where counsel argued about the need for the instruction with the court some real time and then upon hearing the final instruction and having already objective said something to the effect of that's fine ok but they need to  as part of the general jury instructions and can and can't i guess my problem was how was the judge to know that you had had an objection you know it sounds like the biggest issue is the phrase or created the need to use force is that here is that where a use of force has been held to be reasonable under the gram factors that a court cannot start from or not and hold that it was an actionable excessive force claim outside of program factors by looking to some  reasonable under great this was an entirely separate analysis from graham this was how does that work i mean that is a jury instruction so the jury has to determine that the judge is not going to know whether or not the jury believe based an excessive force verdict on the wrongful arrest was taken out by by the courts corrective instruction at immediately after plaintiff's counsel's closing argument where he said you know basically word for word or create it or let me get a language here he didn't need to use force created a need to use force that is that is far broader than the decision to arrest here the decision to arrest was not the only thing that it created and you need to use force it was the way that the arrests happened started assuming i'm assuming probable cause you know assuming that you're exactly right for him to arrest or if he needed to aggressively approach or because he said that exhaustive anytime you're giving a jury an instruction to not consider something that should raise all kinds of red flags a one thing that can't be considered stop a serious mental state and that is big right and a model instruction  really because officer going to be had probable cause to arrest her based on the undisputed evidence that opposite glaspie had formulated probable cause based on the information in his cad on his computer aided dispatch information his car and can corroborate it by his conversation with the clarence and the district court properly issued a true date instruction after winkler's counsel undermined that ruling in the arguments that he made during closing argument and her case was heard by a jury of her peers with no discrimination or discriminatory motives at play i want to address st the jury instruction which was the curative instruction  order of the trial was after the close of the the finance case and there was no rebuttal the court instructed the jury based upon the greed upon instructions of the parties that instruction it was after the plaintiff's closing argument that i raised the issue with the court that improper arguments were made based on undermining the false arrest j m o l ruling that defendants argument was i didn't i didn't argue provocation which is belied by the record and then the court disagreed and said i need to instruct the jury that also rest is no longer  precor previously had only said there were two counts there's only one left but well fifty one dollars requires a specific objection to an instruction i would point out for the record that when the court curative instruction the only objection about the language was made by the defendant where the defendant proposed additional language at no time did the plain and ever suggest an alternative instruction or suggest that there was specific problems with the language and in particular this kind of conflict issue that we're now arguing about was never raised before the trial court the argument position to fix it was never given and that is a violation of rule fifty one that's important because the court has said over and over again we are going to strictly enforce rule fifty one  get the medtronic this case that the plaintiffs cites says there may be exceptions to strict enforcement of rule fifty one but it's only under three circumstances one when throughout the trial the party argued the disputed matter with the court it is clear from the record that the court knew the parties grounds for just agreement with the instruction and a party an alternative to instruction that is not present in this record the record regarding the curative instruction consists of about two or three pages and the plaintive did not say other done is general objection and i don't think we needed here so was but even notwithstanding that the way the court worded the instruction the court very cleverly looped back to the excessive force instruction and sad ladies and gentlemen the jury go back to the excessive force instruction because you are to consider these eleven factors in determining the excessive force claim so what i would suggest to deport is that what the court was doing application or misstatement of the law and the court redirected the jury back to the propre it law as stated in the instruction the graham factors so even if that language was a officer created well if i may your honor i don't believe that the statement in the curative instruction conflicts with subsection seven a big graham factor that subsection seven according to the notes that our model instruction derives from scott b harris which was the police chase case which talks about the number of lives at risk at risk not us pedestrian police officers and the party's relative culpability which party created the dangerous situation and which party is more innocent that part of the graham factor both sides argued in the closing argument was gillespie opposite or go less he was trying to prevent mr winkler from going out into the parking lot and being exposed to danger and she was the one who created that because she moved back when opposite gillespie reached out for her hand but we believe the play at this doing here is conflating those two ideas he's complaining the provocation rule which was abolished in mendez and that relative culpability section of the excessive force by saying that the players are free to argue well when there are other factors involved in terms of what was going on in that situation but needed because of this court's ruling and billing ten and alexander which had meant as the court this proof because remember the facts in mendez was you can't use a bad constitutional constitutionally good arrest he suggested to the jury this was a bad constitutional arrest a bad constitutional claim to then use that and  condit would otherwise invalidate a reasonable use of force because he created the need for that force by not having to arrest her and i know it's somewhat convoluted but if you had never had line on page your ninety eight of the instruction which says in general a seizure of a person is under reasonable under the th amendment if a police officer uses excessive force in making a law f force that seems broader than created the need to arrest the the plaintiff and mendez and as was reported two billington what would happen in these cases is bully tactics used by law enforcement so for example if they didn't create a perimeter or if they didn't effectively use other police tactics that that that ended up in a confrontation resulting in deadly force for example it was those tactics that would be criticized because it created then ultimately the need to use force as opposed to remember what the amendment jurispruden what that st at that moment because of the rapidly evolving circumstances and we don't go back and hindsight two thousand and twenty guess what the plaintiff was doing was saying look at all these things he did he should have talked to or he should have respectfully why it was the plainest brought in under rule fifty one dollars to point these things out to the judge to clear up these confute this confusion at the time and that's what real fifty one mandates and this court has aware that reasonableness is the standard there's no question the court made a comment or an offhand comment about reasonableness but clearly the court understood that probable cause was a complete defense to this arrest and that probable cause is viewed by what a reasonable officer knew under the circumstance all of the evidence that ms winkler wants to see or to consider is what was doing m when he came to the scene when he spoke to the clerks that the universe of information told him there was a request only it was denied and that was sufficient probable cause to make the arrest and that's what the  kept trying to explain to the swindlers counsel i am not weighing the evidence i am not applying an improper deferential standard i'm simply applying the law as articulated by the supreme court numerous occasions lastly i want to just address the bats and challenge because the court in its determination applying the three step process in the end made a comment and the court is in the best position to have done this based on its review of the demeanor and the conduct of the parties and counsel that there was a lot of honest exercise of the strike here based on race neutral reasons and i believe the supreme court in her cat did not require it to be reasonably related to the issues in the case but a review of this record clearly reveal miss winkler had some emotional disturbance issues and so a person having some experience with social work was not a juror we wanted to accept on the jury and that was a reasonably  non discriminatory reason to have exercised the strike keep in mind we had ten minutes even the judge said i'm not going to hold you to whatever questions that you did or did not ask of judge the jury and in fact that it was not ruling on whether prior unreasonable police conduct could be taken into consideration under mendus sorry under the ground factors that wasn't part of its decision and it absolutely did that both sides are getting closing after this instruction about those other factors such as the traffic situation so doesn't that also diminish any prejudicial impact where and then when counsel argue precisely what you're