here the original opinion in this case the key issue was color of law the district court originally felt we didn't establish color of law and then a panel of this court reversed their we're now here having had a jury decide the case and we would argue in a somewhat confused state based upon the court's comments because the law here i mean this case basically was what is commonly referred to as a road road rage which unfortunately many of the many of us have had the situation where someone cut someone off and we've seen it and then they follow each other down the road that's what this case basically was in its in n it turned into a shooting by an off duty law enforcement officer with serious serious brain injuries to the point of mr mendez and of course his family has been affected by that on the jury this record that adds to that statement yes yes there is i think after that statement there's the and i'm pretty sure i have it mark is that the statement made just before the response was made to the jury decided to stick to what was said before it went to the jury what what my co counsel said and i was not present at that time because we were at the stage where the jury was deliberate deliberating and he was there to assist the court what his statement concerns and see if your district corps response works and he then personally hands that response to the bailiff scripture but we have to look at it in context from the very time that the jury went out they were struggling with color of law the very first question i think about twenty minutes and you'll see the questions only i think what's wrong with the instruction well first of that you know unfortunately the color of law instruction it was given as that instruction cell so then you get to the point of the jury asking a question about it and then the jury's question wanting to know ok is color of law is the color of law instruction just pertaining to color of law in a verdict form question one or does that also pertain to verdict question to which which deals with excessive three answers plain it does not if in a place it plainly applies to question one law the jury could have looked at with with the court's direction the jury could have looked at color of law in a situation where any motorist or driver is driving down the road and he's confronted with someone who's being unreasonable or this still called road rage ok that would not obviously if that if it were the corner me or urban rural that's not a color of law situation in order to put the color of law in its proper context and i think the cases do a good job of talking about that you have to look at the nature of the act that could only be performed because of the ability of this officer and you go in this officer his training he's using a service firearm he's  badge in his deposition even testified that when he fired on that last occasion he held his badge in his gun and he fired at the vehicle as it fled the scene if that's not color of law that the only evidence that this wasn't under color of law we're talking late is the evidence again sorry i'm sorry what i'm saying is i think that the courts comment was fail to answer the jury questions and i think it misled them i think and i think it took them down  wrong path and that path was don't look at the nature of the act ok and just look at whether this in the abstract is color of law and in the cases don't do that and it's clear that the law that doesn't do that  and they literally analyze defendant gray's conduct as a as a private citizens and not not truly as a law enforcement officer using his authority to display his badge and fire well it's they found against us on one issue which was color of law and one respectfully your honor i don't think there was any evidence that it wasn't under color of law ok if you look at the cases ok i don't think there's any gun and there's no evidence that mendez or his passenger even saw it and does nothing else that manifests conduct that a police officer would engage in like trying to take control pulling him  over exercising any kind of authority or any of that stuff except the plane the gun is not something that an average citizen can do care and you concealed weapon well somebody can only use it yes they happen very frequently but yes he was he was at that point after he heard they got to color of law true but i don't think mr kelly is the testimony went to color of law unless we look at the quality of the act which is what i think that the case law says that we should do ok and i think w sorry this is a case where three judges and a jury have found that the defendant ray was not acting under color of law at the time then fires weapon the answer to the jury question they were obviously on question one of the verdict form trying to determine whether he was acting under color of law they asked a question there was a discussion of house fast response to that question and the judge proposed a response which mr moreno agreed with and in fact the only change that he ever recommended making to that response was to limit it to question number one which is exactly the opposite of what mr barrett was arguing should have been that he's saying it should have been told that would also apply the question to mr marino argued to the court is let's tell them that's the that's the instruction that goes to question one well obviously that is the instruction that goes to question one but there's an application of color of law to the other questions and that's why the court decided to answer it as they did as he did there was never a clear objection made on the record before that instruction or that answer to that question was given to the jury and it was into liberations that was a correct answer it accurately jurors into not looking at the nature of the actors argued by your opposing counsel not at all because instruction fourteen says at the very beginning of the introduction that an act can be a lokpal act under color of law or it can be an act outside the person's authority and unlawful act under color of law and it was clear that the jury understood that in fact mr marino in his argument told the jury make sure you know the color of law that's going to be an issue it can be an unlawful act and still be under color of law so there was no it did not mislead them at all it simply clarified that that instruction fourteen was in fact the criteria for determining color of law their color of law jury verdict form number one and actually i think it was the confusing the jury ok and they never really got to the main issues in the case which were color of laws the nature of the act and whether or not unlawful force w it's the key as i understand it again and i've read the cases a few times as many as the court but but the nature of the act is what's going to determine not whether he's on duty or off duty you look at the nature of the act and he the nature of the act it's a service weapon which only he could be armed with in a concealed manner and he used that with this training he knew how to shoot he was able to shoot at a fleeing vehicle so if you look at this this is truly was the use of his authority whether or not it was excessive i don't think we get too expensive because of the issue of the of the banyan of the of the club against the lunch