excessive force even if the plaintiff was lawfully arrested we asked this court to overturn district court's decision to grant the defendant's motion for rule fifty b judgment as a matter of law in favor of the defendants because procedur y the defendant should be barred from even bringing the fifty b motion because they never requested the special interactive tory at the charging conference and also they made no specific arguments even at trial as to why they were entitled to find of no excessive force substantively the district court erred in its decision by misapplying the standard that the evidence should be viewed in the light most favorable to the plaintive who was the nonmoving party by finding out the jury found entirely for the defendant police evidence includes the testimony by the defendants themselves officer hanna and officer vasquez who stated that you know under their set of facts even immediately before placing the handcuffs point he was walking around in circles immediately after being placed in handcuffs and in custody plaintive was wiggling around able to keep balance on his left knee which the expert said was impossible and in tomic lee impossible but then as the officers were something that supports the verdict the the issue i take it is he places that use of force at the very beginning of the encounter before there had been anything that would give the officers any occasion to intervene and the jury evidently did not believe at least that part of his dorothy's is testimony right i would agree with that assessment you are i would say that  you're saying is they could believe part of that and all of that's right and one reason they could believe part of it is that you had a medical expert testified that the injuries that were depicted on the x rays at the hospital when he arrived at the hospital were consistent with exactly the kind of use of force that he claimed the officer inflicted by kicking him behind the knee right  fine he's maybe stumbling but he's he can put weight onto that left knee and then immediately when after he's being placed in down on to the ground as as the defendant  officer hanna testified he crumbled and in that moment that the jury credited the plaintiff in that moment time because what resulted was was a fracture of the left to below a plateau which is that's a question judge code concluded that the jury rejected ortiz's version of hands and one of the things she relied on was the jury's denial of pain and suffering right damages for a conscious pain and suffering right so how do you reconcile that with what you just describing now which is that  injuries to the knee were consistent with the version of the plaintive i would say that even if the plaintive was so drunk as to not remember any of the events that occurred there still was a expert that said that you can walk before being arrested being placed or being placed in handcuffs and then immediately after being placed in handcuffs and still being able to wiggle around and then being put on the ground you suffered a fractured bill which is so painful that you would not be able to in fact when he woke up in the hospital the suffering could he then possibly have given testimony about what happened leading up to the fracture we would say that it is such a short moment in time your honor it was that moment that he was put onto the ground that this occurred to him and that's what the expert testified to that this moment in time was what caused and this is what the jury found as well your honor which is that moment in time caused the plaintiffs injury but the jury clearly returned a verdict on excessive force we don't know they weren't asked to describe the version of events they were not given the binary choice of who version of events do you choose to accept they were given the binary choice mation for the defendants the defendants asked that the jury find entirely their set of events but don't forget that the point is the verdict form doesn't ask t that and in fact the jury instructions and tell them they get to do something very different they get to decide that there might be lots of facts from one source or another source that they can credit or discredit as they see fit right it would have been error wouldn't it for the judge to say you must believe entirely one side or the other and that's all this case is about and so the putting it to you you have to decide either he's telling the truth or they're telling the truth and don't worry about anything else that's the principle thing that would be that would be area are but in favor and you're saying because the law is precise leave the opposite the law is they can believe some and not others depending on what they find to be corroborated or not  significance of what you're saying you started out by saying something that supports the jury's verdict on excessive force is the officers testimony and of course the office of testimony is quite to the contrary but the significance here saying is ground and the jury so found does not say anything about what happened after he got up and whether they used excessive force to put him back on the ground in fact your honor that entire interact  he was doing and what exactly they did in response that would inform the decision of whether a reasonable officer might have even mistakenly thought that what was done was reasonable ye which force was used after having rejected the testimony in which force was alleged who says i mean what they rejected or didn't reject him in the the point we were just making juries forever get to decide which facts they believe in which ones they don't believe it's not all or nothing i agree with that is who are you or judge coat to say what they rejected didn't reject it as a general principle what we do what we do know is that the jury rejected the context in which plaintiff allege the force was used that he was walking down all we know is that they rejected the notion that he was wrongly arrested right yes and the only evidence to indicate that he had been correctly arrested was that he was drunk to the point that he needed to be detained for his own safety under the mental hygiene rights you don't get to arrest you so they were justified in arresting him because he is falling down drop right at the beat the hell out it right i agree with that your honor and there is no allegation that there's no testimony that they did  that he was trying to make himself look like a total innocent he was after all claiming unlawful arrest as well as excessive force but that there was no independent corroborating evidence of his account of what began the incident but that there was corroborating evidence of his claim as to what force was used corroborating evidence in the form of the medical expert testimony i don't know i'm not a medical expert i don't know whe bill would be believable to me or whether i would find another expert's opinion better or whatever but it was evidence there was an expert testimony that the kind of injury that he had at the time he came to the hospital was not only consistent with but was only consistent with being kicked in the way he said he was kicked and was inconsistent with the whole story is inconsistent on anybody's account with the idea that he had that injury before the police arrived on the scene and that he had it for weeks or some other from some other incident or anything of the sort now why couldn't the jury say well that makes me credit the story that he must have been very severely treated here and specifically was kicked in this way i think that's excessive force and i'm going to fine for that but really this this idea that he's trying to peddle to me that you know he just was walking along meaning no offense to anyone doing nothing wrong and the officers just grabbed him and in that context roughed him up for no reason at all and he shouldn't even have a rest in the st place that's that's a bridge too far we're not going to buy  is consistent with the proposition that he was injured before encountered the officers i'm saying that it is that the evidence is consistent with that being possible and i don't know what the jury found on that but i want to break that out as something that we don't concede here the next point is as testimony the testimony was that he would have been in excruciating pain had this happened as you describe that he would not have known what and screaming doctor that one point says that that alcohol could not have deadened this pain and go so far as to say that he has had patients under general anesthesia whose legacy still jumping in during the with this kind of injury so the jury finding that there were plenty of suffered no conscious pain and suffering indicates that they rejected the  mean is this really an inconsistent verdict argument that you're making in part yes and the special introductory helps clarify that and takes this to the point where the verdict because the special jury is allowed to choose or not choose generally i think that you're right that the jury is allowed to say yes you know this part but that not that part where it becomes problematic is in a extremely common tech specific inquiry like for exact point the officers made the determination that force had to be used if they had to bring him to a sitting position or or or bring him down to the ground but that's when they're that's when they're bringing him down to the ground he says he was brought down to the ground by being kicked in the back of the knee they say they gently put their hands on his shoulders and brought him to the ground so he goes to the ground one way or the other yes and so because we did we don't know exactly what he was doing at that point because we don't know you know exactly how the force was used at that point we accept the offer it was possible to what he was doing that led them to bring him to the ground yes i agree and you're saying it would be unreasonable for a jury to conclude that  that circumstance given what they described he was doing when they thought the appropriate thing to do by their own testimony was to gently put their hands on his shoulders and guide him to the ground that if he was kicked in the  get that point that's excessive force that's an unreasonable conclusion for the jury to make yes but and i assume that's going to persuade you're saying it's on reasonable be not because that would be a reasonable use of force in a context where he was carrying on the way the officers described and where they thought they should what they should do is bring him to the ground you're saying would be an unreasonable herdeg because nobody says that that's moment and that's speculate but it puzzles me because it seems to me speculation is when there is nothing either way it seems to me not such an unreasonable inference that the moment when if something something that would bring him to the ground that a reasonable jury i think would think did happen during this episode but the moment it happened was when they were bringing him to the ground that doesn't seem to be like made up out of somebody's head that seems like an inference given all the a highly intoxicated belligerent person in a public place and a time that we know pedestrians are walking down the street that those officers are not allowed to use some degree of force to bring him to bring that person to a seated position so  conceive that there were that excessive force verdict may be possible and that is what you just said automatically establish qualified immunity that is to say if we think that the circumstances that are really perfectly consistent with the jury's verdict the most likely view of the scenario as to why you know he was being belligerent he was being drunk they had to bring him to the ground they were entitled to use reasonable force to do that that that establishes that there was qualified immunity for a violent kick to the back of the knee if that's what the fact finding should be i think that's what you just said that's what a large was was rejected up point in time that he was not conscious of any pain or suffering at that point we don't know what degree of force was used that is speculation even the jury could have found that at some point in this encounter the officer delivered a kick to the back of the knee with sufficient force to inflict the injuries is there any point during the encounter which that would have been a reasonable thing for the officer to and that the way to do that is to kick him in the back of the knee so even that even if there was the possibility of an excessive force verdict here without holding the evidence with that absence of context i think qualified immunity would apply very briefly to the point that my adversary close with on the procedural issue he says that the jury that the defense never raised the argument on that was subsequently brought up again in the rule fifty b motion direct the court to page and forty six of the record where the defense counsel says there has been no evidence put forth that on the defendant's version of events any type of excessive force was used against the plaintiff that's exactly the argument that was raised again on the fifty  that pain sufficiently to allow somebody to walk or to stand and he answers not to the degree they would be functional no and then dr cottle said that ambulatory could actually mean walking with assistance with regard to there not being no pain conscious pain and suffering there were still compensatory damages that were awarded to the required there was medical expenses correct yes thirty thousand dollars for past pain and suffering and then ten thousand dollars for future pain suffering are so what is the pain and suffering if they gave an award for past pain and suffering what is it that this isn't anything but an argumentative point was trying to get my head around it when was that past that they gave him the thirty thousand dollars in damages and how do we know that none of that was for a particular time period well the past pain and suffering could have been for in the hospital or pain for the rest of his life up to the date of the trial right  y right but what tells us that it wasn't for the period after the arrest i have been saying that for granted my assume there's a good reason for that and i want to know what your position is is there some line that says how much compensatory damages for pain and suffering that evening how much of the verdict form did the plaintiff establish by a preponderance of the evidence that he's entitled to damages for conscious pain and suffering from the time of his st encounter with the defendants until he was placed in an ambulance so that's and that zero right and then thirty thousand dollars for pan's offering after that but not in the future and then  in terms of  again we do believe that there is there was an unreasonable use of force and therefore there was excessive force and under those set of facts even even if we credit the defense set of facts you cannot find qualified immunity in that situation because a reasonable police officer in that situation that was confronted with a drunk even if it was drunk you know they they said themselves that he was not resisting arrest in any way before he was put into handcuffs and even after he was put in handcuffs the only resisting that he he presented was trying to wiggle away from the police officers that doesn't mean there should have been a fracture of the yet we do know the amount of force that was used to explain that that we what what that force was but we don't have testimony as to how the force was applied but again i think