arrestee has a variety of incapacitating and painful effects and as such its use constitutes a significant degree of force the issue in this appeal quite simply is whether the pla who the jury found was the victim of unlawful pepper spraying by the defendant whether he suffered an actual injury from the pepper spray thereby and titling and to compensatory damages not nominal damages as a matter of law as they were sask you took the position your reply brief and correct me if i'm wrong but i think it was explicit that in every instance where an officer uses pepper spray that nominal damages are centrally unavailable because of this reference and tracy that it's a serious act by a police officer that in every instance then if a police officer pepper sprays someone they cannot get nominal damage if it was done in was an excessive force that's your position right well in every instance no that's not our position in every instance that corresponds with the facts of this case in which the evidence shows that the police officer at close range sprayed the plaintiff directly  you can see that there could be circumstances where normal damage might be appropriate even if there was a use of pepper spray that was  yes with respect to both those issues st of all the jury verdict issue it's answering the nd question st at trial the plaintiff did not specifically testify to the harm caused by the pepper spray we introduced evidence about that from other eye witnesses and his medical records in which he did contemporaneously complain to the hospital about the effects of pepper spray so there was evidence in the record from a police officer and two other eyewitnesses as to the plaintive actually experiencing the incapacitating painful effect yury could have discredited that based upon the fact that he didn't testify about it at trial shot his mug the rest photo showed no signs of injury and that there was no diagnosis or treatment and he initially even though he did later say oh my eyes hurt initially at the precinct told the a i don't need any treatment i'm not going to the hospital washed his eyes out himself and only three hours later decided that he now wanted to go to hospital so aren't these classic jury issues where they say notwithstanding that he later complained in the hospital or other people some of whom were his friends said that he had some pain the jury could decide that was other evanson suggested the pain wasn't enough to want any and he damages well we respectfully disagree with that view with respect to the mug shots photo pepper spray does not leave physical injuries so after the mug shot photo is taken it could make your eyes swollen it would make your eyes you know it could be a lot of physical manifestations read the redness is shown in temporary by nature there's nothing in the nd circuit case law that suggests temporary infliction of extreme pain is not compensable that in fact in the winter he have to satisfy him and so you know we look at this record and say damages i think what distinguishes this case your honor for example from the ali if he kept case which is another case that you were on in that case and in a lot of countries i'm sorry i was in tracey v freshwater yes yes you were you wrote that decision in those cases there's ambiguity as to the excessive force itself so in alley feet kip the plaintive said my injuries were caused by him bashing my head against the cell doors whereas it was possible to conclude that the jury found the excessive force was the forcible dragging him to the cell and that's a distinction that is drawn in every one of those cases here we know the specific act of excessive force it's the use of pepper spray we know objective lee the pepper spray inflicts extreme pain on someone and we know from the undisputed evidence he experienced that but there are also many that's my st question was are so many variables when someone used pepper spray it depends on the person cover their eyes with their head turned how much pepper spray was used there's so many variables that can take place was indoors without doors and you're now suggesting i think again that because it's because of the nature of pepper spray it must have caused pain right is not written well but those variables don't apply in this case the undisputed evidence is that he was sprayed directly in his face he didn't shield his eyes there wasn't a gust of wind so the in order for this court to say the jury is correct in saying nominal damages as opposed to it's undisputed that there wasn't a gust of wind or the record is simply silent i'm sorry it's undisputed that there wasn't a gust of wind at the moment of the pepper spray in this case  no evidence to that there was no evidence put into it is really at the that is is that undisputed evidence means on this record that we if there's no evidence affirmative evidence of a gust of wind we must presume that any pepper spray use went directly into the eyes and was not dissipated from the moment it's used in the to the moment it reaches the eyes by when we can speculate but we do in fact have evidence from the officer when i asked him and you sprayed him in the face yes he said yes so we do have correct clear evidence of what happened here and the issue isn't do all those factors including the lack of testimony at trial from the plaintiff do all use i'm not there in this case your honor the jury did get it wrong and there's clear president in this court in excessive force cases where the jury comes back with nominal damages again we're not talking about a small amount in damage direct use of pepper spray with the victim experiencing all the classic symptoms of pepper spray and the jury concluded nevertheless nominal damages not a small amount of damages couldn't adjourn i think that's the ways but nominal damage is a special situation and this court and other courts routinely will say a jury cannot simply ignore the objective facts on the ground and give which they find with a result of justified force and whatever additional pain or discomfort he had in his eyes for a short period temporary period of time wasn't worth any money is not a rational conclusion as well given all the other things that he claims that he was suffering from i don't think so your honor i think the direct use of pepper spray in a victim's face when that's the act of excessive force is and should be entitled to some monetary compensation evidence put before the jury in this case at this trial supported a finding that even if the use of pepper spray was unreasonable mr garbuz pierce did not prove any compensable injury resulting from it and that's what matters  here is the evidence that was actually presented to the jury not what some hypothetical plaintiff who was unlawfully pepper sprayed might be able to present to a jury and not what mr pierce claims that he could have presented if he's awarded an opportunity to do a do over at his trial and the question is also not whether there was some evidence of an injury from which a jury could have reasonably reached the opposite conclusion that that there w and in this case the jury could have reasonably concluded that only nominal damages were were required for two general reasons they could have concluded that there was  simply no injury at all and that as your honour's have pointed out because there was other and force used under spew to be lawful force used and because of the nature of this incident it took place at four o'clock in the morning  had admittedly been drinking he was admitted to the screaming and crying there are such a number of other possible reasons why his symptoms and that were in the medical records the red eyes  example he testified on direct examination that because of the beating he claims that he suffered at the hands of the officers he couldn't leave his house for three or four weeks couldn't work couldn't socialize he was cross examined with an instagram photo of him of his suffering yes your honor because the only there is very minimal objective evidence of anything related to his eyes it's really just the medical records indicate he had red eyes that really it and so everything else would be his subjective reports to the hospital staff and they are the jury could have discredited his subjective reports similarly the jury could have rejected the nonparty witness's testimony clearly nonparty witnesses don't have personal knowledge of what pain mr gervase pierce was actually experiencing also none of those witnesses actually saw the pepper  and here again given mr pierce's failure to testify to the jury on direct examination when asked about the pain he experienced as a result of the incident his failure to mention at all any injuries related to the pepper spray is is very compelling evidence that at least to him those injuries were not particularly significant if they existed at all i would just like briefly discuss this the terminology in the reply brief and was used by my adversary today about the fact that it's under spewed that and pepper spray was sprayed within close range and directly at mr pierce that is not what the testimony was in fact there was very little testimony about the actual mechanism of the pepper spray being deployed here four out of the distance the pepper spray was deployed out whether it was a direct shot and as your honor pointed out those factors really make a big difference and merely because that record was silent about all of those factors and whether or not there was w didn't say because he was sprayed it close range or and or for a very long period of time were too many bursts of pepper spray it clearly the issue for the jury was the fact that it was simply unnecessary  presented a trial the evidence from the police officers as well as the eye witnesses mr pierce was sprayed in the face with pepper spray and we know from the witnesses a experienced all the telltale symptoms of pepper spray so the idea that he didn't suffer any injury is preposterous the fact that mr pierce didn't testify to that point certainly goes to the amount of damages that he should be entitled to but the question is one of actual injury  there's all the other evidence in the record that shows that the incident happened and that he suffered from it the fact that he didn't testify to it st of all doesn't are him there's no principled evidence and says he's the only dispositive witness it goes well but it wasn't just what he felt they were testifying to the actual physically observable effects of the proper spray which the officers themselves testified that's what happens when you're pepper sprayed so we have the act of the pepper spray and the core operation that he experienced and why would he initially declined any treatment from the empties in the quad to go to the hospital if he was in pain or i don't know the answer the question i think initially he was very upset that he had been arrested and he was being he was being oppositional to what was happening to him that night when a jury rely on that  fact to undermine whatever other people thought he might have been experiencing the fact that he himself declined any treatment that goes again that goes to the amount of damage that doesn't go to the fact that he suffered the initial encounter after all pepper spray again is temporary and it's a fax and so after you've cried and you wipe it off your face and so on it's going to tend to go away so the question is not this is a one million dollars case but the question isn't is it a one dollar accuracy in the pepper spray in the face if we don't know anything about how far away the officer was from the person pepper sprayed we don't know anything about how long the pepper spray was sprayed how many burst we don't know anything about if the scuffle may have resulted even with facially and pepper spray aimed at the face whether it actually reached the eyes to any appreciable degree and given all that uncertainty what was an reasonable in the pepper spray but there was not significant enough in fact for it to be a compensable injury well i think st of all there really wasn't that uncertainty they were scuffling so they're obviously next to each other mr pierce was on the ground according to the officer mr  trying to get up and as he was trying to get up that's when he sprayed him in the face so it's obviously relatively close range i think what happened here your honor is that mr pierce was effectively impeached on other parts of this damages testimony and the jury probably held that against him when they were assessing the issue of the pepper spray but that's improper because a nominal damages award is saying that you can get sprayed in the face with pepper spray and it's simply not compensable it's a trivial injury i don't think that that's correct and i think that the idea that he didn't suffer nothing of an actual injury temporary albeit