testified that she did not believe at that point in time that he was about to get so i have a more fundamental well the most fundamental question is your position that these are cannot be force but most importantly in his gates but you got the chance to present that that's the problem here of course is you have to say no one would ever find that it was anything there's no other that can be found other than the witnesses that that's all you got pretty heavy when you run it against when you have jurors that heard all the evidence and disagree but the problem is the jurors cited in your brief and i'm not aware of any precedent that would support what you're asking for here that is for us to reach back and say you should have one judgment as a matter of law this fight the jury regard jury but the question is what good did jury hear or not hear and how was the jury well that's rather set of complaints and i want you to move to that but keep in mind that your main argument this fails from the get go  can prove there was something wrong with the trial well because there is no precedent for a right you're asking us to do again only as a preliminary overview i ask you to look at what the night circuit panel previously decided and what the relevant facts are it is and then to look at what was in what really i can assure you that th circuit panel is not saying if you can check off these boxes with some evidence you're bound to win as a matter of law that's not what our decisions i understand but most importantly what we stressed in this case and as the amicus brief i think convincingly argues it was clear to the defendant officers from the outset shellac was on able to comprehend or abide by their commands because he appeared to be suffering from either mental illness or the influence of drugs or both all of the officers observed and acknowledged that sheldon was impaired they noted that in their reports and they testified according to their decisions to use force in those decisions the officers failed and refused to recognize and account for the factor that the person whom he confronted was in here a nicer guy has a standard jury instruction for civil rights cases where excessive force is argue and in that standard instruction there is a provision for instructing the jury that they should take into account whether the victim were deceived in this case was in here unfortunately but do th you you are therefore prohibited from using intermediate force it doesn't say you are prohibited conditions the use of intermediate levels of force on a should have gone to the jury and did go through it and the jury found well unfortunately in this case the jury was not told that the impairment of the person they were confronting was a factor that they should obvious that there was a lot of testimony about his peers they and what the ada and so obviously that was taken into account how would it have made a difference whether the instructions and drugs  the circuit came out in november of this year in which the court decides at length the importance of taking into account that consideration and we cited you several other  kings use the city of have accused of being one of them in which a process the police officers go through is one that requires them to use the least amount of force that would be necessary under the circumstances in mind that these officers testified that when they used pepper spray for example they did not even realize they were using your media level of force that's what they testified to they had no consideration no where they were facing somebody was in clear that they could resort to the levels of force and the repeated levels of force that they did but if you read the decisions of the cases that we've cited to you most recently the best circuit all the cases the  that i would particularly urge upon you because in that case the instruction was given the proper instruction but the evidence was constrained so it was kind of the opposite of our situation where we were able to put on evidence ruled out what exactly what evidence he referring to is was precluded mr lifton was being asked a series of questions about how a reasonable officer should respond to a situation where even where she faced an individual who was in peer the judge refused to allow us to pursue those questions as to how a reasonable officer should act and the justification that was given was that that was the ultimate question and therefore that question could not be asked but had to be given to the jury the alternate question here was whether excessive force was used that was the question on the jury questionnaire on which the jury rule whether or not a reasonable officer confronted by somebody who was impaired and to the state into account in the choices of force that these officers used that was a relevant question which we should have been and have opinions from our expert presented to the jury and that was precluded so coupled with the fact that the proper instructions were not given we had a situation here where the jury when i with a instruction which basically said if there were essentially facts where the jury concluded that the force was necessary that that was sufficient to decide whether or not it was excessive and that's not the way i have a small question about the record on the testimony of dr van dyke and what exactly complaining that you not allowed testified to chris as i understand it she was able to say that she question but i wanted to reserve a minute or two for a bottle let me just answer your question it's more complicated than that because yes she did testify that she removed into darkness she went on to testify that she thought that had some impact on the cause of death but that was cut off and we don't object to that but in closing argument when i attempted to argue to the jury that's a taser had an implication in what happened to mr al a basis in the record through thinking that mental illness was apparent as problem to the officers and one of the authors you suggest that that that is something that must be considered was in that area to mental illness despite our case for saying when there's actual barry says the record for it must be considered i think the judge was also correct in in determining that there wasn't enough evidence  i mean if it's on the death certificate it seems like it gives a lot stronger evidence that an expert should be able to weigh in on what that means but here there wasn't any case there was anything suggestion that he died of the syndrome r will see that the experts brought by plaintiff were allowed to testify as to what reasonable officers should do under the circumstances in those cases including in crawford the circumstance where the officers were confronted with somebody and i do want i thought that they were allowed your witnesses were allowed to testify what a reasonable officer would do what they were prohibited from doing was testifying to what these officers at the scene actually knew in my record you are incorrect judge what i was told at during the course of  examination was that my witness mr lifton could only testify as to what national standards might be that was the the so yes i think that proves my point well he wanted to testify as to what a reasonable officer in that circumstance should do and how reasonable officer should take into account among other things the obvious signs of mental illness then that's exactly the problem ok i with all due respect i think you've just proven that very question but go ahead not last i want to call your attention judge collins st of all our exhibit eleven which was the use of force report in the record by officer cartage in which he checked mentally deranged and he also checked suspected drug use this is the for me filled out immediately after the incident which is consistent with his testimony some kind of drug so all of these officers knew from the moment they arrived from their initial observations that there was an issue of impairment here and we believe as a matter of law that the trial judge was obligated then to give the  th circuit instruction which included the consideration by the officers in the use of force as to how they were dealing with somebody who was in peer and that is most fundamentally what we contend that was the error in his case thank you counsel thank you both for your arguments in news in a complicated case and the case is now submitted