they please the court robin h kyle on behalf of the appellate and cross a belly you all see you need to party see any reason that they could not address the cross fields in the course of your a writ you know of this appeal involves the exclusion of video graphic evidence and some other evidence of prior acts under the federal rules of evidence for for be before the trial the defendant won a motion in limine a seeking to preclude this this very evidence the defendant argued that there is evidence video that can be offered against officer officers and evidence can be brief that your statement of the issue there on page nine concerning the video evidence as to the city's policy which well perhaps that's a poor wording on my part i certainly see the issue as i think your honor does as the evidence should have been admitted as to both claims  but also to show absence of mistake in terms of the excessive force claim and i think he what exactly now there are two videos is that it actually the excessive force claim that even though this statement of the issue makes it a little unclear what it is you're complaining about to me is suing that you're complaining about the excessive force going you've got two videos as i understand it that you would like would have read it mid yes one of them was a video of officer moore right there one of the defendants in this case and then the other was by some other officers was it was a different officer but it was in jail in custody situation where taser was deployed all those videos anything why close to proving anything about whenever a citizen suspect what have you does not follow his order and that's what happened in the in jail house situation the suspect is apparently talking to another officer and apparently not following instructions an officer more just walks over to him appears into the end of the video screen and tasers the individual and what happened in our case is  because he was suffering from diet diabetic hypoglycemia could not understand or even if he could understand couldn't comply with the officers command and so the officer tasered him several times it i'm sorry i mean i didn't follow it i thought there was a period of time during which the officers requested that he leave the car all that's true he just sat there clutching the steering wheel no i don't think that that's accurate i think if you review the videotape you'll see he's just sitting there and the car has been disabled because the officer took the keys out and in this court's prior opinion said  someone who was passively resistive and not just not following a verbal command that the use of a taser in that instance could would be unconstitutional so you're saying that he was in the car because he did not get out of the vehicle as a they were getting the right so he wasn't just sitting there passively it was at the point at which he was not cooperating in their removal no i don't recall there was passive resistance he didn't follow their command and i mean i think that's why he was tasered because he did not follow their command that he get out of the vehicle and that's why i think the other videos are highly probative of our counsel made the argument that was advantageous to their point that he was the argument there was that i certainly try gerard i certainly tried but i mean this evidence is as judge cooke noted in his thoughtful opinion is critical to to proving a civil rights violation hundred one nine hundred eighty three i mean if you consider the jury instructions that were given how can we prove absence of mistake ultimately reassigned to judge roberts she actually agreed with judge cook and said you know he looked at it i don't think it is his ruling is clearly erroneous and then in the middle of the trial says i want to look at the tape again and you can't use it and you can even ask your expert about it you can ask the officer if he's ever been in a situation before where someone  follow a directive from one of the officers and then was just tasered and it of course goes to notice to the city the city knew about this as i think i know defense counsel admitted during oral argument mr coll got a couple of these videos mistake is you're looking at this in order to show the character or now just position of the officer is always to use a taser now what i'm saying is he non constitutional method and he does it even wasn't mistaken in this case in the same you know he's not getting out of the car because he's sick or he's not getting out of the car because  he's defined haris consciously defined higher order with this officer it doesn't make a difference if he tells you to stand on one foot you better stand on one foot or you're going to get  officer of course we played the tape of the incident involving the plaintiff ralph eldridge in addition to that there were two other videos one involving the officer and one not involving the officer both the other to the tape not involving or well or do you have to have all three and is that enough i mean what's the what's the can i mean what's the contingent here can you prove the customer policy that why i can prove a excessive force using those three videos now in addition to the video not involving the officer can't be relevant to excessive force as to the defendant officer but it goes to a policy as as to as to excessive force by these officers the other two actually involve the officer so i mean i think they prove that he didn't taser mr eldridge because he mistakenly believed that there was some danger or he mistakenly want anything relating to the municipality itself like training materials or training instructors or anything like that while this these disparate incidents no introduced a general order regarding the use of force and the use of tasers and i asked if somebody doesn't cooperate with the new yorker use the taser against them it permits those non lethal force reports an incident reports combined with the general policy you know and my expert testimony and these specific instances can definitely prove a policy i mean their own policy  don't think i've wasted any time at least i hope not but i mean this so there's a several categories of evidence all of which a judge cook said would miscible and then judge roberts said again because when they got a new judge they said hague let's try again  yet did you at some points to those reports admitted in your address i did and judge what actually what happened was a judge said that you know when she made her ruling that none of that was admissible because i she told me no and i literally had to go out in the hall and conference with my expert because i had met with him that morning and previously and he was under the impression that all of this evidence was coming in so judge roberts  not find that the facts were different then than then were made at the proffer and she just said this is she changed her mind essentially and overrule judge coach previous ruling our own previous ruling that all  sevens was admissible on all of these issues backwards most recently the did plaintiff offer or attempt to offer other evidence including these use of force reports and he contends that he did and that judge roberts didn't let him and that's not entirely accurate what he asked judge roberts and what judge roberts said he could not offer was the incident report or ask his expert about this video this specific video situation with officer moore in the in the jailhouse the unrelated incident he was the one the one incident report right he had been permitted under judge cook's prior ruling which judge roberts  affirmed that he could offer at one point it was twenty eight used to force reports of other taser incidents i think it by the time a child got narrowed down to eight that he was going to he was none of those other the jury trial your response is that he did not have offered was the incident report in respect to war and instead of using  correct that but and i think we both quote it in our brief the discussion from between with with judge roberts and after she had viewed this video and that's another point to mention there were it's as mr kyle indicated two videos the only video that was ever showed shown to judge roberts was the video involving officer moore in the jailhouse so the other video i think was obtained he was in possession of it absolutely it was provided by by defendant it was never offered into evidence or attempted to offer and rejected by judge roberts so i don't see how that second video has any has any relevance to the same problem on the second video as well if that report correct correct correct the one video that he showed and obviously as we point out in our brief and i think  trial and the or you're all over is something you know there's a ruling is clear but well and i think that that i think that that is telling because again we're talking about and i think that the record is clear that that the point of trying to introduce the video with respect to officer moore was in the record support it was it was offered to prove municipal liability the jury found that the officers did not use excessive force and by the instructions in the verdict form they could not therefore have imposed liability on the city given the the the verdict as to the officers so  and whether or not i don't think he has preserved it but at best he would have to show that this failure to introduce the video would have changed the result as to the officers and and and get him to leave the car but in that process exactly when was it that the taser took place based on the video and i want to it almost and i don't mean to be glib i don't think it necessarily matters also what the what the video showed because there was a stipulation of fact that was repeatedly and instructed the jury on this that said and i quote the defendant officers attempted to pull plaintiff out of the vehicle however plaintiff held onto the steering wheel would not let it go and would not get out of his vehicle that was a stipulated fact that was shown so that was as they are trying to pull him out of the vehicle he is he is holding onto it and it doesn't make sense that if he was out of the vehicle and tase that he could somehow have been poling holding on to the video on to the steering wheel excuse me and i think it's also i realize it was it was in the descent but judge nor sent in the initial appeal on the qualified immunity issue if you look at his dissent his his review of the vehicle shows it's clear that he was holding on to the steering wheel as they were attempting at first verbal come on now come on out you know what's the problem get on out you know do i need to taser you this sort of thing and they attempt to pull him physically from the vehicle and are being resisted physically resisted and as judge nurses the video clearly shows that when you and the taser is as as they are trying to pull him out of the vehicle i believe that that honestly and candidly is what the video shows but i think that that is also inconsistent with that this is that was what was stipulated to is that is what the video shows well that that he that he was actively resisting  than they attempted to pull him out of the vehicle and that he was held down would not like go and would not get out what it stipulated to was that he was actively resisting the officers attempts to physically remove him from the car  right and i think that and as as we've pointed out the other sort of layer to this or twisted this is that is that while while plaintiff's theory was that the city had a unconstitutional policy or practice of failing to train their officers to recognize the need to recognize a medical emergency and not use force in response to that was also just  e other theory was as he said that you know they just they just use this tasers anybody who verbally refuses and that that you know passive resistance or just verbal resistance isn't isn't never instructed on this other theory nor were they permitted to on the verdict form find liability for failing to train of the use of taser in the face of passive resistance they were specifically instructed and and the  instructions as well as the verdict form that the city's liability should they ever reach it which they didn't have to was with respect to recognizing a medical emergency and clearly these videos i mean there's no there's no dispute this one video or even the the second one involved a failure to recognize it as a method they didn't involve a medical emergency or a medical situation whatsoever and and that goes again also to the this trying to get him out of a car or use any of that it would have been a much more dangerous situation for mr eldred but again the video or the evidence the basis for the new trial here is the exclusion of this one particular video the only one that was shown it was as to who it was involved the officer but you can't you can't get to municipal liability given given the verdict against the officers and a argued that even assuming you know sort of all the wheels fall off and even assuming that this video should have come in that that video even coupled with the subject video would not have been sufficient to impose municipal liability to ruled that it was not admissible under four three b and making that in conjunction with for a for b that it's prior prior acts evidence against this this officer there is  no there is no sort of permissible purpose for it to be used that but and that decision again didn't preclude the other municipal evidence or the other evidence of a m policy which he was permitted to introduce as evidence but which never did so at the minimum at least a offer of proof or something would have needed to have been made to show that you know look i put in seven other position that it wasn't offered and it was clear that it wasn't the video wasn't shown to judge cooke in his initial decision the video wasn't viewed the actual video itself until judge roberts appeared in the middle of trial i understand that counsel trial counsel had been discussing and were aware of the existence of of two videos i think both of them or at least the other one was was made available via the news i mean i mean their existence wasn't secret but it certainly  wasn't it certainly wasn't offered as evidence and i think unless you the district court was given the opportunity to view it and make a decision on it i don't think that you can claim appellate error for refusing to  trial for new evidence that was never offered to the district court in the first place other questions thank you i think a judge mary's right we have a dispute and you have to look at the record i would refer you to page seventy to my brief or i think the colloquy is fairly well quoted this statement that the and many of the incident reports make reference to dash cam video and that was really you know the way we were and where exactly in the record do you say you offered the incident reports the evidence that's what is where is it as we go resolve this conflict of fact you say you offered him she says you did not write where is it you say you offered it's in the trial proceedings where she makes the ruling that counsel quoted from excluding the evidence where is that you have a page number anything  seconds i would be the trial transcript of april twenty eighth two thousand and fifteen which is record number ninety two and the page i don't have a page id number actually i think it's you have a page number