thank you judge mchugh and may it please the court i'd like to reserve two minutes of my time for a bottle if i may in the trial below the district court erred when it required my client sean hoard to prove that the defendant derived pleasure from extreme cruelty in order to prove the excessive use of force under the eighth amendment that standard was wrong and this court should reverse and remain for a new trial i have two points i'd like to addres the first is that this court has the discretion to depart from plain error review and to apply did novo review and should exercise that discretion and the second point i'd like to address is that the correct standard under the eighth amendment is the rights but i believe that this court has the discretion and should apply to novo review under well established ninth circuit precedent this court has the authority in the discretion to depart from plain error review where the question on appeal is a pure question of  law and where this court's consideration of that boston would not prejudice the opposing party and i would submit that both of those factors are met in this case your honor so let me just clarify one thing through in the district court when all this came up the parties agreed to stickley and the parties conferred and said use a dictionary definition it was then judge brown who supplied the derive pleasure from extreme cruelty standard neither party objected so we certainly make no bones about the fact and we're not appears saying to the contrary that this was in an context so it would be unprecedented and i would also know your honor that although the departure from plain error a few cases have arisen in the sentencing context none of those cases say or suggest that the analysis is limited to or specific to that context rather here we are said that it's more a little bit stricter in the civil context yes your honor i certainly think this court i don't think your case is explicitly say that but i think you could certainly adopt that rule it's we don't we said that in c b versus city of  sin or that that that that was the case plus applying the plane air standard it wasn't a case applying the departure from plane error that's correct but we said it but we said there that we play on some of the more stricter standard agree one hundred and instruction that's absolutely right your honor and on the merits the very first thing i point this case to is this court's robinson meacham decision i think in that case you have very significant and very clear statements of the law in five separate passages this court described the standard as the intent to harm and the intent to punish and let me read you just two prefer passages that i think are are so on point the first one is quote both the underlying purposes of the eighth amendment and supreme court precedent suggests that intent to punish is enough to establish a cause of action and the second quote we advanced the purpose of the eighth amendment by holding prison officials liable so long as they have a specific intent to harm your honour's i completely agree with robin's view meachem the standard is a specific to an intent to harm a specific intent to punish it is not the intent to derive pleasure from extreme cruelty and i would also point this court to farmer v brennan in which the supreme court described the the whitley in hudson standard as a standard of knowing or purposeful conduct i think those make it clear and obvious that the standard can is not and cannot be the driving pleasure from extreme cruelty and your honour's if i may i'd like to go back and just if i could   and in that case you know you described this substantial rights analysis as being akin to a harmless error analysis and so the standard is was the evidence so strong and so compelling that absent the error the result would have been the same and the answer on this record is no that this was a very close case your daughter that you have an extra extraordinary indicator the jury asked pacifically about the meaning of the words it is strictly which shows that they were struggling with this issue of intent that there was only three hours of direct testimony yet the jury deliberated for eight hours that several jurors made comments on the record they were torn about the result there is every reason to believe that on this record if you take away the derive pleasure from extreme cruelty mr ford would have the phrase clear no obvious the rule was before this case was you know give rise to the possibility that instead of playing area you should go the other way and maybe this was a waiver i mean don't think waiver applies and i would again i would point this case to the african case again in that case the district court affirmatively suggested to the parties counsel you should give this instruction that the counsel said no i don't want this court still reviewed that question no waiver still review that question and exercise its discretion to reverse on appeal and this court cases have made very clear that in the context of a jury instruction the standard for waiver would be the voluntary and knowing the relinquishment of a known right not not met here why shouldn't we reverse underplaying review because it can't be obvious or it can't be clearly obvious heir to provide generally accepted dictionary definition to a term that both parties agree to that is contained within this circuits model jury instruction and which at least one federal circuit court has expressly approved that it can't be obvious to rob us at least one certainly no sort of court would have agreed with that argument if it were obvious then the ninth circuit wouldn't i know stand that  i think that even though it's in the ninth circuit jury instructions and you're right that doesn't always mean it's right but we'll just take for a given that that's that instruction itself is ok in and it would have been ok even if the judge said just read the instruction right we probably wouldn't have much of an appeal but once the judge goes further and defines it there are various meanings of statistics right there are i think the most commonly understood ones are the ones what they're trying to get at is that in the eighth amendment context is a higher burden of proof so that the plaintiff has to meet yes but they don't have to show that the officer you know game again pleasure out of beating somebody but they have to show more than just the intent to harm or punish because as we've noted in our brief there are situations in which an intent to harm is permissible it's just a question of whether that punishment is cruel and unusual it's the first there's an objective standard then the part but they're like cruel and barbarous so it's like intent to harm you know in this cruel and unusual or cruel and barbarous way so i think this intent i mean this getting pleasure another way to go to get at this is to and i apologize for not including the model civil instruction my in my brief i went to it but i'll note that this material difference here between the model instruction and instruction that the parties agree to the model instruction contains the part about this area can't be plain because you know part of part part of the obviousness is you know it can be plainer if the parties kind of got there for some reason that that was strategic or or otherwise not really reflected in the pleasure out of it that would shape how the evidence is put in but here we are now the evidence is all put in and now we pop up with almost like a whole new element of the  upon instruction at the outset didn't contain this proviso that i just read to you so i think the state could have been the position of recognizing that that although this proviso isn't there sadistically has to do somewhere has to add something meaningful beyond malicious beyond just the intent to harm pleasure of it was there anything in the transcript that was developed or you know not that i'm aware of i think was all sort of inferential i mean you know we have plaintiff's own testimony of how he perceive the events to have occurred so that my second my second answer your honor did i question is and i think this affects you know a jury trial is a significant event and i think that if we allow litigants to in a civil case to complain about a jury instruction that they agreed to on appeal you know that's going to apply across the board also all cases and i think it's probably an army of civil litigators out there who are interested in prolonging litigation for its own sake i'm not saying in this case but you know purely out of gamesmanship what will latch on to this sort of this sort of error and say you know we can we can sort of devise a new argument on appeal and the result of that is is that if if if it becomes apparent that the jury a jury trial is not actually so significant an event i seems difficult to ask jurors citizens to come devote their time energy resources attention to ten showing fair outcomes i think that you know there should be a very heightened standard in a civil case where there's been a jury trial where a party has asked the park has asked a jury to come here and say this is what we would like you to courthouse and both parties said yes i'm if a jury trial means anything it means that when you have an opportunity like that you need to object and you cannot complain on appeal and this court discretion to review for plain error is and isn't well used in quick point if you'll allow me which we just simply that you know plaintiff was appointed counsel from one of the best firms in portland if counsel didn't object to this i think that's the way civil litigation works is that there's a there's a requirement to preserve our first make a point about the burden of a new trial there is a special circumstance here that completely mitigates any prejudice this in this case the all of the testimony all of the directing cross examinations were pre recorded and played via video for the jury that's in page two twenty eight of the supplemental excerpts of record so to order a new trial here you would not need to order a full blown reads the emanation and cross examinations of all the witnesses you could simply play the recording that already exists with respect to the eighth circuit if you look closely at each of those each of those eight circuit cases that the government cites the eighth circuit applies a disjunctive standard of either derive pleasure or excessive cruelty this this court required both excessive  pleasure so this is an unprecedented jury instruction that as far as we can find has never been given in any court and in any circuit the third point is government counsel reference this good faith proviso that was omitted from the initial jury instructions that wasn't given in that sentence but it was given in paragraphs above and below it that's at one thirty three and one thirty four of the excerpts of record we would respectfully request that this course this court reversed and remain for a new trial thank you your honor sir thank you thank you both for your argument this morning word versus hartmann is submitted we also thank you mr homburg for participating in our courts pro bono program i know it's always easier for the attorney general as well to have counsel and it's very helpful to the court so again i think both counsel for your argument this morning