the morning counsel the morning your honor is made to please the court i am eric c jacobson representing plaintiff appellant cass ferguson cassidy and l a p d rifle shooting survivor who was with us in court this morning received something pretty unusual in this case i don't think any panels really gotten it before but we just prepared remarks with the intention indicated intention to reserve one point five minutes for abo if you have given opposing counsel your prepared remarks and you're prepared to submit it and we'll review this in lieu of your argument and give you the reserved time for a bottle was that your intention to proceed in that fashion i had thought it through to that extent your honor i did put time into this statement it does time in thirteen point five but i know it as you said yesterday in one of the cases it's a hot bench so i would also be glad to engage with you it's because the case put aside the questions about whether the jury instructions were correct other stuff assume that there's put a put that all the aside for a second but you got the case to a jury both sides argued their positions and the jury found in favor of the defendant and so i understand your first argument to be they couldn't possibly have found in favor of the defendant there was no evidence from which they could reach that conclusion answer correct your honor because they didn't have the applicable law in the instruction to when i asked you to assume the instructions were ok for a moment i'm saying are you saying that even if the instructions were ok there was simply no evidence from which the jury could have reached the defense very in this case yes your honor there was no evidence because they didn't officer manner testify that he was in fear of his life he may have been incredible maybe a jury this is not a credibility i'm a i've assume for the sake of all my arguments that the jury believed that officer maynard was in fear of his life they did doesn't doesn't that provide substantial evidence for their verdict no your honor it does not and that's because this was one continuous event he in the not just i understand the facts but just i'm astounded by the answer if the jury properly instructed and i understand you have an objection now to an instruction you didn't object to blow but if the jury properly instructed concludes that the officer was in fear of his life and that's why he made the shots you're saying there's no evidence from which the jury could have concluded he he failed to warn in advance of doing the shooting this is a black letter law requirement the jury was to ok so tell me tell me where if that's a cheering section argument again assuming that the jury was properly instructed then it becomes a credibility determination because you've got an officer telling the jury that he it's the facts are undisputed that there was no advance warning they were there was he did not direct them not to move so you're saying as a matter of law i can play you that the audio you know we have you already know it's in the record my question in the my question is is this you're saying that as a matter of law that what officer here did when he shouted don't something move don't planking move was an insufficient warning and therefore no jury could possibly find that he was in case i've never seen since it is gone or in ninety five your honor clearly established that deadly force is different deadly force you must warn if you don't warrant it civil liability tell me what case is that got the benefit of the full briefing in this case so the argument on the other side was he made he made a warning he said don't move the mr mr cash mr ferguson cassady turned around with a gun in his hand and the officer in reasonable fear of his life this was simultaneous your i understand with your agree it was simultaneous so your argument so why under that circumstance couldn't a jury conclude that it wasn't practical for them to him to give a new warning when m turned around with a gun in his hand you know warning that that was mandated had to have been done before he broke up because he had already formulated a fear that mr kirk very soon cassie was going to come around and shoot at them this is what he said he said at page twelve of the answering brief that he was worried about you know he had to break cover and do an ambush because mr ferguson ghastly he feared might come their way so he has the fear he decides to use deadly force he breaks i wasn't a witness to the all the trial was there anything in the record any ruling by the district court that precluded trial counsel from making all of these arguments yes i mean there there and proffered instruction  i don't know i don't know your honor i i know that the trial was marred by what looked a bit been a determination on the judge's part to make it a very very speedy trial unduly speedy and all kinds of sharp practice was employed by the city of los angeles deputy city attorney mr brett i don't think that they had any type of real opportunity if you just can imagine  how that so called negligence instruction their scholar cui right up to the time of the closing argument and you know they they're scheming to do a very confusing negligence instruction that has absolutely no and it was very very the trial was basically a travesty as i sed said in my prepared remarks which looks like i'm not going to get we have them so you don't have to think we're out of the jury verdict is specific yes there is you're on most definitely and this is part of why we have an epidemic of police homicides against african americans in recent years it has to me an explicit warning i'll shoot you nothing in this record i've read it that suggests the judge restricted your your client's lawyer from giving whatever description occurred whatever occurred so there's no there's no there's no nat to prevent evident of fact if you look at the details of that negligence it's not forget the incident he was hand i was unarmed off your i get the instructor he was told not to argue where wearing cover where i'll give you the exact cite he was told explicitly by judge wilson and mr brett do not argue and judge mr brett said i'll be booking closely if you ever open your mouth about breaking cover and i'm going to consider that negligence and i got all off on that tangent completely in opposite that if he had negligently broke cover then it's ok that you know that you can argue that that's objective the unreasonable so the whole thing got derailed it was a psychological warfare tactic as a matter of fact against the attorney so so let me ask let me ask you a question i me answer without reference to your prepared works what are you seeking from us one of two things your honor you have the power under scott versus harris but no date to take into consideration i'm just i'm asking what you're  just you either seeking a new trial or you're seeking a directed verdict in your favor what are you seeking for us from either of we would be obviously prefer because justice delayed is justice denied that it's inferred i don't need a speech with each good morning your honor stephen rennick for officer maynard i have not seen the prepared remarks so unfortunately i can't respond to anything in them based on the colloquy that just happened the only comment that i would want to make really is regarding the appellant statement that the shooting and the statement don't move were simultaneous and what the testimony literally said was that the movement by the by mr ferguson cassidy was simultaneous with officer maynard saying don't move and then he immediately shot because he was in fear of his life because the gun was or i'm not sure i understand what's different from what you're saying from what you use and perhaps i'm over reading what the appellant it said in the brief the impression i got was that he was saying that the shots and the statement by officer maynard were simultaneous and the testimony is that there the statement came first and then the shot after the statement was made can you deal with what i think is the major argument your opponent's making which is this there was plenty of opportunity to warn mr ferguson cassidy of the presence of police before this incident before the shooting occurred rocked along he walked along the house the officer waited until some point in time forget why he waited and then shout it is warning and mr ferguson cassidy turned around had a gun in his hand and the shooting was almost the don't move in the shooting were virtually simultaneous i take it the argument the other side's making is that the violation of civil liberties here occurred by not giving the warning at an earlier point in time so as to avoid this incident can you respond to yes i do understand that to be their position and our position is that that isn't a violation of any civil rights that the party had the police are not required to warn of their presence they are there is certainly case law that before an officer uses or even threatens to use deadly force they should give a warning if there are the cases that the officer in effect decided to wait until a point in time when he conduct as your opponent calls it an ambush where they are able to make that argument to the jury or did the judge prevent them from i don't believe there was anything that prevented them from making that argument and i would say that there is nothing in the record to even hint that officer maynard had already made a decision to use deadly force to the contrary the evidence was that when he saw the when he saw mr ferguson cassady exit the house he took that as an opportunity to begin interacting with him to determine what the issue was regarding the observations of the gun the gun shot or firecracker issue he had no preconceived intention of using deadly force it was his observation for purposes of discussion that the officer was negligent in not making his presence known is that a fact the jury could take into account on the adequacy of the warning i don't know wh the jury was instructed his negligence is irrelevant as essentially and so my question is assuming we had a proper objection we're not really reviewing for plain error why couldn't a jury take into account in determining whether or not the warning was inadequate whether the officer was negligent in not making his presence known earlier well negligence isn't an issue in terms of a one nine hundred eighty three claim it's was there a violation of his civil rights and particular here it's the excessive force the question was so so your position is if a reasonable officer would have made his presence known earlier and that's what gave rise to the whole set of incidents it doesn't matter correct i'm not conceding that th i'm not saying those are the facts in this case you can in effect negligently put yourself in a position where you have to use deadly force and i jury but the jury shouldn't consider that and it's still yes and i think that's a  necessary extension of the supreme court's recent mendez case in mendez the the supreme court said even if there's a fourth amendment violation that isn't a basis something that a jury could take into consideration in determining whether the use of force right exactly now what their argument with the trial counsel you know either way what the arguments made that there should have been a warning that before he broke cover he should have taken other other measures so the jury got the opportunity consider all of those arguments in light of the facts i i apologize i don't particularly recall that the closing arguments i believe there was i would defer to counsel who probably has a much better knowledge of that i can't tell your honor definitively one way or another there certainly was nothing preventing the trial counsel from making those arguments there were no instructions by the court preventing them and they literally were the jury was literally given an instruction that would have encouraged such argument so if it wasn't done i would suggest that it was by choice not by a feeling of constraint no specific ruling that would have limited the plaintiff's ability to present the facts in the  your colleague talked about to the judge telling counsel not in final argument to go certain places is that i'm having trouble finding that in the record in front of us would you tell i said i don't recall that specific colloquy so i'm afraid i apologize i can't respond to that district court somehow prevent it yes or limit it that the plaintiff's ability to present evidence i have in my computer or the excerpts of record you'll have to do it by a twenty a j or informally as you wish perhaps while your last case is being argued you have a record cite yes i'll get it for you your honor i don't have it in front of me or memorized your honour's this was one continuous use of excessive force officer maynard was poised and tacked up and armed with an m sixteen assault rifle and he saw my client walking out the back door from a window and instead of exclaiming in this is it two fifty four at night when his voice would have rung out very very sharply d come out with your hands up are all sure it was very easy he didn't have to break cover and come into personal confrontation he chose to do that would know it's arguments made your honor i wasn't a witness to the closing arguments but it's clear that the jury hat was oblivious to the mandate of the supreme court in the ninth circuit that warnings must precede the use of deadly force so was there an instruction jury was to be told that the absence of an advance warning the absence of an announcement of their presence in a prior to the shooting was to be taken into consideration by the jury at different synonymous because in actually there is a difference because what he said was you know don't anything i use that word that's not a warning that if if you if you move i'm going to shoot i'm going to kill you that's not a adequate warning and i understand you proposed an instruction but i'm having difficulty in looking at you brief the instruction to finding that you're arguing on appeal that the judge erred in not giving that instruction you're  wellstone abused his discretion when he refused plaintiff's request that the criteria listed the ninth circuit standard jury instruction for excessive force be supplemented to include that's the argument i understand that argument that argument is the judge erred in giving the instruction that he did if you make that argument quite clearly in my question is do you make an on him in give that instruction that's the point now what he gave he gave a modified version of nine point two five that's the argument in your brief that that you argue that was there even though that objection wasn't made below i'm asking a very different question your honor i believe there's a misunderstanding he did not give any instruction whatsoever of any way shape or form about the fact that they didn't previously an answer by now if we have no misunderstanding ask you a very specific question yes or tell me where in your brief you say we submitted a proposed instruction that he should do this he didn't give it and that was error i don't know and i will look at your brief again when we're done so you don't have it's not a it's not a snap quiz i just don't see it page thirty two ok that's question number seven it recites the proposed instruction the fact that police officer did not verbally announce their presence before defendant manner fired his rifle next sentence underscored judge wilson refused this request that factor is not found that factor is not found in the district court's final written jury instruction as they appear nor did judge wilson include this additional criteria in the instructions he read to the jury it's pushed ok so just so i'm clear your argument is that the instruction he gave was in error because it didn't include what you request exactly ok and that argument wasn't made below that which is there's no what i was asking and maybe we can you confuse it was was there any objection below to the failure to give your requested instruction yes that's an interesting question your honor and i the answer is it appears and i conceded this in the reply brief and it's why i'm afraid for my client's sake that the plain error standard may may apply i don't want to totally