answered two questions and the response to the verdict was posed before them one of those questions was whether the defendant as a protest and to office of martin fall of course it would be his subjective reasoning at the time however my reading of the case law turns on what a reasonable police officer would have perceived at the time which would be and objectively analysis versus the subjective analysis of this particular defendant and whether he perceived of threat versus whether a reasonable police officer under the same circumstances would have perceived as such a threat back to the vertical on the second was in fact the standard for qualified immunity and by answering yes to that question the jury concluded on a factual basis presented to   asking to clarify the meaning of qualified immunity which was followed up later after further deliberations by a question  that's when they came back and asked for clarification of the mean a qualified immunity said not to deliberate again and instructed to read the instructions which the court gave one qualified immunity  with one next question out being an impact on office of law if they found he acted excessively on a reasonable but was a total of qualified immunity and i have instructions don't upload objection on multiple occasions both pre trial during the charge conference and during deliberations that question number two rendered way the jury the judge was basically giving the fifth circuit pattern instructions wasn't with the exception you know ana that the instructions in this case reference what office martin fall after considering all the circumstances of this case as they would have reasonably appeared to officer fall at the time of the use of deadly force and we have jacked it to the have been applied had it just been obvious a martin false perception and the questions posed by the jury regarding qualified immunity  met with a response by the court to go back and review the charges dealing with qualified immunity and we confirmed that those very charges improper because they were subjective in nature versus the object of standard required to be use on the circumstance and would you take that position even if this instruction is exactly like the fifth circumstances and object of review should be the standard used and for that reason we checked it to the charge at the time and during the deliberations because it became apparent that this jury was very confused and after having gotten to it they asked the question about whether qualified immunity and a finding of excessive force what particular as argued at the time of trial during deliberations that word immunity i believe slows our juror who is not educated in the law and i've certainly never seen a expert in police procedure ballistics as well as the testimony of dr george kirk i'm right dealing with police procedure and the circumstances surrounding the shooting and of particular note there and is the fact that the court siding young versus collene stated that anything leading up to the actual confrontation would  struck from introduction all of the opinions from the experts which lead up to the exact confrontation whereas we believe that the actual standard on the young versus bullying is not so brought us to discount and discard all of the actions that led up to the confrontation there was expert testimony that indicated that these police officers rushed the scene that after pulling up at the scene they welcome prodded by witnesses that had called nine one one witnesses who by the way matched the description of the main mason and they were told to get out of the way as the office of paul retrieved his dog and told other police officers at the scene to follow him was such that this jury was clearly justified in answering the question number one about his conduct being a violation of the constitutional rights and very excessive way a reasonable use of lethal force officer fall testified himself and we basis upon the admissions of the defendant as opposed to the statements of anybody else including our expert officer falls testimony which i should say at the outset contradicted the statement he gave to the state police was at the time of trial that he was an extremely experienced canine handler that he flanked out to the left of the scene where cuomo and mason and his girlfriend was standing with their hands up whereas in the state police statement officer fall fast the five that remain masons are handled by assad and that the movement of his right hand a what led him to use lethal force whereas at trial he testified that he had his hands up and that officer fault who had his canine on a three foot leash and this is the second time this case comes of this for the second time where here on qualified immunity first time was on a summary judgment and it was reversed with regards to the fact that police and were different than the eyewitness officers i think what's very important in this case to remember is that that area in which these this event occurred was very small the photographs are unhappy that from the breezeway wall to the door of the apartment was about sixteen feet and the canine these things unfold quickly officer falls they is testimony at trial was not inconsistent with what he told police he was allowed at trial obviously and the vigorous examination crossed and redirect to further explain things you never said that the hands went up and stayed up he said that the weapon was in the waistband was up before or after the dog had gone after him that was before your eyes i thought it all happened exactly the same time and i'm not sure i understand why we need to talk about from officer falls perspective any of the facts because you have a jury verdict but he used objective and reasonable force or using a dog and a gun simultaneously against mr mason so isn't the real question from your perspective to talk about the qualified immunity and whether the jury verdicts are reconcilable if they are how they are what case would be turn to to how it could possibly be that you could use a dog and a gun at the same time on somebody and that that wouldn't you know people that would never lesbian title to qualify meaning i mean that's the the first question and the question that was on the jury verdict form but that doesn't in the very in fact pattern jury instructions that if you find that the plaintiff is proved by a preponderance of the evidence that the force used was  to qualified immunity which is a board a liability irani you asked what's the best case that they say that these inquiries were inconsistent up believe that they wrote relied on snyder plaint honor that state that you can have there is no inherent conflict between a finding of excessive force and a finding of qualified immunity will because the supreme court said you do you have the motion let's take the dog out of the equation you have the motion and the decision is made by the officer to use the adlie force all of the experts testify consistently that you don't have to wait for the suspect touched you don't have to wait for the suspect to drop again and you don't have to wait for the suspect to point the gun at that point that so if an officer here's the question if an officer can use deadly force because of his perception then how is it that use of  this is all interesting in a summary judgment posture where you've got disputed facts standards of review as it was the first times case came to the fifth circuit but now you've got a jury verdict that says it's objective when reasonable  because that's how the pattern jury instructions read and it says the end you make a determination and the jury did sit but the legal questions are all that are perforce now that's i can understand why that why the describing the facts of the circumstance of it but i don't understand why officer file would well you know that cho posed a good question but it doesn't answer whether he was subjective and reasonable and if we look at the history of qualified immunity and common want of the find as a a good that it was nevertheless based on a factual misperception is that we're going hear that or that any officer in his position situation can you release the dog as well perhaps that is where the jury got hung up on question one unfortunately we don't know why the jury got caught up on question one was the fourth  subjectively and reasonable they came back deadlocked on the first question well looks pretty i mean i can see why they would have argued because the guy gets shot seven times too when he's already down on the floor and the dog is that is  entire time and your honor i would i would but i would that seems like a lot to me especially when the officer shooting from six feet six feet distance approximately the evidence that was presented trial showed that all of this occurred within a couple of that exactly which is why i don't understand why we're talking about his hand movements because anyone who's attacked by an attack dog is going to move i mean that's so i don't understand why it matters what the i thought that officer from your perspective i thought the best fact that you would have is that officer fall says it all happens at the same time he ends dog gone at the same time which obviously is physically impossible but it's so quick that work that that is it  perceived the fighting stance officer fall is coming to bolster his weapon when he sees the movement the gun releases the dog comes up and the other officer it is it  three of them there and then the other two didn't seem to think that this was a problem was just officer fall no sir your honor they both testified that they too would have shot and that that circumstance but they're there lined up their line was gun saw the hand movement you had you have the tight space you have officers flank around you have a woman who's upset moving around the scene and that is why those things were observed by those officers that they testified to the state police and how much of the evidence was excluded by the judge on the theory that some you know the seconds before this weren't relevant all the things that dr perper wanted to testify to was similar to the things he wanted to testify to in the case that they didn't take sufficient time relevant because those things it that's what leads to jury conclusion to say a canine should have never been on that call yeah but but the jury knew that these officers i still don't see why it was excluded well i think what the judge said your honor was that when when you looked at someone an expert if you will being out there saying all these little things you know leading up to why did the moment right at the decision to use the force that could lead to jury confusion and to prejudice well because you know one of the complaints was that one of the which is part of the record i did have it submitted as part of the record your honor ok and she did rule that the those sorts of issues now dr carson was all up testify with regards to the policy and training or training with the canine ok but not that had they called the hostage negotiator things would have been different and that's where his were leading that had the officers maintain cover and concealment paid more he didn't have twenty one foot rule despite the fact they didn't have twenty one feet bare hand they've done these things had they not had the canine officer in the lead had those things not been done then this death wouldn't have happened and that's not the question that's presented to  the jury the question has is if the officer perceive a threat let's aimed at the moment that useful well force his use i don't know whether we'll be writing on this in our opinion or not but i think i think that  western and at some point i notice the judge doherty had accepted the recommendation denying summary judgment but judge white her magistrate judge tried the case  at the issue of qualified immunity was something that had to go to the jury i don't believe that the mason warned precluded the issue of qualified immunity from going to the jury and it went on the whole on the entire event right not on the first five shots or the last second shots correct it was on the entire use of force and is it also correct that the instruction on qualified immunity was verb a to the fifth circuit pattern jury or not at it yes it is taken from both a ten point one and ten point three i believe that what was changed was you know to show that it was in excess the fo there was nothing added to it  we objections to are in the record out and other apps as well as the party's arguments with regards to whether qualified immunity instruction should have been given and should have gone to the jury i don't see that following a pattern jury instructions can be clear legal error on the judge a spore nor do i believe that excluding dr kirk they showed us to twenty one feet away they should've called hostage people they should've stayed away and try calling the inside the apartment those woulda coulda should  arguments i don't believe that that constituted a use of the courts fast discretion the second amendment argument and the graves exclusion of those two jury  i believe were correct graves as an unpublished opinion and it is not part of the pattern jury instructions nor part of any footnote in the pattern instructions  know plaintiff failed to point out any specific evidence that they claim was omitted because of the judge's free trial and during trial rulings using neon to state that it was that the moment the force was used the saying the that we what has been the law consistently the even if that the officer is negligent he can be qualified you can still have qualified immunity plus your prejudicial of fact say they did it these few steps wrong that had nothing to do with the ultimate decision to use them well that would depend of ultimately on how many steps you did wrong i guess at a certain point a jury might say you god says fellow you know with this he was sylvester stallone or something and he was if inflicting his own version of justice they could do that they could that that that that's not  screwed i would like to address that nationally because court asked the question that the evidence which was excluded that would have certainly justified it and supported  answer to question number one was a video dash camera video of the girlfriend as she was being taken this through the parking lot within seconds of the shooting by officer do it as babineaux responded he did not have anything and as a man that was a joint exhibit which of course was the trial of the judge came back after a recess perhaps after a lunch i forget which and said that she had decided to exclude that video because it was a purge additional and not part of the confrontation and therefore in violation of killing there were two other videos which were excluded reenactment videos which were performed by officers go along and do ga who were present at the scene and part of the confrontation and those videos which we obviously didn't have them do defense counsel had them perform the reenactments and they sent them to us so delighted to have them we sought to introduce them into evidence because they constituted a third version of events of what transpired and i proffered those videos into evidence as well so when i asked what evidence was excluded those three videos go directly to the confrontation specifically and most importantly miss because of the police indicated that she said in the course of her statement to them that he had taken his gun out to put it down curiously that's the one for statement that was not video and it took place only after she had to be taken to the hospital for emotional breakdown strewn with blood and was eventually dropped back off at her apartment at four thirty in the morning at no time did he threaten anyone and so far as the threat was concerned there was perceived by officer fall that he testified to it was simply the presence of the gun and the movement of the arm the jury concluded that his actions were excessive reasonable and a violation of the constitutional rights of a wish even though they already answered that question it's  prophet sex and by the defense doctors apollo paul followed just testimony the first shot hit rice in a better than six foot two and a dramatically downward angle and if you follow the testimony of loss of fall he said that he knew anyone that they released the dog on would drop their hand to protect himself from the dog and that he himself would have dropped his hand to guard himself from the dog so he obviously knew well in advance of releasing the dog that the hand would move and i presume he had supposed isa right hander n e s a dog's leash in his right hand in other words he doesn't have the leash and the opposite hand from its gun hand right back it was my understanding based on officer false testimony and again he had some contradictions  testimony and he indicated that my recollection of the trial was that he had to rely on a one hand the leash and the other but he also said that he would never again tar the leash to his hand because he couldn't create distance between himself and the suspect in this case the movement of the hand precipitated all of us a fall by his own testimony as intervening at that prevented this officer from having a reasonable albeit mistaken belief that there was some threat all right there we have your argument thank you very much