case for argument is young versus stevens presented two very different accounts of what happened after officers derek stephens and officer christopher brown executed no arrest warrant on my client michael yon michael his grandmother testified that after steven slammed mike into a car wrenched his arms up behind his back kicked his need to the side and forcibly shoved him into the police officers s u v officer stephens an officer breton's defense was that none of this happened their testimony i'm evidence was that they treated mr young respectfully and gently the problem is that it was impossible for the jury to believe my client the reason for this is that the district court allowed them to learn might have been convicted of two felonies that had taken place over twenty years before trial allowing the jury to learn about you did you good did you all you filed a motion in limi correct and if this were a criminal case the but they the last fairly clearly established that they could introduce some aspect of the of the of that felony background and not others  but this is not a criminal case it's a civil case yes so what authority did you cite to the district court what authority do you cite to us as your best cases for the proposition that in civil rule excluding stealth felony convictions older than ten years he also referred to four of three in the analysis as it related to six or nine b at least initially in that motion lemony then when an oral argument was held the conversation focused on the unfair prejudice that the that the felony convictions would have on my client during a trial so really even though it wasn't discussed as a rule for over three it was discussed as unfair prejudice and therefore it was discussed in the context of three there's really no case that's directly on point discussing whether or not these felony convictions are admissible or not we're relying on those two rules of evidence rule six zero nine p and also r here's an analysis that might have to when addressing that we will absolutely but if we look at the rationale for the preservation the rule the rationale is that we need to give the district court judge an opportunity to correct the  before we go up on appeal and raise that what we have here is a situation where the where michael's attorney did just that yes it was brought up in the context of a rule six of might be but the conversation again during that period was unfair prejudice and if we were to go in the context of a trial say no motion when it was filed and during the trial for officer stevens and officers brown officer brown attempted to discuss these felony convictions had michael's attorney students at objection your honor roll for a three or objection are unfair prejudice even without any discussion generally that preserves the issue for  came in that would you say under old precedent yes that would have been the case that he does seem to know and the reason for that is under rule one of three in the year two thousand that was amended to preserve issues that are definitively ruled on p but that's all i want you to do i don't want to get into what they were based upon the detail of the charges correctly said that the two felony convictions come in but without details and that was to provide the jury context why were these officers dealing with this with your client that sweat saying yes yes that was the proper reason by the defense counsel that this was the right context and when the evidence came in was it offered them more broad  way the way it well so the way it was offered was the right context initially but the way it was used and i'm not saying this perfectly or that this was intentional but the way it was used it was used repeatedly discussing mike as a felon and what that did is that created this stigma that we're very well aware of that when someone has been labeled as a felon the likelihood that the jury's going to be really in their favor decreases substantially  correct in that the discussion of felony warrant a felony stop that there were no objections to that and i'm not saying that that was an error but i am saying is that allowing evidence of those two felonies to come in his statement to be in for dire so that might have been convicted of two felonies now there was a document was included in the employee's supplemental appendix i honestly don't know where that's from  it doesn't have the district court stamp on it but i don't believe it's part of the record i don't believe it can be considered now that said even if you were to consider it it does appear to be the submission of the court of a pretrial statement of some kind  submitted i don't have what my client submitted and the record doesn't have those documents either but what we have is number one there's no precedent to support the proposition that in a pretrial statement of the court which presumably is there to assist the court in making a statement to the jury and simply addressing the issues that are going to result in what's expected to happen the other thing is that's not actually the statement that was used by the court if we were to compare the two documents the one was submitted the apple a supplemental brief and also what was actually read that to the jury they're not the same so there is no reference to felon felony the one that you think the court could have relied on and could have read did not have a or occasionally that he had spent time in prison again showed that witness that the fact that he was spent time in prison with him yes who brought that up i think might might have addressed that but i but i think it was also a deuced during can getting back to this my client's case again this case turned on credibility and the reason for that is this is not a typical excessive force case typically an excessive force case police officers  then argue that that force was reasonable in light of the excessive force factors here we have two completely different stories once the contact is made once that physical contact is indeed and really when it comes down to it those excessive force factors while certainly relevant and must be consider there would only be two outcomes if the jury believed my client then there was excessive force that the jury believed the police officers there was not in the reason for that is that it was that might did not pose a danger that he didn't resist that he was not attempting to plead in fact the testimony and the evidence of the police officers was that as of the stephens approached him might turn his back with his hands behind his back in a surrender position and those are the words that were used by the police officers might be in a surrender position and so from that point the only thing that really can be done lawfully under the constitution is that he c facts in question the material facts are of this case material fact there are actually two material facts that will be for the court and before the jury one with mice credibility always a material fact the other one was going to not mike was dangerous because if stale to be considered for credibility as far as dangerous as well why were they introduced where they enter deuced former impeachment purposes no they were going to do solely for the purpose of why the police felony convictions were there because the court ruled they were admissible yes for limited purposes erect and your claim is that they court heard in that ruling at the in limon e hearing yes and that's the issue but that isn't the issue  it were the question is whether the the evidence so prejudiced the plaintiff that there was no use even bothering to try the case ladies and gentlemen the jury you have here a felon instead of ladies and gentlemen the jury you're here to determine whether in purporting to arrest this gentleman the police used excessive force that's what the driver should have a bit about correct it with the whole basis for the arrest in the first place you know i was there the court could a well told the jury ladies and gentlemen the jury you shall not go into the question of why he was arrested that is not before you and you need not consider ible unless its probative value supported by some facts and circumstances substantially outweigh its prejudicial effect and it just one potential view of this case is that on the very face of rule six zero nine that the probative value is not outweighed by its predict prejudicial effect but to the contrary the prejudicial effect is so pervasive that it's probative value is not outweighed by this potential pressure jopek particularly when the district court the trial court have very easily handled this matter instead of injecting this issue of a felony convictions and now we're going to the fact that he's been in prison and once that that door's open  doesn't take much to walk in and very well i'm up a good jury trial very easily experienced lawyers will thank you judge for that wonderful ruling and now let's try this case you as a defense tactic i understand it you're out of it and i can't dress that issue because there's to test a case i would say about the but my point is you can't blame plaintiff's counsel for trying to deal with a bad ruling or potentially under their view of the case a bad ruling but by having to counter deal with those facts themselves the united states versus be a taurus which is the tenth circuit case from two thousand would suggest that a plant cannot avoid the consequences of its own trial tactics by arguing that it was forced present evidence that was excluded by way of emotion than me so i certainly understand that tactically made sense but it doesn't necessarily result in an a but an adequate preservation of the issue of appeal or it doesn't allow for an explanation as to why they should have or ranged from using this evidence or objected to it again when it was used the statement of the case that was presented that was required to be present and file the email with the district court included a specific reference to these understood that the word in limon eight meant that you were in advance of the trial telling the trial court that you objected to the introduction of the evidence and you were asking the trial court in advance of the trial to rule it out i also understood that under the present state of the law you needed not object any further beyond that the motion in limine he stood as the objection is there wrong well way am i wrong i would i would argue that certain issues being raised on appeal are going to accurately preserve give them limited nature of the motion limiting the motion in limine challenged two grounds  context to the rest you don't have the arrest warrant without the convictions you don't have the detective doing his own investigation and running a criminal history without the convictions you don't happen fragment may just counsel conduct but the jury could have been told the the ruling didn't have to go further and say world but the reason is because he was convicted more than ten years ago of two felonies but that's my that the use of the assault rifles pointing the assault rifles at mr young constituted excessive force he also argued that the damages of that were related to that caused him severe emotional distress that's another reason why the evidence was was probative and we argued in our motion limited it was that prior convictions which played a significant role in the threat matrix the development of the swat team officers brown and stevens are even there if there is no need for a swat team and there's a high risk d with the fact that this was someone who was a prior film that was seen it with a weapon which was a felony they conduct is called a threatening tricks and a component of that threat matrix is criminal history and the adults that tally those numbers up they give us a very good each kahlo they talent those number up at the end of the day they decided they need a swat team and if they need a swat team based on the categories of risk to officer safety then they do a high risk  mr young submitted a jury structure with the graham fact didn't object at the charging conference when the grand factors were being discussed as part of the jury instruction and the first component of gram severity of the crime here the crime was possession of a weapon by a previous offender in colorado previous offender means a felony there is no other component to that statute that would result in that reaching out in a firearm in his waistband but i needed initially they see swords they saw what they believed to be a large knife and then when they get to follow upsurge were they found swords ok and at that point  what more did they know they saw that they see him at that time yes or no and the word was he when they saw him he was in is he was is windows a bay large bay window next to his front door that they could see him from waist she then retreated she had a crew with her she retreated went back to the police department ran a criminal history mr young bitch because she had a prior history with him and her testimony about being fearful of mr young was something that was admitted that was offered a trial that he was going to she felt as if he was going to slap her when he saw or that was not objected to a trial that was admitted and then that's not the subject of this appeal now but i think it goes to the fact that there was other more honor we're talking about some evidence that is substantial relevant evidence approach it evidence substantially outweighed by prejudice i think what played and did a trial significantly detracts from the argument that these felony convictions were so prejudicial plant himself referenced them in his opening statement plant himself offered this in statement of the case planted himself offered exhibits to exhibit exhibit a letter and exhibit third in order to impeach witnesses on cross examination both of those exhibits contain a reference to him being a convicted felon the second exhibit exhibit thirty which we did append to our supplemental appendix is the police report from detective musselman which identifies in and most significantly a report where police responded where he was threatening his girlfriend by chasing around the house with a sword and threatening to cut her throat kill or cap these were things that were offered by the plaintiffs that were that came into evidence  really seems to be the first came in as i would suggest it terms of waiver there is case law from this circuit that says as i mentioned earlier simply because the core rules on a motion in limine he can't use it in a trial tactic is that you end up using it can still be a additional stuff and has a great point but that doesn't explain i was going to get to counsel said that being having assault rifles pointed at michael during this high risk only stop was a part of michael's claims it was not during the jury trial michael did not argue that and rightfully so the police acted reasonably up to that point yet made no argument that so this all comes down to the probative ness of this evidence because i don't think there's any question that it was unfair prejudicial the prototype this is it's doesn't go towards credibility in their own brief when he says you limited your objection that the move to liberty to credibility and not prejudice and i don't think that's accurate i think in the record of the unlimited hearing before us yes the record is included in in our appendix and just very briefly if i could finish my last  ahead thank you and so what it comes down to is the only issue that this was actually off the court was context and as your honor judge and sarah said this was a necessary context all the jury had to know that there was a