represent the the plaintiff and the appellant in this case and the cross and the primary issue for me in this appeal is whether or not qualified immunity should ever be submitted to a jury and we submit that qualified immunity is always a question of law and it has to be that way because if you allow a jury to decide qualified immunity the jury is going to be making rules that other courts mr par i follow you or your reasoning let me ask you this i have two questions what portion of instruction twenty and twenty one tells the jury that they can decide what is quote clearly established law because the language about which every reasonable officer have behaved that way is a qualified immunity instruction and it's just a variation whether or not that there were there is no there is no direct instruction to the jury it's up to you to decide when to clearly establish law is correct that's correct secondly did you propose an instruction to be given by the judge as to what the clearly established law was no because i think it's improper because you made the argument as i understood below as you can't you shouldn't give that instruction or a variation on clearly established law because that's for the court not the jury right yes ok because what you'll do is your list stablish precedent you let you will you allow a jury to establish precedent and so when future litigants come in does say well this jury said that this was clearly established so this jury said that based on these facts the reason officer would have known that he was violating the law that's a problem a problem b is the standard of review if a jury is deciding  issue a fact and we have to give deference to the jury's the terminations of facts then when the court would review what the jury did with respect to qualified immunity it would have to give the jury that deference and that would create all kinds of problems qualified immunity has to be a question of law so let's just imagine i guess the issue here is that because let's speak first to fry miss fry so they're basically the verdict is in favor of miss fry correct right that is the general verdict is a general break so we don't know  which you know which of these they didn't find in effect of the so called qualified immunity instruction is that fair to say it's fair to say we don't know whether i mean if they didn't find both like they did as to the other officer but they might have found one but not the others that right that's my argument ok so now the case goes back let's take goes back to trial do you agree that there should be an instruction that would permit the jury to determine whether there was excessive force yes ok and that's a factual issue yes would would there be in your view if this went back would there be specific in iraq a tori's with respect i think that if the defendant argues that we will be deprived of our qualified immunity defense the jury would have to answer a question that allows us to determine that they found that the force was the the reasonable on reason and then the issue of whether or not there was qualified immunity would be determined by the court and the court would determine that a rule fifty  motion essentially for a directed verdict before it went to the jury i mean or and after it went to the jury would anyone fifty am be yes all right i think it has to be that way i  help back just a little because i want everybody to have the chance here my worry about what you argue is that it seems to me that all of my case law suggestion or wrong bac kelly they gave the same kind of instruction to the jury ortega they gave the same kind of instruction to the jury i can explain all of that you can explain it but that's exactly what my court said to do in sloman versus tab lock they gave the same instruction to the jury every time my court comes down i've got two different flavors on my court one of the flavors on my court is with you that we should have first of all a jury verdict as a relates to whether there was a constitutional violation and then the court determines on its own whether in fact there the law which would suggest the policeman should have known about that and therefore he doesn't get qualified immunity based on what ass that's one set of cases the other set of cases just the opposite it says yes they can make a jury verdict on the question one on question two after you determine whether there might or might not be precedent which would be something that the officer should know about then the jury gets to say and i quote from thorston whether a reasonable officer placed in circumstances faced by kelly could reasonably believe that is conduct was legal is a fact the sipek question and they loud the jury then to get there now my problem is  district judge before i got these two strains and now you're suggesting that i should throw out what you've done here because i'm following one strain but the other strain i'm not following yeah yeah because all those cases were wrongly decided because the ninth circuit and several other circuits prior to saucier had a habit of saying look if we if we allow jurors to decide a reasonable standard and which we did then the two standards morphed into one in other words if if it was reasonable for the officer to to use the force that he use then obviously he's being reasonable and therefore the two standards mor recall the name of the case right now where there is a second case cited by defense counsel they rely on ortega for the proposition that you can do this when the ninth circuit was doing that sauciest stop them they said you cannot do that you cannot combine both issues pearson actually change then how we should look at this because last year basically told the ninth circuit to stop doing that to stop combining the two different what the ninth circuit was doing was morphing both issues together just like the judge did in this the second prong of the qualified immunity issue was still a question of law in fact he commented that it's a question of law and he commented that the majority was relying on the fact that it was a question of law it has to be a question of law because we'll get inconsistent verdicts we'll get into consistent stand as a review sometimes the standard review will be whether or not the jury had enough facts to do that and even more important as a litigant you're put on your case you put on your evidence there's no way that you can anticipate a judge is going to give an instruction like that because how is a jury going to term and what every officer would have done and let the jury knows what the law has been how the case law has developed it's an impossible sell and let me ask you about now have the verdict my question really then is even with that verdict the district court has the opportunity to determine whether there should be qualified immunity and given that you know we've all watched the movies that were submitted here given the short period this sort of to mulch to a situation the fact that she hadn't yet been handcuffed and was seemingly getting up do you do you have a case that would basically say that is excessive force under circumstances like that i don't have a case directly on point but remember rhesus defense was that one it was an accident and two when it happened she was prone he changed his testimony at trial and then said that she was standing up and if you look at the entire video you'll see that offers a researcher so at the time that the district court would look at it which is post verdict now he's the district court is coming back and say ok now i have to decide qualified immunity we now have the video we have the testimony we have all that in correct correct and we also have a jury verdict that had to conclude that officer reese lied that he that his testimony that it was an accident he did know he did it was not true let's but look at this point i'm still going to take the facts in favor of your client which is it isn't any accident he purposely in this circumstance use the spray  take my question then is why was that in violation of clearly established law and which clearly established was it in violation if you take the facts several years later because it's stuck in his head so much and that when she was completely being controlled by a group of other officers he came from a distance away came over to her for no reason sprayed her in the face with the pepper spray took her to the ground handcuffed her and then lied about what happened in his place report that's if you take the facts in a light most favorable to us and i'm saying bell just a minute i'm not sure that's exactly what the jury found because judge mckeown has as frankly put my question that i was about to put to you it seemed to me that what the jury found that your client had been taken to the ground who was standing upright and moving away from the officers that should your client was not in handcuffs that your hand your client was struggling with the officers and then he pepper sprays or you know but you're not taking the facts in a light most favorable to well i'm taking the facts the jury found because the jury found when they were dealing with the other defendant that there was probable cause that watch that defendant did was absolutely reasonable and that that defended it so i've got to take all those facts into consideration as well no but you don't know what that is for a jury found with respect to officer frye because all you know what they found because you know what their verdict was but they were and you know what the verdict suggests they were given a second opportunity because you have one verdict you have one portion of the instruction it says was the force that was used reasonable you have one porsena says was there probable cause to arrest and then you have even if you find that the force was unreasonable even if you find there was not probable c arrest then you have to find with every officer have also concluded that so we don't know which the jury found well my worry about that is if i try to take those facts as found by the jury i don't have a case which case exactly on point because well then if there isn't quite says let the officer go no i don't i don't believe that's correct did use read white yes if not his white differ from that if you have a case that's directly on point obviously that case should be cited but with the way the courts decide qualified immunity being allowed to decide the second prong first as opposed to the first prong you may never get cases exactly on point the issue is the state of the law did it put a reasonable officer on notice that what he was doing was wrong and if you deliberately pepper spray somebody because you had a car and counter with them in the early part of the day where you're upset and you has no need for you to interact at all there are plenty of offices there to control this person you come from another location and you spray here and may just argue the case i'll just argue the case thank you your honor judge bay to go directly to your question if you look at the instruction that judge who never gave your instructions twenty and twenty one and they are pattern precisely out of the language in or tega precisely there is nothing in there that asks the jury to make any determination about the state of the law there is an expression used that they are to determine whether or not the officer believed at the time that she acted whether her actions were in accordance with the law and it was made clear in that instruction that this is an objective it is not subjective what is critical about those instructions is they do not ask for the jury to determine what has been clearly established as law and what you see throughout counsel's briefing is a statement that the judge made a mistake he urged in submitting the legal question of whether the law was clearly established to the jury that's his claim  framing his argument and i presume that's the basis for your question that simply didn't happen and of course when you view instructions you have to view the entire set of the instructions and that's why we submit that the standard of review is whether something missing in the instruction and it may be that you weren't supposed to ask the jury that but it isn't basically what you're saying is with well i think i was permitted to arrest her and i reasonably believed i was therefore i am off the hook well that's not the law that is not the law but the instruction makes it clear that it's an objective test but i would point out just shut down based on what based on instructions fifteen through nineteen if you look at those instructions and clearly what if you look at the language the judge can are put in his order denying the fifty b motion he goes on at some length to explain why he did what he did and what he did was to give the jury a body of instructions that outlined in great detail the law relating to probable cause the look relating to excessive force when it was appropriate laid out the graham factors in one of the instructions so from his perspective he is giving a detailed set of constitutional violation of unreasonable force is that a consideration for me to decide whether kelly could reasonably have believed that his conduct was legal  research yes it is me i was quoting from the doors to me kelly yes go ahead i don't believe the state of mind is a factor in determining whether or not there's a constitutional violation way if that if there's no if there's no basis for this jury instruction twenty in the constitutional violation then what is the basis for it at all jury instruction number twenty  of the officer so if the reasonable belief of the officer has nothing to do with the constitutional violation what is the reason to give the instruction the instruction i think has to be read as a whole the following sentence in that instruction makes it clear that reasonable the reasonable ness of the belief is an objective fact is an objective it doesn't matter whether it's objective or subjective if it has no basis in determining what the constitutional violation is and why give the instruction if in fact the judge is to make the legal determination of whether the cop was i'm speaking for judge kuhn or here why did he give this instruction the best i can divine is what he said in his fifty be order denying summary judgement or denying the motion post trial and from his perspective first of all he's using language that was pulled from a case as the court has noted a bit of a predicament for district court judges there given a case that's been approved and has particular language that language was submitted as a proposed instruction and it was accepted by the court as a proper statement of the law and he provided that in the context of a series of other instructions i think an important component of this too and something that wasn't argued is the issue that we raised that this is a harmless error there isn't any claim in this case that there isn't substantial evidence in the record to support the findings in favor of sonia frye that is not an assignment of air and it has not been argued this is quite a narrow appeal and of course the court is very familiar with the standard for harmless error and if you can view the instructions as a whole and they fairly allow the parties to present their case and there is substantial evidence to support the verdict then the instruction is harmless and i submit that that would meet that that you could apply that here and come out at that conclusion for i but what about to reef well let me talk specifically about reese because that is the issue that we've raised on cross appeal and in the court i believe has hit the nail on the head saw talk about prong two i believe this court can independently undertake an analysis of prong one but we have certain facts now that have been decided we know the jury determined that the application of the pepper burst which is i'll call it a microburst because it is literally a quarter of a second at longest was intentional inadvertent we know as judge mchugh and you pointed out this was a tumultuous situation this was a declared state of emergency this was a situation where officers were attempting to secure people quickly under arrest and not have a prolong struggle in the court has viewed the video which shows that the very bike line that we're talking about that set the stage for the contact between the plaintiff an officer fry was a pipeline established to protect officers that were trying to secure an individual that was actively resisting and that was creating the very to mold that resulted in this situation so what we have is an officer that under the jury's finding deployed a microburst of pepper spray at a point in time when ms frye we know there was probable cause to arrest her we know she's lawfully being secured under arrest and we know that at the time that birth was applied she had gotten to her feet and was not under control so she is actively resisting if you go through the other graham factors she's not a significant threat to the police in isolation because she's not committing a serious offense but there is a threat to the public by virtue of their being a prolong struggle to secure her under arrest and the court does under white have to look for a case on point there is no case dead on to use your honour's expression but let's look at i don't read why is it dead on requirement i don't think you do know i do not i'm just echoing the judge smith and when that sound bite i'm echoing that sound bite but but it is important to look at the state of the law and and the young case which obviously you're very familiar with having been part of that panel in young versus l a county the facts there tell officers after two thousand and eleven august of two thousand and eleven that if you intentionally pepper spray someone there are a multiset can burst first one person sitting on the ground stands up and starts walking away if you do that when he has absolutely no threat that is improper and then it's a violation of the fourth amendment that's clear in any officer that does that after then needs to be on notice that that is not going to fall within qualified immunity there are a few other cases that we can look to out there jackson vs city of bremerton was a decision by judge tolman in two thousand and one in that case the individual was pepper sprayed when she went and interfered with police attempting to secure her son in arrest and the pepper spray there was a burst that was applied and hit her in the in the hair it was a time when she was  struggling it made that point and that was the message to the officers at that time that someone who is not secured that is in the process of being arrested and is continuing to struggle there is a basis for using pepper spray another case that is cited that is a case you were involved in two thousand and seven to harvest and versus cunningham an unpublished decision written by judge tolman excuse me actually judge bay you were involved in that case that was a person that was pepper sprayed when undisputedly according to the officer all that person was doing was turning their back away from the officer at a point in time when they were in handcuffs the point of that decision and the reason i mention it is because there was a finding that and it was not clearly established as of then two thousand and seven in the ninth circuit pepper spray application under those circumstances was excessive and so we really have no case beyond young that would speak to this unique set of facts and it's not so unique and you don't need a case on all fours but this is in a declared state agency a brief burst of pepper spray to a person that's actively resist and is lawful and lawfully under arrest and i submit to you that it was not so clearly established beyond debate beyond dispute as the cases use that phrase to instruct a police officer that a microburst to pepper spray in that circumstance was a violation of the fourth amendment so what do you make that if you're stuck with this jury instruction which is a pr but with respect to reads the jury rejected the fact that he had a reasonable belief that he could use this excessive force and we know that we know that at least as to release they had to find all the things in the jury instruction and hands mystery's officer reason right so you have in that if you have a factual finding that there was no reason to believe how how does that intersect with the stablished law and if it doesn't then wasn't it wrong as judge you can explain it explain it and it's described in our brief but i don't think it's at all inconsistent this court and certainly white which came down even after this case was decided makes it clear that it is a legal question for this court to determine on prong two whether or not there is a case efficiently close on point to instruct an officer about the whether or not they are taking action which every officer not any officer which every officer would view as being unconstitutional and so i don't think this court in gives up that despite an instruction under or tego framed in terms of the pretty clear instruction in terms of when of when force can be used what the factors are in using force i don't think that supplants this court's role and it could possibly be harmless error as to mr rees but repetitive i'm left with having to look at the instruction as a whole and the language in that instruction that makes it clear that the test for reasonable ness in the rebus of the believe is an objective test that's language that we saying over what you said i'm asking it doesn't do any work in figuring out the constitutional violation i read the construction as a whole but if the instruction of the whole has a problem and i got a look at the parts constitution no analysis of the clearly established i think it fits into the constitutional analysis you're not looking at what's in the state of mind of the officer but what you are doing and what that instruction set allowed this jury to do was to look at the conduct of officer frye as described in the testimony and measure that against the factors set forth in the instruction in instruction seventeen for example that lays out the graham factors and of course we know an analysis of the grand factors is part of a prong one analysis to terminating all too late whether on this balance whether or not the imposition on the rights of the individual are outweighed by the government's interest in securing this person immediately into custody so i do believe that is part of a prong one analysis and does speak to that constitutional element of the claim and the reason i ask your answer your question as i did  i i don't think that you get into the person's state of mind when you're assessing constitutionality or there's one point that you haven't really addressed which i think your colleague is pushing and that is the appellant presented evidence to the jury that reese was retaliated against morales when he prepares braider and i think it's clearly established the officer can use pepper spray in retaliation so how do i determine based on what the jury found that he was not retaliating or that reese was not retaliat you look at what claim was asserted against officer reese there was a single claim it was excessive force in violation of the fourth amendment there was no first amendment claim there was a claim that he was taking some action against her because of free speech rights and i know i'm out of time  i'll just wrap up with this point i think this focus on a possible first amendment issue is also a place where respectfully i believe judge cohen our got it wrong in his assessment of attorney fees because he ends up finding as a significant outcome of this case something relating to first amendment and i think if you look at the the three part test under this one circuits opinion of course you won't reach fees if you find in favor of sarees but respectfully i believe you got it wrong the ultimate test is to measure the success of the underlying case against what was sought and in this case there was no success against frye and there was an award of zero with respect to officer ri so i don't believe the evidence exists to allow officer it was only the excessive force that is correct that's the only claim that went to the jury but i don't understand your need a first amendment claim to say that he was trying to read the reason he did it was he was a tele ating against me that's all you know i don't think we really need a first amendment claim to say that that's like saying that you need fourteenth amendment claim when you say the reason he shot me or the reason he retaliated was because i was african american i agree with that your honor and that was not my that was not my  entire argument but the issue that was submitted was a claim of excessive force based upon and if you look very specifically if you look at the closing statement of counsel which happens to be in this record and i'll just make a mention of it's it's it's in i think it's volume four and it said page one forty four of the record there is testimony very specifically that the only claim against research relates to his use of the pepper spray and the statement is even made that at the time the pepper spray was being applied officer reese would have no way of knowing why officer fry was conducting the arrest in the first place so it wasn't pitched that he was somehow retaliating against  based on an earlier contact i had knowledge that there is evidence in the record about and he testified about having an earlier contact with her and a statement that she made in that regard thank you thank you thank you mr parker would you please put two minutes back on sweet took a little bit of your time and questionings want to give you some rebuttal time just for that last point and another portion of the closing argument i talk about the retaliation i talk about how could it be possible for him to remember two years later a conversation between him and a person he had never met before unless he was retaliated and i'm sure that's the reason that the jury ruled the way it did and with respect to whether or not that violates the first amendment that's not the point the point is can you get qualified immunity if you use force on purpose or use force in retaliation and i suggest that you cannot and another thing counsel has repeatedly stated is that she was resisting arrest she was under arrest she was this and she was that it's possible that the jury found that but without specific questions we don't know that the jury found that because morale is his testimony was that as she walked by all of a sudden she was yanked by her collar and yanked over the fence line her glasses flew off she was surrounded she doesn't really know how she got to her feet and if and there was at least four or five other officers present and as you watch the video none of the officers initially that pulled her over and tried to subdue her was officer reese officer responds and later from a completely different area of the of the protests and he walks up to her and he sprays or in the face he grabs the back of her leg and for some reason he decides he's going to be the one to take her down in handcuffs or none of that was necessary and if the jury had been given instructions that said if you find a violation of the fourth amendment say yes and then if you find the second one say yes or no we wouldn't be here but the jury was never given a chance to split so we don't know what they actually found assume that possibly they found that fried did not use excessive force we can assume they possibly found that frye did not arrest without probable cause but we don't know that because the way the jury instructions were it gives them a second choice it gives the jury said look you can find a violation of the law you can find that excessive force was used you can find there was no probable cause to arrest i think we have your point and mine think you are right but like to thank both of you for the argument this morning it's a very