good morning your honour's mate please the court my name is james tall berg and i represent the defendant appellants john sleeze act and kenneth egan both of whom are members of the meriden connecticut police department in this case you honour's the district court should be reversed for the following reasons first officer sleeze act and egan are entitled to qualified immunity because they did not violate clearly established law may i ask you what you think was it stablished at the trial after the judge granted the motion against the way to be evidence that was not already there before but a trial were any fact established at the trial that were not thrown out as against two way to  we couldn't ourselves review that weren't already there before judge calibration a i believe what this court has to accept is diversion of facts that were found by the jury  i'm sorry we do not need to accept that because the decision of the judge to grant a new trial as against the weight of the evidence as for team juror is not in  itself reviewable that is not a review will decision the question of it is reviewable is qualified immunity and my question is is very anything that came out in the trial because i haven't seen it frankly but like to hear from you that it was not reversed but of a judge that wasn't available before because we have it's a summary order but a summary order by a panel of dennis jacobs and  because there was no violation of clearly established law and what i would suggest the court the district court where the district court erred you're not hearing the question my question is was there anything different about a review of qualified immunity now or one we would have had when you could have asked for it before trial you are this court can look when assessing the qualified immunity at clear errors of law by the district court iranian's findings of material fact that point you to just want the severity of the crime under the graham analysis the three factors the district court noted  page twenty three of the decision at that is that the district court did not make a decision as a matter of law because the plaintiffs who isn't here and whose lawyer leaves some problems didn't ask for a judgment as a matter of law all the district court did was to give a new trial as for team for juror and that is not in itself  it but if there are no facts different from what it was before then the you know everybody right in everything says you had to do it this i hear your point your honor and i understand the limitations of an interlocutory appeal on qualified immunity but what the court did was graft new and incorrect facts if i could just recite one at page twenty three of the decision the court noted that mr bryant was charged with simple possession of narcotics not distribution or not possession and that's under the gram analysis the court was looking at the severity of the crime if you compare that with detective viscountess testimony at three fifty five of the joint appendix he testified the  plaintiff was charged with possession of narcotics possession with intent to sell possession with intent to sell in a school district and resisting arrest there was a fifth charge that wasn't before the jury but it's in the record of the c m e c f record july tenth tw dispute as to what he had been charged with is not a matter of public record well the dispute is this the district court got it wrong when minimizing the severity of the crime the court made a clear error b indicating it was just simple possession it wasn't where the records in the district court record they they entered as to what he was actually charged yes you are it is it is at document number twenty one dash one it was exhibit a to a motion we filed and thirteen the district court had access to that but made a plain error second the threat posed by the plaintiff the district court erred there in that the court indicated there were four officers in the cell archer services tech he's not even an officer he came into the cell because of the threat posed by mr bryant message to these these mistakes in the district court's opinion that you're pointing us to  let's assume for the moment they're out there all the stakes do they go to the reasons he gave for finding after determining a motion for a new trial should be granted or do they go to the qualified immunity announce they they go to are not entitled to qualified immunity i'm having difficulty seeing why that doesn't leave us in the posture of there is still disputed issues of fact to be resolved and he's granted a motion for a new trial so the qualified immunity analysis is not really right for determination until that trial has taken place i would respectfully disagree your honor for one main reason the only evidence the district court relied on in substituting the district court's judgment for that of the jury which ought to have been given deference is the video it is in the special appendix it's a special panix three i implore you to please review the video it is there's no sound it's grainy you can't even  facial features you can't identify people again if the court ruled fifty nine motion is not making a judgment of law but is as classically has been described of for the juror then that thirteen jurors findings of fact are not for us reviewable reversible they are why a court says and it's very unusual this is a very unusual case because as far as i can tell it's only cases that i've seen before a court where we're dealing with a rule fifty nine if this is been a judgment is a matter of law then all sorts of things would happen but that isn't  precisely are are i agree we couldn't find another decision in the district of connecticut the only due reported decision where something similar would happen is the rough in case where a judge set a judge chin set aside a verdict but there the judge there were object of findings there was medical testimony about fractured teeth but in any case that case it i mean that case didn't go on so that it doesn't help one way or the facts o it was very much judge very much what judge underhill did here and as you say you know that doesn't that don't really count against you so and that's we only case of it we have and  some people might think it cuts against you i don't think you've got to give it because it's so extraordinary your honor that's why this case is so important if i could just highlight one other error clear error by the court and it goes to the qualified immunity analysis the district court improperly applied twenty twenty hindsight at the to page twenty nine special appendix twenty nine of the decision the court said it would have been reasonable for to put bryant in a dry cell and wait and till he submitted to a search or release of the drugs that is diametrically opposed to the graham instruction the court gave to the jury that you don't look at this with twenty twenty hindsight there was no evidence in the record about a dry cell we don't even know what that is and so this is clearly a by the district court i see that my time is up here i fell we don't know there was you can scan the thousand pages of the record there was no evidence about that but it is in an era where the court in its analysis of qualified immunity we're talking about the i who is handcuffed surrounded by multiple officers in a holding cell and he does not pose a threat either a threat to the office or a threat of a scape what is wrong with that is a statement of well it the law was not clearly established and in this case is this case is closer to the facts that your honor was involved with the crowley fitzpatrick case in which there was a firm of or a reversal of a summary judgment but in will case which relates to your question or are there was no clearly established argument in what distinguishes this case from crowd will and what points out the flaw in the district court's reasoning is that there was no clearly establish is which and that's a very interesting and difficult question but i'm still before and he let me read you what our court said in v x a case once the district court rejected the jury's verdict the verdict form no longer reviews resolve disputed factual issues regarding the precise force used the issue of qualified immunity in most respects it's undistinguishable from the fact scenario presented the original situation how is that any different from this you may well get qualified immunity you know the question is whether you are protected from a new trial given that you didn't object to a trial before the same set of facts it isn't whether you will get  well if i didn't you reveal to me well our objection to the new trial is this appeal seeking the invocation of qualified immunity based on these the facts and i see my time run past my time and just wrap up your hours these officers here's another wrap up if you tell me exactly what it was a district court said that we should read as a decision that you your clients are not entitle to qualified immunity as a matter of law as a matter of law that's it unless he decided that as a matter of law they're not entitled to qualified immunity you're not entitled to appeal well he did your are in in the in the decision there is an analysis starting at use to inform his decision is very to inform his decision on but rule fifty nine motion because he says correctly if i found that as a matter of law you got qualified immunity now then it would be silly for me to order a new trial and all he is saying is i don't find that you get it as a matter of law he isn't saying of read the whole that anywhere you don't you are denied it as a matter of law and that's all the difference i respectfully disagree or are he says a page thirty you were not entitled to qualified immunity he says are a page thirty two and thirty three so if i may just close there is tension also with the seventh amendment these officers were guaranteed a right of trial by jury under the seventeenth the seventh amendment rather there were thirteen witnesses five days of evidence the jury weighed the evidence and made these credibility determinations and so for all of these reasons your honor the verdict form signed by the jury for at appendix five seventy eight ought to be afforded deference and we respectfully request that the district court be reversed or at the very least that the officers be afforded qualified immunity thank you for your thank you