move to the fifth case the  convicted of two of those crimes aggravated assault and resisting arrest and he subsequently brought a lawsuit under forty two u s c one thousand and three for excessive force and malicious prosecution on mob action charge during the trial the district court instructed the jury on the close of a fax of the misdemeanor criminal convictions and we believe and submit that the district court did it improperly  so in order to obtain a new trial based on an erroneous jury instruction the hell in my show that the jury instruction misguided the jury and cause some kind of prejudice in this case the district court instructed the jury that the jury state court would give it and under illinois law a state court gives a misdemeanor conviction that precludes the fact that it is creates a prima facia evidence of the facts that are essential to the judgment of those facts are rebuttal in a f case in this case the district court did not allow for that and that was really important here because even though the defendants had accused mr fear montes of swinging and missing and resisting arrest there was another police officer on the scene after break though who was not in the begin from a she possessed was not disclosed during the criminal case and was not available to the defendant and she said there was no swing she saw no swing and she was there the entire time resisted and swung back to close best and missed and i think that we saw we put in the criminal complaints into our appendix because those are the factual that's the factual basis for the pla of a court which was that he pulled his arm away and that he swung back to close to that that's the most narrow factual basis for his convictions and that's what we offer to be bound by during in the trial of this case but the district court took commentary from the absolutely your honor there was a there was a the defendants filed a motion eliminates seeking to bar the plaintiff from testifying and offering evidence that was in conflict with the conviction and the district court in its ruling decided to give a filbert instruction about five days before trial  and in response to that the day that border was conducted we objected we submitted different jury instructions to the court to try to suggest that we be bound by the most narrow basis of the conviction and those arguments were rejected and the district court decided to follow a lot of the state court criminal judge had said orally during her finding the playability but as the defendants brief sort of elucidates they don't cite any authority for using that kind of commentary to preclude the plaintiffs from arguing facts in a civil rights case and indeed there is not because that's not the law school i thought the plaintiffs theory was that in essence he had stopped resisting and then was beaten up by the police officers in the room somewhat yesterday i mean good plaintiffs the plaintiffs theory i mean the plaintiff himself would say i did wasn't resisting that he was convicted of resisting right and for pulling his arm away and there's a video that shows him pulling his arm away the officer has his hand on the plate of cellphone in the plane just pulling the other way there's actual video of that happening and so there's nothing inconsistent with what the plaintiff sad that would be inconsistent with what he was that theory was presented as you're right it's why there was a trial the theory was presented correct ok so why did the details of the earlier incident matter well for he stopped before he stops resist so in the in the criminal court the defendants testified that he do it to a certain version of the facts and there was a video presented which occasion to the police officers to change their story to conform to the video evidence and at the civil rights trial the district court instructed the jury that plaintiff's actively resisted arrest now that it's problematic from our point of view because that's not what he was convicted of i mean legally yes he was convicted of resisted arrest but the facts that he was convicted of was pulling his arm away the state's theory during the criminal case was that the resistance was pulling his arm away from the arrest that was what was presented that is what he should have been bound by nothing more they later amended their story and their theory to say that he resisted the entire time which is fine you're allowed to but the district court and we can impeach them but the district court told the jury that he was actively resisting arrest so we want to lounge to present evidence in contradiction that which included impeachment of the defendant changing their story we were actually prevented from impeaching the police officers who change their story during the trial because of this court's jury  instruction and we were not allowed to present the plaintiff's own version of what happened in fact based on the fourth jury instruction so for this reason we believe this instruction caused a great deal of prejudice we were actually unable to pursue the theory because if the jury followed the court no i don't think so ok he's convicted of resisting arrest right for pulling his arm away the excessive force allegedly happened after that and the district court instructed the jury that he was resisting during that time period ok how do you get the last part of this because the instruction was is is i find it mr egremont a swung at a police officer and missed and then actively resisted arrest and we attempted to ask during the criminal trial you force after he had stopped resisting yes ok so why do those earlier details matter well because we weren't allowed to the earlier details are asked significant as the fact that the that actively resisted arrest that is important because that is telling the jury that the officers had a basis to use force while he was underneath a pile of police officers against them they told him you that there would be some justification for force used here but there was no basis for that in the criminal record he wasn't convicted of doing anything underneath the pile of a police officers he was convicted of pulling away while they were trying to arrest him so your argument is he didn't pull  did pull away it's on video but that can't form the basis for the force that they used while he was handcuffed and underneath a pile of police officers there was other evidence offered that we were not allowed to contradict that meaningfully because the district court told the jury that he was then asked if he resisted which really defines nothing for a jury i mean that leaves it to their imagination and basically says well you have to believe whatever the defendant say is true because they're the one saying that he resisted and that's not fair you know the second part of this that we think was unfair was the closing argument by the defense counsel's in abusing highly prejudicial evidence that was admitted under will six or nine for the limited purposes of credibility and it was abused intentionally to make it for all for propensity argument that the plaintiff is unable to conform his conduct to the law and i know that the standards are very high for us in this spot on closing argument issues but we would ask the court to reverse the judgment of mr gore i see my time is expired thank you mr of your mind he says provided an additional transcript and based on that the record now reflects a time the objection nonetheless how did you get an additional transcript  from challenging those findings in his civil suit was the sequence of events important in the state criminal trial it was in the sense that that was what the criminal court found happened but that all he did was pull back is are in that was the extent it is his action so that version of events contradicts the sequence that the criminal court found you know in what was the  swinging at a police officer and that was that was the other finding that the criminal court made so but well why does the sequence matter in criminal court because their version of events that mr v or montes wanted to present to the jury in the civil suit was that all he did was pull back and  in so that contradicts with criminal court advantage which is that there are two distinct events here first is the swinging at the police officer and second is the active resistance and these from presenting their version of events that he wanted to go to trial and for that reason even setting aside the cupboard instruction rebadge for a new trial here is especially unwarranted because the claim that mr v or montes wants to pursue in a new trial is tech part why did judge kendall indicate do you think that she thought more guidance was needed from this court on those heck you s am not sure i our position is that if the district court implemented gilbert perfectly and that there's absolutely no basis for reversal on the question of how she implemented gilbert  second and just briefly with respect to the statements a closing argument mr vere montes objected immediately to those statements the district court sustain the objection both objections and also gave instruction to the jury that the attorneys are going to it's statements a closing argument are not evidence is there any doubt that the or humans made were contrary to the district judge's ruling and let me know your honor that the district court very troubling or it seems as if city attorneys are i hope not making a habit of the sort of thing well your honor mr vere montes in his motion for a new trial did present the argument that this was an intentional violation to use his word and the district court nonetheless denied the motion for a new trial i did this record reject the idea that this was intentional the district court did not express the address that argument you for argued that this would be subject to abuse of discretion review and i'm frankly i agree with that but so if that's the case and we've got a city attorneys defending police officers by violating quite clear orders and him basic rules of evidence would it be an abuse of discretion for another district judge in a similar situation to take more severe action such as ordering a new trial you are right i believe that we just about the facts of this case in the facts of this case certainly not why not because well let me that i was not personally present for the trial the district court was and the district court was in the best judges might see that differently and that would also not be an abuse of discretion and in fact it would not be an abuse of discretion to sanction the city by ordering it to pay the costs of the new trial it is since that the reason that judge kendall asked for guidance from the seventh circuit on the on the gilbert instruction is because frankly everybody missed it we missed it the defense missed it the judge missed it in terms of how this was supposed to be appropriately implemented nobody did this on purpose it just it just wasn't done correctly in terms of giving the proper recluse of the fact to the state court judgment and the judge relied on the commentary of the disk of the state criminal judge to find what the facts were as opposed to the evidence offered during the trial and that's why i think the judge wanted it is not your music your position counsel that because illinois treats the misdemeanor findings his only crime official evidence that in fact doesn't illinois state law you can bring a case that would flatly contradict the central elements of the misdemeanor conviction finding i'm not contending that here ok