i please the court my name is linda cantrell and i represent the defendants who are the at the time of the incident the county of los angeles and the los angeles county sheriff's department i would like to reserve five minutes for rebuttal i would like to start off this morning by focusing on defendant the united states supreme court decided kingsley versus hendrickson in that decision the supreme court held that the pretty child detainees excessive pork claims brought under the fourteenth amendment maintain order and insist institutional security within the jails which is the same deference instruction required under the eighth amendment for eight assume that instruction should have been given and it was and i think even the district judge said in retrospect he wished he had given it but he also said his own mistake was probably harmless because it was covered by other instructions particularly the reasonable  itself the vital and crucial language must be given that the jury must give deference which is to yield to the jail officials judgment and the path to the practices and polic needed to maintain order and its institutional security within the g s but yeah isn't there something in in layperson's terms covered at least to some extent on the excessive force instruction because it talks about her to be need to apply force but there also have to they have to consider whether the defendant was reasonably reasonably perceived to the point of to pose a threat and so forth so i do securing deference to their judgment about whether they reasonably believe they have a problem so that's sufficient because i respect and really strongly disagree with that just because the jury is given factors to determine whether the defendants acted in good faith does not no no i'm not talking about the good faith part i'm talking about the part where it asks the jury to consider how your clients perceive plaintiff whether they perceive him to be a threat and we're responding to that that's part of it and that seems to be at least an element of deference a relevant element of deference i would submit that although that may be viewed as an element of deference that's part of the force analysis and it's not telling the jury that they have to give deference to the practices that these defendants determined were necessary in this case namely the the record shows that under the situational use of force chart from the defensive tactics manual from the sheriff's department the plaintiff was considered a physically a of high risk inmate and that was in the record yes so the jury already have that when they made their decision and i guess my other question about harmless uscis in view of all the evidence of what happened to the point  i would like to go have him go through and fall answer all those questions first with regard to the punitive damages the jury could have found a question which means they add the defendants acted more harsh than necessary without the vital deference instruction the jury would not have known that they needed to defer to the defendant's decision to use flashlights strikes to use the taser that in the in their judgment r and importantly where a trial court misstates the elements or fails to adequately am correctly advised of the substantive law in general the presumption o prejudice cannot be overcome and that's in clam and white versus ford mordor and here in simply the supreme court has said that the deference instruction is a vital element to the objective analysis of the reasonableness of force so without that vital element there is an incorrect in an adequate statement of law that you know should not be able to be brought it furthermore under nor would verses vance then ninth circuit specifically held that where the deference instruction is required to be gavin the failure to give that instruction in fact res reversible error so as kingsley has mandated that that deference instruction be given for claims of excessive force by pretrial detainee's as a nord versus vance that amounts to instructional air and it is the plaintiffs the burden to show is that it is more likely than not that the outcome would have been the same had not the instructional error occurred and here the record  apparently he was not aware of it he got more than two hundred fifty thousand dollars and he's right ok why didn't you wave why should we give him that waived by virtue of your failure to raise this because your honor respectfully that is as an issue that does not require any factual development of the record below it's undisputed the plaintiff was the pretrial detainee at the time he thought his complaint and this court has discretion to go ahead and hear that it's a cap that as a matter of law limits the prisoner's recovery of attorney's fees two hundred fifty percent of the judgment which is four hundred thirty five thousand dollars in this case and we would respect for lisa met there's no prejudice to the other side because there's no needed factual development of a record and it's a legal statute that applies as a matter of law and if i may return i would like to point out judge gruber the special verdict form in this case demonstrates that there jury was confused and there was a presumption of error because the jury found that deputy that did not commit a battery against the plaint was was the deputy who was actually punched in the face by the plaintiff and in response he punched the plaintiff two to three times and then need him four times while the p excessive based on the policy to use a flashlight that was forty ounces and up to fourteen inches in length as a leg strike which was a policy in the jail that the officers were allowed to use as a  defensive weapon to stand off and attack at the time of the incident and the jury said have been told they must give deference to that flashlight policy deputy  that he was allowed to use that flashlight as a defensive strike as the plaintiff was a high risk assaulted in me without the crucial crucial language that the jury must yield its own opinion as to the practices within the jail that amount to excessive force the jury improperly just decided the force on its own if the jury had been instructed you must give deference to these policies regarding the use the t going to argue that you know the plaintiff had punched deputy vasquez in the face the force was an unreasonable unreasonable i said that coupled with the lack of deference instruction shows instructional error and it was the jury was confused that they had  just make those decisions on its own it had to defer and we also wanted you know with regard to that evidentiary air i think that's fully briefed but i think that was a huge problem in this trial while the citizens commission of jail force throughout the trial the court asked the court as a defense counsel as we were working on jury instructions what policy or procedure are you suggesting i should give deference to they couldn't answer the question kind of a flashlight to be used if they're using it to eliminate that's one thing if they use it as a club that's not the policy captain koos testified that no we don't use the flashlight as a weapon that's prohibited so there was no policy or procedure that the deputies were following following in the use of this the court asked what policy what procedure are you suggesting they should be given give a deference to and over and over of the defendants had no answer for that question that's why it was in there yes he may only because he thought well maybe there was something there but that was already in the in the in the context of the motion motion for do trial i would point out your honor that it kingsley at  the court cannot apply the objective standard mechanically it turns on the facts and circumstances of each particular case then the court will goes on to list nine different factors that can be considered and what would our judge did  eliminated and that was by the weight model jury instruction nine dash twenty four and so the court didn't consider all the factors that were relevant to the case and that was the reason the court then excuse and argument because it just wasn't there wasn't there for them he asked and they didn't they couldn't give it to the first time i even heard this argument isn't that we pride we played because that's the first time they ever articulated an argument and their argument is that they were attacked and so that's just not before the court that's that's that's the defense's argument but i don't believe the court should should should consider it in terms of the substantial evidence that with presented to the to the thank you thank you mr p a waved issue we might have discretion to deal with because it's a pure issue of law in this case and i'm going to sit in your reading of the statute assuming we reach the merits  in your view does it actually kept the fees at one hundred fifty percent of the judgment or does it simply provide a different mechanism for payment of fees if they are in excess of one hundred fifty it's hard to answer the court's question because there's very little law on the issue of fees i strained to find it i do think that the boys looking at the text of the statute do you have an infirmary or i do not circumstances i think that in this case one of the major issues that i notice in defendant's reply is that defendants do not deny the following which is really the critical issue in this case and should have been highlighted a little bit better and that is that the final pretrial conference or pursuant to rule sixteen he is what was controlling in the action if you look at law if you look at documents seventy are nineteen fifteen that is the chords final pretrial conference order on the issue of the county thiis the only issues defendants raised in the final pretrial conference order was the issue that they wanted an order for attorney fees and costs for themselves let me ask you this if if they had properly raised this statute brought this was a trick question that it was a brought it to his attention is there anything you could have said that would had a certain thirteen causes of action and then at the final pretrial status conference we know that the purpose is to narrow the issues and to extinguish issues the parties do not wish to litigate any further let's say we were to hold that even if you had still i'm interested in what you think the statute means because i find it not obvious this is actually i don't i'm not interested in the pretrial order at this moment those cases in which cases were brought that were not memory tore it was a group with question exactly how the statute operate it looks to me let me just i'm not trying to hide the ball it looks to me as if there is a cap on the hourly rate only and everything else has to do with a reasonable fee and light of all the things that are described in subsection one about proportionality and it was required work to give the result and it was there was a violation of the plaintiff's rights so i guess i said i would say if it's very interesting because neither side has read this statute in a way that to me that the first twenty five percent is paid by the plaintiff like like a regular contingency fee and anything over that up two hundred fifty percent the defendant pays and that's the maximum he's exposed to i don't  what's wrong with that argument well what's wrong with it is that if if it were true issue of law which which it's not because certain factual issues would go when for example well if they were to move to now we quest of this court to grant them their fees they would have to show how they haven't been present is that better than what the court did was step one which is found in subsection one do you want which says find a reasonable fee that's what the court did hear it did step one already the district court they're not even arguing that that that was done wrong so they're saying as a given the fears that the district court awarded would otherwise be reasonable if this weren't a prisoner case but by law you can't get that much under part two in three when actually they only argue part two so they probably waived waive three waived part three i guess i don't see the problem well i think that the issue what i'm saying is that in waiving this they there are issues the court can consider in determining whether the court can modify their request now and allow them leave to to come in and say opes appellate counsel recognized an are one example exactly what that prejudice was well we would have had the right to decide how we would have litigated the case or that what decision would you have made that would be different well your honor for example we had experts that came from out of state we had we litigated many different issues in the case we took to task and all the i thought what would you have done differently we would have reconsidered how we presented the different i don't know how i don't know what the court means what we might we may try to mean isn't that what with the prejudice of not raising it earlier you have to you know you have to but i'd like you to show me a concrete example of how you were prejudiced by not being raised used and possibly what would you have done differently used only a use of force expert as opposed to bringing in any other experts in the case for one that would have saved a lot of time that would have saved a lot of energy it would have saying that i got to diligently and that in the interest of thinking that we were going to have to be more cautious about what we presented a trial we would have made different tactical decisions different litigation  that after the twenty five percent is taken from the plaintiff's award the defense pays up one hundred fifty percent of the argument and i mean of the award and that's the cap and i cited the case law consistently interpret and resulted in the deprivation of the plaintiff's constitutional rights however if the jury had been properly instructed that they need to defer to the jail officials judgment and as well as deputy here as decision to use to him and that i suppose you have a case where a guard here's a here's an inmate being disrespectful melting off to the guard and he then replies by burning him with a cigarette ok you got my hypothetical in mind i do think a jury would have to be told that we would have to defer a jury has to defer to the judgment of the of the jail and how to handle such matters well i don't think the jury would think the burning of a cigarette was appropriate now so my question my understand i'm sorry i would think that in all excessive force cases the instruction must be given as needed just like in the eighth amendment ninth circuit knowledge or instruction that deference instructions require to be given on top of the factors you think in my hypothetical could be harmless in that hypothetical perhaps it could be observational injuries as well broken nose two yes and so here and that's where the situational use of force is important because the japanese were allowed to punch him in the face because he was a high risk assault if it meant they were allowed to use l strikes they were allowed to use the taser so in this case it was all those factors so why the deference instruction in this case was extremely important and the jury did not understand how to  apply the those force decisions by the defendants in analyzing the reason oneness of force and this case is actually quite some alert to kingsley which also involved a pretrial detainees claims against two individual