good morning your honour's donald cook for the appellant mr smith hecht versus humphrey holes that were successful my section nine hundred eighty three lawsuit would necessarily imply a criminal conviction was invalid a conviction that has not been overturned hundred eighty three point it was in jail he was convicted of manslaughter he sues the prosecutor new investigation claiming that they suppressed evidence that sort of thing that had they not destroyed the evidence he wouldn't think convicted who's been convicted of resisting a lawful arrest cannot thereafter sue under section one hundred three claiming he was seized in violation of the fourth amendment because after all a fourth amendment violation is tweak the fast a little instead of the officers seeking a dog mr smith knocking him down may seen him suppose instead they simply stepped up on the porch grabbed his arms you know handcuffed him and that sort of thing undisputed as to mr smith's activities before the after the fact of the porch and most actively show one forty violation so the record here from the trial from the proceedings in federal court established quite clearly that the one forty violation occurs before the officers haven't got to the foot let me ask you that i have no trouble with your general proposition that candy bar and nine hundred eighty three claims for conduct after the offensive conviction if the police in order to establish that it was after i'm wondering what we look at i'm thinking we look at the charges that he pleaded guilty to and the way the crime is charged would include conduct during the scuffle in order to obtain a conviction from the jury that it seems to me that you don't have your predicate of showing that the conduct is through the sense of conviction  problem with that set of facts is that the record here shows a one point violation before the officers approached it does but as long as the way it's charged at the police  or the prosecutor could approve of violation any time up to and including the arrest the fact that they could have won that case without all that doesn't strike me as sufficient to establish that the  conduct was a after the offense of conviction that that i submit is the burden of proof question that is who has the burden of proof of showing the basis for the one forty eight conviction stanford the monster health that the defend mean that unless there had been a most in for bill of particulars that the prosecution could approve any conduct on that the in violation well yes they covered absolutely a broad range of conduct no issue of the use of force at that point it's officers getting lawful commands and mr smith not obeying the commands one way that the jury convicted him but it could have also convicted him because they thought he was scuffling and and he would have gotten eleven see a distinction between the cop feeding somebody that has already been handcuffed inflation the car on the one hand and our situation here with the police are called a struggle with the guy and then they arrest him and that's when the takes place you know so you don't as the officer was trying to deal with that is the police officer trying to deal with somebody else she supposedly strikes with kicks the officer then he arrest report for the one forty eight well i mean it's pretty clear that  you may be right but well the record is here but we don't know the basis of the plea to the one forty eight what we do know is he did violate one forty eight by his conduct before any officer reached the porch and we know as a matter of law that that conduct his conduct before the us would reach the port would support the one forty eight conviction and therefore you cannot say on this record the one forty eight why should we read the crime that is guilty to stopping as soon as it was completed because because fact requires that the conviction be necessarily inconsistent and given these facts where we got a one forty eight can conduct that is a violation one forty eight that plainly occurs and that occurs without a doubt before any officer uses force at that point you can no longer  actually in front of us whether we the question is whether or not there was excessive force and the summary judgment should be granted or denied on these other grounds that's the way i read the rules it would appear to be i enough not even the police used to vera cruz definition in this case him and police department they used the traditional definition of deadly force of stance or risk of death or serious injury which is the definition used by police agencies throughout the country and i mention that because one of their cruisers rationale for its definition was that well it would be expecting putting too much of a burden on police officers to use this substantial risk of death or serious gets you in the throat it crushes the trachea and you're dead in three or four minutes usually those things on a curve because usually dogs aren't biting in those locations in this case the dog was biting those locations the that's why i say the dog needs the definition of d groups might have mentioned underwear my understanding is pajamas some people sleep in sweatpants do we know what he was going for the record what we know is he says he was in his pajamas the police don't dispute that all i'm saying is you had an offense that the police had every right to investigate but they went there and doubtless you know mr mason he was armed no information he was posing some type of imminent threat when they dealt with him when they saw him when they heard him talk they saw nothing indicating they were threatening you on threatening somebody else they claimed he'd seen no weapon for evidence  he doesn't make it in the squad car ok so anyway  case on the new issue of the force a jury could find was unnecessary we moved to trial court we said look on the evidence the undisputed medical evidence the risk of serious injury you should grant summary judgment for place at least at least in so far as the dog  tack is concerned and as far as the vera cruz issue is concerned as i say i i meant critic of the definition but that's the definition and tell this court or some other court rules otherwise definition it's always a dispute over what are the likely injuries from the from the dog attacks we've amassed and it's in the record here a significant amount of evidence of the high likelihood of serious injury yeah i mean death is is highly unlikely for various reasons i mean i think the risk of death from a police dog attack about the same is death from a rattlesnake by like one in every two or three thousand you know obviously that's because you get medical treatment right away you know paramedics even if you do have evidence of deadly force and you get the instruction that doesn't mean that police can't use deadly force it just means it has to comply with the current requirement that's all so i say  defense right here in california since approximately one thousand one there's been a rule of law of criminal pleading and of charging of the continuous conduct for all and get we didn't breach that because it really arose in the context of the dissent in this of the record from page forty seven through page seventy and then again in page eighty four put your hands up no put your hands up no put your hands up no i put them up i take them down they tell me come here i try to go back inside the house they tell me to stop hundred eight in the county of riverside state of california he did willfully and unlawfully desist delay and obstruct a public officer peace officer and emergency medical technician in the discharge and attempt to discharge a duty of their office and employment this the crime if the police used excessive force and he could have said i want the instruction prosecutor could have said it doesn't apply to any standing on the porch with hi pleas said i am pleading guilty based on that i didn't take my hands out of the pocket that's the basis for my play if that had been the case or if defense counsel had made the prosecutor break it up so i'm pleading to not putting my hands up the first time but not the second time that would be a different case but that's not what happens here i know that's not what happened so what i'm saying it so is it basically who's burden is that you make it  c and you're arguing that it's a general that and pack of clive's in in this situation but if defendant had made it specific and you're putting the burden on the defendant or mr smith it would be very free of his plea of guilty and say you are out of the fact full based just that leads me to plead guilty in this case isn't limited to my refusal to take my hands out of my pockets with a policeman or  quite different from the at the end when the all of the officers of have jumped the dog in the guilty anyway so again it's if it's unclear what exactly mr smith was pleading guilty to and maybe in his mind he was pleading guilty to not putting his hands the first time checking his hand his pocket the second time it's it's not the record but that's typically the case and again the court has to be satisfied that the criminal defendant understands the factual basis the record reflect in the docket and pages ninety one through ninety three that mr smith was represented by counsel at all stages of the c a district attorney what are you charging me with i'm going to march to the criminal complaint i don't know one of the in charge with i don't know if i'm being charged with asking a beast to step off the porch or if it's putting my hands up it's fighting with the officers and talking my arm underneath and force by police officers it's reasonable likelihood of causing death or serious injury which i submit should be the deadly force definition thank you