of terry jones who is a thirty three year old black man who was arrested for driving under the influence in las vegas nevada on november twenty first one nine hundred ninety eight taken to the clark county  detention center and then died there as a result of a forced blood draw as a result of being pinned to the floor by five corrections officers law his hands were by the district court both long rulings for the trial and on evidentiary matters before the trial that the plaintiffs were not provided a fair trial they were not able to present their case and in particular these rulings concerning the prior arrest and criminal records of mr jones were most prejudicial and made him look like a career criminal if the correct that would be that would be the standard we don't believe that that we opened the door but if we get open the open the door by presenting testimony that he was a he was a good father that he was he was a good worker on the job that type of thing i don't i think these types of events are just highly prejudicial and there's other ways of doing this i mean if they want to if the character of the gentleman i in dispute because maybe his character is relevant to damages or they want to show that the character that we brought out was not a character that he really had there's other ways of doing that you can bring in character or evidence under rule four of five of the federal rules of evidence which would be opinion or reputation evidence there's also under rule six if if a witness is testifying and there were witnesses that testified family members they could ask them on cross examination about certain events but in this particular case not only were they asked about  thing and these are just these aren't convictions what these are as are police reports and they're just full of hearsay and they're highly prejudicial most of the expenses which were included in these records mr jones wasn't even convicted up for felony arrest for for supposedly stealing a cab resisting arrest attempted robbery and one incident which was the oldest  have been fixed and you had a couple of corrections officers standing in the doorway who let up a corrections officer standing in the doorway and they were disputing the accuracy of what they saw and those were all issues that the jury had to resolve with regard to the credibility of what happened or those those were issues that the jury had to decide but when you look at the basically we had a case where the jury had to determine was mr khamenei telling the and lying about it yet mr jones who is the person that you were saying we want the family be able to recover damages for he shown to the guitar of the man who was engaged in these types of acts in the past and there was no proof that he had committed these acts other than police reports it was a few connections i will admit that in those records but these were police reports for the most part they were highly prejudicial person so it isn't limited to convictions that it's it  does permit that specific incidence of conduct but as you pointed out it does say limited to for impeachment that you can't prove if it's true right and if you look at it if you look at those reports those reports are highly inflammatory that's one thing for the judge to allow the defense to ask the family members about what they knew about certain incidents that's one thing but then reading in the records they involve you know fighting or that type of thing but this is these are the type that were most prejudicial and made the jury you know look look at this gentleman say regarding well maybe you know maybe mr delaney kicked him in the head maybe didn't this this this guy doesn't deserve an that doesn't deserve our protection in any way shape or form because he's not a credit to his family had we give damages to his family through this and as a result i think it had an impact on them finding that mr d heard disciplinary history with with the clark county detention center in las vegas metropolitan police department we just found out about one incident after the case was he had been disciplined for this very incident however the way the evidence came out of trial it looked like the metropolitan police department supported his version of the facts his version of the it coulda look that way to people watching it from the doorway i mean that was basically his contention and when he when he testified that we should have it we should have been allowed to introduce evidence  only used his foot for defensive purposes rather than as a weapon and the problem we had the case is that like the day two days before the evidence was taken the judge excluded evidence because none of the corrections officers had been trained on it and were subsequently were right they subsequently worked and like you and you wanted to introduce the fact that there were  arm however this restraint chair was available as an alternative we could not we were not permitted to ask him about that so there implication that there wasn't other alternatives it was not an ac one and the jury got the impression that there were no alternatives other than perhaps putting this man in isolation cell or putting him on a gurney we tried had we tried we tried to get evidence to the gurney at just because the judge wouldn't let us a thing about the restraint chair which was an alternative and it had been used by the police forces it was it was available in this particular case and it's and it should have been used we feel that there are a defense that it wasn't used because they and also whether that was the weather that was the moving force and his death and the of the argument and by the other side in the brief is that these were issues of credibility which the judge and just took that long in the extreme we wanted to get a good expert that costs them money so it took a little while to raise the money for that we had to come up with a five thousand dollars retainer they can say that no big deal but it is a big deal now i understand that and i guess the question is why didn't you alert the district overturn what i think it's also a discretionary ruling on the part of the district court in the face of a record where you didn't work the district court and the fact that you had a problem in the district court found that you waited too late to do it and i'm trying to determine how that and your plan is to be able to completely and fairly set forth their case if i thought it was a fair trial i wouldn't be here if that was the only issue i wouldn't be here either but you want to take some time for yes thank any and criminal record history of mr jones in realities that even go so far as to assert that this shows that he's biased and prejudiced now in fact the argument fails because when we look at it carefully and as some of the questions are already pointed out the same rules apply it was applied consistently but of course the different facts different offers of evidence different evidence actually put em in different actions of the part vast majority of those did not come in and the vast majority were not ever specifically excluded in fact he says that the worst one came then actually the one that we thought was singularly appropriate because remember we're talking about damages and even arrests are important because if you're arrested you're not earning money you're not with your family this is a wonderful relationship the family has to go through that in a minute perhaps with that was comes in on the question guidance and direction he misses the guidance and direction of his father now they did come in and first of all plaintiffs themself and the judges order the march seventh order document number one seventy five specifically makes clear that a number of these items the previous july the domestic violence were conceded by the plaintiffs to be appropriate and the judge ruled that they could come  comments and the boy who was certain extent made comments as well and confirm some of those so then what we have and we do have police reports police reports and generally can be business records they are made by persons who have a duty to report accurately there are some other statements imposed the vast majority of them are party admissions by a party opponent andrea jones of different arrests and indeed mike prize his supervisor who they put on show that he was wonderful that he had good champ romance and didn't get into arguments had no problems with any of the other employee is the son all of them talking about he's mellow when he's under the influence he's that isn't a violent drunk all those kinds of things this unfortunately is relevant to that and even more important with mr pryor he's saying he's going to have this job when he gets out when we know that the very thing he's arrested for is a third offense and the why that time and time again throughout says it him he didn't bring the false arrest claim the price raised the inference that there was you know not probable cause for the arrest in the same way he tried to raise the that's where we got went with those particular documents they weren't the size even if there is not it's certainly not reversible error most of the information that's in there are missing admissions by party opponents clear to plaintiff's counsel throughout your opening the door your getting into that area i'm warning you now you keep going into this information you go further with this then all of these authenticated documents are going to come in that's what he told them  was many yelled at somebody he never heard his wife or his trial was an industrious worker personalities happy and smiling job isn't in jeopardy now you know we can open the door a crack or we can swing it wide open and if we warn somebody that if you swing that door open this is what's going to happen that's exactly what happened and interestingly enough he tries to parlay that appellate court to for that matter has the right to control its proceedings they have the right to be in charge and in this when you look at the entire record here it's very clear this judge wasn't biased he found over backwards he now says that dr wecht was available for deposition before that time there was no no showing in the papers at the time of trial that show that the opening statement he comes off with has to be interrupted on a number of occasions because he completely under those circumstances this judge bent over backwards allowed a lot of questions to be asked again and again ultimately no or no abuse of discretion and in fact some of the other issues mr police court going back i believe to a question that was asked and to an issue that was addressed specifically mr vandeleur com and why judge dawson did not let him testify counsel suggests that the reason that he did it was because just as the money was going to go to the ultimate issue of fact and the judge didn't think that indeed if you look at the record starting on page twenty six and going see anything happen three of which said i didn't specifically see any care we had two other directions officers up proximately twenty feet away in a doorway and said they did the objection we made at that point was you if given the phraseology of that particular question you are asking mr vandeleur com to make a credibility determination and other words which one of those witnesses is telling the truth and that is not appropriate expert testimony it's not helpful to the jury indeed that's the jury sponge they can perform that function without specific expertise and that's furthermore out if you look later starting again it peachy to twenty eight in the record to thirty two to thirty for the record what you see there is this when the proper question was asked and other words for example assuming that what kick this man in the head do you have an opinion as to whether or not that was proper training or excessive force judge tossed in the lead to him to testify that he allowed him to testify with regard to whether or not there was proper training he allowed him to testify as to whether or not there was a code of silence the only time the judge dawson did not let him testify was when he was making credibility determinations and those aren't appropriate under your rules as well as the rules from the other circuit sort of addressed it now turning to the prisoner restraint chair again i think you have to take this in the context of that it was presented to the trial judge remember summary judgment have been granted to the department with regard to the failure to discipline client summary judgment had been granted with regard to the state claim for failure to train their own expert mr van blair calm told the judge in his report which i believe is plaintiff's one sixteen this is a negligence issue has nothing to do with nine hundred eighty three because we no wonder they under the davis case negligence cannot serve as a nine hundred eighty three cause of action this is a negligence issue and judge dawson ruled number one we were entitled disciplined for this act that's the only thing in the record he went through discovery he could have put it in other evidence to defeat the summary judgment he didn't so what do we have at the time that this particular he wants to put in at that point number one it's not relevant or for a one number two it's prejudicial anti consumer unit of four zero three and number three as justice kallman pointed out it's a remedial measure department yes he is in charge of custodial issues in the jail but those issues have to be approved ultimately by the sheriff jerry keller so he's not the ultimate policy maker under her  he's not ok that's number one number two he says we're having problems with combative prisoners coming in and i'm going to look around and see what's out there on the market to help us cut down putting together a policy they don't finalize the policy they put it together it's there they cheer at the time this change didn't happen and since its delivery to the jail was in the basement under lock key why because we hadn't trained on it that's why we end having the training those just think if we're going to put it on the floor he'd be here today saying and what you've been trained on how can you put it on the floor you can't have it both ways so that's the circumstance of the chair that's where the chair was and it clearly is a subsequent remedial measure on a four hundred seven without any question it's not relevant prejudicial a think we pretty much covered but realistically if we get back to the alleged different treatment different application the discipline of david to me as the trial judge specifically there but but the court specifically found we've cited that in the brief we specifically found that this what is being charged is different standards of proof determinations the right you even the and that kind of credibility attack on his credibility in some instances at some stage perhaps but in here i understand they the court specifically determine that they should not come in  other incidents by the way were substantially dissimilar well or similar in the view of your opponent probably because he didn't tell the truth in one instance what it  was and if you look closely at it you'll find that he initially said i used caps and pepper spray from a particular location a few minutes later i was actually at this location was a different location yeah that's it but if we want to talk about that allowed to do that we could not mention it the judge told me that he was trying to shut me off i mentioned it again i mentioned it in the opening statement and he said if i hear that again you know you're going to be sanctioned so i couldn't bring it up under any way shape or form at that stage of the trial you resumed before mr detainees testimony i resumed made another motion that i want to bring these things up and he said no they cannot be brought up so i can't you know i kept adding to try to get these things in because i know you have to and you have to make you have to make motions or you and they're not going to be sustained on appeal now as far as the information about mr jones is concerned these were arrest records these were not conviction records some of them resulted in convictions of most of there's no statement from mr jones there might be some statements in there by a police officer this is what he said but it was a statement by cab drivers as to what they said why the police officers as to what they said and it was inappropriate and that and then you're out