this court to reverse the decision of the lower court because the jury instructions given in this case were not an accurate summary of the law and they effectively precluded mr green from arguing that he was on armed and allowing the jury to consider the fact that credibility there had not been a finding or a ruling whether mr green was armed when an officer junior shot him the finding by way of background was a violation of probation finding that mr green was on relative to the citgo and where he was shot how far was it was the distance there we know it's about half a block i believe mr mckay you know i don't know how wide yards or whatever it's my understanding was that one of the other problems we believe with the using the gilbert instruction in this case was that the district court used to bar and illinois state police evidence technician from testifying about the lack of latent fingerprints on the gun the evidence technicians machall down he was not allowed to testify at all on the theory that the issue of the gun had been results already in the circuit court of quick counting again the plaintiff mr green is allowed to proceed on their space on this court is allowed to proceed on a theory that at excessive force claim but he has to do so consistent with the conviction or the probation with a conclusion which was that he was armed at the soko so unless they can explain what came of the gun him so that you can heal all off the whole sicko part of it i'm not sure that would have been effective but that's not if you want to have it all you want to have it all basically you wanted to be able to essentially pursue your theory that he was on arms throughout and that's in fact what he testified to and that is frightening consistent with the probation revocation conclusion which was unchallenged  and mike are in illinois state police witness unless the court has questions on the other issues will stand on the bridge to clarify no one has ever disputed that mr green had the right to bring in the excessive force claim asked the questions indicated to mr grieve the problem in this case the theory he adopted was he never had a gun the entire evening and that's why he was unarmed in the backyard and that theory was precluded  he didn't challenge the probation finding you know my state court and that is where it needed to be challenged he was not entitled to come into the district court and really that again i want to answer a few questions about the  that the person examined the ground look for fingerprints we actually have no complaints we think that the verdict should be upheld i do want to answer your address a little bit except for one next instance in fact it wasn't even objected this gets a little complicated because he's not to bring his his expensive course plan which is not hack barge he's not required to admit that he had the gun in the citgo bound by the state courts determination that he did so which is why the theory of train becomes so important and that yet narrowed to officer joining us by the time you read at certainly at the beginning of the trial and at the time of his own testimony so it was a complicated needle to thread it seems to me for the district judge here complaints rest on this idea that they should have been able to sort of just reach challenge that find in the district court that he has begun and in fact he should have been able to say i didn't possess a gun at all that evening that had a gun that night and he needed to testify to something other than i was just he needed to testify he either got rid of the gun or challenge the findings in in the illinois state courts but what he couldn't do is what incentive to fire an appeal because he's going to be barred when he comes into federal court from saying i don't have a gun that is an incentive in addition to the fact that he's getting he's going to be sentenced this time  the judge for rule on the probation violation in i believe it's may twenty for teen and for whatever reason i'm told may twenty twelve she's not actually sentenced until december twenty fourth and i might have got my dates  court clearly found her testimony would be speculative absence of latent fingerprint suitable for comparison would not be probative of lazarus mr green had not and that's what they wanted to stab or had not touched the  it's deeply problematic and the court alternatively is certainly correct in finding that that that type of testimony he's trying to get the jury to draw an inference that he never touched the gun and therefore the lack of fingerprint suitable for comparison which doesn't really tell you anything anyway it doesn't tell you someone whether someone has or hasn't shouldn't be allowed in because it's going to collaterally undermine the probation court find  you we're talking about a time span of twenty seconds between what happens in the sicko station and what happens in the backyard and there's no testimony because his claim a lot means i've never had a gun and if he gets t in other words the this woman who would have testified if she were to say that there's no fingerprints or something she would be the one that said so what that's the gun didn't have any fingerprints under something she didn't test for she did not act and that's one of the appealing that's one of the reasons on appeal to have another trial because she should have been able to testify but the barring of her testimony is firm but i'm not sure a couple of points based on the court's questions and the council's argument mr green that well he was at one point a good athlete in a basketball player and testified as much was never asked if he could throw a it when the gilbert instruction was used when mr green testified that he was unarmed in the backyard twice and then again at the end of the case when all the jury instructions were right is what we're challenging on appeal without explaining what he meant the gun  know he wanted to testify that he was not armed and in fact did testify that he was unarmed in the back yard where he was shot without explaining what became of the pertains to a defense for all of the officers as the trial is ongoing and he was trying to have it both ways seems to me what ultimately went to the jury though was that the