turning to the regular argument character the first case is me deed oh feel and other versus  smith good morning counsel the morning judges may please the court my name is john mann i represent the appellant's the on a dog a fifteen and initially i just want to thank dana elwood and the clerk's office for keeping me on the rails this case in my view is the definition of justice delayed is justice denied this case is the definition of unfair process this case is the definition of unfair trial in my view the district court in my view took away the rights each one of these fifteen onondaga were individuals not a class not a unit not  the each had their own claims and the district court took away their opportunity to present their case by conducting the direct examination of the witnesses they call say were they were pro se and doesn't t charge have a right to impose some sort of order in the proceedings no question about that judge pooler no question it doesn't have to make sure that the jury gets the information it needs to decide the case no question about ok go on so what what was wrong you went way beyond that judge pooler he was faced with fifteen plaintiffs and i think it was something like fifty one police officers yes and each plaintiff wanted to cross examine not only each other all the plaintiffs but all the police officers and i did a little math there that's about nine hundred ninety nine examinations that would have had to take place and you don't think the judge was entitle to try and get some control over the situation particularly with the with with with circumstances in which some of the questions that were being asked well judge what the questions were being asked were irrelevant or designed to make a political point will judge walker under six eleven under federal rules but wouldn't they have a right to cross examine the you ordinarily have a right to cross examine each adverse witness ebbers party there was the witnesses that were put on were were subject to questioning by the other side but you know this was an early in a manageable situation and i it seemed to me that the judge was trying to do his best i don't think this is there's no evidence of the record of the judge showing bias i don't think well i don't have to get to bias at all judge walker i'm not trying to suggest that i'm suggesting that the judge took away the general trial practice rules of when a witness is called the party questions the witnesses in an ordinary troll you know this was fifteen pro se plaintiffs trying to present their argument of why the why a question was relevant let them he let them have narrative testimony which is more than most witnesses get well let judge human let me let me put it this way  he did a narrative test one but let me put it this way seventeen years into this twenty year journey the district court allowed the more years that it represented them for seventeen years to not a dog here and say because after the order came out that each and every one of them filed we object to this order and nothing not one thing was done about that nothing even though they filed the objections nets  oh there was an opportunity to oppose it in writing you know and some did your complaining about lack of a hearing on the motion absolutely it any plaintiff request a hearing not that i'm aware of and how can you fault the judge for not giving them one if no well judge moment one judgment and they were representing for seventeen years by these lawyers they had no idea about practice and thought and any court let alone the federal district was the point that's why the judge had to manage the trial differently than if he had t lawyers arguing the cases here fifteen pro se plaintiffs judge well i don't disagree that having on representing clients you know going to trial is can be difficult at best and so we you agree that there's a very high standard that you have to meet to find that the judge abused his discretion in these areas which are committed to his discretion well i agree with that judge poor but i  actually attended the trial so i heard the give and take and the thing that is so shocking is that i mean each each of these individuals had a right to question while he didn't say you know mr andrew jones you you what questions do you have he had to go through each and every one of those and i agree it takes a long time possibly to to do that but but they waited twenty years to present their case twenty years and all of a sudden they're on speed dial to to race through this trial it was just astonishing to me what's the rush they did all their testimony within a day and in the seconds remaining clear and present danger they should have been struck that you know if the if known went on the road they didn't lose their first amendment rights they were not instructed on those motions like you take us in the light most favorable to the place i agree they do not become absolutely that's not the case so it would be an inappropriate to charge the jury in accordance with and to use factual premise for that charge based upon the motion with judge walker the reason i  say it would be appropriate and very appropriate is because in after trial they had the facts and the facts were norma's on the the video shows that norms on the road norms the rocket that they saw so they were even stronger facts than the motion for summary judgment after trial is my point and and but they didn't even know you know that you're not talking about what the evidence shows that was testimony to the contrary that's true that's true but  decide but but the jury didn't know about clear and present danger they didn't know about you know if you didn't go on the the facts were undisputed that none of the fifteen everyone on the road and no one was to the jury was not told you know if you don't go on the road you don't lose your first amendment rights that's a pretty important part of the puzzle certainly the jury should have been is that the judge used the wrong formulation of the charge he used the retaliation instead of the clear and present danger charges that your argument while a clear and present danger should've been front center i agree i think that's women friends are the judge charged first amendment retaliation is their correct frankly i am not sure about that i'm not sure about that i just know the clear and present danger wasn't was and they were informed on that and the easement objection to the charge and i'm giving lots of leeway because i know these were pro se but right this was that objected to in pages twelve thirteen through twelve eighteen twelve forty one and twelve eighty three twelve eighty two this was raised it and these men thing and i agree with you judge walker that these men thing was it was raised in the summary judgment motion but if it was wrong then the new york state police the train general could have clarified that quickly but what the public record shows what these men as the as as judge sotomayor said it was just the pay poor ssion so when the jury came back with a question on that what is this easement business all of a sudden  on their mind and because they'd weren't told what these meant was that had a big bearing and was very prejudicial to the verdict that was rendered there gotten past the point of hey are they judge charged that you needed an immediate threat to public safety to overcome first amendment protections that's on e c f number eight zero seven at twelve ninety eight and that is essentially a summary if  was immaterial because the proof supported the jury's finding that no first amendment violation occurred because it over the the record overwhelmingly showed that the state troopers objective was not to suppress speech instead the police expressed their concern that the protestors on the highway created a public safety hazard and the troopers goal was to abate that hazard there is no testimony to the contrary  in fact there was an immediate threat to public safety and even route eighty one is a four lane interstate highway inspector blith testified that all weigh ins were fully open at the time so you're talking about a big road where cars trucks traveling fifty five miles an hour at least and people are walking on there there was a lady with a baby carriage on the road there is a large amount of testimony about people on the road three weeks before a before this incident had asked the violent group called the warrior society to become involved that's inspector blights testimony you see f number eight zero four at page seven ten and all those factors combined to create certainly a jury question as to whether there was a clear and present danger and i submit it did overcome the first minute protection and the jury was properly charge i would also note that none of plaintiff's challenges to the jury charge was preserved and therefore they have to show point in error that effect there are substantial rights wasn't it may be old bleak but didn't they object by asking minors opinion be entered in the record in which she discusses the clear and present danger test isn't that correct well it's correct that they ask that the opinion should have been into the right word but the fact of the opinion talks about the clear and present danger test she she gives a road she tells them what to do the opinion does talk about the clearing and present danger test i think that the judge's charge on immediate threat to public safety encapsulates that test and in any event the question is not whether insistence on ensuring that opinion into the record was preserved the argument on the quality of the charge what the charge that should say i think if you could view it as preserving if they had said you know judge sotomayor said this about first amendment rights and clear and present danger and they didn't say that they just had this i'm differentiating opinion and they want to get read to the jury  we give them some leeway in assessing their their handling of the trial you give them some leeway but there you also need to have a specific objection to the charge for the court to be able to respond to it the court's not going to say ok i'm going to throw away my charge and i'm going to reach out sotomayor is opinion into the record they're not going to say that but if you said you know what your charge got this specific wording of the first amendment defense wrong and  are got it right and you should put in the first amendment or something about the first amendment then you might have preservation and as the other charges shoes you know individual liability they did ask i think for a conspiracy charge the problem here is for that argument that the jury found that no one civil rights have been filing that a conspiracy charge simply makes one defendant liable for the acts of others but here there was no defendant that was found to have violated anyone's civil rights no plaintiff's civil rights were found to have been violated so therefore  the conspiracy charge and that was specifically preserved but it was moot and i would also add that the district court correctly instructed the jury that each defendant's liability must be shown individually that's a basic that to charge to hold someone liable for violating civil rights some personal involvement is required let me speak briefly i want to ask you about the delay first the delay from the filing of the complaint to all the motion for a qualified immunity for summary judgment that was a seven year delay was there some particular reason for that the look well yes there was a large this was a large complex litigation originally there were ninety four plaintiffs and fifty seven defendants more than fifty depositions were taken there was volume as discovery and extensive motion practice and there are more than eight hundred docket entries  parties engaged in the mediation which eventually resulted in most of the ninety four plain of settling it was only these fifteen who said we're not settling and that settlement took hundreds and hundreds of hours and five years to finalize that's on page four sixty one of the joint appendix so if anyone is responsible for delay five years to new tune and use it to settle it or to negotiate it what was it know you're talking about there was a point at which the government's initial position from the state defendants was that we want everyone on board we want a global settlement and there were efforts made toward that end to get the  as buyer's remorse that c c f number five a wanted page one buyer's remorse they said well no we don't want to settle after all and then the government had to make a decision do we want to have this trial anyway even though we're you know even if we do we want to settle even though we have to have this trial anyway and ultimately the government agreed to settle with everyone except these fifteen plaintiffs would agree so if if there's an issue with the lay i would put that firmly on the shoulders of these pla thank you next we'll hear from counsel for mr smith who is one of the troopers correct he has his own counsel he's the only one that's correct john and continue please the court my name is britney lawrence i represent if i may your honor i just want to address the objection issue in response to what mr brody had mentioned and i believe palin's object it in the context of the rule fifty motions they did not preserve the objection and the any objections to the jury instructions and they did not raise it in that at that point in time that he proposed to plaintiffs i believe you did your i believe that is correct your honor and we feel that the jury was properly instructed on the first amendment ok continue now there's one factual issue i want to address it's important to remember  that the only claims against our client were first amendment claims there were no excessive force claims and no state law tort claims and with respect to the fair trial the district court did not abuse its discretion when it modified the standard trial procedure i think it's helpful to look at our client's trial transcript because it becomes clear that the district court's modifications were intended to help facilitate the presentation of admissible evidence judge assessed the quality of the questioning in selecting and it up selecting a woman i believe who was asking the most relevant and it was the best question that's correct your honor  but my point is you know that this report did not you know that all of the questions if the point of had additional questions that they wanted to ask that this report was reasonable allowed the additional questions to come in and the case and the procedure was th really shows that this district court was although it was taking a more active role you know the modifications were made to help illicit admissible evidence and the district court even allowed the use  deposition testimony throughout mr smith's trial testimony raised the lawyers it is noteworthy to note that the lawyers withdrew after the fifteen would not settle while they would they would represent them if they settled so hardly  the communication had broken down and so you know that and it's that withdraw that caused all the unfairness that followed because judges don't like to have individual plaintiffs you know in my practice i always have to have my client there if i'm withdrawing because the judge wants to know i think can we get new lawyers number one that the interest of the client is primary but the lawyers interest is of no consequence on this withdrawal it's the it's the fifteen on a diet of that interest that were the primary interest of the court or should have been because they had absolutely have a better impressed he's lawyers into service whether they wanted to represent when they felt they could represent these plaintiffs or not in my view judge bowler the district court should have ordered the fifteen individual plaintiffs into court and and and passed them directly was there a breakdown if there was you know if there was a breakdown and you know they have to withdraw probably but they can't get a lawyer so one human or un to that such a hearing would have disclosed that the relationship had broken down might have but but for each fifteen each of the fifteen did each of the fifteen seventy six or settling we don't want to spend months trying a case and if it was done properly this would have taken a while but it wasn't done properly why because those lawyers were nowhere to be found i can't see in a bad things about this  se these these plaintiffs these fifteen individual claims he waited twenty years for justice and i don't care who is the plaintiff they should have had the right to to present their cases and present it and and the judge is a get back to the judges interference and so on it wasn't based upon the attorney general objecting i mean the attorney general there and properly and properly represented if he had objections he could have stood up and objected throughout it was the judge that took over he became the advocate he in my view tainted the jury and even he became even the advocate i don't understand that he was the advocate i understand that he was trying to manage a very difficult trial with you know huge number of defendants and plaintiffs and represented and he he did he did a list of questions but judges are entitled to do that as a matter of discretion if it if it furthers the proceedings into what extent they get how how how they pleasure just by this they can present their case well but more specifically yes of course they could and they didn't have a lawyer at that point but they had to do the questioning bucktoothed and robert bucktooth the third testified you will find their testimony through to ninety six and two to three hundred to ninety six and three hundred and to fifty to forty four through to fifty four t know the fire you want but you're going away from the fire and they were saying well i want to go to the dance and sing and dance and i was looking forward to that and i heard screaming and i started running so with that at that at the directed verdict communicate well at all until and so he didn't even testify but his daughter is sister put him there saying he he was at the at with her well her she said she survived directed verdict but but sean didn't and those these three waited twenty years twenty years humble people and here they were gone in a flash and and the judge did the district court didn't there was no objection to this and the and the other glaring thing is when when the attorney general finally called a witness the judge let  but it couldn't be more honest i've never heard such a thing where the judge is creating i mean there's an art i mean we it's ten years trying to figure stuff out but you don't just say well i just see ok thanks bye i mean want their day in court in my view this is injustice and they just want to be able to present their case they've waited twenty years some people have died in the entitled to a directed verdict because the facts are so spectacular after the much much better than they were at the summary judgment where she was dealing with ninety one plaintiffs and some are on the road and causing you