elliott duty to prove that force which they claim never was yes used was excessive so this meant to say this put the jury in the position of centrally saying well you know if we believe that the deputy the courts already said we don't that's not enough that that's sort of force the court has already said we have to go on and decide if that was excessive the problem is that under the law if the force was unnecessary then it was excessive as a matter of law and there was a jerk during the that but the jury was put in a position of saying how much force can a judge address that might your argument is that the district court erred by instructing the jury that your client had to prove any use of force by deputy roberts was unreasonable right i think that yes been given has deputy roberts tonight using force and at all so are you aware of any cases that  position is that under the law forces on the us a surgery is excessive other words for example or support simply police officers have no exception there's no exception says police officers can grab or hit somebody in a circumstance work citizen cannot unless they are new gauge in a law enforcement function where the issue of excessive force comes in where they say we didn't see a need to use any force we didn't use any force at all they basically  no there's no was no need for use of force under these circumstances you counsel even if we agree with you why wasn't any error harmless in the of the jury finding that there was no forces very because that instruction has to be read it that jury verdict has to be read in terms of the instruction that were given if you look at the have the dance and the evidence of course but to say that the jury that the verdict form amended the instructions in some fashion or there isn't necessarily cure a problem there chimbley compounds it in other words if you look at the jury form that was the only box you could check if you said found no liability and presumably the jury in following the instructions would have found no liability under the instructions given which were a requirement to show an act a use of excessive force in circumstances where the government said no force was necessary but they heard the testimony where the deputy said no force was used they hurt your client testimony where he said force was used to sell they had the option of believing that excessive force was force was used when no force was required or no force was used in order for them to was not excessive in the which we proposed instructions consistent with the facts of the case but the burdock is consistent with the deputy's testimony that he used no force but it's not consistent with the instructions which allowed the jury falling for the loud the jury to find for the county and for the deputy even if you use force even if they believe my client my client had the additional burden of proving that the force used was excessive so for example if the jury would decide well you know a little push a little punch that's not excessive no injury no harm no foul that would have allowed a jury to find that there was a jury to rule in our favor in their counties favor under those facts and it's that confusion and that misleading in that misstatement of the law that creates the problem here and that's and i just don't think anyone would have been confused i think people sad and think thought that the de instructions seem to us assume that a force we use is being justified not to quote a dispute over whether force was used at all which is not so do you have a case that has given the instruction that you in the instructions that the court gave unless you have a case that says in a in a circumstance where there is an excessive force or force type of allegation that your particular wording has to be given because that the court doesn't have to give any particular wording as long as the jury is properly instructed regarding that they're the theories of the case so that's why i'm curious do you have a case that has incorporated the instruction that you were urging upon the court and it's going on it not not exactly your honor but i would say that the standard instruction on battery and assault in this calendar the california claims does not have the police officer exception that the cook court instructed the jury on that those standard instructions involve only an offensive on consented to touching and that those instructions were but the court modified those instructions as well to include the to include the notion of a violation of california law the answer is yes and as reflected in the standard jury instructions that were not given but rather in and there where there is no police officer exception to and i consented to touching except in the case where the that and that those are the instructions which the court modified to try to to deal with this to to do that but our position was that since they were saying that there was no touching at all that those instructions which were designed to deal with the if they're not offering any and any just law enforcement justification for it then there is no issue of law enforcement reasonable force there was police officers don't get to use force as exception to that they only get to use force for law enforcement purposes and if there are no law enforcement purposes involved then they don't get to use force at all and i think that was the point that we were trying to make under both claim if but if if let's just assume if a reasonable way to look at the verdict is that they did not believe your client and they believed the officer under what ferrie could your client have recovered if they disbelieve my client in despair and believe the officer then obviously my client doesn't recover the problem is that the instructions imposed and reaching that conclusion on my client to prove not just the touching occurred or didn't occur but the additional fact that the touching was unreasonable it was that additional fact it increased our burden and it created a problem so you also i think we've discussed this and we understand your perspective why was it important for the jury to know about mr some anomalies specific disabilities when they were considering whether to happen a proper it's used excessive force against him because i think disabilities were partly a motivation for his lawsuit partly a motivation for why he was suing partly the motivation for why he was doing it and partly a motivation to show that he posed that even assuming that he was that they were arguing some law enforcement purpose he posed no possible threat to mr to right mr roberts and no possible reason to use any force at all it was also important to show that you know this was not a case of agree played it but a guy who suffer from disability whole life and why a takes out issue stream we seriously because of you know his vision and other in balance issues why this is something that's very serious to him that he could be seriously hurt if you got even slightly pushing fall off you know fall or it could be quite badly hurt well it's all right his disability obvious looking at him yes and no they are obvious in the sense that his gate is funny if he reads he would hold something you know reading something like this unfold something literally right inches from his face or case law that says if you're particularly sensitive about because you are if you're particularly sensitive because of your disability about anything that people do to you does that change the state of mind is says to why they sue how does that weigh into the evidence calculation of whether they feel that if you bring a lawsuit you you have to meet the burden of proof to prove the elements of that wasit so why would why do you say you have anything to do with that because it goes to the credibility and it's hard to avoid issues in any of these cases where you know if where there is no physical injury that somebody is just bringing a sports suit and it's not really a serious lawsuit and so explaining his disability went directly to that issue and why he felt the need to do that i am down past my time there are evidence your issues we've done in our brief i'd be happy to ask questions and answer questions on those as well but i would like to reserve whatever time the court has no questions for me course simmons always counsel started of course it's navios point but i would like to remind the court that in west the jury instructions do not accurately state the law the standard of review is abuse of discretion here what mr seminary appears to be complaining of is that the jury instructions as crafted by the court with a great deal of give and take between the parties in the court don't accurately capture the unusual circumstances of this case in that it wasn't an arrest and it wasn't an investigatory stop which are the standard use of force scenarios the jury instructions do accurately state the law so i think it has to be analyzed under the abuse of discretion standard i think his position is it's not an excessive force situation because there was no use d there was no occasion to use any force so he wanted instruction that would ask the jury to determine whether or not any force that was used was an consented to and therefore valid to of his plaintiff's  rights i agree that that's his point your honor as the court's wrong with that well as the current court pointed out there is no case holding that the jury instructions may be modified perhaps they can but they don't have to be depending on the version of the case that the defense presents here deputy roberts absolutely at his deposition when i interviewed him long before his deposition and at trial when he was called to the sta twice testify that he never made any physical contact with mr simmon ellie but that doesn't alter the required jury instructions the jury instructions were correct statements of the law and they were modified to take out the language that have to do with for instance arrest or investigatory stops there are instances in theory when a law enforcement officer is entitled to use some degree of force even if it's not in a restaurant investigatory stop to obvious examples or crowd control and maintaining order in a courtroom in this instance it was not necessary for deputy roberts to use force but that doesn't mean that no force would ever be necessary under those circumstances the jury exhibited no confusion whatsoever over the jury instructions they did not submit any questions to the court they deliberated for slightly over four hours with an offsite lunch break in between it appears that they were not stymied by the jury instructions at all mr simoneau did not object made it very clear it walked the jury through the process as a threshold question to anything they had to decide the st question was did did deputy roberts intentionally make physical contact with antonio sim in l a and the answer was no with regard to assault it was the same analysis did deputy roberts intentionally put mr seaman ele in fear of imminent unwanted touching i'm probably paraphrasing but that's the gist of it the jury said no i don't think the jury structures were erroneous in any respect and certainly within the court's discretion to issue but i think if there was any judgment there was not a shred of evidence of disability discrimination in this case mr simoneau himself at his deposition and in i believe in the complaint itself at the beginning of the case conceded that his disability would be very apparent to anybody in addition mr simmon ellie's counsel questioned both deputy roberts and i believe two other witnesses about things like mr simon always unsteady so the only reason the only two reasons that mr simoneau was attempting to introduce evidence of his disability the st was to elicit sympathy from the jury which is improper considering that was not at issue in this case and the nd possibility as his counsel just stated was to show that he's not just a greedy plaintive which i find an interesting argument because mr simmons demanded millions of dollars in a case in which he had no special damages and didn't talk about his general damages under the pretrial rulings mr simoneau his father was allowed to testify and not about april th two thousand and sixteen because he wasn't present but about the effects of this incident on his son in terms of whatever emotional impact it might have had which goes directly to the claim to reason that mr simmons i wanted to testify about his disability mr simoneau his father wasn't called mr simoneau himself talked very very little about the effects of the alleged incident on him after the fact mr simoneau he could have called friends to testify about how damaging this incident was to him had it actually occurred and he could have called he was seeing to psychiatrist at the time he could have called either of them he opted not to so i find it you know i don't i don't want to question anybody's motives but i find it a little troubling that he wants to bring in evan and wanted to bring in evidence of his disability to show that he wasn't just a greedy plaintiff plaintiff appellant in this case in his briefings makes makes a great deal of emphasis on the eggshell plaintiff rule but that's a rule of damages it's not a rule of law ability or evidence events summary judgment ruling was based on accepting mr simoneau his version of events as true for purposes of that motion but deputy roberts has a very clear recollection of that event as do other court staff and and  the judge and the and the judge and of course that's what i get when i refer to a trial within a trial in my briefing that's because we would have to have another trial within a trial about the events of october  thousand and sixteen if any of that evidence were to come in because it's directly disputed the court determined that even if it had occurred as alleged by mr simmon ellie it wasn't a violation of mr simoneau is rights the court didn't have to reach this issue but mr simoneau he would have also been entitled to qualified and i'm sorry mr deputy roberts would have also been intitled to qualified immunity because there's no similar case out there but as far as the relevance of of the events of october  st i don't see that they tend to prove a material or important element that mr c and i had to prove it is trial i don't believe they show motive intent course of conduct modus operandi as alleged by mr simmon l deputy roberts aside from denying what happened was alleged to have happened just didn't do anything that would affect the jury's analysis of what happened on april th it's important to understand touched with force and remove some minnelli from the courtroom on august th why wouldn't putting his hand on some aneli in october on the st and prohibiting him from interfacing with the court reporter evidence knowledge of the prior an act where some aneli had quote unquote gotten out of control because st of all as i said there were two court appearances in the interim when mr simmon ellie and deputy roberts had no adverse interactions whatsoever in fact according to mr sim in l a his deposition they barely made eye contact they didn't have any any interactions so several months later you have this other incident that's alleged again we sharply dispute that but even so it's really not relevant to anything the as you all know i just tried to establish that it was relevant to knowledge which is of again for a for being under under four for be that is one of the one of the potential criteria but i don't i don't quite understand what mr similarly means by by knowledge i was sort of left nonplussed by by that claim that this somehow showed knowledge well robert's interfered with me and touch me and punish me on the st of october because he knew that i had interacted with him physically in the past maybe he was trying to prohibit me from touching the court reporter or whatever but well it's always the balance role as it is any journalist knows to maintain order in the courtroom and if he had this occurred as alleged which which he didn't deputy roberts potentially would have been within his rights to prevent you check all the boxes all the four criterion from from rule four hundred and four b the court is still within its discretion to exclude that evidence under four of three if it's like substantially  would require a trial within a trial because as i've stated several times the facts are in dispute we would have had to call an entirely new set of witnesses in fact other than the judge and possibly the clerk you know it was a different court reporter on on october st than it was on april th it would have been different more witnesses you know i know the investigation is an issue in this case and i conducted a lot of that investigation i attempted to speak with every attorney and every member of the court eight page twenty started page twenty four dollars opening brief where a court says where there is no where there is no need for force defendants use of force is subjectively unreasonable so it seems to me that that's the point that we were trying to make on that called for the obvious purpose of keeping them there the nd deputy knew that because they know he instructed mr simmon only to stay in the stay in the hallway when he went to inquire into the court room secondly on and we see your face now more are did he just say that i mean is there any you know i mean it's a few parts a curfuffle you get removed but was he what did he say that would lead him to believe he was forever banned from ejection from the courtroom for some form of improper conduct that robert says never again says never happened which of course gets to one of the final point just if i have a few seconds is their refusal to allow us to cross examine it mr you know  roberts on their information and belief denials i believe was a critical but we've made a point in our brief and i believe was still a very important point on a case of credibility that that we were not allowed to look to point out that he made information belief denials in his answer to dig as to the allegations of touching where robert had to have known whether or not this occurred at the time he answered and the exclusion of that evidence where the case turned on credibility dates when there was no optic ation or interaction i think that that's just an issue goes to jury they want to make that argument they can make they are going to the jury what about the circumstance that the facts were disputed on the incidents would that make it somehow would you say it's a would you say the nd case gets tossed because it's going to require different witnesses in the st day all because they're both simoneau to the cases at that point this is not discretion applying for a three analysis because these are invents involving the same parties if involving different parties or extra other events and i could understand it but you don't what were credibility is at issue and the parties have a history have a pattern of interaction i don't believe you can use for all three to limit that in that way i believe that is abuse is a pattern if there are if there intermittent non non events in between i think that becomes important an explanation and the fact that we had they had just dismissed they had dismissed the initial government claim again it filed the government claim after you know had filed a government claim that had been denied and then the incident in the cupboard st happened i think that that would