thank you your honor good morning may it please the court good morning my name is petrova tall then and i represent the city of long beach and the officer defendants these appeals arise in a difficult case where police officers made a tragic mistake officers are not automatically liable for making mistakes however the doctrine of qualified immunity provides a defense to officers when they don't lead yet do yes but you got a trial so the jury ruled against the city and in favor of the plaintiff what are you doing here what do you complaining about well your honor we've identified a number of legal errors but to begin with qualified immunity if i may the problem is that that the officer defendants never received the ultimate ruling on qualified immunity it was not possible for the district judge to make the final legal ruling about immunity because the factual findings that were necessary were never made by the jury that's why we have proposed tories to be placed on the verdict forms to allow jurors to answer the key factual disputes in the questions in question in the case and they were really two of them the two most important historical factual disputes or whether the deceit was reasonably perceived  when the court got to the point of the instruction conference of looking at verdict forms the defense counsel requested that the court look at his form and when the court came to those two particular enter auditory as the court said we don't need them i don't need these well the court did need those questions they were vital it was important that those questions the answer to allow the ultimate ruling on immunity to be made now when the when the court ultimately fashioned the form in consultation with the parties defense counsel made very clear that those two be no question about preservation of that the issue now the reason this is so important is because if the ultimate questions of fact that are disputed that bear on immunity are never resolved then it's not possible to vindicate a qualified immunity sent to a summary judgment motion or a rule fifty motion for judgment as a matter of law or any other motion where the judge is going to be required to assume the truth of the facts put forward by the plaintiffs those motions will always be your objection your honor when defense counsel introduced these in iraq tories he said they were necessary to preserve the qualified immunity issue and when the judge said we don't need them nothing more under this court's precedent is necessary to preserve an issue for appeal this court made very clear that it's a low bar for preserving an issue you have to raise the issue you have to explain what what you want and you have to give the just record an opportunity to rule and all of those things were done here once the just a court said we don't need those there was no point in having further discussion about it now yes it could have been embellished the point could have been made invalid they were they were nonetheless withdrawn the judges by the judge we have that's right only the judge has the power yesterday so they were withdrawn by the judge and there was no objection stated on the record that we will find is that correct or what will we find in the right ironically point well your honor the objection was the defense counsel request that those be given another was it wasn't an objection to the giving of them the objection was i want these images on the judge took the position i don't need them or we don't need them that's the objection that's required under rule fifty one and that was made i think nothing more was required the court was alerted to the issue qualified immunity remember had been in this case from the beginning there were plenty of retry motions just recorded including qualified immunity in the pretrial order there was no surprise that this issue was coming up and that the questions needed to be perceived whether they thought that the scene was holding a weapon and the second addressed the question of whether that object was being pointed in the direction of one of the officers and those based on the george and scott cases that we cited page thirty five of our opening brief are the reason if the answer to those in or of injuries have been different so would the verdict not necessarily iraq and the reason is why not the jury could well have decided in this case that what was on reasonable about the officers conduct was the failure to provide a verbal command or a warning and that they should never have let the situation get to the point where it was no where it was possible to use that to use deadly force under the circumstances that are wrote had they given that warning earlier the never would have been the perception that a gun was being held that it would be pointed in the direction of officer of cheese and that the situation escalated that's why it would be consistent for the jury to say it was on reasonable because upstream there was no warning and yet by the same token have to go back and look at the record again because my impression of it was the same a fichu pharaoh short you can propose anything you know when you when you get to the phase of verdicts and proposed instructions there's usually a dialogue  and forth between the district judge and the parties and my impression reading the record is that it was withdrawn what the judge said he didn't need and then that was the end of it without any any objection but whatever you raise as they are on the record and i want to remind you that the time on the clock is the total time that the parties have argument and i know that you raise a lot of questions with regard to damages and you want to move to those issues i'd be happy to  the judgment to the extent it embodies liability on a section one thousand nine hundred three excessive force claim should be reversed because it was only pursued the district only allowed it to be pursued under a wrongful death theory and you can't have  excessive force liability under a wrongful death theory excessive force claims on of the fourth amendment are personal rights they can only be asserted by the person who's been harmed or wrongful death theory is the opposite of that in the searching of harm to the  as a result of what's gone on so we think that at a minimum that excessive force theory to the extent it's embodied in the judgment must be reversed and i think there are some consequences that flow from that in connection with the qualified immunity issue that we think should be retr first the award of attorney's fees would need to be vacated and i say vacated not reversed because it might be possible depending on further proceedings for plaintiff to recover these but at least for now that determination by this court would require the fees to be  arises simply from the nature of what the verdict was right it's a it's a legal defect in the judgment it's not a factual question and i think all sides have agreed in their briefs that the judgment for excessive force under the fourth amendment cannot stand based upon a wrongful death theory now if it might have stood under a survival theory that's the other pathway here that was the source of a lot of confusion in the district court that the but the judge did in the lab claims to cover on a survival theory and so that cannot be a justification for upholding the judgment as to be excessive force claim so if the case has to be retried as to qualified immunity on the two in a raga tori's then i think a complete new trials are appropriate and that's what we've asked for in our briefs and the reason is because by default there aren't partial new trials and federal court and it wouldn't make sense to have a partial new trial here because there would be an overlap between the issues that the second jury would consider and on the issues that the first jury necessarily considered you can't have a partial new trial consistent with the seventh amendment if there's a risk that the two juries will be looking at the same evidence result in the same issues and so forth now that brings us i think i'll mention just briefly the jurisdictional issue that was raised i know the appellate commissioner denied the motion to dismiss but if the court has questions on that i'm happy to to address that our position is that we filed a notice of appeal that complied with all of the necessary prerequisites and that the appeal is appropriate the response from  presume to to infer that on the part of the plaintiffs i think their position is that if they had known that we were filing a notice of appeal they would have filed their own although there's evidence that we submitted with our response to the motion to dismiss that shows that they knew with time left on the clock to file their own notice of appeal that we had appealed there's a letter to the nation questionnaire that they all were served with so i think it's fair to assume that they had notice in time to file their own notice of appeal but what i would add is that if the court is inclined to allow them to pursue the cross appeal of course it hasn't been briefed here because of the way that it came up but if the court would be inclined to allow them to pursue survival damages which is what they request that that be a complete trial because again that implicates some of the same issues that are likely  claims and if your answer is no why not your honor the the state law negligence and battery claims are different from the excessive force claims in terms of the qualified immunity defense so i'm not sure if you're asking about how the wrongful death claims affect the federal claim or the state claims well can we conclude that the cherry awarded it was wrongful death damage just based on the state claims that were presented to them i think i think not your honor if you have a single sum of damages that is awarded without distinction by the jury well you have three somes if you will for each plaintiffs that they they are awarded without distinction between the cause of action the various claims there might be a general verdict problem with assuming that the answer the question  but i don't think in any event that the verdict could stand on that basis there would be an overlap in the event of a new trial that would require all of those claims to be retr never made a rule with emotion they never raised this issue at all that there might be a problem with the special verdict so they've waived any problem that that has caused but there was no problem on this because what the fence counsel said was they don't have a problem there are still are some survival damages they can get feeds and that's and in fact one of the things that they also waves and by the way our theme and he's saying that it's issue really is that they wa everything they tried the case on one basis and they conceded a whole bunch of issues and didn't raise any arguments and now they got a pilot council to make all the arguments that they would have liked to have made if they had objected and they initial colloquy i remember with that when that first colloquy happened there just talking at that point there the judge makes a statement and the judge i think it's clear from the record is going out of his way to entertain any clear that the district court has wide discretion and if he was going to have discretion he wouldn't have asked these questions and i think to your to your honor's point about the verdict the jury was properly instructed under all the factors that had to do here it is conceivable that they didn't decide these questions or any of the other ones that would have prevented qualified immunity by rulings work for us and ruling for punitive damages and this just it's inconceivable and  they made an argument that our client was entitled caracal their sandwiches in order to get negative information in front of the jury they denied our motion eliminated exclude that evidence because our client could get wrongful death images  wrongful death damages i'm a little bit unclear on the scope of your cross appeal and what it is that you're asking this court to do if you are prevail on the question of whether the thing the one thing that would be left is the charge or each claim and that comes up there are two ways why across a pill would be reasonable one is the mendocino but that is what i wanted to clarify  wasn't clear that the scope of your cross appeal is to challenge the argument raised in the opening brief that wrongful death damages were improperly awarded alone or whether it's to challenge that and also enlarge your well the scope the scope of our cross appeal would be that we were entitled to charge any damages now it is the case that when the other side didn't appear at least as we understand that we were happy to stand where we were in terms of the case that was discussed that's only where the parties are seeking to be found the war did not ten large d or so so i think we've have to take that into consideration but even assuming the wee man which is what you're asking point that if you prevail you still want to rename this and that means another example of just absolute forfeiture of that issue by failing to preserve the below is sort of like a textbook way of different ways that you could wait you don't include it in the pretrial order anyway it doesn't get identified was not raised in it's yes under california law not article three standing on the label issue and in there were high priests it's five they say well we didn't raise it because we misunderstood the law and it's a legal issue and you can resolve it but it's not a legal issue factual issue which they did in their briefing they say it turns on whether mr lured me was dependent on sunday agree for support on his son and that's a factual question that there are time is of the evidence he provided labor free labor two to three times a week it's a one man operation and so they say well maybe he helped them make his business more profitable but when you are that's your business when you have a sole proprietor and the way you earn your your living is to your business if someone is providing free labor and in helping you run it the money that you make is the money that you spend on the necessities of life and some clothing and shelter let me let me present this hypothetical over a couple of weeks at how are things going and chats about the world in general and then help the mechanic off and on and in the performance of his work are depended to sunder agree on this on the child so the facts here are not just some friendly person who came over it was the son who helped his son run the business and generate income that the father used to survive and so that's  the test isn't that you have to have a majority of the income is very clear that it's simply something financial support to some degree and the rest of society sets life right in to food clothing shelter medical care which if but when we run when i run i'm a sole proprietor of my l the money that i earn goes to pay my mortgage to pay for my health insurance my medical care my food and everything else and so the fact that the if mr zorra the son is providing forty percent of the labor in the business for free and of loving the motion of the court but actually the testimony about the court was in cross examination by the defense counsel who was talking about the business and how you run the business and he said he did it because he loved me he was helping support me and the discussion tahlequah and i would just point to on page thirty six this is the discussion of qualified immunity in the first toggled very first one it says this is defense counsel then i'll take out question two and three of the court's direction out that this is defense counsel then that was this wasn't a ruling this was a back up colloquy about what should be in there and then as we discussed and you know if it goes forward and the judge says i want two different versions i'm going to rule out of the next day and it never put back in so you're saying there was no formal ruling made on that and at that point he was the judge was just reacting to what you think the verdict should be and he told both sides to propose an one verdict form at least two competing versions but what's missing case that the jury has to rule on you've got to propose an erotic stories and if the judge says you should take them out we don't need them you have to say no your honor we do need done here's why it's not enough to just say ok i'll take it out and then never mention it again so the final point i standard but here trial court would clearly abused its discretion with an inaccurate view of the law as well as clearly erroneous findings to the abuse of discretion standard contemplates a view of the law that is consistent  congressional purpose the congressional purpose of section one hundred eighty eight is to encourage counsel well take the use the you requested of terri the rate of seven hundred fifty dollars per hour that's correct and the district court concluded that three hundred dollars for our was the prevailing rate in the community yes you know and it's near somewhere midpoint near what awards are generally granted in the courts i think three hundred dollars is actually far far as it's very on both sides of done which the court could make a decision i disagree with that i disagree that there is evidence upon which the court can make a reasonable decision the evidence of prevailing rates here and it's not the question is whether it was reasonable the question is whether it was an abus it was that with ten percent haircut yeah i'm your i i'm really not so concerned about the hours expended if you can a brief i'm looking at the hourly rate because the hourly rate as shown by the evidence of period civil rights lawyers of comparable years and experience as mr beck there they are getting away with award seven hundred to nine hundred dollars per hour and that's in the record i don't know why this district court decided questions my emphasis is on the hourly rate it is unsupported by the evidence it is contrary to the congressional purpose of one thousand nine hundred eighty which is to encourage experience attorneys people of forty years of experience to actually take these cases and litigate them the way they need to be litigated this is complex work as the court notes from all the civil rights cases often the key witness here is a victim is not available to explain what happened so they have to take these cases three hundred dollars an hour for a forty year attorney which is the same rate that a junior associate gets does not fulfill the congressional purpose it's an inaccurate view of the law and it's clearly wrong is finding of fact by the court because there are a lot of issues let me briefly talk about what the standard is and then i'll talk about waiver on the stipulation the standard that we should not lose sight of is that to pursue a wrongful death claim as the parents of the deceived you must be dependent upon manager the owner of the business was dependent upon the son and all the evidence suggests the opposite that the song was dependent upon the parents not that well i still don't understand why it's not waived in this case we're not talking about article freestanding we're talking about facts to a standing and perhaps your response is that well this is pure a legal question and we should go ahead and recheck but the problem is that there are facts here that could have been developed further that go to be penitent see that plaintiffs didn't ha n an opportunity to develop because the city never raised that issue so how do you respond to that there are three responses your honor first it is a legal issue and therefore the court should reach a second it's not just a legal issue it's a fundamental issue we're not talking about a side issue of evidence we're talking about the core right to actually bring a claim and third it's not a situation where the plaintiffs can say they would have put on better or different evidence if they had only known that the issue in the case and that's because what they needed to show to create a factual issue was exactly what they needed to show to recover in konami damages they were seeking economic damages as part of their wrongful death action and that's exactly what we're talking about at the level of standing if there was dependency then showing that would emphasize and help to prove damages case they had no incentive whatsoever to hold back their best evidence that would have been covert of standing and as i said there is absolutely no evidence that neither parent was dependent upon their son for the necessities of life that's very clear now let me say a word about the step circulation a sign that as i think it shows what was pretty widespread confusion in the district court on the difference between survival and wrongful death the point of the stipulation from the plane's perspective as mr hoffman indicated this to prevent a situation in which the mother is loved to take the stand as a party on full evidence as a list of that and then the defendant's moves if necessary and of course defendants had no objection to agreeing that she would not be dismissed because of course she had standing to pursue a survival claim that's the point there is no dispute she could pursue a survival right now the debate happened in the context in the language of wrongful death but this is another example of the district courts ultimate confusion that district court you eliminated their right to recover survival damages and only allow them to proceed on wrongful death damages i think this sort of mass confusion that permeated the proceedings in the district court is the reason to go to grant a new trial unless there are the questions all right thank you thank you very much thank the fight f arguments very helpful in this case on the matter submitted for a decision by this