea aspect of it but miss berner said when we're talking about excessive force the the the essential inquiry is whether or not that force was used to restore some order of discipline or was maliciously insistently used to to to inflict pain to cause harm in the courts use a a test to determine that a number of different inmates other guards other prison officials and i think the fact that it is undisputed that mr white was totally compliant not being resisted and in full restraints any threat there was no threat and so that that inquiry about whether or not that force was was appropriate stops right there because there really was no threat and i think you can we can  verdict is consistent with the jury not being able to determine the ponderous of the evidence the of the culprit here and there and based on that they could not find that it was proper not t satisfy the objective in in subjective component in the jury wasn't given that opportunity without a particular defendant to inquire into their mind and so that's why the judge abused his discretion he went from well there's an injury there must have been a constitutional violation and that's where i think he abused his discretion where there was a violation there's no question about there is just to some possible into a den of who who  agreed everybody agreed that there was excessive force but they're laypeople and they don't know what the legal requirement is in order to prove a case of excessive force under the eighth a just because there's an injury and i and i go back to the site are objective research injury suffered by prisoners without the requisite mens rea it will not comprise a constitutional injury and i would submit yes the plaintiff was injured but there was that the plaintiff did not meet his burden of proof showing that it was an injury sustained by excessive force in violation of the eighth amendment respectfully ask that this coworker vacate the district court judge's order granting a new trial and reinstate the first jury's verdict thank you so much thank you counsel and case will be submitted the remaining cases