substituted but that does not affect any of the issues here we're here for today there's a new sheriff in town yes your honor that's correct sheriff marcin no your honor i'd like to focus on two issues from below the nd there relates to the question instruction informing the jury of the legal effect of a factual finding regarding florida's alcohol defense does that does that jury instruction miss state florida law no your honor it does not and is there any indication that the unlike i guess in the harrison case that you cite that the instruction was designed to inflame the jury can we draw that inference i'm not sure you can draw that inference your honor but it is the  defendant's position to share suppose ition that the that it was unnecessary that it could have impacted the jury's decision in the harrison case that the sheriff cited to the fift indicated that it was highly improper for the jury to be informed of the legal effect of its factual finding well well i mean i guess in fairness harris and those different it was highly improper in the context of not the court instructing the jury but a lawyer sort of inflaming the jury and as i recall in that case it was sort of part of a cumulative error analysis right so yes we're like two steps removed from harrison yes your honor and i would i would suggest respectfully  that when the error is committed by the trial court where the trial court is instructing the jury that that increases the prejudice because we're all aware jury is instructed you may ignore what a lawyer says but you must not ignore what law what i instruct you on the law and i would also suggest that the verdict form also which reinforced that the that the claim would be barred that also adds to the prejudice so it's no it i'm sorry go ahead can you give me a federal case where an accurate statement of law was held to be prejudicial i'm not sure of prejudicial is right word your honor we cited to some cases in our brief and it was more related to a comparative back when comparative negligence acted as a bar where in some jurisdictions and i believe it was federal where where some jurisdictions said juries don't need this information  so we haven't compared notes about this but judge branch and i guess we're both commercial litigators before we became judges i mean i seem to see i seem to recall having seen a lot of verdict forms that say you know if you answer a question one be thus and such you can stop and i thought verdict forms always did that really how is that really and how is this any qualitatively different from that stop because one party is going to prevail at this point i would suggest under the circumstance of the alcohol defense we had a juror we had a verdict form that we proposed where they would keep going even if they feel they found that there was fifty percent at fault and intoxication where they still answer the damage question so there there is no indication that the claim would be bar and i think under under florida law that would be how it's done is florida law governed this it seems to me that under erie this is but it says something to the effect of jury should be instructed on only what is necessary and we cited to a case and i'm sorry i don't have it off my head that says when they're instructed on anything more than that that that is improper and i know your honor submitted that question and asked us what would be submit what the district court would problem to me is this you've got an argument about the state of florida law an interesting argument one  in a proper context might be sort of to the florida supreme court but it seems to me that the problem is you've only appealed that in the motion for a new trial and you're but your argument is one that would support an appeal from a denial of a motion for judgment as a matter of law but he didn't appeal that so i'm at a loss to know what we do about that your honor i would suggest that under florida law it is firmly established that there is no such cause of action for a negligent use of force he wanted a new trial on on this nonexistent cause of action i don't understand that no your honor i'm sorry  there is it is firmly established that a claim exists for a negligent welfare check and that's the wallace v dean case now under florida law one who is negligent is not absolved if they set in motion a chain of events that leads to foreseeable harm that's why we don't necessarily think we're entitled to judgment as a matter of law if a jury determines that the execution same to me though is that that's not the way he presented this argument in the brief and you don't really tell us how if we were to remand this how this would how did your research should be instructed what the proper instruction would be here's the instructions we offered that the district court didn't give i met a total loss to know what this new trial would look like well i would say you are the new trial should be limited to litigate ing the circumstances of the welfare check itself and that and it should be she should not be able to call into question the reason on this of the shooting so your honor for instance and what you understand that there's really no way to try this case without referencing the shooting yes your honor and i think the shooting itself the damages flow from the shooting but the results of the shooting itself should not be litigated so in other words the jury should decide is it foreseeable that in the execution of a negligent welfare check that a deputy might be justified in using deadly force the deadly force was reasonable but was it foreseeable that they cause themselves to have to use reasonable  force and obviously that becomes a question of foreseeability and and i would respectfully i don't think that we would contest that it might be foreseeable that if you enter a private person's home they might retrieve a firearm assess it taking the use of deadly force in self defense but that would be that would be argued to the sheriff's position that the litigation should be limited to the circumstances of the welfare check whether how whether if they executed the welfare check reasonably that they turn the lights on that they say though the home owner's name things like that factual issues like that not they didn't order her to drop the gun they shot through a door that's already been litigated that that has been determined as being reasonable now i think on hang on hang on so so maybe i'm missing something and feel free to tell me that i am so but i thought when you say it's already been litigated those issues were effectively soon in her meanies favor right at the motion to dismiss stage and the court says to her meaning you lose anyway on the excessive force claim i'll in rimini favor she lost anyway i would just suggest that any criticisms of the shooting itself are not properly before the jury because that would be a negligent use of force claim i'm just trying to figure out i guess if you if you think that that the theory is sort of barred on a like a collateral estoppel issue basis or you just think it's sort of impermissibly overlapping or what exactly the problem is i would think i think it's the former your honor i don't think the claim is barred clearly there's a claim for a negligent execution of a welfare check but then the question is what how how should she be permitted to try that claim and you're saying she should be  shot no i'm missing a guess let me let me ask you this maybe i'll be more pointed are you saying she should be prohibited from arguing certain facts because those facts were adjudicated against her in the excessive force claim of the motion the many conferences we had on these instructions that the jury instruction he gave did mimic the law mr jolly objected to that said that's harsh and he says it's a harsh law however he was willing to consider prejudice because he took out the the mention of drugs because the drugs in the statute refer to illegal drugs and there was going to be no testimony about illegal drugs so he did understand that there was some prejudice if you had something in that instruction that that was not going to be before the court but his position was it's the law and i'm going to leave it in i would point out that contrary to the argument you heard the only person that mentioned all of that in closing argument when the jury had instructions up on the screen was counsel for the  who said by the way fifty percent more at fault there's fifty percent more at fault there's no recovery i didn't mention it at all not at all so i would ask that the court that issue you know let the instruction stand it properly stated the law i could find nothing that said that if you properly state the law that there's something wrong with the jury instruction  the issue of whether it was designed to inflame the jury like i say the court considered that and it did take out the illegal drug thing because he did they did think there was no evidence of that let me move on to negligent use of force which i was prepared for i find it incredibly interesting that counsel kept mentioning foreseeability here today i put in my initial answer brief that my jury instructions my proposed jury instructions track the language of wallasey deen and track the language of judge steele's order on summary judgment which was they had a duty of care they had a duty to lower the risk of harm they had a duty to consider whether what they did resulted in the foreseeable did she act in a foreseeable manner based on their actions the sheriff's jury instructions were straight negligence claim and now it seems to me that we're standing here today and they're arguing foreseeability which they didn't want in the jury instruction went before we went to trial you know i figured i could live with the negligence claim but an initially we had very competing jury instructions on this he asks this court today to limit the circumstances of the shooting i would say st of all that mind he was clear from the start what was before the jury in her opening statement she said issue if the issue of how the wealth mean check was conducted is but for the failure of three deputies to communicate properly and effectively with a frightened woman the series of events that culminated in her grievous wounds would not have would have could have been avoided in closing i said we are talking about the series of events from the moment the bedroom door was opened until  fired they understood the part of the case that they were to consider however the facts in this case are in extra you know in extra couple interwoven you can't start separating one fact from the other as judge pres nel said the issues were simple but the facts were highly disputed and the jury is a jury spare purview to decide those disputed facts so they need to know the whole story and the whole story is from the time they walked through the door until the time she left in the ambulance that's the whole story but their consideration and the focus of my nice case was always on the communication that happened between the deputies and mr my knee judge president now agreed with me that the failure of the plaintiffs to drop her weapon was an issue for the jury to consider particularly when you look at the testimony at trial their versions of what happened right before shots were fired were very different so let me see if i can get some clarity on the problem that i guess i'm having a hard time getting my mind around so so he says though that your argument that you tried the case as well you can't do it now or is it something different because it does seem to me that the facts do is just brant said they just sort of overlap and sort of them mushy way and be hard to sort of pull them limb from limb but he but is he saying that there are some external impediment to you being able to make those arguments now i don't believe so and neither did judge the facts in this case proceeded from a to b to c but the issue was did the way they  course if we'd had a foreseeability jury instruction that might have had helped but the issue was did their negligent conduct of the well being check culminate in a person getting shot now they also had to decide proximate cause and you can't decide the issue of proximate cause for damages without knowing all of the facts i didn't really read it as in the stoppel argument i originally read their initial brief  try to negligent use of force claim and judge present in his order said she didn't try and negligent use of force claim she tried to claim in his words were plaintiff the actions of the deputies including the failure to order the plaintiff to drop her weapon could be considered by the jury in deciding whether the deputy's actions during the welfare check which culminated in the plaintiff being shot were conducted in a reasonable manner i thought that was interesting culminated was the very word i used to the jury so they were considering whether or not i have to say they said i impermissibly continuously made this argument of course there were no cites to the record on that and i cited to the record in my brief and i said i mentioned in a series of things that you would not hear you will not hear that they called her by name you will not hear that they told her they were doing a wellness check you will not hear that they you know were were there because of her daughter you will not he that they asked her to drop her weapon i understand this lady did not know her life was in danger at that moment in time so that was the st reference i made the nd reference i made and keep in mind as well there were three house only one of them had a claim for excessive force against it only one of them shot the weapon but the other two deputies still had a burden to contact the welfare check in a reasonable manner two of them were standing at the door when the gun went off so i asked deputy paul mees did you hear anybody say drop your weapon i asked that question a trial without objection and she said no i asked deputy hammer did you tell her to drop her weapon he said no there wasn't time that was his position or mine is position on what happened right before shots were fired was very different that's the last time i mentioned it i never mentioned it  closing i never meant i didn't even ask lisanby unfortunately i looked in the record but i didn't even ask lisanby whether he asked it so this notion that i continuously referenced drop the gun is just simply not supported by the record and the court agreed with me i'm really i can't really see the judge sat there i'll tell you this he told us more than once he knew what judge steel had absolutely decided about the gun he knew how judge nel judge steel got to the finding of you know the finding of dismissing the excess of force claim and which issues re relative that that judge steele said there disputed i don't need to go there i just need to say she said she had a gun he had a right to think that she had access to the gun and he didn't have to wait to find out to get shot that was his finding and actually he said even if i'm wrong even if i'm wrong you know there is no case on point that speaks to this particular set of circumstances so he's entitled to qualified immunity but he left all those issues did she point the gun i mean i was sitting there with a with the opening statement where my opposing counsel said she cranked one off and i would point out i'm not real sure when i started looking at the reply brief and saying well what facts chopped out so that the jury understood what happened and i'm also not real sure what their affirmative defenses would be their affirmative defenses were directly related to the shooting you know she was drunk and irrational and so you know she pointed a gun and  know he said in opening statement you know if you point a gun at somebody you're going to get shot i don't know that doesn't have much to do with communication that has to do with you know the shooting so i had to keep bringing the jury back to the notion did you ask this question did you ask this question and i'll tell you once the jury heard the testimony of commander riordan who was the highest ranking officer to testify and was the person that was and thirty four ranks of the officers that day i mean she said i'd walk in she absolutely told the jury under these circumstances she would not have opened the door she said she'd walk in and she tell him she was there for a wellness check she tell me she wasn't they weren't there to her she didn't you didn't need a gun we're not there to hurt you we're just here to check and see how you are she went through a whole list of questions that she would have asked and then said i certainly never would have opened that door i'm not sure what they expected would happen i don't find particularly someone saying get out of my house i have a gun to be irrational however all they had to say there was man you know i need a gun we're not here to hurt you but they didn't so for me from the day i st read the facts in this case before i even filed the complaint you can go back and look at the complaint it was a sim it was so simple so see if you had only if you had only talked to this lady there would have been no shooting so the fact of the shooting i don't think truthfully that deputy hammer walked in that after that evening with intent to shoot anybody and i certainly know that you know or might never would have pointed a gun at a deputy and there is no evidence that she ever would have so i go back to that is a consequence that is the but for negligence complaint but for all of this negligent conduct of the welfare check none of this would have happened  i argue to the jury that negligence claims are often about a lack of common sense and i said if only these deputies had treated this claim had treated this call with some kind of common sense a good example was deputy paul meese testified on cross examination that they never give their name and they never get used the name of the person that's that they're talking to well this wasn't a traffic stop this was three people that walked into a house without consent without a warrant it was pitch dark in the house they opened a bedroom door and found an elderly lady asleep on her bed in her bronner underpants and they shined a flashlight on her you know i can't think of anything that lacks more common sense than that i do believe and i have believed from the start that the issue of the shooting was not about the shooting and whether it was reasonable i don't question judge steele's order i accepted judge steele's order i didn't appeal to steele's order the issue was what these deputies did before that happened and i would suggest that that was the issue there was never a case i understand the court's concerns about not wanting to have confusing law about negligent use of force claims but i think in this case don't misunderstand me i mean all of that was about did you really frame your argument on appeal correctly or ok so i think thanks to me there is a big problem with the way they appealed it i think that i would ask this court i do not i look at  order he sat through this trial he listened to all the evidence he listened to all the testimony he had studied judge steele's order on summary judgment and he found that there was no there wasn't a negligent use of force claim he found that the facts were disputed with respect to the gun with respect to the question about and i would ask this court to find that he did not abuse his discretion and affirm his decision at the trial of the district court thank you mr mcallister mr jolly four your honor the summary judgment order as it relates to the negligence claim in that order the it says tribal issues of fact exist as to whether the deputies exercise reasonable care and carrying out the welfare check which increase the harm to mapes and whether maybe his actions were reasonably foreseeable consequence of the negligent acts or emissions of the deputies that's the claim that we're asking should be retried and  counsel what i'm sorry based on what based on an argument that there's no such thing as a negligent use of force theory and that's not the theory that you just described based on that there is a negligent commission of a welfare check claim right and miss macallister gave the district court recognized that right and i think your honor well certainly the sheriff's position your honor that miss macallister gave some examples for what that claim should until they didn't say miss or mean his name they didn't say the daughter called they didn't say we're here to help you you don't need your gun these are appropriate issues for the jury she can certainly arguments about that it trowed and she did but she also called into question the reason oneness of the shooting itself that's where the error comes in your honor she should not be able to relive again the reason oneness of the shooting itself i would concede that is foreseeable and she made an argument that we didn't have foreseeable in the jury instructions it is foreseeable that if a law enforcement officer goes into someone's house without them knowing they might retrieve a firearm and then the question is did whatever they did inside the house was that reasonable and was it foreseeable that they might have to use deadly force and the damages were flow from that there were some other issues that were raised by opposing counsel number one they didn't just go into this house they got a call from the plaintiff's daughter saying my mother is she's had she's been drinking and she's suicidal that's why they were in the house it's not like they just walked into the house  honor unless the court has any more questions i'm going to stand on their missing the briefs and thank you thank you for the last case