[00:00:00] Speaker 04:
Mr. Thomas.

[00:00:01] Speaker 00:
Thank you, your honors.

[00:00:02] Speaker 00:
May it please the court.

[00:00:03] Speaker 00:
My name is Peter Thomas, and I represent the city of Haley and its police chief, Steve England.

[00:00:09] Speaker 00:
I would like to reserve four minutes for rebuttal, if possible.

[00:00:12] Speaker 04:
Just keep an eye on that time, and you may.

[00:00:15] Speaker 00:
Before getting into kind of the meat of my argument, I'd like to provide some context to these claims as we're discussing, you know, Martinez and Kennedy.

[00:00:23] Speaker 00:
On October 19, 2020, there was a domestic dispute call placed in Bellevue, Idaho.

[00:00:29] Speaker 00:
Bellevue is also one of the defendants in the underlying lawsuit in this case.

[00:00:33] Speaker 00:
However, it is worth noting that Steve England and the city of Haley were not the responding law enforcement agency and couldn't be because the bad actor in this case, Jared Murphy, was a city of Haley police officer.

[00:00:47] Speaker 00:
And conducting the criminal investigation would have been a conflict of interest.

[00:00:51] Speaker 00:
And so unlike the law enforcement officers in Martinez and Kennedy who were providing direct police services,

[00:00:58] Speaker 00:
The claims here really arise from Chief England's personnel decision, not the provision of, I guess you'd call, police protection directly.

[00:01:08] Speaker 00:
Turning to the state created danger doctrine, I think it's pretty clear that the analyses under the state created danger doctrine state that a failure to act is simply not enough.

[00:01:17] Speaker 00:
It has to be a, quote, affirmative act that creates or worsens the danger.

[00:01:23] Speaker 00:
There are really two cases that are on point in this case that the district court relied on.

[00:01:27] Speaker 00:
which are Martinez and Kennedy.

[00:01:32] Speaker 00:
In Martinez, the victim reported that her police officer boyfriend had had a long history of sexual and physical violence against her.

[00:01:40] Speaker 00:
There had been prior domestic violence calls.

[00:01:43] Speaker 00:
These acts were documented.

[00:01:47] Speaker 00:
And at some point, the victim made a report to police and requested that she remain anonymous.

[00:01:54] Speaker 00:
At some points, the defendants unfortunately disclosed that report directly to the boyfriend and then made disparaging comments that created the impression that he could continue to abuse her.

[00:02:07] Speaker 00:
The rule from that case says the state created danger doctrine applies when an officer reveals a domestic violence complaint while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim.

[00:02:23] Speaker 00:
We believe this test is conjunctive and that the district court did not find both a disclosure of an anonymous report and also thereafter disparaging comments or comments that allowed Jared to feel that he could continue abusing Ashley, you know, with impunity.

[00:02:38] Speaker 00:
But to turn to the first part of this test, which is the request to remain anonymous, the disclosure that was made in Martinez provided the attacker the opportunity to attack because previously,

[00:02:51] Speaker 00:
the abuser did not know about the investigation or who the reporting party was and could not therefore have created the attack.

[00:02:58] Speaker 00:
By disclosing that information, of course, the attacker now knew that he was under criminal investigation and who to attack if he so chose.

[00:03:06] Speaker 00:
In this case, the district court held not that Chief England disclosed that there was an investigation into Jared's fitness for duty or who was involved in that investigation or who had reported.

[00:03:17] Speaker 00:
Jared already knew those facts and therefore already had that opportunity

[00:03:22] Speaker 00:
to conduct an attack if he so chose.

[00:03:25] Speaker 00:
The district court also held that it was a, quote, affirmative act for Chief England to disclose the reasons for Jared's firing.

[00:03:32] Speaker 00:
And that's materially different from the sort of disclosure that occurred in Martinez.

[00:03:37] Speaker 00:
The disclosure that the court relied on in Kennedy, similarly, is a situation where the person under investigation was not aware that his neighbor had reported that he had molested the neighbor's daughter or that he was even under investigation at all.

[00:03:52] Speaker 00:
And so again, to the extent the court relied on Kennedy and Martinez for the idea that there was a disclosure in this case, it has misplaced the law because there was no disclosure of Ashley's identity or the existence of an investigation.

[00:04:10] Speaker 00:
I note also in Kennedy, there was evidence of an affirmative promise to protect.

[00:04:16] Speaker 00:
where once there was, once the abusing bad actor was, he found out he was under investigation, the victims in that case actually specifically requested police protection and were promised extra police protection, I believe in the form of additional patrols around the house or something to that extent.

[00:04:34] Speaker 00:
There is evidence in that case that they requested it, they got a promise, and that promise was broken.

[00:04:39] Speaker 00:
In this case, the court did not make a finding

[00:04:41] Speaker 00:
There was any express request for protection or that Ashley ever received any such protection of extra police protection.

[00:04:48] Speaker 00:
Yes.

[00:04:49] Speaker 02:
Listening to your argument, is your argument that there's no constitutional violation or is your argument that the law was not clearly established?

[00:05:02] Speaker 00:
Both, your honor.

[00:05:03] Speaker 00:
I think that it's important to keep in mind that under DeShaney, we're not talking about

[00:05:08] Speaker 00:
any claim against the state actor who may have failed to discover something or failed to be careful.

[00:05:13] Speaker 02:
I understand that.

[00:05:14] Speaker 00:
And so I think I would argue both that the court misapplied the law such that what the court found does not amount to a constitutional argument.

[00:05:22] Speaker 02:
We can't look on the constitutional problem.

[00:05:27] Speaker 02:
We don't have jurisdiction to look at any factual findings or factual determinations that the district court made.

[00:05:34] Speaker 02:
We have to, we start by saying, you know, we take the facts in the light most favorable to the nonmoving party and ask whether or not a reasonable fact finder could find a constitutional violation.

[00:05:54] Speaker 02:
I guess what you're saying is that on these facts, a reasonable fact finder could not find

[00:06:01] Speaker 02:
Failure to protect.

[00:06:02] Speaker 02:
Oh, I think I have a couple you're saying no not necessarily or then I'm all right Well, then you can make it clear.

[00:06:10] Speaker 00:
Yes, so I there is case law on the Ninth Circuit that says if If a defendant offers facts at the appellate stage that are uncontradicted by the record the Ninth Circuit can consider them and

[00:06:22] Speaker 00:
You know, in this case, for example.

[00:06:24] Speaker 02:
We just take all the facts that were, you know, in the record presented and we ask, we look at them in the light, most favorable to the nonmoving party and then we ask on those facts, quote a reasonable fact finder, you know, find the violation that's alleged.

[00:06:42] Speaker 00:
I understand that, Your Honor, but specifically with request or with regard to an apparent request on Ashley's part to remain anonymous,

[00:06:50] Speaker 00:
That doesn't appear in the record.

[00:06:52] Speaker 00:
No witness ever said that.

[00:06:54] Speaker 00:
Nobody alleged that she ever requested to remain anonymous.

[00:06:57] Speaker 00:
In fact, the first time that that concept appears is in the district court's order on the motion for summary judgment.

[00:07:02] Speaker 00:
And I would note also that even if it had appeared in briefing, argument doesn't constitute evidence.

[00:07:07] Speaker 00:
And so I don't think that's even a fact really in the record.

[00:07:11] Speaker 04:
Just to be sure I understand your answer to a couple of questions back from Judge Piaz, I thought it was your position that taking all the facts in the light most favorable to plaintiff, those facts do not establish a constitutional violation.

[00:07:27] Speaker 04:
Am I misunderstanding?

[00:07:28] Speaker 00:
That's correct, Your Honor.

[00:07:28] Speaker 00:
It was a two-faceted answer, and that was the second half of the answers.

[00:07:32] Speaker 00:
I think even as the judge found the facts,

[00:07:35] Speaker 00:
There is no constitutional violation if you correctly apply Kennedy and Martinez.

[00:07:39] Speaker 02:
Well, the problem I'm having with your answer is you say the judge found facts.

[00:07:47] Speaker 04:
And the judge isn't supposed to find facts at summary judgment.

[00:07:50] Speaker 04:
He made a determination of whether there was a sufficient dispute as to create a tribal issue.

[00:07:56] Speaker 00:
I suppose the response to that would be then that the Ninth Circuit should look at this and determine

[00:08:02] Speaker 00:
Well, the dispute of fact that the judge found is not a material dispute of fact to the analysis in Kennedy and Martinez.

[00:08:08] Speaker 00:
I mean, that would be my response.

[00:08:12] Speaker 00:
OK.

[00:08:13] Speaker 00:
Moving on to the deliberate indifference prong of the analysis here, I think the district court erred in relying on a, quote, history of abuse and verbal arguments in public and excessive drinking in concluding that there was deliberate indifference

[00:08:30] Speaker 00:
Again, in the cases that are on point, Kennedy and Martinez, the court held that ignoring a history of violence can be deliberately indifferent.

[00:08:40] Speaker 00:
But of course, in Martinez, it was multiple prior documented physical and sexual assaults.

[00:08:45] Speaker 00:
In Kennedy, the abuser had lit a cat on fire, attacked his girlfriend with baseball bats.

[00:08:50] Speaker 00:
I've been in numerous fights.

[00:08:52] Speaker 00:
I turned to a case called Stanowich, I believe is how it's pronounced.

[00:08:56] Speaker 00:
And in Stanowich,

[00:08:59] Speaker 00:
An off-duty police officer returned to a house that he had previously served a warrant at and beat up the residents.

[00:09:06] Speaker 00:
Stanowicz, the officer himself, had a considerable disciplinary record.

[00:09:11] Speaker 00:
He had had numerous complaints against him for excessive force and using violence during arrests and detention.

[00:09:16] Speaker 00:
And at least three of these complaints were sustained.

[00:09:19] Speaker 00:
And the Ninth Circuit held that these facts do not show as a matter of law that the county could have foreseen Stanowicz's actions, which would establish the necessary causal link.

[00:09:27] Speaker 00:
And so I think in light of this, the idea here that Chief England was aware that these people had argued in public before or that Jared had been, you know, rude and abrasive when he'd been drinking, that does not establish the history of violence necessary to show that Chief England was deliberately indifferent under Martinez and Kennedy and, in fact,

[00:09:49] Speaker 00:
You know upon hearing that that there had been a domestic dispute Chief England went out of his way to send an additional marshal to Investigate whether there ever had been violence he took affirmative steps to find out whether there had been violence and because this is a subjective standard It's a purely subjective standard the fact is Excuse me the fact is I don't believe that you can find deliberate indifference here based on what the court considered to be material questions of fact I just don't think they're material questions

[00:10:18] Speaker 00:
It is undisputed, unlike the other defendants, that Blaine and Bellevue conducted an investigation into this incident on October 19 and concluded the answer was no.

[00:10:30] Speaker 00:
There was no probable cause of any crime there.

[00:10:33] Speaker 00:
Ashley stated numerous times that Jared had never been violent.

[00:10:37] Speaker 00:
No person ever told Chief England that Jared had been physically violent towards anybody.

[00:10:41] Speaker 00:
There were no citizen complaints.

[00:10:42] Speaker 00:
And so if understand a which, that's

[00:10:44] Speaker 00:
The ultimate violence there is unforeseeable.

[00:10:47] Speaker 00:
I don't see how this is foreseeable in this case.

[00:10:52] Speaker 00:
Finally, I'd like to talk about whether a law is clearly established or not.

[00:10:56] Speaker 00:
And I'm sure you've heard that clearly established law should not be defined at a high level of generality.

[00:11:02] Speaker 00:
I think here we have a pretty specific level of case on point, which is Martinez and Kennedy.

[00:11:08] Speaker 00:
And the standard would require that Chief England is aware that his particular conduct violates the law.

[00:11:14] Speaker 00:
And I don't understand how you can make a coherent argument that in Kennedy disclosing the report of abuse and then emboldening the abuser to continue the abuse.

[00:11:25] Speaker 00:
From Chief England's perspective, he investigated the conduct of an employee, determined essentially that the employee was not fit for duty, made steps to determine that there had not been violence.

[00:11:36] Speaker 00:
Asked him to stay apart while he was conducting the investigation and then terminated his employee And it's not clear how he should be on notice that that course of conduct violates the Constitution And with that I would reserve my time.

[00:11:47] Speaker 00:
Thank you.

[00:11:47] Speaker 01:
Thank you Mr. Nicholson if you may please of court Chad Nicholson and my colleague Taylor Brooks on behalf of

[00:12:05] Speaker 01:
appellees who I'll refer to as the Tacketts.

[00:12:10] Speaker 01:
I want to start some with the course comments.

[00:12:12] Speaker 01:
I think one of the fundamental issues here is that jurisdictional component.

[00:12:16] Speaker 01:
I believe the case law is clear that the factual determinations of the trial court are not at play at this point because we're in a locatory status.

[00:12:26] Speaker 01:
We're not post trial and whatnot.

[00:12:28] Speaker 01:
that both the Supreme Court and this court have been very, very clear that at this stage of the litigation, because we're dealing with qualified immunity, this court's jurisdiction is limited to the unique question of law as to whether or not the constitutional right was clearly established as of October 22, 2020.

[00:12:47] Speaker 01:
And I think interestingly enough today, at argument, if I understood counsel correctly, there is a concession that

[00:12:57] Speaker 01:
Kennedy and Martinez are clearly on point.

[00:13:01] Speaker 01:
If that is the case, the constitutional law was clearly established years before this case.

[00:13:08] Speaker 01:
Martinez was the latter of those decisions, and that decision was rendered in 2019.

[00:13:12] Speaker 01:
So we've got over a year.

[00:13:15] Speaker 01:
So I think the real focus on this appeal, frankly, seems to be changing.

[00:13:21] Speaker 01:
And to address some of the other contentions here that have been made today,

[00:13:26] Speaker 01:
On the failure to act, if the court is inclined to get into, to revisit these facts.

[00:13:33] Speaker 02:
Well, you know, we don't, we just take the facts in the light most favorable to the hackers.

[00:13:41] Speaker 02:
And you ask that the first step of the qualified immunity analysis, there's two prongs.

[00:13:47] Speaker 02:
Could a reasonable fact finder, jury, find a constitutional violation?

[00:13:54] Speaker 02:
when you take the facts in the light most favorable to the non-moving party here, the plaintiff.

[00:14:03] Speaker 01:
And I certainly agree, and we believe that Judge Sahari... We don't look at the facts.

[00:14:09] Speaker 02:
Now, he said, well, there was one fact that was in the district court's order that's not in the record.

[00:14:15] Speaker 02:
So, I mean, something like that, we would say, well, that doesn't factor in.

[00:14:22] Speaker 01:
Right.

[00:14:22] Speaker 01:
And I believe that's the fact of anonymity.

[00:14:24] Speaker 01:
And what I would say on that point, a couple of issues.

[00:14:28] Speaker 01:
One, that argument really wasn't raised below.

[00:14:31] Speaker 01:
It really seems to be a new argument here on appeal.

[00:14:32] Speaker 01:
So I don't know that that argument is an appropriate argument in general, jurisdiction issues aside.

[00:14:38] Speaker 01:
Secondly, I'd submit to the court that whether or not there was anonymity is in fact a factual issue.

[00:14:46] Speaker 01:
And in this case, the facts and the records on that point are

[00:14:50] Speaker 01:
When Chief England went to meet with Ashley Midby on the morning of Tuesday, October 20th, she requested to meet back in the alley behind the coffee shop.

[00:15:00] Speaker 01:
That's indicating that she wants to be confidential.

[00:15:04] Speaker 01:
In her discussions with Detective Abate of the Blaine County Sheriff's Department, she indicated that she'd been fearful.

[00:15:11] Speaker 01:
She hadn't wanted to come forward before.

[00:15:13] Speaker 01:
She also indicated that she didn't want to contact

[00:15:15] Speaker 01:
the Haley Police Department, because Jared Murphy was an employee of the Haley Police Department.

[00:15:21] Speaker 01:
And when you look at these facts in the summary judgment standard, I think drawing all reasonable inferences in Ashley, in the plaint, excuse me, in the Tackett's favor,

[00:15:33] Speaker 01:
There is evidence that allows the court to reach that conclusion at this stage of the proceedings.

[00:15:39] Speaker 04:
And what is the evidence that would allow a trier of fact to conclude that there was deliberate indifference to a known risk?

[00:15:49] Speaker 01:
On the deliberate indifference, I think there's a multitude of facts.

[00:15:53] Speaker 01:
One, Stevie England himself testified that he had hundreds of hours of domestic violence training.

[00:16:00] Speaker 01:
So he is well aware of the cycle of violence.

[00:16:02] Speaker 01:
Within the court's record, and this wasn't expressly addressed, but it's in the record, it was before the trial court, we submitted declarations of two experts that discuss about the police practices, familiarity of police with the cycle of domestic violence, how the cycle of domestic violence escalates.

[00:16:20] Speaker 01:
So Steve England starts with that point.

[00:16:22] Speaker 01:
Steve England also made the point, and he testified to this, that he was aware that these types of situations often escalate.

[00:16:30] Speaker 01:
That is his work.

[00:16:31] Speaker 01:
He said particularly when a law enforcement officer is involved, whether that be as the victim or the perpetrator.

[00:16:38] Speaker 01:
So he's escalating.

[00:16:39] Speaker 04:
So if we take it to be established that he was aware of a risk, deliberate indifference requires not just awareness of the risk, but then not doing anything to mitigate it, doesn't it?

[00:16:54] Speaker 04:
If you're aware of the risk and you do something to address the risk, you're not being deliberately indifferent, are you?

[00:16:59] Speaker 01:
Well, I think the issue here is, if you take that question of, I would say, flip it in this case.

[00:17:07] Speaker 01:
He's aware of the potential of danger.

[00:17:08] Speaker 01:
He's aware of, and I would say on a side note, there's lots of evidence here that there was a history of violence.

[00:17:15] Speaker 01:
They talk about Kennedy and the cat.

[00:17:17] Speaker 01:
In this case, Chief England was aware that on the night of October 19th, Jared Murphy was

[00:17:23] Speaker 01:
Abusing a dog.

[00:17:24] Speaker 01:
He was throwing it down right now.

[00:17:25] Speaker 01:
I think right back back back to your question So in this case what we have is and I would say this we have a certain well and bear with me I'll get there as quickly as I can We have a certain level of danger on October 19th after the 911 call There's a certain level there.

[00:17:42] Speaker 01:
We recognize that but then what happens next is Chief England talks to Ashley Mindy.

[00:17:48] Speaker 01:
He gets more information that afternoon.

[00:17:50] Speaker 01:
He talks to Jared Murphy

[00:17:52] Speaker 01:
He discloses that additional information.

[00:17:54] Speaker 01:
So he's now heightened this risk.

[00:17:56] Speaker 01:
And to get back to your point in terms of the deliberate indifference, what he does at that point, after he himself has heightened the damage, he puts into place this stay away order.

[00:18:05] Speaker 01:
And that stay away order, as he described it, he specifically says it applies to his employee and during the investigation.

[00:18:12] Speaker 01:
That is his testimony.

[00:18:14] Speaker 01:
Then what does he do?

[00:18:15] Speaker 01:
Then he terminates the employment of Mr. Murphy two days later.

[00:18:19] Speaker 01:
The effect of that termination

[00:18:20] Speaker 01:
is it eviscerates that stay away or he's no longer an employee, the investigation's not continuing.

[00:18:26] Speaker 01:
So it's not a matter of he ignored the risk.

[00:18:30] Speaker 01:
I would say in this case, he took affirmative steps to remove the one protection that he put in place and the one protection that actually maybe he was aware of.

[00:18:38] Speaker 04:
Well, but he also took affirmative steps to, you know, he took away his gun, right?

[00:18:44] Speaker 04:
He caused him to no longer be a police officer and one could reasonably think that

[00:18:50] Speaker 04:
a dangerous person who has the authority of a police officer is more dangerous than somebody who doesn't.

[00:18:58] Speaker 04:
And he fired him, right?

[00:19:00] Speaker 04:
And the premise of much of our system is that imposing consequences on people for bad behavior makes them less likely to engage in bad behavior in the future.

[00:19:12] Speaker 04:
So all of that seems, you need to show that England was subjectively aware that he had

[00:19:20] Speaker 04:
that there was a risk that he was ignoring.

[00:19:22] Speaker 04:
And that seems like, you know, measures that he could well have thought were serious, you know, vigorous action to address and mitigate the risk.

[00:19:32] Speaker 04:
Why is that not the right conclusion?

[00:19:34] Speaker 01:
You know, I would disagree with that because the stated concern of Ashley Midby had to do with what would happen if Jared Murphy lost his position as a law enforcement officer.

[00:19:46] Speaker 01:
He was aware that that was her overriding concern.

[00:19:49] Speaker 01:
She talked about a fear of retaliation, that he had said to her he would make her life hell for years.

[00:19:56] Speaker 01:
He would retaliate against her and her family.

[00:19:59] Speaker 01:
And so, you know, what we have here is he is aware of that.

[00:20:05] Speaker 01:
He's taking these conscious steps to do that.

[00:20:08] Speaker 01:
And so he's deliberate and different on those points.

[00:20:13] Speaker 04:
One concern that I have in the background here is that it seems like if we were to rule in your favor and a situation like this were to come up again and somebody in England's position goes to seek legal advice, wouldn't a competent lawyer say, for goodness sake, don't do anything about this and just stick the report in a drawer because if you go and do something affirmative,

[00:20:42] Speaker 04:
Then you'll have taken some affirmative action, and if something tragically results from it, you'll be liable on, or potentially liable on a theory that whatever you did heightened the danger.

[00:20:54] Speaker 04:
So it would be better to just do nothing.

[00:20:57] Speaker 01:
Well, again, I would disagree with that because I don't think the advice would be don't do anything.

[00:21:02] Speaker 01:
I think the advice would be if you say you're going to do something, do something, going back to Kennedy.

[00:21:07] Speaker 01:
Officer Shields said he was going to do two things and he didn't do either of them.

[00:21:10] Speaker 01:
The first he said is, I'm going to give you prior notice.

[00:21:12] Speaker 01:
He didn't do that.

[00:21:14] Speaker 01:
After he tried to rectify that, he said, we're going to do additional police patrols.

[00:21:18] Speaker 01:
He didn't do that.

[00:21:20] Speaker 01:
And that's what we have in this case is Steve England took some steps and he said, I'm going to take steps.

[00:21:26] Speaker 01:
We call it a stay away order because we wanted to be clear it's not a court issued order, but he takes steps.

[00:21:33] Speaker 01:
The advice then, and that hypothetical is, if you're going to say you're going to do something, follow it through.

[00:21:39] Speaker 01:
And in this case, quite frankly, it's a very, very simple thing to make a phone call.

[00:21:44] Speaker 02:
Just to follow up on Judge Miller's question, do you think it would all, you know, a reasonable lawyer who's advising his client, the chief, that if you're going to do this, you might also want to let his girlfriend know what you're doing?

[00:21:58] Speaker 01:
Are you referring to letting Ms.

[00:22:00] Speaker 01:
Midby know?

[00:22:01] Speaker 01:
Absolutely.

[00:22:03] Speaker 01:
And I think that's part of it.

[00:22:04] Speaker 01:
And that's why I mentioned as well, when you look at how Steve England himself categorized the stay away order, he personally put limitations on that.

[00:22:13] Speaker 01:
It's my employee.

[00:22:14] Speaker 01:
It's during the investigation.

[00:22:16] Speaker 01:
He controlled all of that.

[00:22:18] Speaker 01:
And so if you're going to make that type of gesture, which quite frankly we agree with, that should have been done, carry through on it, make a simple phone call,

[00:22:28] Speaker 01:
They'd send a text.

[00:22:29] Speaker 01:
They talked about sending text back and forth.

[00:22:31] Speaker 01:
That's literally all he needed to do.

[00:22:34] Speaker 01:
And I think, again, this is where, you know, I actually think in some respects this is where this case is factually similar to the Grubb case.

[00:22:41] Speaker 01:
That's where the gal was hired to a penal institution and was told you're not going to work with violent offenders.

[00:22:47] Speaker 01:
Well, she ended up being put with one.

[00:22:49] Speaker 01:
She didn't know that.

[00:22:51] Speaker 01:
And this court said that's a state-curated danger.

[00:22:54] Speaker 01:
That's a constitutional violation.

[00:22:55] Speaker 01:
And to that point, if you're going to hire somebody,

[00:22:58] Speaker 01:
you know they're going to work with violent inmates and you say you're not going to work with violent inmates, you simply carry through on that.

[00:23:04] Speaker 01:
And so I don't think there's this real danger that we're going to create a system where people don't engage in protective activity.

[00:23:14] Speaker 01:
I think we're going to create a better system that says engage in it and then follow through.

[00:23:18] Speaker 01:
And that's the underlying issue here is, you know, and I think, again, back to the issues here, it's not also just not that he was dealing with,

[00:23:28] Speaker 01:
a level danger, let's call it a level seven danger.

[00:23:32] Speaker 01:
He did affirmative actions that further heightened that.

[00:23:35] Speaker 01:
The way that he heightened that is by disclosing items to Jared that didn't come up with other words.

[00:23:43] Speaker 01:
He asked Jared if he had told Ashley that he was supposed to have a meeting that morning and demanding his badge.

[00:23:52] Speaker 01:
Jared Murphy didn't provide that information to England, asked about if he'd put a tracker on his car.

[00:23:57] Speaker 01:
Jared Murphy didn't provide that information.

[00:24:01] Speaker 04:
How is he supposed to do the investigation without disclosing that?

[00:24:12] Speaker 01:
Again, I think he can do the investigation.

[00:24:16] Speaker 01:
He absolutely needs to do the investigation.

[00:24:18] Speaker 04:
But the investigation can't involve asking questions that would reveal...

[00:24:23] Speaker 04:
It seems like the fact of the investigation is going to reveal something.

[00:24:27] Speaker 04:
And so how does he get around that?

[00:24:32] Speaker 01:
Well, again, I think in this case, it's a matter of, yes, you have to do the investigation.

[00:24:38] Speaker 01:
Again, take Officer Shields.

[00:24:40] Speaker 01:
Those parties had to do the investigation.

[00:24:43] Speaker 01:
And I believe it was actually in Kennedy.

[00:24:46] Speaker 01:
Maybe it was a subsequent decision by this court that talked about how the fact that Ms.

[00:24:51] Speaker 01:
Kennedy made a

[00:24:53] Speaker 01:
a report that required an investigation, that doesn't vitiate this cause of action.

[00:25:00] Speaker 01:
Absolutely, they have to do those investigations.

[00:25:03] Speaker 01:
But as you do the investigations, you have to follow through on what you're telling people.

[00:25:08] Speaker 01:
And that's really the fundamental issue here, is he took affirmative steps.

[00:25:13] Speaker 01:
He made a representation.

[00:25:14] Speaker 01:
I'm going to do certain things, just as in Kennedy, just as in Grubbs.

[00:25:20] Speaker 01:
And they didn't follow through on that.

[00:25:23] Speaker 01:
And it doesn't impair the ability to do your investigation.

[00:25:28] Speaker 01:
Absolutely.

[00:25:29] Speaker 01:
We would agree we wanted him investigated.

[00:25:31] Speaker 01:
Quite frankly, we wanted him investigated years before.

[00:25:34] Speaker 01:
And those are issues that are still pending that are more state law claims.

[00:25:38] Speaker 01:
But absolutely, do those investigations.

[00:25:41] Speaker 01:
But if you're going to take an affirmative act, as in Kennedy, as in Grubb, as in Martinez, then follow through on what you say.

[00:25:52] Speaker 01:
Take Martinez.

[00:25:53] Speaker 01:
There was clearly a confidential report.

[00:25:55] Speaker 01:
Well, then keep it confidential.

[00:25:58] Speaker 01:
In this case, if we do think there's enough evidence to show a crust for confidentiality, well, then, you know, he's a law enforcement officer.

[00:26:07] Speaker 01:
He needs to figure that out.

[00:26:09] Speaker 01:
Does that answer your question, or am I dodging it?

[00:26:11] Speaker 04:
Well, I understand the answer.

[00:26:15] Speaker 01:
OK.

[00:26:15] Speaker 01:
All right.

[00:26:21] Speaker 01:
Your honor, it wasn't addressed here today, but I do because it's in the briefing.

[00:26:25] Speaker 01:
I wanted to address very briefly the Haley status in this appeal.

[00:26:30] Speaker 01:
As we've indicated, we don't believe that the claims with Haley are inextricably intertwined.

[00:26:38] Speaker 01:
And I would just note on this issue, quite frankly, I'm not even sure if it's still at issue, that the closing brief, this is Dock at 26.1 at 25.

[00:26:48] Speaker 01:
Haley submits, while the defense acknowledged that the district court's denial of defendant's motion for summary judgment on the Monell claims is not currently on appeal.

[00:26:57] Speaker 01:
The fact that the Monell claims are neither pled, which by the way, Judge Zahari specifically addressed that, so they were pled, nor supported by the evidence.

[00:27:07] Speaker 01:
Again, we've submitted expert testimonies in the record, so there's evidence, leaves no other option but to conclude that any claims against the city of Haley

[00:27:16] Speaker 01:
are necessarily and extricably intertwined with the claims against Chief England.

[00:27:20] Speaker 01:
That's not the case, as we indicated in the briefing.

[00:27:23] Speaker 01:
We've set out policy violations that we believe are supported by the evidence.

[00:27:28] Speaker 01:
So we don't believe this court has jurisdiction over Haley's claim.

[00:27:32] Speaker 01:
Unless the court has further questions, I'll conclude.

[00:27:34] Speaker 01:
Thank you.

[00:27:34] Speaker 04:
Thank you.

[00:27:37] Speaker 04:
Rebuttal?

[00:27:39] Speaker 00:
Thank you.

[00:27:40] Speaker 00:
We've heard some discussion about an affirmative act and clearly there must be an affirmative act in order to have a state create a danger.

[00:27:47] Speaker 00:
But it can't just be any affirmative act.

[00:27:49] Speaker 00:
The affirmative act must be the proximate cause of the injury.

[00:27:53] Speaker 00:
And so just establishing that Chief England took some affirmative act is insufficient.

[00:27:57] Speaker 00:
I note the court essentially finds two affirmative actions as the cause in this case, which are the stay away order and the firing of Jared Murphy.

[00:28:07] Speaker 00:
But if we look specifically about the firing of Jared Murphy, all the conduct that led to the firing of Jared Murphy is the proximate cause of, is Jared Murphy's conduct, is the proximate cause of his firing.

[00:28:19] Speaker 00:
I mean, it's somewhat analogous to saying that, you know, if a police officer saw someone weaving all over the road and then pulled them over, the police officer caused the person to get a DUI when in fact the actual cause of that DUI is the person's decision to drink and drive.

[00:28:33] Speaker 00:
And so to the extent that

[00:28:34] Speaker 03:
I thought the argument was there's a stay-away order in place, basically a semi-protective order, a stay-away order.

[00:28:44] Speaker 03:
That terminated when he was fired, right?

[00:28:48] Speaker 03:
Yes.

[00:28:50] Speaker 03:
And that she had expressed a fear about what would happen if he were fired?

[00:28:56] Speaker 00:
Yes.

[00:28:57] Speaker 03:
So isn't that the question of risk in this case, or whether genuine issue of material fact?

[00:29:05] Speaker 00:
Go ahead.

[00:29:05] Speaker 00:
I think the question is whether she was left in a worse position after Chief England's affirmative conduct.

[00:29:12] Speaker 00:
And in this case, before Chief England entered the stay away order, the conduct that would lead to Jared Murphy being fired had already occurred.

[00:29:18] Speaker 00:
I mean, Jared Murphy was going to get fired.

[00:29:20] Speaker 00:
And so conceivably, he could have come in on the morning of the 19th.

[00:29:24] Speaker 00:
Jared could have come in.

[00:29:25] Speaker 00:
Chief England could have said, I have enough information, and I'm firing you now, and then fired him.

[00:29:29] Speaker 00:
And Jared would have presumably been upset that he was fired as he was a few days later.

[00:29:34] Speaker 00:
And that's the position that Ashley was in then.

[00:29:36] Speaker 00:
And so saying, you need to stay away from Ashley while I conduct a thorough investigation puts her in no different position than she would have otherwise been.

[00:29:43] Speaker 00:
Mr. Nicholson mentioned that if you say you're going to do something, do something.

[00:29:48] Speaker 00:
And I think the record that the court relied on is that England said,

[00:29:53] Speaker 00:
or asked, do you want me to ask him to stay away from you?

[00:29:56] Speaker 00:
And she said, yes.

[00:29:57] Speaker 00:
And then he went and asked Jared to stay away from Ashley during the course of the investigation.

[00:30:01] Speaker 00:
So I think he did do what he was going to say there.

[00:30:07] Speaker 00:
Turning back to Deshani is kind of my last point.

[00:30:11] Speaker 00:
In this case, like Deshani, is a very sad case, and it's a very unfortunate set of facts.

[00:30:16] Speaker 00:
In Deshani, the court held that petitioners sought a duty there because

[00:30:22] Speaker 00:
The government actors knew that the child faced a danger.

[00:30:25] Speaker 00:
They knew and were aware of a danger.

[00:30:26] Speaker 00:
Specifically, by word and deed, proclaimed its intention to protect him and actually undertook steps to protect that child and failed.

[00:30:35] Speaker 00:
The SHAMI stands for the principle, as interpreted by the courts, that there is a state-created danger doctrine.

[00:30:41] Speaker 00:
But based on the court's rejection of that request for a duty, they must have meant something other than knowing a danger, proclaiming that they're going to help,

[00:30:52] Speaker 00:
and trying to help and failing.

[00:30:54] Speaker 00:
The state created danger as something else.

[00:30:56] Speaker 00:
The state must create the actual danger.

[00:30:59] Speaker 00:
And in this case, the danger arose from Jared getting fired.

[00:31:02] Speaker 00:
And the source of that danger was Jared's conduct, not Chief England's.

[00:31:07] Speaker 00:
And I think that's all I have.

[00:31:08] Speaker 00:
We would respectfully request that you reverse the district court on the issue of qualified immunity.

[00:31:13] Speaker 04:
Thank you.

[00:31:14] Speaker 04:
Thank you both, counsel, for their helpful arguments.

[00:31:16] Speaker 04:
The case is submitted.

[00:31:17] Speaker 04:
And that concludes our calendar for the week.

[00:31:24] Speaker ?:
Thank you.