during the discussion of the jury instructions when the court was reviewing the jury instructions with the parties outside of the jury's presence the court read the norwood instruction the judge began to move on to the next instruction and mr harrington said excuse me when the court tried to keep going to the next instruction he was trying to block the court back to the issue he said your honor about the previous instruction the normal instruction i was unclear on the previous instruction that was not the strict scrutiny instruction and the court said you are right and told him that he would be reading first the correct strict scrutiny instruction that require the jury to apply strict scrutiny and make of and make a finding that  let me go back to the jury instruction has i think this is what bothers me most about this case is they give there is and accurate strict scrutiny instruction you mean with that of every ok how does the situation of the fact that the prison system has to run a prison how does that fit in to the strict scrutiny analysis has another odd aspect to it which maybe the jury didn't need to answer but they did answer the tress in my first question is what's your position on whether in fact we can like take the scissors after the jury answered the first question and ignore the rest of the verdict form or whether we need to look at the verdict form as a whole i think it's important to look at the verdict form as a whole because of the deficiency which was that the verdict form question is apparently a qualified immunity question and the jury was not mr harrington was entitled to a jury instruction on as the theory of this case having relied on evidence tending to show that the risk of harm was obvious to prove to find its actual knowledge and because the supreme court  that actual knowledge can be proved through circumstantial evidence including obviousness of the risk mr harrington was entitled to such an instruction he proposed that instruction instead of providing of the district court only instructed the jury that defendant had to act with deliberate indifference to a known harm the jury during the liver deliberations asked the question of the judge saying what is serious risk of injury please define is the fact that the areas around all the showers are always what constituting a serious risk of injury at that point instead of answering the question the district court indicated that it would wreak focus the jury and re refer them to the instructions and instead of explaining what a substantial risk of harm is the judge stressed six different times that the risk had to be known at that point mr harrington said your honor knowledge can be demonstrated of the substantial risk simply because it was obvious and they aspect he requested an additional instruction as the obviousness district court rejected that instruction and proceeded to refocus the jury on the knowledge requirement that was an error in the air was not harmless defendants have made two arguments and rebut to rebut this this knowledge instruction argument first that mr harrington did not object properly however we've cited cases that show both in the ninth circuit and in other circuits that when someone objects during a clarification question that preserves the objection for appeal moreover the sole harmless and miss error objection that defendants have is that mr harrington as a law did not prove a serious risk of injury that's just not true in the ninth circuit case while under prosperous agnus slippery conditions combined with special circumstances can create a substantial risk of or if the error was harmful but even under the abuse of discretion standard we would argue that it was an abuse of discretion she not provide mr harrington an instruction consistent with his theory of the case thank you for the disregard the jury's answer to a question just cut it off and say well the jury didn't need to answer those questions there's a case that cited in our answering brief floyd versus laws that makes it pretty clear that  if the jury is given a special verdict watch and a special verdict says if you answer no on question number one you don't need to answer anything else for example and that's what the jury was given over here and in those situations  court's disregard that yuri's answer to the rest of the questions because they're not necessary for the verdict floyd the loss is a case i wanted to go ahead and address the interplay between the strict and juries are confronted with a situation where there is the propriety of the regulations or the actions or the policies or prison officials that pertain to safety and security courts and that juries should go ahead and defer to the prison official officials had other constitutional obligations that they had to take to comp and trying to figure out the appropriate way to face the situation as a jury supposed to figure this out when it's a strict scrutiny standard the time in this whole context the court was also instructed the jury that you when you're assessing what the security concern here was which was the report that an affiliated inmates were planning to merge them off and the fact that the appropriate action taken but the jury the jury is told it needs to be narrowed tailoring and then it struck on the other hand that this is really competing and so it seems to me that in a way that from strict scrutiny when you have your norwood instruction and what you're saying as well the jury needs to take into account deference so my question is will we where take out how does that work the jury can apply strict scrutiny by saying well this is the reason why prison officials felt that they had to take this particular action in this situation it was a period i was very violent in two thousand and four curtain street prison and then that the jury could go ahead and listen to the prison officials explanation of why they did that but then after listening to that explanation can say well do we think as a layperson using common sense do we think that this might district through the senate was that good enough under the strict scrutiny standard and in this case the jury said yes well the jury instruction the norwood instruction is pretty strong in this case because the court reviews an issue in direct review but i think that brings up again the underlying question and i submit to the court that it isn't apparent or clearly erroneous that deference doesn't apply and even in the context of johnson strict scrutiny of  the same type of situation in the same unit a few weeks before there was no evidence that this other individual fell down because of the water there is no evidence that any of the defendants the that there were any of the special circumstances that this court is that are required obvious indications that would make it clear to a prison official that there was a known risk that or that there was a substantial risk of injury that that does not become a constitutional violation right i understand  case but his theory was in part that it was obvious and the instruction didn't go far enough and saying you can take circumstantial evidence into account in proving these those his theory if at all d rather than wait until he changes theory of the case when after the jury had started it's a liberation thank you counsel your time has expired thank you aren't there is some time for who will be doing the i'd like to actually begin with the eighth amendment claims and to respond to some of the points fact opposing counsel brought up first of all mr herring conspiracy of the case never changed he actually submitted a jury because of the prison lockdown mr harrington was wearing was forced to wear a treadmill slippers but shackled to those hands behind his back and the person escorting him through this known puddle of water was not holding his shoulder as was as was the standard practice these conditions these missions cause it to rise to the extreme conditions and not and not make an ordinary slip and fall as to the fourteenth amendment claim i'd just like to point out a couple issues in the cases to resolve conflict between the norwood instruction and the johnson case first of all in norwood the court was very clear to make it to make certain that it was understood what was being considered here an equal protection claim nor was very concerned the court there was clearly was very concerned with preserving this distinction arguments the defense counsel specifically said that it was not up to the jury to second guess prison officials which is not the standard that a strict scrutiny which specifically says that showing must be made that the least restrictive alternative was used to achieve that compelling government interest and because there was no instruction as to that standard and that the government cannot argue as to that standard no showing has been me in the deference struct least restrictive alternative to address any safety or security issues the prison to be facing but that should be done through the strict scrutiny standard and not through a lesser standard of deference which may apply to some other constitutional rights and