good morning your honour's gone cook for michel rivera an officer who does what he's been told and trained to do so the officer whose train leaves him with no option other than to release the fine invite dog the officer who cannot use a fine bark dog because again the agency is determined that it's fine by me and the agency has determined that the dog bites if you don't get any immediate surrender to your last warning laypeople jurors and judges i submit would say that officer x reasonably now this is a following orders defense but it's not a gas chamber it's not a final solution type situation where one would say no matter how clear specific the order was you have no business following it so the problem in this case is you know there isn't any dispute about what happened here right the women fled st in a vehicle then in a creek bed the helicopter watched them helicopter directed the officers to where the room dispute as to whether she raised her hand before the dog well not really ok the flare video establishes they did raise their hands ok officer said well i didn't really see that but the fleer captures that and it's also obvious i mean the officer admits to it that he sees him laying there he orders the dog to attack him by because that's the policy that's the train the dog goes past them and so he orders the dog again because of course that's the training that's the policy and the point of this is that when you lead in in this case a following orders to fans where the officer again it's not disputed that he followed that policy follow that training and it's a fine by dogging that's what's going to do a jury is going to say well doesn't the officer act reasonably when he does what he's told and trying to do i mean think about it generally speaking what you want officers  you want them to do what their training says they're supposed to do generally in these excessive force cases where the plaintiffs claim there was wrongdoing there is the claim that there was a via the officer acted in violation of the policy in violation of the training that's  permitting every major defense witness to come in and justify the officers conduct that he followed training he followed policy which by the way he did there's no dispute about that that was of bases of our of our complaint is that this is the training with respect to that officer yes a jury would say well he actually is only now if you're addressing the question of gosh should really this be the trainee should it be a fine bite versus fine by fine bark dog different question and a different conclusion maybe but that's not this trial and the case that really illuminates this phenomena this problem is the chew versus gates the case that will always live in infamy just because of its name where in order to reach the issue this court said look we have to assume that the jury exonerated the officer on grounds that that he acted reasonably is there still a case against the city and he said well sure that's easy because the drink could say the officer reasonably because cities training city policy left the officer with no other choice than to do what he did therefore the training the policy the training a fine bite dogs ready should have f bark dogs that becomes really the issue to try and the city can be liable for that so plaintive never had a chance we said meant to establish that using a fine and bite dog could constitute unreasonable force under the circumstances where you know where the women are the helicopters told you they're there they're they're laying not doing anything the dogs are trained differently then you as i say this is not the usual kind of excessive force case where you've got this big dispute of fact duty officer pop on his head with the patani or not no question about the biting no questions were to the policy and because of the fine bite that should have never come in all right his good character is not the issue and it's obviously prejudicial i mean ms rivera had an uphill battle begin with right you know the chase did not surrender earlier course had opportunities to do so has a criminal record that's improper to let the officer defend on his character and the final point is the attack on dr meis credibility because he has been sued right sued in cases where there's never been a finding against in there is no information about even with the lawsuit was about and then defense gets up and argue that you don't need to believe dr me because if you ever go to him for treatment you'll be a medical malpractise lawsuit number fifteen or something eleven  two even if it was ahead of substantially prejudiced plaintiffs in light of all of the evidence before the jury and we know that on appeal a jury's on appeal the jury verdict the evidence is viewed in the light most circuit had virtually the exact same facts before it the same plaintiff's counsel the exact same doctor tempting to testify about the same things he testified in rivera and that is the nature and  injuries resulting from dog bites the likelihood of infection hospital of these rates potential for severe injury and their doctor made was excluded from testifying because the court found in the th circuit upheld that whether all of those all of that testimony was irrelevant to the issue of the individual liability and whether the officers use of a dog was excessive force the testimony of dr mean which is the exact same testimony proffered and actually given us an argument  of the record and was substantially prejudicial to defendants because it could have confused the jury as to issues of other instances and that department policy which wasn't at issue before the trial it's really to complain about just one question in the scheme of what dr meta was proffered to testify when the majority of us testimony was prejudicial to defendants seems unfair but secondarily it's not a run yes because there was no objection made on four  grounds before the trial court the only grounds made were relevance and substantial press to prejudiced prejudice but even if this court finds he counsel can airplane that can bring up the four of four objection the malpracti lawsuits were not brought to show propensity that he was in fact going to commit malpractise was the purpose was to impeach his credibility and to show that his foundational expertise were not proper and the reason in this case it's not agree this is because in light of all of the testimony he gave he admitted that he did not write his rule twenty six report plaintiff's counsel wrote it and he participated in some of ability was for hospitalization what he had seen in his studies regarding the gravity of dog bites versus a street dog bite because his medical opinion was that in what he has seen in the hospital police dog bites have bigger injuries or four of their federal rules is not allowed when you're offering it to show propensity that to commit that act here he wasn't in a medical malpractise lawsuit as a defendant being discussed lawsuits being discussed to show that he and the lack of foundation i do not think that i do think it is still relevant to his credibility however as just as men point that judgment point it out dr reid explained that they were not  mead explained that he was nothing came of that and he he was able to be rehabilitated on that issue and i don't see that in light of the entire record before the jury how his testimony or even that one statement would have substantially prejudiced the plaintiffs particularly because on two separate verdicts questions one with respect to the  claim and nd with respect to the brain that claim the jury said no on both counts that this rivera was not subjected to unreasonable force and that is because the totality of the record was that they were recklessly driving and putting other innocent pedestrians at risk they were running through shopping malls their word willing to do anything they were to avoid getting caught they ignored multiple canine warnings they did not surrender and that actually goes to another point judge and two brought up earlier and that was that there was some dispute about whether or not mr vera surrendered and plaintiff's counsel said the video clear the flare videos absolutely not clear i mean it's thermal imaging where it's black and white it doesn't show definitively that hands are up but even if you believe that her hands are up the flare video shows that the time between the very quick movement which the jury could have also believed was just a knee jerk reaction of the dog coming was seconds before the dog actually bit so it would have been inconceivable to be able to pull him off as almost funny asli as when they allegedly surrendered so in light of that evidence and the fact that it was dark multiple multiple witnesses talked about how the there were in fact lots of bushes and tom brush about ten to fifteen feet in fact when you look at the aerial footage which is shot from the sky there are multiple times when the helicopter loses sight of them in fact the flare video two hundred and thirteen thousand seven hundred and fifty three says i lose them for half the orbit and i hope they're still there so there is a lot of evidence before the jury that would allow them to find independent of this comment that the force was not reasonable that looks even if the force was reasonable circuit in german versus c m and haim davis in the vs mason county and scott vs one hundred has in fact stated that training materials and police guidelines are relevant factors to whether or not there was objective reasonableness the question is never whether the officer follow a policy because policy is not whether it's the constitution but this court has held that it is a relevant factor amongst many and here it was proper to time to testify that he was within policy and that was only just one factor because dr martin ellie testified that are the sheriff's department policy was in line with state and federal standards and nothing was offered to rebut that our canine policy was not in line with the state and federal standards so and if there was any potential for air during struction twenty six cured that error by saying and telling the jury that they couldn't exclusively rely on that as a factor to find that just because he followed or was in conformity with this policy that that format reasonable force dr mead testified to miss rivera as injuries right inside of her upper left thought i very close or generals very very serious injury the natural reaction you testify would be to try to defend yourself from that type of animal from animal injuring you biting you mean to you in that area their body and the expected pattern you would see things being equal you know injuries to like hands and wrists as you're trying to stop the dog miss rivera had no none of those injuries according to our dr meade suggesting that she was unable to defend herself and get the dog off and why was she on able because of course the officers were holding her process  handcuffing her and this of course goes to the question of even if you say that the initial dog attack is ok letting the dog continue to bite as you're holding her you know may be unreasonable so the point of dr mead's testimony includes the fact that the dog was let allowed to bite or for too long given the injury pattern and then for counsel and by the way it was missed cortez herself who made the argument to then get up and say you don't need to believe dr me because you know don't ever let him do surgery on you because you might be lawsuit number eleven that was an attack on his character so that testimony letting the evidence in was prejudicial council stated that the jury made a finding that there was no one reasonable force no the jury did not did question to the jury was did plenty of proof that defendant frank leyva use unreasonable force is not the question of was unreasonable force use and that's where this policy defense becomes so important and this claim that there was no evidence presented that the sheriff's policy was on reasonable well yeah that's true  because st of all the court dismissed the twelve piece on twenty six dollars motion the claim against the sheriff's department was turned out we were exactly right he acted according to policy and then the judge wouldn't let us come in with evidence at trial to attack the policy because the policy wasn't on trial because the county had been dismissed instruction number twenty six with regard to policy that was a plaintiff requested instruction and obviously you know my argument why plaintiff requested it it's not enough the following orders to fans works as i say this is not a final solution type situation it's undisputed he was following policy doing what he is told and trying to