good morning it was the core and it was jeff price i represent mr young ok and if you can keep your voice up i'm old and i'm deaf thank you your honor like reserve eight minutes for a the in the wake of kingsley there can be no harmless error in this case because the jury instruction given and this is touched on by the kingsley case on in the seventh circuit used a subjective test and that is the militias and sadistic test in addition the jury instruction given in this case also require that the jury give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security onerous than the malicious and sadistic aspect of the eighth amendment instruction which is wholly and opposite to this kind of a case so the harmless error argument  below the case probably doesn't apply even though we previously approved the instruction i think and kingsley tells us the instructions wrong but the harmless error for me is a little bit difficult because i understand he's had two trials and both of more under the wrong standard but i've seen a lot of these cases in fact i tried one of these cases a couple of times with the hung jury the evidence in favor of your client is somewhat difficult meaning it's a he said she said you got the prison guards or the the didn't and the sheriff's deputies in the jail  testifying among themselves moderately consistently and he is in the unit in the jail reserved for disciplinary unit disciplinary problems and he has a right to his own record of fighting so the the excessive force to the extent you've got a good argument that there was excessive force is not i think in the initial encounter it's likely to be that during the fight that they had him too hard to excerpts of record at c r thirty five s e r one town there is no such evidence to support that actually what mr young was asked was whether he had been placed in discipline for an incident with other deputies and he said yes you could say that if you were a slick lawyer so the incident is not otherwise described now it is not  we know from kingsley that there was an error in the instruction it didn't require subjective knowledge of the guards that they be acting excessively issue which was which is here from summary judgment prior to the trial i think that that was addressed pretty directly and my reply brief that was filed a couple months ago but one thing i'd like to point out to the court is that just this confusion that is imported into this case by the defendants really doesn't exist if one looks at exactly what happened it is very clear that mr young was over attained and suffered a liberty de privation because he was acquitted charges that were brought stemming out of this may fifteenth two thousand and four incident on september ninth but he stayed in jail so how could he stay in jail if he had not lost a liberty interest he stayed in jail because he had to go back to van nuys in order to be to have that court recalculate his sentence for the time that he had stayed in jail that entire time and i did the calculations the statutes involved the california penal code statutes there's nothing mysterious about those statutes those are simply statutes that any court house to misleading the two to one ratio it's actually a calculation for every four days in custody results in six days of credit people kind of think about that as a two to one as i recall the just fear card even said use that could be but i think so it's it's set forth and he was clearly over detained eighty five days and this this argument that the defendants  adopted originally came from the district court we were here before this court reversed because the district court actually sue a sponte came up without argument it was based on some cases from new york state does comment that deference to the the penal logical judgment of the of the custodians of the jail facility is at issue in this sort of case i mean so not only would we have an objective reasonable in this was here before and we had this dispute as to whether the correct jury instruction arose under the eighth or the fourth and now religion is now clear that now it's that you were wrong and we were wrong yes and then reliance on the  order we went back and we tried it again and first we argued that there's this is law of the case and of course i was before kingsley came out and i even if we were to presume that this error was prejudicial  hard it's harmful unless it's more likely than not that the jury would have come to the same conclusion and looking at the facts here and there somewhat different from kingsley and kingsley there was no dispute that plaintiff's version of the events well i'm not sure that's right i mean any jury hears a lot of stuff and they don't have to believe one side altogether and disbelieve the other side and all together they can say well it just might have been true that might have been t price in his closing argument actually argued says well that these two versions of the events are really irreconcilable and there was really no act there was no particular act that the jury could say well this was unreasonable and excessive but it didn't amount to malice so well i'm not sure i'm not sure i see that given the testimony on both sides i understand what the testimony was i think it's entirely possible that a jury might find on an objective standard that this was excessive force who whereas it would not have found that it was malicious and for the purpose of inflicting pain possible now whether in lies is the level of we've enough of the facts against the defendant in order to hold their out to defend it and not prove by a preponderance of the evidence that the deputy is intentionally and maliciously for the purpose of inflicting pain did what they did that's a very different question from one of the deputies and i'm jacked of measure used excessive force i think that this court can you can look at the and make a factual determination can make a factual determination but you can look at the record and see that it is not more probable than not that a third trial is going to resolve this in the plaintiff's favor you could i don't know with respect to the malicious prosecution issue we were here and the court indicated that it needed to go back so that mr price mr young could brief the issue of whether these custody credits a rose to the level of a mandatory permissive right if there were mandatory that would give rise to a liberty interest that would create the constitutional hope for a claim of malicious prosecution so he had an opportunity it was handed to him to rebury if this issue we judicially notice the court's docket in the criminal trial  that docket simply said i'm going to reconsider this under penal code and it actually cited a wrong penal code but we're assuming that it was a good one one seven zero a three and it doesn't make any determination as to under what what what standard what whether it was penal code four zero one zero whether it was to nine hundred point five whether it was another custody credit standard whether mr young had accrued these as a result of good behavior  of some circumstance or whether he was required to be given these these custody credits so until the issue of mandatory or permissive is resolved it isn't a liberty interest that is cognizable under the fourth amendment and that is what that is what was to be termed determined at the trial level after remount and that didn't happen there was simply no evidence there there wasn't for instance the motion for sentence reconsideration might have been put into evidence expert evidence something to do something to to meet the opposing parties burden on summary judgment on what the what the court was obviously didn't know that the superior court judge on september fourteenth who ordered immediate release saying you've already served more time than you should have served he says to the one point he really means is for every three days you get one day a good time i mean that's when that's what that's the do ones the shorthand for that spirit court judge knowledgeable about state sentencing law knowledgeable about credits and so on says you know you've overstayed your time because you're in jail waiting for the outcome of this  had his reasons but those reasons aren't discovered on the face of the record and we just should have noticed the docket there isn't any other evidence i think if it comes down to it i see a question on most just prosecution from a different slightly different angle because i might be wrong but i haven't really been persuaded yet in my mind that it's clear cut whether there's a property even assuming he had a liberty interest curtailed would require evidence of malice and bring a charge but that's one element of malicious prosecution and our panel i think has the power to affirm under our present any ground supported in the record so the question i have presumed practically one is whether there's any evidence of malice in the record because if there isn't i think we could sidestep the issue that you're that you and your colleague are arguing about the days in prison and whether he was there longer than he had to my question is the guy gets in a fight and these he's swinging swing at people they're swinging at him and then he gets charged with assault and you claim counsel is there any is there can we say there's no evidence of malice and for that issue on that ground i know of no evidence of malice in the record support of our motion for summary judgment i don't know that there was any evidence at all in opposition so i to the extent that the moving  papers at least the first moving papers i believe we did say there was no malice but as to the second we were really addressing specifically this this custody credit issue but right but the jury certainly didn't find malice and i heard malicious prosecution the district judge to respond to at least at the outset so one no there's no malicious prosecution because you know no liberty interest because there's no showing you would have got out of jail any earlier  well he doesn't reach the question as to whether the author was malice because he uses other ground so my question is really a follow on to judge gould's given the posture of the case and the discovery that had taken place would there have been evidence in the record as to whether or not there was malice was it possible that there was going to be more discovery sort of where are we meant what i understand there may not be any real evidence on the record pressing legal process and pressing charges knowing that there had been no cause whatsoever just as i don't think that's the case in what what the trial what's in the  trial exhibits that i understand have been transmitted to this court all of the the reports of the deputies in there and they're all fairly specific as to what happened and there were five or six reports i believe and they all briefed  independently of the incident and all of the specifics of what happened i mean there there it's there is good reasons to have brought the the prosecution so pretty you know i think what other evidence of malice might there assumption that it's at least plausible that that is a criminal assault but i'm nervous about the state of the record or how the record might have been developed if it had not been dismissed on this ground of listen you know liberty interest the trouble but if the record is incomplete because somehow the question wasn't properly presented of the because the district judge to a sponsor just misses that malicious prosecution case pretty fast i just don't know but maybe  based exercise of a predator strike on the part of the defense counsel there were two questions asked of the jurors and the printer he exercised against mr phillips was he was the only juror who basically answered in the affirmative to two questions where do you have a family member in custody and do you have any law enforcement experience he was the only person in the venue who answered affirmatively and he had a member of his family in an l a county jail so not just a jail somewhere in the state but in literally in the institution that were that we were to try and the only other person who had a family member in l a county jail was also the subject of a peremptory challenge and that the plaintiff exercised it before defense could it isn't it in and of itself evidence of that you know it was a a racially motivated challenge as against mr philip so it's speculative to say that defendant then we should never talk about pat's and i agree or get another practical question along those same lines if we were to reverse on the jury instruction and to send it back for further proceedings probably yet a third trial on the question of excessive force and if we were just because of the miscalculation of the good time credits there was a drop provision of liberty interest and if it were to go to trial i'm not sure it would because the evidence may then come in less than there was no malice in summary judgment if it were to go to trial would those two cases be tried together a malicious prosecution and excessive force record and to the extent that playing fields that we've leaned on it too hard and this man was in disciplinary lock up and there was evidence that very serious issues get addressed and disciplinary lock up particularly when people are there for twenty days which is why which is how long he was there so i i stand by the statement well he was in there for an incident that we know a thing about the cole incident i don't actually know what might or not it might not have been  understanding and that it is an incident between he and the deputies that was serious enough to merit twenty days in discipline whatever that might have been ok thank you r thirty five a c r one ten so she can stand on it but it's not true she also made several and i'm still having trouble which statement is false that mr young was disciplined for fighting oh ok but i think i did i think she just called qualified or at least clarified she say he was disciplined for an incident and he was there for twenty days and she knows not no more than that actually some kind of some form of incarceration there was another that does in my my argument she missed she clearly misstated it but then she want on to say that the other person who had somebody was incarcerated was challenged by your client it was a misstatement but it was obvious that she understood very well that there was another such person well the more glaring misstatement that she made is that mr phillips had a relative in l a county jail because that is absolutely not true that is false my understanding is that he was in prison that is correct and the person who had a relative who had been in l a county joe was the person whom we had to strike but regardless of when we struck that person that was that was briefed but the malice issue brought up by judge gould  cause this issue was never briefed in this case ever by anyone it was conceded by the defendants because the bringing up law oppressive that would apply here right you have precedent that says it's only probable cause you may be right we don't need i know i've had i know i've had many motions prosecution cases involving loss of state or our circuit where the elements included both that there was no probable cause and also that there was an element of malice and bring in the churchs your honor that is not the standard in the ninth circuit the wadi case and numerous other cases i've addressed this it is not a hot issue prosecution cause of action to be brought under one hundred eighty three forty two u s c nine hundred eighty three and so there are aspects of california law that are imported into the cause of action ok so defense where a party asserts that the charges were maintained by the prosecution based upon the independent judgment of the prosecutor that's what their motion was made on and judge lewis actually i can just see it well we can find it here are two forty four roman numeral to an intense six yard to forty four so that issue was disposed of and i was the only issue they brought what i think i think it doesn't seem to me it's very important to try to tone it down what was decided and what was raised because under the doctrine that affirm money ground stated and supported in the record it doesn't have to have been raised by any question of one of the one of the understood facts and what's the standard of law so if the standard of flora quires malice and you've said it does not but if it did require and if the record showed no evidence of it i think that that would be a permissible option for us but if we were inclined to consider that i'm sure you'll get a chance to write a long grief thank you i have no to the assault on my client and one of them testified the other we lost for various reasons but he's still out there might not or would you might find him again we had him but he just he wasn't there for lack of a bottle explanation but the other thing i would like to say with respect to the most prosecution is that the characterization that mr young somehow sought a modification of  sentence in the superior court is not true that is not what occurred he simply because he had been over detained and he couldn't get released without an order from the secure court so that's all that occurred and there's no such thing as mandatory or permissive  credit for time served credit for time served is the due process right it's not permissive it's it's always mandatory thank you thank you thank you very much thank both sides for their argument young versus wolf submitted for decision we'll take a recess before we hear