four day jury trial on that issue or that jury instruction and special verdict form dealing with mr cord arabs claims relating to the fourteenth amendment and due process believed the officers version my movie arms and ordinarily the motivation of an officer for an otherwise lawful of event isn't relevant so if there was reasonable and not excessive force used how is there are freestanding claim that the person was motivated to use the reasonable for hurst racial bias well i think first of all it's there are two different claims one brought under the fourth amendment under search and seizure and one brought under the fourteenth amendment excessive force under the fourteenth amendment there wasn't any other for them and there wasn't any real dispute over the jury instructions or the or the the verdict where where the the issue comes in is mr cord arr of the office but why is that and i guess what i'm getting at is why is that proper once they have found that there was no one lawful act if the arrest was proper the detention was proper the amount of force used was reasonable nothing happened to your client that shouldn't have happened to your client and so the feelings of the officer who did these lawful things i don't understand how that matters well you have a citizen who's who's being pushed and shot and  i'm trying to figure out i understand so right i understand that the that the that the judge ended up sort of tying your equal protection claim to the fourth amendment claim as judge graber is prob with you you don't have an excessive force claim you're really not here claiming that you do what you're claiming is is that you that he used discriminatory force so it is that he used something so different with your client then he would have with some other defendant now what you requested was a pretty free sweeping instruction i mean it doesn't seem to have been bounded or tied to anything you just asked him whether you discriminated against him on the basis of race that was your proposed instruction gratz not the one but the judge gave you but not to hide anything so i thought what was the jury supposed to what was the jury supposed to find and what evidence did you have did you have any comparative studies showing how this officer treated other people it was one it looks like it's just you didn't you didn't treat me you see if a force a fourth amendment claim is a free standing complaint it doesn't have doesn't require any points of comparison there is either excessive force of there's not excessive force and we don't have to compare with the way anybody else was treated by the officer but the claim that you brought is strictly a comparative claim it has to be compared to something what evidence did you present that that he treated him differently from the way you treated somebody else and that should gone to the jury on the question as to whether the motivation was race where there was no like statistical information there is no evidence of that there were other people there were other people who were arrested with him right now when there are other people were picked up at the same time you know there's just mr  said that this particular maneuver shouldn't have been used in this case and is evidence that he violate company department policy well there's not no evidence of any of that in the record but what the evidence is is that these two gentlemen both have civic islander background and that was raised by mr darrow the morning of the arrest and that the officer took offense and the officer then proceeded to the testimony from was that he battered i mean down steps you can see that the jury obviously did not believe that or they would have found excessive force there really are only two options here because the what was described by your client to the jury would have clearly been excessive force and what was described by the officers clearly was not and the jury chose not so the only discriminatory  thing that you that he testified to and we can assume perhaps that the jury believe that this was that he said something unkind basically but i don't understand where that yes it is for us is that under under the fourteenth amendment we weren't even allowed to have the jury entertain race even though there was evidence put on about what the officer said about the allegations  and here and here's where i'm here's where i'm having difficulty i mean i wonder whether there's i want to whether the district court didn't didn't cut you some slack because perhaps you should get a directed verdict because you don't have anything in comparison i mean how can we how can we do that the bare fact well and here were we combine it with force but what we're saying is that you can't combine it with force because the jury said there wasn't but we're talking about excessive force we're arguing that there should be something less than excessive force when it's combined with the racial animus that was doing what he did when they heard the evidence of race what did the state became in evidence that came in every so they knew that when they made their decision that they were instructed on excessive force and if they didn't find excessive force then they couldn't consider race that was the on i don't i don't remember that one ok is that in your brief yes you know thank you we'll give you a little bit of extra time my time comes thank you we asked a lot of questions were raised in a brief that the court has addressed with the questions couple of points i would like to address are there were a few additional issues that were raised in an informal brief on the points if when he was representing himself those haven't been addressed in addition by the argument from plans counsel here they're to go back to this question of the jury instruction i still have yet to hear what is the specific act that officer vaile so allegedly did that would form the basis for the equal protection i've heard the allegation of statements to me but what's the specific act if if this way it was way too tight i told the officer it was too tight and he just laughed and said he didn't he didn't care and then we have the other statements about being samoan and and being a disgrace to the islanders and so forth i would have a claim independent of excessive force so even if even if he said even if it's still short of excessive force i've never been cuffed that wife and i told him it hurt i think so under that hypothetical the jury if they believed mr courtier was version i think would have to come back as that was on reasonable force under the for the time well not necessarily i guess that the suspect of the concept of this discriminatory force it was not tight enough to be you know horrible excessive force but it's tighter than many uses on other people you know push me to walk too fast it was uncomfortable it may not be and that would it would be dependent on exactly what the evidence was as to that if it was described in such a way by the plaintiff that if true would would rise to the level of being more than well i think the question is this if it doesn't rise to the level of fourth amendment right of an excessive force claim but it's more harsh than what would be done to someone who was of a different race one is than a cla i would say under certain circumstances that's possible that it could be on the evidence in this case it wasn't it strikes me that it's a can to sort of a d w b the driving while black problem that is that you got stopped because of your race and that he might have a claim let me add to the hypothetical what happens if he gets gets arrested gets caught and he says these these cops are too tight this really hurts and the officer says i'll show you what's tight and ratchet it down another couple of notches on it and then we have the same conversations about i being an islander and so on i think you go back under that the latest facts in that hypothetical as that would be a fourth amendment violation it could be it could be but a jury might say in an absolute sense that force was not so excessive but it was clearly it was it was clearly in addition to the you know the reasonable force the officer initially applied and i think what i've tried to focus on both when we were addressing the jury instructions at trial and now rather than the academic discussion of where that line would be drawn is in this particular case there hasn't been that specific allegation by the plaintive that is it is in line with the the court's questions it was just simply an open ended we want the jury to consider the quote unquote actions or conduct of the officer and the problem with that is this plaintive was lawfully arrested and convicted of a crime so if you gave the jury such a wildly open ended instruction and question on the verdict form might consider well was the arrest lawful and that would be improper for the jury doing given that we have a criminal conviction but you know that's  a heck versus humphrey barr correct and if you got that here in this case well if the plaintiffs were saying my arrest was unlawful and the let's say the decision the officers submitting reports to having prosecuted it there was some constitutional violation there i believe that would have been something that should have been an excessive force claim wouldn't might be independent of the of the fact of conviction  i agree that that excessive force claim just because he was lawfully arrested and convicted doesn't bar the excessive force and it doesn't bar it doesn't by that my concern was when the plaintiff was seeking a very open ended equal protection instruction that just said the conduct or the actions of the officer the jury not knowing what they're allowed to consider could consider things that actually are barred by hack and that's why particularly at the at the trial court we were we were focused on that and i think the passage from the trial judge was very instructive because he was the person best suited to have heard the  what this trial was about and he concluded you have a scenario where there's no middle ground where i mean it was it was awkward lee tried i tend to i tend to wonder why there wasn't and stand just a directed verdict on that claim instead of a refusal to instruct him so for i mean it was just hard the way it was instructed but that doesn't mean it's reversible it's just struck me that way anyway what do you think i'd have a hard time understanding what the trial judge thought he was submitting when he thought he was submitting just an excessive force claim and that he really wasn't submitting the fourteenth amendment claim absent the way that i look at these issues is again because i think you you do have a heavy humphry bar on challenging the galaxy you're raster anything that came after is that  it is instructed on equal protection but the first element of that coincides with the first element on the use of force i agree with the judge graver just awkward the way he instructed on it and then kind of took it away from the jury and if they didn't let me ask it real quick if if there are you arrest two people at different races and based on their race once handcuffed and put in a squad car and the other ones not twenty put the squad car is that a potential fourteenth  if there's no heavy hopefully bar and let's assume the arrested one is handcuff one isn't the both not charged with anything i think it could be i think it would depend on what the evidence was to support this and so in this case could a jury from what they heard based on the racial statement believe that an act by the officer was motivated by his racial prejudice even illegal act say i guess it goes back to in this under these circumstances the only thing the officer did was the obligation of force and that and anything relating to the arrest and prosecution  and we have a scenario where the jury didn't believe that the officer used force because we had these two extreme factual scenarios if the court has any other questions i'd be happy to address them i don't believe we do thank honor i would just like to point out that the the trial judge did basically punt on this and he there was no suggestion that he was in the best position and he he was on this but what he did was say we're going to leave on the special verdict form we're going to leave these questions then even though it doesn't matter that they're there they don't leave anything the question the questions on the fourteenth amendment claim counsel i want to make sure i'm correct on the a substantial factor in causing harm been three played as a member of a protected class and bios are used you know good intent with it upon it based upon his membership in the class seems to blend two things together that is the that's the fourteenth amendment claim was there a separate instruction on excessive force as i believe it's the the prior one to twenty one because that seems to blend two things and seems to might have might have undermined your fourth thank you counsel thank you very much the case just starting to subpoena them even trying to thank pro bono counsel it's very helpful to the court when lawyers are willing to take on these cases and help us with our decision making process we