that's x caused planes of ultimate injury and the jury here found no such causation nd unreasonable force by itself without proximate causation of any injury is not actionable or  awful and rd on the record that was produced at trial because it was uncontroverted that there was no fight between mr stoner and any deputy after he was in custody after the dog bite was over because the evidence that was uncon jurors must be presumed to have all of the jury instructions that were given and this precept derives itself from our lives on the th amendment as the supreme court stated in gallic under this of the memmott only juries can decide disputed or his legal rights including a california law battery the jury had to find that the fed ex acts were the moving force that caused plaintiffs holtzman injury and here in response to the question of whether or not defendant's conduct the jurors finding of no causation of any injury and therefore the jury stopped answering questions because according to drain structure twenty five if plaintiff had failed to prove any element of their claim the jury was obligated to enter a defense verdict by any of their inquiry with a failure to prove causation the jury rendered a defense verdict as was entered in the original judgment also can you give me an example of something that would be excessive force but wouldn't the proximate would the hypothetical raised by the rd circuit in bodie and what the voting corner office size is that you could have officers engaged in unlawful search or an unlawful seizure but in the middle of that theoretically unlawful conduct a search without  cause a seizure without justification in the middle of that theoretically unlawful conduct the suspect quick grab a gun pointed directly at the officer and as a result of that you know being action any officer harm that results or the officers the shoot the suspect the officers will not be liable for the harm that resulted to the suspect because of the suspects superseding cause of his own harm and the court here embrace that in the mendez case now it's possible that the jury here in analyzing the facts determined that mr stoner was the superseding cost of his own heart they may have determined that because he fled from the police for over forty five minutes trying to run over a deputy who was on foot ignore commands to number twenty six which talks about what is reasonable force under federal law which the was undisputed in this case the therefore excessive force or unreasonable force under federal and state law was the same but the jury here was only analyzing the reasonableness of force not whether or excessive force that has a reasonable that is unconstitutional where that concept is st introduced is in jury instruction twenty seven the very next instruction and it hold that in order to fire a violation of the constitution the plaintiff had to prove that  act was the moving force that cause plaintiff's ultimate injury by finding no such causation the jury following that instruction can only be construed to that found there was no violation of mr stoner's cost to tional or legal rights here now maybe that they found it that way because they determined that mr stoner's conduct was a superseding cause of harm it may be that they found that the excessive force the other reasonable force occurred after the injury at issue we don't know all that we know is that they found a break in the possible chance of vision enough to determine that there was no constitutional violation here and therefore because the trunk court amended judgement to disregard the fact it was violating  you're saying you're saying we cannot be right that constitutes your brother raised or manner that's not what i'm saying either you're on or what i'm saying is that the jury question one does not address whether a violation of law occurred at all contrary to what the doesn't it doesn't say that under reasonable conduct lakes the th amendment the concept of violation of constitutional right is not introduced injury instruction twenty six it's introduced insurance for she twenty seven and this court in multiple cases one on the verdict form use the word unlawful on constitutional violation or deprivation the concept of a violation of right is not introduced until question two jury instruction twenty seven and this court has repeatedly help this court's model instruction number nine eight specifically holds that you must prove causation of some injury any injury to establish a constitutional violation and here the jury found no such causation which means following jury instruct twenty seven they found no violation of mr stoner's constitutional or legal rights additionally it's important to note that the amended judgment does something that's a little bit novel and that it creates an inconsistent verdict whereas the original verdict in the original judgment was consistent the amended judgment transforms the judgment for defendants on the one thousand nine hundred and three claim and or judgment for plaintiffs but leaves the judgment for defendants on the battery claim even though it was undisputed on the record that those two claims are decided by the same legal standard it's also worth noting that the finding of fact that the court without the jury reach materially contradicts under my eyes or impugns the factual basis for his conviction now the factual basis for mr stoner's excessive force claim is that when he's out there in that field he's not resisting anybody he's not a threat to anybody that's his actual assertion however the judge in denying defendant's motion for summary judgment theorize that maybe when he pled guilty to the p c sixty nine he was talking about a post by a post in fight well the undisputed plea is that he got into a fight with your and the evidence presented at trial show that the only time he got to fight with your was mid bytes and because of that because the factual basis of his excessive force playing directly contradicts and materially reversed the amended judgment and reinstate the original judgment in favor of the defense thank you bernie thank you very much your honor i'd like to begin by addressing the question that judgment pro proposed which is how can you have an act of excessive force on the one hand and not now an injury on the other hand and when we look at the answer to that question we see that the facts in this case are supported by several inferences some which arthur made on the basis of the judges the district courts reconciliation of the jury's verdict not specific counsel can i i want to hear your answer to that do you think there can be outside this case you think there can be an excessive force an act of excessive force that is not a cost to the violation because it's in proximately cause you think i theoretically is that possible yes ok so theoretically it's possible but your position is that the facts of this case that could well actually here are my position in this case is that the jury's verdict show that excessive force was used the jury simultaneously helped that the use of excessive force in this case was not the moving force behind a plaintiff centers so in effect what the jury said was yes unreasonable force was used but knowable that use of that admitted use of one reasonable force was not the moving force behind it in his interest so how do these get reconcile we have to st consider the fact of this court the th circuit has repeatedly held that in cases in which a constitutional violation is proved but there are no damages that are proved that an award of nominal damages is to be given this is a jury so its so counsel same question that i asked mr singh and then on at that fact the jury wasn't given an opportunity to get to damages because the verdict form instructed them to stop here and tell the court that you've reached a verdict that's correct and in effect what the jury was saying was that they did not feel that mr stoner was entitle to compensatory damages no they said there was no causation and they didn't they didn't even get to the issue of damages the one allowed to get given to the jury with regard to how they confinement they were specifically to the contrary to comfort argument and jury instruction number twenty six a seizure of a person is only reasonable under the th amendment if the police officer uses excessive force in making a lawful arrest but also determined that based on jury instruction twenty seven dollars that in order for the twenty seven officers used more force than necessary apologize and went to twenty seven i'm talking about twenty six forgive me and let me think about that we've got to think about how did they get to the determination of the national determination that excessive force was used if they did allegations that exist which was used in this case based on the totality of the circumstances that were presented to this particular deputy there is no way that they could have found that  one was to be answered yes if they didn't find excessive force but there's one fact many a k let me ask you about that why couldn't the jury here thought you know one that they have these eight factors that are laid out right and as far as the excess of force and one of those factors number two is whether the plaintiff pose an immediate threat to the safety of the officer so i could a jury of thought i don't think that the officer stoner should release the dog when he did it because when you release the dog jury in finding that it wasn't a moving force or for finding that there was a proximate cause ation could have concluded that by the time the dog caught up with the person now the person's fighting with the other deputy and at that point the dogs the force the dog is applying is not excessive at all at that point so therefore release of the dog or early is sort of a no harm no foul it definitely was excessive but it didn't it didn't end up causing the person's injuries so why couldn't i think you just said there's no way the jury could have found excessive force but not causation but it seems like the circumstances escape is one way they could have done that will be your honor i think that if we look at to look at the factual record this is an event that was a protracted event it took place over several minutes the dog was released and it was the intention of the law on the ground to the dog was released the jury may well have concluded that the ultimate injury in this case was mr stoner's very severe leg injury it was a personal injury and we showed pictures that actually showed the dog had bitten all the way to the bottom of mr stone or there was also disputed factual information as to what happened when they were fighting on the ground mr stoner said he was laying passively and the dog was biting him and we had a witness in then he would be the moving the proximate cause because he was a supervening cause of his own injury so i get that and so and let's assume for a nd that that is one way the jury could have reviewed this case but let me ask you what about what i just s which where the jury says he released the dog too early that was excessive force but it didn't actually cause the guy's injury because by the time the dockets is up with them the guy is literally fighting with another police officer right so so that by that point  just i guess you call it being lucky on the by the officer but the dog actually became necessary by the time the dog actually shows up on the scene why couldn't the jury have done that and if they could have done that and we've got these different theories that the jury we don't know what the jury thought but if a different theory is what do we do with that question is if they found that excessive force was used to the point analysis by simply deploying the dog we have a constitutional violation if they  may be very instructive i'm going to talk to about georgia versus long beach that was a case in which the officer made a warrantless entry into the home and then shot the plaintiff but the jury in that case found a constitutional violation it in just fine ex yes and a constitutional violation with huge and by the warrantless entry in that case the jury did not award them clean of any damages in that case because they said that the plaintiffs was not entitled to recover anything for that however the nlawful entry cases are kind of like trespass right like if somebody comes and you know trespasses at my house and doesn't you know doesn't do any harm doesn't do anything i'm not even there they just trespass it was still a thing based i'm still injured by the  feel like that's sort of like that's those cases kind of how you start to have like a nominal injury just by somebody trespassing in your home and it's true if they if it's the police officers without a warrant doing that but here if we're talking about somebody releasing the dog and that was excessive force but the dog doesn't this is just seems to me would be more like firing a taser at somebody and completely missing them and saying you should the fired a taser but you didn't hit him so it didn't really cause any injury there's no way that i understand the court's opinion but in terms of what the court the district court had to do with this seemingly and consistent verdict is the court is mandated to find a way to try to harmonize it if at all possible so the analysis that the federal district court undertook was to determine how can these two things harmonize how can they exist together so the analysis that the court came up with which is completely supported by the factual record is that the act of deploying the big use of the dog was at some point under reasonable it was at some point determined to be because of excessive force it was a th amendment violation the judge very clearly answer question one yes was workable forensics use of excessive or unreasonable force the moving force in causing harm to scott stoner once again by resisting the dog which caused him to be further bitten so therefore even though the dog the dogs deployment constitute excessive force that deploying that was not the moving force behind his is what caused my plant leg to be destroyed what was the causal factor that caused his leg to be mangled through the moving force behind the mang is by mr stoner's own actions right so he's that mean that then that would mean that mr stoner was a moving course right but i think it is your theory then that if a little bit of the engine or even initial part or something was caused because of the except what the jury found is excessive force that's still enough to support nominal damages that yes yes your honor and that you're going to read then i thought that was your theory that your theory what do we do with jury instruction twenty seven that sad it told the jury that there was not a constitutional violation that they that he was not deprived that mr stonor was not deprived of any rights out of the constitution unless it was the moving for that seems inconsistent with what you're saying what the question is how do they define the injury but moving force behind the injury could have been the severity of the dog bite if you reconciling the you have to very vague terms in question number two i or no was there a nominal damage instruction you now i've been asking some questions can i just really address the heck issue yes specifically this court is held in hooper at and that in order for there to be inconsistency between a guilty plea the defendant has the burden of proof to show that they could not have existed together this is a protracted event it goes over several instances it wasn't inconsistent with his plea because it could have occurred at a different time and at a different place than the time in which the dog bit mr stoner and that is clearly were reconciled by this court's in the case of cooper which is repeatedly cited in our moving papers and finally i just like on the last point to clarify that in terms of the jury instruction twenty seven that has caused so much confusion the way that it is worded states that the plaintiff must prove by a preponderance of evidence that the acts were so closely related to the deprivation of a particular constitutional legal or legal rights as to be the moving force that caused the ultimate injury that's what's injury twenty during section twenty seven the ultimate injury goes to the jury in the form of harm was the sensible and reasonable force moving force and causing harm to mr stoner so when you have the concept of ultimate injury which is not really defined and you also have a concept of harm which is not really defined it lends to the conclusion that the jury must have believed that the harm and the injury were the severe physical injuries that mr stoner suffered after the whole incident was over therefore the court's effort and reconciling these two questions was based on the jury instructions in the way that they are some inference has to be given in favor of the jury's determination based can be harmonised and they can be harmonised if the concept of injury and harm