what i always argue and that's what most occurs and so rights cases you have heard of that if anything in the context of damages is oppressive it's usually not malicious it's not because a police officer despite real you make the oppressive argue within the context of that instruction for this reason oppression is the find within the instructions of the old devil in blackmore instruction and oppressive is to find at least in part his conduct that occurs because a person by virtue of her or his superior position or advantage does something that to a person who has less advantaged world yes of a position place where in the position they were in they were able to go in there they were able to force mr danke to get down on his knees and start open the safe they didn't think about whether or not there might be a gun inside and they saw the gun inside the or the word impressive oppressive and there it was always been there before and then somebody arbitrarily decided to change it it should be in there even if that if he doesn't decide in this case that it should have been in there for  got awarded forty dollars an hour which to me is an enormous amount of money because of where i come from and it's because the civil rights plaintiff's lawyers always have to come in the federal court and beg for money i mean they end up being this always a way that district judge judges fine with the rare exception of judge mary out of felt her and i always thought that was because she came from a big firm it was a lot of money and big numbers didn't scare but most  don't come from that background they they work their way up through the ranks they're in public service of somewhere professors as judge noonan i know was and they get shocked by a large number like five hundred fifty dollars an hour but it should now yeah that was the range that was put in but i think the preponderance of the evidence rather be the amount of higher than the minimum that judge peace was gracious enough when i when i raised the issue i think you'd first the word in three fifty three seventy five you reconsidered it which was a fair and decent thing to do and i don't want to seem greedy coming in here and asking for a higher rate it's more a matter of principle it really is than the amount of money in this case th i think the abuse was because there was a record that indicated that the hours claims on which there wasn't success were built for and that was the truth that was that was the problem and second the claims were if there was any potential problem here at least with what piece did i mean it's not clear that he applied the correct standard in assessing whether or not he should reduced fees when he claims that you did not prevail as a point of stronger claim there's no sometimes it's a miserable job i don't want to do it it takes too much time it's hard to figure it out but that doesn't mean you'd be expedient you have to do it the right way and i don't think you have peace when it's an excellent judge and civil rights cases for defendants and for  fs did it the right way in this particular instance and were judged piece going to well leave that aside i have nothing more to say unless there are any questions at the of helena designated the examination in cross examination of the appellant and the police officers thought this court would have a full record to see the context in which the use of the district court judge was in a vet or position having heard all the testimony knowing the context of the use of force annoying the positioning of the body etc he was in the visitor position to determine whether or not to give an instruction in fact he pointed out in this trying to ascertain if in fact if we're talking about oppression in his case should he have applied the california definition of oppression which was different design of the definition of oppression and suggested in the suggested jury instruction california definition of oppression is constrained in civil code thirty two ninety four indicating oppression means believe i could've come the end of posted as an abuse of discretion conversely as i said the issue of whether that was the proper or improper instruction as to the use of oppression in the read the cases and there is supposed to be a two part analysis then there's supposed to be a determination whether those claims are related or unrelated even if they're related if you point out and hand this position this issue didn't occur to me when i was preparing the appeal that i would need that it seems i may have made a mistake from what i've heard here this morning second there's no relevance think and issue is was there a basis for punitive damages instruction i think that's the issue i don't think the issue is was there a basis necessarily for use of the word in that instruction having met the threshold burden that convinced the district court that there was a leak the factual predicate for the legal conclusion that such instruction should be given i think then it's largely the correct instruction be given because there's a range of predicates malice i want to use and oppression but for some reason for the last four or five or six or seven years district judges that l california won't use the word oppressive and there i don't know if that's because they're relying on the model is running and the model instructions are you know i think that and i think i'm right about this and there are very few speaks through its dispositions rendered by panels of the court and while those model jury instructions may provide a point of convenience or economy for district judges when the instructions are wrong they should pay any attention to him or when there's a case from th do i think it would be a good idea and i just highly recommend it for what little the recommendations were of this court do away with those might of your instructions they just cause trouble and i don't think they'd do anything except make it more expedient for judges to find instructions they're firing on general instructions i don't think in twenty years i've ever even participated in a discussion on settlement which directions on general instructions like it doesn't make any difference what they say basically they're all neutral but you've