your honour's this court is charged with reviewing punitive damage awards to ensure that there are reasonable predictable proportionate and constitutional a three hundred and fifty five thousand dollars in punitive damages awarded after the nd trial in this case are none of officer misconduct cases such as pain b jones and the sort of your way these decisions demonstrate that even when officers are found liable for misconduct and the sort of explicitly addressed what it called disturbing allegations of police brutality this court still analyzed the magnitude of the punitive damages awarded under the supreme court's gore guidepost and by comparison the similar cases and those cases were factually similar to this case in terms of the amount and duration of the force used and those damages that the district court allowed to let stand after the nd trial and based on the similarity between this case and those prior decisions of this court the district court should have ordered the punitive damages submitted now for all those reasons just outline the district courts for a minute or decision compare the case before it to disorder one pain and consider the evidence of the excessive force claim and made a careful decision on the appropriate amount of punitive damages and there's really no reason to disturb that order now given that careful analysis after the st trial it was perplexing that the court not adhere to its decision after the nd trial which led to a nd error that this court was quite clear in early boatyard transportation that every minute or sets the maximum amount of damages that a court believes is not excessive and it signals to the did say that you know the damages awards are approximations and they're not fixed and so we shouldn't treat it as a strict sap and why isn't that enough of a rationale for discord to depart from treating the st award and also violated the court instruction this if that's the law but is the controls you can hear so i know this court disfavors instructing juries wants to take dollar amounts and i don't think the court needed to do that here either because there bodies there or there can be grounds to depart from off the case when there is new evidence so fear radically if a plaintiff after a minute or decision in the nd trial comes forward with a newly elicited examination trial that wouldn't that would have been possible right so so then why didn't you ask for a jury instruction that they can't go beyond kept the court had said in the st well your honor i don't think just because the trial was just on well if there were clear testimony about for example if the plane have testified that he had been handcuffed when the event happened as in some cases being handcuffed during an act of excessive force considered an aggravating factor so there are things that certainly could have been elicited that could have led to the court deciding that it's prior decision was going to valid in light of the you have it and so will the the conduct of the police officers in this case was unusually reprehensible i think it is what the jury found is certainly described as reprehensible within the universe opinion of excessive force cases where punitive damages awarded then the answer is no your honor and i think that's relevant universe when engaging in not just the gore now has been also the comparison to prior cases which is d to are on the record reflect that he was injured as a consequence of that's right that's right the record reflects that he was in need of medical attention but instead of getting medical i guess my answer is the same either way i do not believe that the jury by the jury would be entitled to credit that testimony or consider the testimony for damages quat was because your honor the it's a fundamental premise coming from the supreme court's case on punitive damages that punitive damages have to be based on not just what the defendant had noticed and the ability to present every defense about but also the conduct that excessive force case the jury was obligated to to disregard the testimony concerning the full documents now my testimony your honor just my argument spots let me ask i mean i think the idea of holding against a defendant any statement made that later did not credit based on what i believe binding would would really would really set a set are damages that are testified to by the plaintiffs but do not have further expert support such as a psychiatrist testimony or something to that effect his experience of anxious of being hurt y view so now we're talking about the compensatory versus a punitive damages or john or and certainly was about a compensatory i don't see how anything other than the act of excessive force to which the liability to which the jury found liability could be considered part of the prince or damages award and there mr jennings just testified to feeling anxious feeling hurt feeling confused and that is garden it shocks the conscience under the gore analysis the three guidepost and by comparison to prior cases and i would just say your honor the reason why the district court and appellate court review punitive damages awards carefully is because the the courts hundred and fifty five thousand dollars in each case after the destroy court judge had in connection with the st trial two hundred and fifty five thousand sounds like too much  facts i would say the answer is no your honor because even all those juries are still seeing the same case or are some variation of the same case if in fact the plaintiff has has altered his or her presentation of evidence between them the  considering not just this case but other cases and that's where the dirt but i guess i guess my little my little by hypothetical is just that a little bit so that is a way  same set of facts i'm not sure that i completely understand why that would be more what are cleverer than what the proper dems amount should be d because i think became a judgement i actually said at the beginning that damages are approximation and they must be but they're never just tied to the facts of the case they have to be considered and the entire legal system and that's what the score was expressing the the in this court of the early boat charge transportation case although it was not this exact nd trial situation did speak to this is the principle this is why the bitters worked this way and they do signal to the departing is whether the party that gets the benefit for that is relying on the law of the case has the opportunity to prepare to make an argument that it should this should persist so there's no unfair surprise recently but in this case to this particular thing if the if a district court has reconsidered some earlier ruling in thinks maybe it got something wrong at an earlier stage nothing prevents this record from making that decision and it seems to me that what we've said is that this is your court isn't it unless there's new evidence it's just the limitation is unfair surprise to the party relying on the law of the case why isn't that the government principle the governing principle i think so you are that the judge has to acknowledge i have to understand that it was the case and that and they put in a fire reason to depart and here and there are security reasons in this court precedent these are the reasons generally speaking why there's a departure and jury giving me a different number even though it's not below the cap i had said before it is closer to the more and so i think maybe i was too strict the st time you're just saying that that wasn't the court did your reasons are you saying that the reasons were insufficient because it really needs to be justified by a change in evidence and not just by the district court's only consideration to point out the curse after the fact that it gets not actual evidence and to its description of those of those reasons i think are also independent legal errors and  think this other number is the maximum reasonable amount in the jury verdict is a little bit and maybe you disagree with the determination on the merits but that would be a violation of law i think you're right your honor i think that if erred and here's why the other amount is correct i think it's a different case and certainly we would be you know presenting different arguments on appeal  the answer is yes and unless the plaintiff could present different evidence that goes to those damages awards that justify the higher number was the judge let's assume hypothetically you would ask the judge don't think the sentiment really comes into play here i think that's already been addressed by by supreme court  if the panel agrees with me on the st argument which is that almost leaving aside the st for a minute or decision and just reviewing the verdict as it was awarded if it's violated inviolate the core of the i presided over both d trials has now left the bench and so i so in that instance the district court that drug judge never sees every man and would really be a no better position in this panel because that issue for you know you know who yes and let me start off with the issue of indemnification i am informed by mr leamer that the city has posted a five hundred thousand dollars bond to represent mr jennings from starting collection efforts and the postings on the court dock so what struck me about the officers argument is that it violates the basic canon of discourse review which is it does not view the evidence in a light most favorable to mr jennings judge parker you made reference to whether the jury found that the officer's testimony was perjurious was the jury ignores in light of the jury's specific findings that they rejected the officer's testimony that mr jennings ha struck your cue and had attempted to flee in the face of those factual findings that the city that the defendants the officers begged for there's no excuse that the jury believed that the officers had committed perjury and it wasn't just the jurors who did so you know following the verdict and judge gold thought so as well and because you can see at nine hundred and twenty six thousand nine hundred and twenty seven of the joint appendix judge gold after the jury's verdict assy goes he says to the lawyers can you help me here he says i don't know whether the sustaining of a punitive damages award can take into account the jury's conclusion that the officers were untruthful or whether at trial or whether a punitive damages award has to be based on the evaluation of the conduct that was tried so judge goal thought the jurors found that the officers that committed perjury and judge gold thought that the officers had committed perjury in doctrine that this court has repeatedly indicated noted that and i quote the law of the case doctrines quote is discretionary and does not limit courts power to reconsider its own decisions prior to final judgment and i was quoting from our mony versus united way of america two hundred and fifty four fit for three at four hundred and ten and if one thinks about and reflect it makes sense to judge gold reasonable and as i believe your honor pointed out you can do that judges can do that so here's the difference in the evidence in certain respects if the evidence is stronger against your cue and it's stronger in certain respects against someone mido in the grundy a and weaker in certain respects but let me start with your cue the biggest difference in the testimony is that the jury heard  saw and heard evidence of the cover up the framing and we know that weighed heavily on the jury or we can presume that that weighed heavily on the jury's mind in the nd trial because during jury deliberations in this is in the special supplemental appendix the jury sent out a note which was court exhibit four which is at page four of the supplemental appendix and they asked for the mugshot obviously that's going to compensatory damages and the arrest report the arrest report in the st trial was not introduced into evidence council used it to impeach your q s testimony about whether jennings had run because as you see in the arrest report which we did next which is part of the supplemental appendix there's no reference to the running at the nd trial though this arrest report as counsel me tremendous use of it showed that the story was a lie there was no evidence of running engineers say that the evidence was stronger in the nd truck of the jury actually came in with a lower number in the nd trial the person change was the judge well let me are right so did the judge say that this evidence that led him to reconsider what he i presume the jury deliberated in good faith on both occasions and i think the jury got it right the nd time here's another thing that was missing from the nd trial which i think was not discussed in jennings too but i think it's something that influenced the judge which is what was because it was a damages only trial judge manasse one of the things that inflamed the jury in the st trial one can it and bear with me because this is a little bit of guesswork on my part is his testimony in the sense so we often see some people believe that run away verdicts next extraordinarily high for ticks are explained because jurors hold the defendants or the point but in civil litigation and police misconduct litigation sort of in contempt and i don't mean contempt legally but just they are just so turned off by the bogus perjurious testimony that numbers tend to go a lot so judge gold that was absent from the nd trial is because there was no testimony about liability there was no testimony other than for mr jennings about how he had not fled how he had not run and let's bear in mind that the jury knew in the center during the  nd trial knew that the st trial for the st jury in the st trial had rejected the officer's testimony so judge gold has now had the benefit of two verdicts one with the bridge or his testimony and then with a cleaner a cleaner verdict a cleaner trial you know because the pictures testimony was stripped away and he could say hey now two juries hearing the same evidence of the same or similar evidence of the officers misconduct came to a number and i got it wrong where the evidence was and so the evidence of the cover up slashed framing and let's not let's no bones about it they tried to frame mr jennings for the crime of assault that was egregious where it was and so that wasn't as that wasn't in the st trial to such an extent as it was in the nd trial where the evidence was a bit weaker was with respect to so and you know in the grand da because in the st trial they testified about how they went to the hospital and attributed injuries to mr jennings which the jury rejected while got it wrong and where the city officers get it wrong we heard this from mr townsend earlier is they want to look at the snapshot say ok they used force that's it but i think as judge parker's questions ma moment these officers went to the highest your queue took a photograph of non existing injuries and he did so knowing that the d a would rely upon that that is malice that is evil but but so this is different than just an officer beating up somebody and then again the other cases don't involve they're usually against want usually against one officer but you have so awarded in other cases in the general description of and promote violence that resulted in serious but not permanent injuries but you're saying it's justified because of the cover up aspects so it is kind of the additional misconduct and i will say though that none of the parties or magistrate judge gold had available to them and judge preset a and a in a in the prison settings upheld an award of excessive force against a correctional officer a sergeant in the amount of two hundred and seventy five thousand dollars and against two correctional officers for one hundred and twenty five thousand dollars and fifty thousand dollars against correctional officer snedeker who was for all intents and purposes similarly situated to le bron ga and so immediate because he joined in the use thing i want to discuss is the officers also claim that this court cannot take into account other conduct you know they say it's the sorry i'm drawing a blank and in others and the allstate decision those cases what they're talking about is you can't bring in prior misconduct that may have occurred to parties who weren't or two individuals who are who are foreigners to the litigation and let's let's let's be clear that the cover up conduct is part and parcel of their use of force they engage in this cover up and framing so that they wouldn't get caught so that they could get was as high as it could be i'm out of the evidence that the plaintiff put on as good a case as he or she could have presented to the jury and so it makes no sense that you just go in this endless loop and i want to return to a fifty thousand dollars if two million seven hundred thousand dollars was quote so grossly excessive and quote four million dollars which is the new jury verdict is now grossly excessive nevertheless the nd in the st jury verdicts reflect how seriously undervalued these injuries and that the four million dollars reward should be remitted to one million two hundred and fifty thousand dollars now judge deborah voigt was referring to compensatory damages but the principle is the same judges how could it be that a judge cannot reflect on his or her own decision prior to five prior to final judgment of course and then say you know i got it wrong and i think i got it wrong why can't i change my mind and that's what   i don't know the answer to that maybe mr limber does and he can contact me so i don't know the answer to that just partner i'd certainly heard on the record on the record but i want something like that i could i want to leave the court with this idea you know let's not let's not forget that this misconduct really is it reaches conduct curd in the presence of mr jennings three year old and the circumstances in which it arose really unprovoked in the presence of this three year old son no justification whatsoever two additional officers instead of saying let's assume for the moment that  i think it would send a terrible message to try you can't separate the wheat from the chaff there it is it is to use the city's expression part and parcel of the misconduct and so and when you reflect upon let's just focus on the grun and so let me go for a moment if one thinks about ok let's assume that they couldn't intervene and stop the two blows giving them all the benefit that which is court cannot do given the procedural posture instead of stopping know it but then they continue to say oh we screwed up we screwed up big time we have to cover our tracks how can that not that is that is part of the they're trying to hide their misconduct i don't recall seeing a decision and i do know that in it was it was a malicious prosecution claim which is similar but not the same and i don't remember this i am unfamiliar with part well i don't think it's just looking for something i know that courts have other courts have looked  misconduct efforts to cover up you know at pages thirty five and thirty six of our opening brief the th circuit the th circuit a dish western district of tennessee case where the courts absolutely find evidence hear starting with your question regarding when if ever this this court has taken into account other events other words using plaintiff's language additional greatest behavior that was not charged or found by the jury i also have not been able to find such a case and i think the court really did the opposite in levy edwards to recap briefly and leave the edwards there were a jury finding that the defendant officer had both assaulted the plaintiff as well as a committed malicious prosecution and in fact the jury had found that he was that the plaintiff or the title to punitive damages as to both for strategic reasons the plane to only stop in a damages on the wishes prosecution claim so when it came time to evaluate whether that punitive damages award met the gore factors this court can find itself explicitly to just the most prosecution and that's i think consistent with the state farm insurance case where the automatic even if the behaviors egregious so even stipulating even to even if you could assume that a jury would have found that the officers committed other constitutional torts that still cover up if the claim is framing that he could have pled that claim he could drop that claim to trial and then the situation was very different when the court is evaluating what the appropriate damages award would be for both that claim as well as an excessive force cla a word i believe the circuit decisions cited to there are actually employment discrimination cases and i believe in those cases at least the th circuit cases that i that i remember from anti discrimination policy and other things like that so there are these additional requirements that in bad instance a alleged cover up was relevant and then down to it if one of the main purposes o how can they properly return it if they only partially understood what these people they can receive a complete picture here on or where the  plaintiff says these are all the things that were violations of my right and pleads that and takes us to trial and so the plaintiff in the defendant can put on complete cases for a while a fair trial claim a denial of medical care claim or similar claims and in that been relevant but that he chose not to do that he chose to the draw his malicious prosecution quick and therefore they were positioned i think your position would be if the judge is looking at the since the word but it's a little odd right because if the judge were including the sentence the judge could take into account that other conduct right if it was wise yeah well i  see i mean there's the supreme court of caution us against making too literal a comparison between criminal and civil in the case of punitive damages and i don't think this is an appropriate circumstance and then take the sentencing guidelines and what the court can do that may be true but the in the st trial the officer who prepared the paperwork who is not a defendant testified and she testified that she received information from officer your q so at the evidence as the dish court itself recognized was the same or similar application question for example are at