and mourning mourning hill's family his fiance his mother and two of his children good morning we're sorry for your loss thank you ron or if if you have questions i mean i'm going to my presentation but if you have questions i'm happy to answer them otherwise i can start my presentation ok so as i said this was a six day trial with thirty one live witnesses the issues were actually fairly simple was there gun in mr hill's hand there were witnesses on both sides was what officer newman did objectively reasonable under the case law that will get into how did the subject gun found in mr hill's pants get there given the  biomechanical testimony how did the gun avoid all blood splatter d n a and fingerprints and how high did the door go up those are the key facts the key issues in dispute it did not involve mr hill putting his credibility at issue or anybody else putting his credibility at issue which we see in the other cases on this on this point it did not involve suicide by cop absolutely not and it did not involve any dispute about what happened after the garage door  closed by then the use of force had already been administered and so with that i go into the the defining case law this is a us constitutional case it's interesting on my way over i told i told my fellow attorneys that and it's i say this because we have lost today it's here when i sat in law school at the university of alabama twenty years ago i had a we didn't have trial appellate argument we would have trial argu and i was a constitutional case and i said i'd never be here i'd never do this why am i doing it and so to them i say don't limit yourself just like your honour's did but it's a th amendment case  hill was supposed to be free from unreasonable seizures shooting someone is the ultimate seize your record in the case law here you listen a lot of issues it seems to me that the the real issue in the case is whether mr hill had or didn't have a gun in his hand because if he if he did then you know if you're in that situation i don't see how it necessarily batters of which direction it's pointing if you're in close proximity i think most places officers would would feel under under threat and i think our our case i would suggest that if you're presented with a person the gun officers it's not excessive force to shoot on the other hand i think there are some real questions about whether the evidence shows that he that he did have a gun in his hand or whether it was in his pocket now of course the problem is that we're looking after a jury verdict the jurors heard all this evidence and what is obviously a tragic case and made the conclusion based on all that evidence that that he did it appears have that gun in his hand you know whether that's whether that's what i think i would have said if i were on the juries is not the issue the objection i think that you have that comes the closest is the general prejudicial impact of his probationary status can you can you make that argument a little bit to us and tell us especially why assume that he assumed that that was an improper mission why is that not a harmless error rather than error that would be reversible that is the most important judge brinn we have to look at was a paradox that it was then being put in his pocket sharod clearly says when he jury measures the object of all reasonableness of an officer's acts it must stand in his shoes judge the reason based upon the information he possess d jury should not possess more information than the officer and s could be you know comes back and says hold on not so fast there are cases that limit the evidence when it's unknown to the officers at the time when it's missing admission to attack credibility and to impeach witnesses here probation did neither and you've got to look at the nature of probation here too even according to the probation officer who they brought in he testified that wound up being is a trial of not just one but two violations of probation and led to a dollar jury verdict so we think it was very harmful significant impact and you know what the court said and you can go into as could be you know a night but the court if there's only th circuit case on point and it's one through kerr and that case is so significantly different even of the court put put all the reliance on it because in that probation was brought in in criminal history was brought in for two reasons one because they were in the act of fleeing before the shooting and in fact the car was headed towards the officer and one of the one of the deceit ants had court the next day and wanted to get out of there and so of course that was important the other way it came in as the survivor told two stories she told one story on the early morning right after and the nd in her deposition and so certainly she brought her credibility at issue that probation matters particularly when it was for grand theft here it was a drug crime it was set to term he wasn't going to jail it was a loud music case there was no underlying crime the officers didn't even know what the underlying crime was he was listening to loud music open his garage door closed his garage door from the standpoint of of officer neuman deputy newman  had to take his victim as he came castle doctrine and nd amendment fully respected he was in his own home he finds out you know days later that he was on  how assume for purposes of argument that we thought that that evidence shouldn't have come in how how is that evidence enough to be harmful error rather than harm less error given that from reading the transcript the counsel the other side didn't in my mind especially lean in on probation or especially suggest that he was a bad guy because he was on probation or the kind of guy who was always doing crimes because he was probation some mean sometimes you see counselor just really leaning into making a big deal of past convictions i don't really see that here we argue that it was never relevant in the st place and even though they didn't lean in we do have some insight  into ultimately what the jury did and a dollar verdict for his children showed that they were that they were they did that for a reason and we'll never know and you know but it is that on top of the other issues and i fully agree some of them going to cumulative the issue with the gun not being disclosed and the and the issue with the probation or the two most significant can i ask you a question  about the gun and the shorts being used as demonstrative evidence my understanding is that i think they concede that the gun was not disclosed as as an exhibit and under rule twenty six  and rule thirty seven dollars there is a continuing obligation to disclose and provide evidence and rule thirty seven dollars allows for evidence to be stricken are additional sanctions to be imposed on the parties in a civil case so the question i have is was it prejudicial to allow the gun to be used as a demonstrative aid when it wasn't given to your to your side as as potential evidence yes your honor our expert never got to test it we never got to do a demonstration the st time we found out about it was when they moved to bring it into the court house obviously it's a firearm and so they got to make the election on the eve of trial whether or not to use it as a demonstrative aid in the court hung on to that that it was demonstrative it wasn't it wasn't evidence per se and the point is through twenty six dollars they didn't disclose a custodian of the god you know all that we had initially was a three hundred dollars page book that had the list in it and then they disclose the list itself well if i give you know if my wife goes in and comes back to the grocery store with the weather with their grocery list she didn't get the gracious and so so it's different we need disclosure our experts are prepared you know you've all litigated in federal court it's really important for us to know months in advance what we had because it was a key issue in the case about how he got the gun from from here or here indeed his back pocket in what was less than a nd and my understanding is and correct me if i'm wrong because but the the officer who was a late witness but testified with regards to the gun and the shorts did he just i don't think there was an anatomically correct model wearing the shorts i mean he would he just stand up do this this is how the gun went in he did in that also didn't really assist the trier of fact as there were photos of the gun in the shorts but it was somebody that like you said was a lay witness had been there who who just you know kind of dropped it into the and they weren't they were not present my understanding again at the scene when the incident occurred they were not so remind me what they did you did raise an objection at the time we did we strenuously objected related to the gun  from the point that we knew that they were going to bring it in with the motion to actually bring a firearm into a courthouse we immediately objected actually i preserved it before it was brought out on docket entry to forty page one  four so i tried the whole way to prevent this gun because that was a significant issue for our case and for our defense about how it got from here to here even the measurements because the gun as we said had no blood splatter on it but the shots were here and here how it all went down it was a significant importance the size of the gun the color of you know the hand in the contrast of the gun it was all important and in just a big clear never learned of the gun through the discovery process you only learned of a one and the weekend before the trial on monday before they moved to get where they have to you have to get a court order to bring a gun into a courthouse yes or an finish yes the judge the judge said well it was just demonstrative value and you should have known you should have guessed that the gun was there but that was a part of the criminal case there was a grand jury that looked at this and so  federal court is the it is the place of fair play it's not state court where were lawyers kind of gotcha there should be the rule twenty six and rule thirty seven exist there must rule twenty six you haven't it's initial disclosure i mean you don't even have to former state court justices they pleased the court good morning your honors my name's greg jolly here thank you your honor my name is gregory jolly along with summer branco we represent the apple levy's sheriff mascara and off the deputy newman and his individual capacity  as you heard this case was tried before a jury the jury ultimately decided that the use of force was reasonable and on the state law claim held that the  intoxicated and as a result of his intoxication was more than fifty percent at fault for his injuries doesn't titling the defendants to the sheriff to judgment as a matter of law on the state law post trial motions were filed and ruled upon and final judgment is entered the police are asking that final judgment be affirmed in this case i've i've got a question on the on the probation evidence you've asserted it in your briefs and before the district court that it was important to have this evidence that just you know is on probation to tell part of the story about why he would have wanted to quickly put the gun away when he saw the police i have to tell you i am not on probation i have every right to have a gun but if i if i were holding one and saw the police i would sure put it away too because i think that they could shoot me if they saw  it why do you think that that really why do you think that someone on probation would have any different reaction than an ordinary person who just didn't want police to see them brandishing a gun in their direction your honor i would suggest that you can't take that fact in a vacuum it's not just said he was on probation it's also that he was heavily intoxicated which was also prohibited by the terms of his probation so those two facts in conjunction if from from our perspective what  reading his probation it gave him motivation to number one close the garage door close quickly which it's the defendant's position that in the process of manually closing that garage door quickly that caused him to raise the gun up in such a way that defendant neuman perceived as a threat i thought that they didn't i thought that the position are you saying that is that's the defendant's position your officers the officers but mr bryant's state says that he never had the gun in the st place rather than i don't think the argument is that he pointed it or didn't point at that particular direction right now there were already had it  in his pocket the whole time that was certainly part of the trial but they also made arguments that the gun never raise and when the garage door close even if he was holding the gun the gun was never a threat because the garage door was a barrier between the officers and again i'm having trouble understanding why either the probationary status or the fact that he was in the intoxication maybe that would be relevant to comparative negligence but the but the purpose of the probation what is the relevance of that for purposes of whether he's going to close the door or not close the door i mean the officer has no knowledge that he's on probation correct that is correct your honor so why would the jury have to know that because when the officers walking up he doesn't know that well because i would suggest are it's a typical for a person who sees on a law enforcement officer to slam the garage door like that why i don't even have to open the door to the police officer no you don't but it explains his actions your honor and and that was our theory of the case that when he opens a garage door and sees law enforcement officers he recognizes that he is potentially facing serious consequences for violating two terms of his probation but has he said that he didn't has the estate said that he didn't close the garage door i don't understand that to be in dispute that is not in dispute your honor but it also goes to explain something else explain a reason for something that no one's really questioning well it's not just that he closed the garage door quickly it's also that that he concealed the gun because that was another feature of the trial that he would not have been able to he did not have happened i mean a t and seal the gun if your position is that he had it this way so that's kind of hard to conceal a gun that you're supposed holding up i wasn't there your honor but it's a defendant newman's position he testified that when the garage door comes down the gun starts to come up and then we know the gun ended up in back pocket and the plaintiff argued at trial he would not have had that opportunity to put the gun in his back pocket this also goes to the to the firearm demonstration i think it was suggested that the witness testified that this is how the gun dropped in the pocket but that's not what happened all that happened during trial was we had the evidence or the detective at the sheriff's office who was the custodian of the evidence how can you even have a demonstrative evidence that's really literally physical and real evidence because the problem was we could not send that evidence back to the jury it was contaminated with with some biological material along with the shorts and i mean i was a district judge for ten  years and you don't send guns back to with a jury in any of that you still admitted into evidence i mean the same you had the plastic through the the works of the gun i mean it wasn't functioning we still send it back with the jury but that doesn't mean it's  not it should be admitted into evidence of it routinely it was in my experience while there were certainly pictures of the gun that were admitted into evidence but the actual gun was not the you didn't and you didn't made it because you didn't disclose it so it's  hard to admit evidence when you didn't disclose it because even this trial court judge i assume would have excluded it as evidence and no you were actually the trial court judge that the trial court judge how that in effect we had disclosed it and that they were  notice of that we were in possession of how can you be honest you know you're in federal court not state court and in federal court you have a continuing obligation to disclose names witnesses and production of evidence it's not it's not a free for all in federal court so you need to disclose everything that you're going to rely on and that you have in your possession did you disclose listed possession gun whatever it is a glock or whatever it was  explicitly your honor no and do you believe that that is an obligation that you have under rule twenty six dollars i believe we have an obligation to disclose the evidence we did list all physical evidence your honor all physical evidence  regard arrives at a high level of deference and judge rosenberg determined that our failure to explicitly disclose the gun was harmless error at worse  and it was also in our brief that during one of the deposition i was it harmless error i mean this was actually the sort of the linchpin of the whole case which is either he was holding the gun or he had in his back pocket and if he has an expert and has expertise on able to destroy to be able to test the weapon to determine whether or not there's blood splatter or anything like that whether or not there was any evidence that he had his fingerprints on it whatever it is he had no ability to do that because you didn't disclose it as something you were going to use in this criminal case in the civil case or your part of the reason i believe the court found it was harmless errors because plaintiffs counsel in some of the witnesses during pretrial discovery about the evidence that was in the possession of the sheriff the witness told plaintiff's counsel you need to reach out to don radke the evidence custodian and that was never followed up with i think that was part of the calculus of judge rosenberg say but this is not a criminal case this is a civil case in a criminal case i understand that because the evidence is being held because there is a custody a chain of custody and you have to be able to show at trial that this evidence is has been maintained properly in order to be authenticated and introduced as evidence but this is a civil case and in a civil case you counsel are responsible for the evidence you have control of the evidence and it's your responsibility to disclose it and turn it over to the other side so that they can at least inspect it and have their experts look at it correct yes or no yes your honor moving on to unless there are any more questions about that issue your honor if i could go back to the probation issue plaintiff's counsel relies on the sharod case out of the seven circuit obviously the seven circuit decisions are not precedent in this circuit i don't believe this fraud case is ever been cited in this court the shroud case devolved in excessive force case where the find an officer testified that he used deadly force when he witnessed the plaintiff i believe reach into his pocket so there was no testimony whether or not  gun was ever seen by the by the defendant officer and i believe that's why the th circuit held it didn't matter whether or not after the fact it was determined that he was not holding a gun because whether or not the officer saw the gun was not the two pretty dramatically different descriptions from the witness about what happened whether the car fled police before the shooting or afterwards and the evidence that the various factions and probationary  really did lend credence to the fact that the car may have led police on an intentional basis rather than after the shooting here no one's arguing about whether or not the garage door is closed this goes back to what we were saying before i think that it doesn't seem to shed light on anything that's really in question well it did a trial your honor because it was so just sit on mr phillips says argument that the evidence was uncontested after the door was closed and i don't believe it was there was a lot of testimony or lot of argument at trial that he never would have had the opportunity to place the gun in his pocket and i think the probation status issue also goes to his justification to quickly conceal the gun and then obviously we needed the shorts demonstrate how quickly that could happen this is probationary status added knowledge about that you know the ability of time and space to provide a particular result right i mean whether or not he's on probation isn't doesn't really speak to whether it's physically possible for him to put the gun in his pocket it's a particular matter time i also want to point out your honor that judge rosenberg gave a limiting instruction the limiting instruction was  ladies and gentlemen as you have heard mr hill was on probation this evidence is only admissible to the extent you think it is relevant to mr hill's actions on the date of the subject and so that it is not to be considered for any other purpose and i think it's important to note also that will for all a rule of inclusion rather than exclusion rule for fours provisions apply exclude evidence only when it tends to show criminal propensity that is not why the evidence was offered a trial was offered for a specific purpose to to demonstrate why he acted the way he acted as described by the officers and as i was i was questioning your friend at their table about in a case a let's assume for the purposes of this question that we did find that haven't shouldn't have come in it i will i will say as i said to him it doesn't appear that that your counsel on your side you know leaned into this evidence or made a made a big deal about what it showed about his character or anything like that on the other hand ordinarily in cases where many times in cases where we find harmless error will say well there is simply so much evidence on the other side you know there's no way that a jury would have come to a different conclusion the absence of this evidence how where do you think that this evidence falls in the scale of what's i think a closer case than you might often find even if the jury's decision was reasonable i think the evidence is a little closer here than as a law and a lot of cases if i understood your honor's yes you are you asking  a cross the street at school waiting to be picked up in the middle of child pick up so it was crowded that was the one witness who testified contrary to what the deputy said so i believe that was the focus of the evidence that the jury ultimately relied on when they determined that the use of force was reasonable you know the other thing i think that goes into the mix for me and i hope i'm remembering this correctly and we read a lot of briefs before a week of oral argument saying that he actually was under could because the conviction had not been in or i mean it was a it was a deferral of conviction or the conviction was going to go away if he served out this probationary sentence and that i got that right i believe so your hon i think it seems to me that matters as well i mean he was in his status as a probation or you could conjure up all sorts of you know think questions for the jury about what bad thing he had answer ok and i am troubling i have trouble remembering it do you mind repeating it you are i'm so well my point is that you know you say yeah they needed to know about as probationary status but they didn't really understand his probationary status because he was they were going to defer his conviction i mean he was he was going to come through this process without a conviction and so in  the mind of some jurors if they had none the full story you know it might not have been as is raise a series of questions about mr hill's history if they had known in fact you know this that he was the the authorities are going to defer his conviction on this it's an interesting question and i think it is a conundrum because of the limiting instruction where the jury was instructed only consider this evidence to the extent it affected his actions on the day of the incident the point is he was on probation arguably he was violating his probation and that would have i think retroactive that was the testimony the trial of the probation officer who did say he was on probation this with a not automatically terminate it might have automatically terminated if you can if he completed certain conditions which were not completed but at the time of the he was dead but the point is he did not before he was shot he was on probation at the time of the incident and so that tells you a scene that new yorker cartoon where the juries all sitting there with their hair out like this in the judges saying please disregard but i mean once they hear it well it wasn't disregard it was only consider this evidence to the extent that is allowed under rule for all for your own right but again i mean he could have just been closing the garage door because the dog was going to get out the point is that it's irrelevant there was no dispute that he was closing the garage door while he was closing the garage door is irrelevant at the end of the day what is it relevant to it's relevant because in the process of closing the garage door this is a heavy garage door that was testified to a trial in the process of closing this cries more quickly as they can testify to that but what is the relevance of the fact that he's on probation to the fact that if he's closing the garage door a gun goes up or because your honor there was a lot of argument at trial about how this is the only reason it is relevant i guess i understand you're saying it's not for criminal propensity but the only reason to be possibly relevant is because under probationary status he was not supposed to have a gun and it was suggested at all through trial that he's in his own house he's allowed to do this and frankly he wasn't allowed to do that your honor and i think that also goes to the role of as they kind of open the door to that evidence and that respect your honor but my time i'm over my time well thank you for the argument and why shouldn't we credit the the limiting instruction from the court i know as judge martin suggests it sometimes defies reality to think that that these living instructions actually have their effect on the other hand only in a very limited number of situations like a prudent violation arsenal like that do we do we really assume that the jury can't or won't follow that instruction why isn't that an effective argument here the limited limiting instruction was vague and overbroad but it again i can't stress enough in these cases these are tough cases law enforcement have a very tough job they put their lives at risk but as as my mama says but as everybody's momma says credibility takes a lifetime to build but an instant to destroy and when you say somebody is an active criminal and essentially adjudicate them of double violation of probation that had no relevant relevance to the ultimate shooting you can't unring that bell it is it is that cartoon i was having a hard time coming up with the right language about the nature of his we can find it but it's it literally on the probation there's a there's a bold paragraph twenty that says this this probation it's a special condition is at the year anniversary day and there was a question of whether he paid fees you get into  the academics of whether he was still on probation which which just goes to the again we're not we don't go into that we're not going to ring the bell for that if this is the worst of all possible worlds because the jury did know the nature of the probation i mean maybe he was you know had done something horrible correct in in in the world are violent or you know bad guys versus good guys you know cops versus versus versus that potentially point guns at cops credibility is that much more important and when you're you know when you're sliding it and you all three get the paradox here and the irrelevance they can't have it both ways and they have it they didn't even make the argument at trial you know from the from the get go the gun was pointed at him at deposition it was the gun was at mr hill's hip raising up and by trial it was it was in the it was in the vicinity headed headed up as the garage door went down and or shots rang out instantaneously within a nd and now they want to say ok but we get in probation because he's put it in his pocket when they never made that argument as i as i said i think actually the natural reaction of anyone who realizes that they're holding a gun when they come face to face with the police is to get back on out of the way was any argument ever made that maybe his high level of intoxication led him to to make a different decision about whether is appropriate to have a whether that be a great hiding place for a gun since he was on probation or anything like anything about his  affecting his judgment it really did answer it really was a contrast of two theories our theory was that because of the lack of evidence on the gun d n a blood splatter particularly when the shots were where the gun would have been that that gun was never out there were more than one witnesses that alluded to that and so we didn't we didn't try to justify why the gun would ever be put back although i will say was there really more than one witness that said that the gun was never out or there's other his arms at all some saw his are some saw his hand there were there were two school was getting out teachers were circulating that even though even the woman who who made the loud music call was parked towards mr hill's house it's a real small area and and people saw different things nobody else testified i saw in him to hand but they saw a hand they saw a new gun there were three or four or five witnesses that that if you if you piece together the circumstances testified in contrast to the officers thank you so much thank you we appreciate the argument a court is in recess until nine o'clock tomorrow morning