morning your honor your honour's this case involves a police officer's use of deadly force in a case that went to trial two times and presented diametrically opposing versions of the events that gave rise to that use of force the stakes for getting the jury instructions correct in this case could not have been higher yet as the district court itself acknowledged it did not get the jury instructions correct now it acknowledge that fact with respect to the probable cause standard the standard that must be met for a police officer to be justified in using deadly force i'd like to begin with the other error that the district court committed which was the level of intent required for an excessive force claim under dancey v mcginley and i again reiterate as we pointed out to the district court the dance even mckinley although not a deadly force dealing with unintentional discharges of a weapon which is exactly the theory that the plaintiffs sought to argue here made it clear to the district court that we sought to argue here and the district court would not allow it really  this instruction prevented you from arguing that are you saying there's something else that prevented you from arguing that because it seemed to me under this instruction you could argue that this was a improper discharge prevented you from arguing that well it's just recently i agree with you to the extent that we could have argued that one of the acts was reckless because reckless or intentional was the was the way that the district court instructed  however what the district court also did was said was to distinguish explicitly mistake accident or negligence in the dancey case the district court gave an instruction that distinguished mistake accident or negligence and said the acts needed to be intentional or reckless and that's exactly what the dancey court says was incorrect that's precisely the instruction that the district court gave here so i'm having the same difficulty as my colleague and maybe you can help me with it because it seems like i'm the instruction on force that was given is not inconsistent with your theory but you didn't are and i don't i couldn't find on the record that you were prohibited from arguing he but you dennis well st of all your honor at the charge conference and which is in the record we did make clear that this was the theory that we wanted to argue to the jury he wanted that theory to be expressed and he wanted to be an example in the instruction and that would have been very helpful for you but i'm not seeing the language in the instruction that was inconsistent you know that made it something that you couldn't pursuance of nation even if it was wasn't explicitly referenced in the instruction t things your honor st again by distinguishing mistake accidents or accident or negligence and unintentional discharge of a firearm when the court is saying it can't be based on mistake or accident i don't think we could have argued that this was a mistaken discharge of the firearm i think the court's instruction explicitly precluded as they also the instruction refers to the acts and we focus on this in our briefing it doesn't say some of the acts even after the court denied our initial request we said please remove the words because by saying the acts need to be intentional or reckless it's telling the jury all of the acts need to be when in fact the pulling of the trigger did not need to be and the court again declined to modify the instruction in that way so the jury was left with the belief that every act that was committed by quickly meaning the drawing of the gun the pressing against his head and the pulling of the trigger had to be intentional or reckless but under dan cv mcginley it does not i asked another question that i was having difficulty with reading your briefs in the evidence in the police officer said i intentionally pulled the trigger yes and that's what that that was  how this case was tried from there from their perspective so what is the evidence that it was that would have supported an instruction that no this was a mistake and negligent pulling of the trigger st and foremost that mr hill was unarmed at the time that he was shot obviously if mr who was unarmed at the time he was shot that directly contradicts officer quigley's stated justification for why he intentionally shot mr when he says he did it intentionally that's the problem right but we did not we did not seek to argue our case based on what the defendant testified the facts work we want to argue that the defendant was lying about the facts that in fact he had no gun as multiple witnesses testified that the mr hill was unarmed he was unarmed and so quickly as whole justification was a falsehood in addition quickly contrary to his own trial testimony approached the scene with his gun already drawn remember him quickly testified that he saw the gun during a struggle stepped back remove his firearm and shot we have an eyewitness who is right next to the scene who says no he had his gun out when he got to the scene we know that his gun was pressed into the back of mr hill's head the muzzle was in contact with mr hill's head at the time he pulled the trigger again which is inconsistent with quickly so in testimony who says there was distance between them and says that he stood up in order to fire the gun so those facts in addition to the other inconsistency in the other eyewitness statements that suggest that there was a cover up of what truly transpired here are the facts that we rely on for that officer for thirteen years he was parked in an s u v directly to the right of the scene where this transpired he testified that he had a clear view and he was unequivocal that mr hill did not have a gun at the time he was shot intent issue because that's what my adversary has raised as your honour's have noted nothing in the jury instructions for closed the plaintiff from raising the theory that they now say they wanted to raise with the jury to court specifically instructed the jury that they did not need to find that surgeon quickly intended to deprive mr hill of his constitutional rights only that the acts that led to the deprivation had to be either intentional or reckless the theory they now say they wanted message or it falls well within the ambit of recklessness that he ran up to the scene with his gun drawn intentionally pointed at mr hill and then accidently pulled the trigger  that theory was not supported by the evidence none of the facts that have been identified by my head adversary support an apathy and accidental shooting the fact that you know somebody testified that he drew his gun earlier than sergeant quickly said he drew his gun does not support the theory of accident but in any event nothing in the jury instruction for close them for presenting this theory to the jury they chose not to do so and they district court did not use the more restrictive formulation that this court endorsed in resin and callahan but what this court said in callahan is it is plain error unless it conveys to the jury that the only time the only circumstance in which deadly force is acceptable is when an officer has probable cause to believe that there is a significant risk of bodily harm or death and this instruction taken as a whole conveyed that to the jury unlike in both callahan  resonant there is no confusion here because the judge did not also instruct them about objectively and reasonable that language was in both in resin and there was no reference to the deadly force standard present and just said they just presented the of st of all the court instructed the jury that the question was whether or not sergeant quickly had probable cause to believe that there was a significant risk of death or bodily harm that is consistent with what this court has said that the jury must understand that that's the question i think the immunity point is a red herring your honor it was not used in the context of qualified immunity in any way the jury was never instructed about qualified immunity the term was use of the defendant's position he said the question for you is whether or not sergeant quickly acted in self defense because he had probable cause to believe that there was a significant risk of bodily harm or death in which case he would be acting within his immunity as a police officer so in that context the term immunity just means immune from liability it wasn't nothing in the instructions nothing in the summary leading up to the instructions confused the jury in any way by presenting them with any concept of qualified immunity it was a it was a colloquial use of the term and taken in context and when you read the instruction as the whole there's no there's no confusion about the question they were being asked to decide standard not in this case a very significant error because the real witness here the key witness was that i made that call and it seems to me there's a lot of difference between staying something now and having proof that he said that but nobody understand how that is quote prejudicial under four hundred and three dollars and can be excluded on that basis so the standard is standard of review is manifest error or abuse of discretion and well it satisfies the hear hear say it's not hearsay inadmissible hearsay it's admissible hearsay the judge kept keeps it sounds like an excited utterance to me well it's after the fact your honor it's making statements opinions statements about what occurred it's saying he was resisting arrest it's not it's not i mean the court of appeals the new york state court of appeals has hel why was it so well so the court held that it was cumulative because mr smith was able to testify as to what he saw and what he said on the nine hundred and eleven call and nobody questioned that he said what he had over two trials where he has heard this witness testify and listened to the calls and mr smith testified precisely as to what he said on the nine hundred and eleven call and that was not called into question by the  it was you know arguably prejudicial because he was mr smith was making all kinds of you know opinion statements about what had occurred and so to find that it was a manifest e ruling made it clear that he could not and that we could not get into the content of that unless it was to be used as non hearsay to rehabilitate and allegation of of a fabrication and everybody's tiptoeing around so that when the man correct well i mean this was an important issue that we raised with judge hellerstein because indeed the case had been tried twice and we knew what the defense was arguing about mr smith and i want to address coun statement that we didn't dispute that mr smith said what he said here's what counsel said in that summation mr smith absolutely this is defense counsel absolutely no god no gun whatsoever the honest answer is i didn't see one big difference is i didn't see it of course he didn't see it from his pen vantage point of course the dishonest answer is absolutely no gun how did he get there how did he get to that you couldn't see it but the physical references were pointing to plate this council table at the time and insinuation was made in the st trial as well which is why we argued it was crucial that we be able to use this nine hundred and eleven call now i do want to turn quickly to the qualified immunity question because counsel suggests that the court was not actually instructing the jury on qualified immunity it was really only instructing the jury on it saying that immunity from liability basically just means no liability well that's not the court itself said when we raised this issue quote i've heard that there's a mixed question and that these instructions are necessary to talk about how to deal with and what his state of mind has to be and part of that state of mind is to understand as a police officer what the scope of his immunity is he has to know what he can do and that's the purpose of this clause and i think i should keep it so clearly the district court thought that he was giving them an instruction related to absolute immunity to statements made outside the presence of the jury but my point your honor is that if the district court thought that he was saying something related to absolute immunity how was the jury to know what he was talking about again i want to get back to ross in a duel with the little time i have left because counsel stated the standard perfectly when she opened she said they have to be told the only time the only time that deadly force can be used is when the that's the essence of callahan that's the essence of rastan and and that's exactly the instruction that the district court failed to give here and i asked whether question going back to the d n c argument for just a moment says the of force here the theory was that the use of force was the intentional or reckless placing of the gun next to his head by your theory of the case and that there after resulted in a an accident that's one way you could look at the evidence and i know other circuits it had cases that talk about brandishing a weapon or pointing it as being a use of force in my correction saying that we haven't really addressed that issue in our case  don't know that that it's been made clear by the circuit i i would take the position or play for take the position that both of those things would be the use of force the drawing and brandishing of the weapon but i don't think you have to get that far because certainly the pressing of a weapon pressing the muzzle of a gun into the back of someone's head is both a seizure and a use of force ok thank you thank you both reserve decision in