showing of an emergency but of the events that occurred in the arrest of jose molina sr additionally we are seeking the grant of a new trial for the unlawful preemption of the only minority in the entire panel and based upon the prejudicial comments of the judge during the charge which i lived in and did in the let me start with that the judge noted during his charge that it was an evolving chaotic were not part of the group that was involved in the rico arrest however sanders testifies at six hundred and ninety six through seven hundred and thirty four that rico slammed the door gave him the finger he got bit by a dog and he pepper spray rico sanders and lincoln had not received the directives that's what the judge said so they went on the property regarding getting off of the property when mr molina and his son said get off the property also the judge stated according to them they took him into custody and walked him down through the gate despite mr molinos testimony that he was dragged through down on his face and that his pants fell down on his way to the patrol car the judge also stated that after reviewing the officers testimony it doesn't appear that senior was the target of the pepper spray it was rico who was trying to pull one dell and was fighting with the others that's it six hundred and seventy six dollars in total am i right in understanding that you're not challenge the notion that the defendants here have probable cause to arrest both the plaintiff and his son no we're  saying there was no probable cause to arrest the plaintiff right and well it's no exigent circumstances direct and mr molina in the plaintiff was found not guilty at trial on the charge of resisting arrest the only charge that was pressed against him and the son was found the son pled guilty to disorderly conduct correct now mr saunders testified he was not entering the home when he went into the front yard he clearly did not have any appreciation of the non the notion of violence incident who is angry intoxicated and say i'm going to have her ok which is what the testimony was at the trial you're saying an officer can't go on a porch and arrest someone in that situation now without a reasonable and without an emergency situation there was no one hurt swee had said she had no problem she didn't want prosecution saunders testifies he was st on the scene at seven thousand nine hundred they didn't interview the child who supposedly call inside his house he comes back out he's angry he's a toxic aide and he says that you're saying they have to stand they're going to war and i'm asking you if he goes back in the house now what do they do if you go back in the house where they do you could run out the back door go next door to see her right saunders testified that he knew nothing about him they did not go in with their weapons drawn they were not fearful of them having a weapon there was no indication that he would be from the scene and many a vent easy take that aside your they cleared the scene saunders testified that he cleared the saying he went around the corner when del says i'm going to go up between the houses and i'm going to try to catch him out on the porch he calls them back they come back by the time they come back one day i was is i the rest of your client on the porch after having just gone the property to get the son but but the my client was not arrested until after they had cleared the singer with the officers according to them so he had or already committed a crime he's standing on the porch and you're saying even if they had exited you to arrest the son issues officer bring the son outside the gate they can't go back and get the father on the porch well that's right because they needed an emergency to do that and they still who the property and there was no emergency there this is a man that's on oxygen he's seventy some years old he has c o p d he cannot walk and they testified that they saw the and they knew that for you sit down might like to address the batson challenge please because i was concerned that the district court may have been confused about which of the two jurors mr sent to che translate yes mr edwards juror number five he told the court that his son was arrested in north carolina and he was a freshman year in college it was seven years ago as a breaking and entering and they asked the judge asked him if he if there was any restitution or the other counsel did and he said by dad kind of joking by dad and that there was no evidence of bad feelings as the court may know that the defendants have indicated in response to the  appeal that they're in there now attributing some kind of mannerisms that were something else entirely different but the district court said that one of the jurors was angry over the payment of restitution in connection with that arrest that was that his son was arrested six to eight months earlier he was twenty seven years old and he wanted to say he could be fair and the judge said well we need you to do more than that you need to say that you could be fair and he says i think i should be able to do that and he said  were is that they were referencing mr craig juror number four because his son was arrested and was recently released from the i q shocks then i shared yours whose son had difficulty with the police correct he was recently released and he was actually i don't know what time it is but i may be good afternoon at this office after fair enough good afternoon so st i just want to address the one issue about the arrest of mr molina sr who is the point in this case he was on the front porch during the arrest the testimony from the officers which is it's credited this moment is unequivocal that he was on the front porch at the time as a rest he was not inside regardless it was all part of one transaction there was no reentry no nd emergency or anything like that it was all one transaction they  house he was in a hospital bed on the st floor there and on oxygen just as normal but they were doing some construction in the bedroom of the house they moved his bedroom or is bed into the living room he did sleep with oxygen so he was wearing oxygen but if you know the testimony officers will tell you that he was also jumping up and down on the bed and when they came in as well he had obviously removed the oxygen at that point the officers that testified that when they were struggling with the son he would come over hit officer to being intoxicated and making threats and so on was the sun and there's testimony obviously that mr sr assaulted the officers but he didn't seem to be posing an imminent danger to his there was also a neighbor who happened to be a granddaughter of the point if on the other side the other side so either sweet on one side granddaughters on the other who is screaming yelling and it's two am neighbors are starting to congregate they also want to deal with her at this time plaintiff now comes out on the porch and he's yelling as well and so at this time the situation turned chaotic and it's going it's escalating as the officers described and they needed to get control of the environment and they were worried about the crowd that was that was coming as well and i believe honestly the plaintiff was naked on his porch at this time the officers fell at that time it's all happening at the same as the same transaction they needed to remove him from the situation also because he just assaulted a police officer as well having a temper anus there's  testimony in the record isn't even clear that all the officers left the property completely at that time it happened really one after the other contemporaneous arrests so is it impossible with your question judge it would not have been impossible to do that with practical probably not in the circumstances because of the elevated risk that had occurred with with the other neighbors that were approaching the scene in the yelling that was going on in multiple homes at that point and he was resisting arrest of another you know so it is probable cause for his arrest which should be noted that that was not brought up and the motion for judgment as a matter of law and frankly was all in one sentence in this brief i think the matter there may not have been probable cause but i believe that portion has been abandoned in terms of this appeal judge  the african american juror was quite clear that he had no problem being fair and that that incident that had occurred with his son was over he said he's you know that my son's doing great and we just want to make sure you don't have lingering feelings he says i would say no court says they're good police officers bad absolutely in the anything else would be a problem no so fine and then mr cent tucci talks about his son having ongoing problems with the police he can't get a straight answer about whether he had difficulty being fair and he's you know it sounds like it's a problem yes arrest had been unlawful i don't see any basis for that and he was angry over the payment of restitution you argue in your brief that this was a demeanor finding but the language used suggested more that was just meant to cheat was still angry and not settled about this i was concerned that the district court confused the two in assessing the batson challenge and allowed a black church to be struck in a circumstance where it would be important to the fairness of the jury's arrested the st thing he says was that it was a breaking and entering and he said i realized this guy learned that you can't walk into an open door and you could still be charge of breaking out and basically if the door's open then he goes on to say we i could not prove or disprove the charges showing that and the impression that i had at that point i was trial counsel for this sure are was the feeling was he didn't believe her son had community crime really she wasn't convinced that he had committed a crime and then he won well how's he doing now he's doing great we just want to make sure you don't have problems i would say no they're good police officers and bad absolutely anything about that experience be a problem know and but then you go to mr stand to cheat and he says you know i stood up and i see my son has twenty seven aggravated on license operators in row county jail sounds like he has a problem i have a couple of run ins with him and me and the police you know and he can't answer straight up he sa how do you think this affects your ability to decide the issues i mean at the time i was disgruntled disgruntled with the police because of how it came down and how it happened but i think over time i learned to adjust i mean i'm pretty unbiased  on it personally you want to see yes i can say among biased i believe so i think i should be able to be fair he's much more equivocal it goes on much longer the impression you confident of the judge didn't confuse the two i am judge the important part of the evaluation there was mr c in tucci identified that it was his son that had the problem his son had a drug problem his son had a problem with the police and he learned that it wasn't the police officers that were the problem which is the exact scenario that we're dealing with in the lawsuit itself with a son who created this whole situation that brought police to the house that ended up with a police arresting a son and the father it was the son's fall that was part of my closing argument this is a son a father who won't blame a son when we look at mr edwards it was that he doesn't honor i think that that the finding if the jury relied on the issue of this being involving chaotic dangerous situation that it can't be fairly relied upon with the judge's comments the judge intervened in the fact finding assessment of the evidence his comments on the evidence taken as a whole indicated that it was an evolving chaotic situation they did not need to get a warrant as he says a fast evolving thing you have to believe there was a serious situation here he said he reciting facts that were totally inaccurate he said that saunders and corey go were not part of the group that were involved in the rico arrest which is totally contradicted by mr saunders own testimony as well as parent goes in the sun taking that commentary by the judge which was that lived it was not provided in the jury charge inaccurate and observations of the evidence make it an incurable problem so i can tell you once that you get to decide the facts but if i tell you five times what my opinions are the facts are i've got the robe on and then you have  n what's the word you've stepped on the toes of the fact finder and it was so profound and so unexpected that there was really there was really nothing that the that the jury could do with respect to that one comment well now it's your recollection of the facts and not mine but yet he had already put in their minds what those facts were and with respect to the comments of the  juror that was struck he said dad did he didn't say i had to or anything his demeanor was not at all to stress about the fact that they had it and i think if you look at the circumstance he and a friend had entered a dorm room that was a neighbor of theirs at the college that he talked about that was it was totally fine with that and your honor it is very very difficult to get black  got if that's the impression that the judge found out i didn't get that from his response to my objection that's the family and all we have is to rely on is the transcript thank you your honour's very much i'll take the matter under