little better firearm pointed less than twelve inches from the temple of gentlemen is not is more than enough force is more than necessary force to enact a not the jury was allowed to have access to those facts and they were not and the reason being was that this a court decided to not withdraw the rule but it's admissions and that's what the court answered in time correct right under the rule that means they're deemed admitted but there's no motion to set aside those requests for a mission discretionary motion under rule thirty six dollars b for months and defendants had justifiably relied on those admissions in preparing their cases no you're out of because the emissions were in amber and also they the x the actual upholding of the missions jury they were not required to accept these admissions as true your character innocence and then the jury also did see the video and they did but the actual and such in themselves precluded any other conclusion except for the defendant that one as a matter of law the the rule thirty six not being withdrawn resulted in the nation of the sen medical emergency there was a a personal bell emergency that precluded the terms of mission once the information was brought to my attention at the st act was to simply submit effectively admitted the request for admissions yes room just before you filed a motion the st motion to magistrate judge yes yes yes that's correct right so you thought for some reason that your request for would you say in response to the county's argument to the district judge oh my gosh we do need to admit those things will judge will will file a motion quickly we'll get rid of it the ability of the party to try the case they should be that withdrawn actually that's what i was asking you to question before i'm not sure how it eliminates your ability to try it when the judge tells the jury you're making find these facts to be true but you're not judge let you try your case your only objections on appeal are with respect to withdrawing the admissions and instruction twenty one dollars so in twenty one dollars when you have the conclusion there within the wording of that instruction it's virtually impossible for a jury to decide otherwise so when you have for example the need for a search to be a part of the finding and if one says there was no search then the jury has no choice but to find it in the way f warning your honour's may please the court my name is antonio k kizzy from the law firm of i mean neil wyatt purcell and diggs and unless your honour's have questions about the record and i believe one of your honors did i will proceed directly to my argument which will address some of the points raised by my colleague st and insult although my colleague as he said here this said that this case boils down to the trial court's quote erroneous handling of the rule thirty six admissions specifically seen your district judge s j that this case really boils down to my colleague's erroneous handling of the rule thirty six admissions as follows the record establishes and it's undisputed that these admissions were served in or around january four months passed with no correspondence no request for an extension no mention of this emerged this unspecified emergency until the response of the researchers then my colleague filed a motion for summary judgment and tellingly did not move to withdraw his admissions at any time during the motion briefing period not before he filed the reply not before he did the motion even though we cited to his admissions in our opposition and further that i did have a question yes my recollection is that the reply didn't say pattern and practice of discovery abuse and on timeliness docket forty one dollars my colleague mr sheppard was fined three thousand five hundred dollars for discovery of use and then docket seventy one dollars mr sheppard was determined to be in violation of the honorable magistrate judge jacqueline shula gins order compelling his deposition this appeal itself was dismissed for failure to prosecute because the opening brief was not followed until a month after the due date along with the mediation questionnaire so in this case the jury heard as your honor mentioned all of the evidence all of the testimony this entire video and they were properly instructed on the federal claims that issue the jury was understandably in the best position to decide the merits of this case and the credibility of the parties because the key aspects of the incident one being the position of mr separate right hand whether or not  for the center console after the deputies saw what appeared to be gun cases in the vehicle that is not shown on camera so the jury was in the best position to hear all of the evidence decide credibility and decided this case so wh would whether or not we do anything about it what what's mildly troublesome about this case is we have are we have a case against trying anyway and why do we need to request  in this particular case these requests for admission you know under rule thirty six they are often used because sometimes in some of these cases a plaintiff will sue all of the deputies at a scene alleging a certain cause of action deputies a b and c also need for held that they were requests for admission of fact because they don't stay there was no search or the search was unreasonable they say it met the deputy plunket did not search your vehicle it meant that deputy bonnie hanson did not search your vehicle in particular where there is one that states whether it was reasonable for the officers to suspect sheppard of burglary that's that's not the dixiecrat a category you're talking about that's not that's not in the same kind of category on a but here there was no claim that there was an unreasonable detention or that there was an arrest as my colleague indicated boils down to the use of force and the search so judge otero he went as the record shows a request by request by request and ruled on each one individually i think he went out of his way to do so to determine this is a legal conclusion this is a request for admission a fact and further my colleague is incorrect as to the standard here keep in mind the st time he tries to withdraw his admissions is ex parte which is properly denied because as the honorable judge tula's in determined the appellant was not without fault in creating the crisis next my colleague did not file a motion to withdraw the admissions except by motion in limine a thirty five dollars days before trial over a month asked after the magistra creating a trial is like creating a body you start with the bones and then the muscles and then the blood and then the brain so every piece of evidence is woven inexplicably in my opinion into the defense of the court if you forego some discovery or for go something like yours well it doesn't seem to they don't seem to have any specific so actually here to address both of your questions there was an issue the judge otero i believe correctly notice that admissions to be withdrawn then we did not have the opportunity to go into discovery deposition about ok well why did you deny this why did you deny that certain fact and he denies that by moving to withdraw or if we ask him to admit to a certain fact and he denies that ideally you submit written discovery before you do the deposition so you can inquire about it however here we submitted the requests they're automatically deemed admitted months and months go by and then all of a sudden thirty five days before trial mr sheppard wants to withdraw those admissions after discovery is cut off after depositions have been the counties knowledge and proof i mean you had your deputies your policies your video i mean all of this evidence isn't within your control it's seemed to me the one thing you point all the discovery had the discovery had been done the requests for admissions all of that brought up and at which point i don't think under this particular record it can be shown that we would have suffered prejudice because then if these requests for admission are withdrawn we don't have the opportunity to conduct the stuff every into the reasons for their denial and then further i don't think under this record it could be said the judge will terro abused his discretion the on the pale of all reasonable justification which is the standard for a motion eliminating based on all of these series of untimely missed and discovery abuse and then waiting four months to respond to requests for admission and then waiting until thirty five days before trial to formally try to have them with truong so you know it's our position that maybe pivoting a little bit from the requests for admission there's five issues in the appellants appeal three of them are already disposed of out right  he determined well hey if i allow these all these different things to be withdrawn then i'm going to have to continue trial and we have everybody ready to hear the defense have interwoven these requests in part into their trial the trial briefs the witnesses their direct examination the jury instructions listen mr franklin you've been practicing a very long time it's undisputed what the consequences of a rule thirty six failure to admit are so we're going to go to trial and then as your honor indicated the jury instructions themselves tell the jury hey you are to consider all d of my instructions and then to you may deem these admitted and then further they are to consider all of the evidence which was the video which was mr shep testimony the testimony of the deputies the testimony of the witnesses which in part obviously involves credibility determinations for the jury to make and supplemented by my colleague's argument as to what the facts and evidence show or so it should show and the jury unanimously finds against him it's not i and i ask you about your argument that we the notice of appeal is insufficient yes on what didn't you what didn't you notice who appeal tell you you know that makes of the slightest bit of difference in terms of your ability to deal with this case you got to opening brief that raised the issues you responded to them how i mean aren't you being incredibly hyper about that at which point remember three out of five of my colleagues appeal points are dismissed outright through the summary judgment if i would have known at the beginning in the notice of appeal you know how you heard play that our case law is so clear paying my fees in order to draw this up so what could have been spent on a motion to dismiss the appeal outright or at least a large part of it early on i then had to wait until it would have failed your motion to dismiss the appeal would have failed it last on the jury instructions here the standard on one hand leading the appellant's brief nowhere does he say the judge otero misstated the law there's no argument anywhere in the brief nor articulation that the law was misstated so i believe under gantt versus city of los angeles he's arguing the formulation of the jury instructions which is reviewed for abuse of discretion and so he argues that well it was an abus discretion specifically for jury instructions i believe two thousand nine hundred and thirty and thirty one which state and deputy plunkett deputy hanson deputy rodriguez did not search your vehicle he claims oh well those are conclusions of law for the for the reasons that i originally said we don't believe their conclusions of law and the number seventy eight regarding whether it's reasonable or not to be the that he was a burglar as your honor brought up you know there's not an issue here as to whether he was reasonably or unreasonably detained or arrested so as far as here i don't think that it can be said that judge otero the district court abused his discretion beyond the pale of justice all reasonable justification in these particular jury instructions or in the motion in limine itself based on this record the court need not issue a blanket and briefly regarding the th th th th th and d c circuits i could not find a case that specifically clearly said a question of whether a search occurred is a factual vs a legal thing but the court is not being asked to make this determination here though all of those circuit said that a seizure is a factual determination here the court need only hold that under the facts of this case the request for admissions as phrased and as phrased in the jury instructions were very factually specific deputies a b and c did not search your vehicle and the record the evidence or a record in the testimony showed the deputy plunkett admitted admitted yes he appeared to have a gun cases in his back seat which i checked out under the plain view exception lawful intrusion and immediately incriminating items potentially for the safety of the deputies and then deputy bonnie hansen testified i went into his car to get his wallet his registration and his keys for identification purposes period so he had all of the testimony he needed regarding the specific search and it could have argued one way or the other so your honour's unless you're on it have any further questions i will submit that i think this case is very clear the district court the not abused its discretion or error in any way and thank you very much for your time thank you coun search that's a different kind of things and they said to preclude the idea of a search by itself is a legal term isn't really at least one of the deputies in this case say i didn't even go into the car yes so that that's a matter of fact is not a matter of what that is but but again when the judge says there was no search you've cut off the inquiry that the jury is not going to be able to get into vacuum as to that deputy essentially she says hey i wasn't the person who search the the admission