[00:00:00] Speaker 02:
We'll turn now to 24-5058, Manning versus City of Tulsa.

[00:00:39] Speaker 02:
We're not going to go over that much in other cases today.

[00:00:42] Speaker 02:
That was a messy case.

[00:00:45] Speaker 00:
It's fine, Your Honor.

[00:00:46] Speaker 00:
Thank you.

[00:00:49] Speaker 00:
May it please the court, Karen Portlock, on behalf of the appellant, the estate of Terrence Crutcher.

[00:00:54] Speaker 00:
Your Honor, the district court erred in granting qualified immunity to police officer Betty Shelby at the summary judgment stage for shooting and killing Terrence Crutcher.

[00:01:06] Speaker 00:
When the facts viewed in the light most favorable to the estate established that Mr. Crutcher was unarmed and posed no risk to any person, at the time, Officer Shelby decided to shoot him.

[00:01:19] Speaker 00:
The district court's analysis at the summary judgment stage was fundamentally flawed because the district court did not view the facts in the light most favorable to the estate.

[00:01:30] Speaker 00:
And it was required to do so when the estate was the non-movement.

[00:01:34] Speaker 00:
Instead, it recognized the existence of multiple disputed facts and did not resolve those facts in favor of the estate.

[00:01:43] Speaker 00:
And it disregarded those facts to our detriment.

[00:01:46] Speaker 00:
The facts viewed in the light most favorable to the estate are tragically simple, Your Honors.

[00:01:53] Speaker 00:
The facts are that Terrence Crutcher was shot with his hands up when he posed no threat to any person.

[00:02:00] Speaker 04:
And in fact, Officer Betty Shelby- At most, that's a disputed fact, right?

[00:02:06] Speaker 00:
Yes, Your Honor.

[00:02:07] Speaker 00:
It's clearly a dispute.

[00:02:09] Speaker 00:
The video shows from our view of the evidence that Mr. Crutcher has hands up when he was shot.

[00:02:14] Speaker 00:
But we also have evidence we've pointed to in the record that Officer Shelby encountered the vehicle before she encountered Mr. Crutcher.

[00:02:22] Speaker 00:
She would have assessed the height of the window, which shows that it's nearly closed.

[00:02:27] Speaker 00:
And so Mr. Crutcher wouldn't have been able to access anything inside that vehicle.

[00:02:31] Speaker 00:
And furthermore, she testified she did not see a gun in the car.

[00:02:36] Speaker 00:
So her justification for her actions that she believed Mr. Crutcher was going to reach for a gun cannot stand on the view of the evidence taken in the light most favorable to the estate.

[00:02:49] Speaker 00:
We have evidence viewed in our favor that shows that she shot and killed Mr. Crutcher when she knew he could not arm himself

[00:02:56] Speaker 00:
and he posed no threat to her or anyone else.

[00:03:00] Speaker 04:
What do we do with the still frame from the helicopter that, you know, when you look at it, it does appear that his left hand has come down.

[00:03:14] Speaker 04:
They focus on it on the brief quite a bit, so I hope you know which one I'm... I think it's... I want to say 1003.

[00:03:26] Speaker 04:
And anyway, that frame, what do we do with that?

[00:03:31] Speaker 00:
Yes, Your Honor.

[00:03:32] Speaker 00:
Well, that frame was actually taken three seconds after the parties agree that the shot was fired.

[00:03:39] Speaker 00:
And so they're trying to draw an inference in their favor on the basis of a still photograph that was taken after Mr. Crutcher was shot.

[00:03:49] Speaker 00:
We would direct the court to another photograph

[00:03:53] Speaker 00:
Specifically, we would direct the court to the appendix at page 434.

[00:04:00] Speaker 00:
And also, in our reply brief, we show this photograph, which shows that Mr. Crutcher, first of all, Mr. Crutcher was shot with his right arm raised.

[00:04:09] Speaker 00:
We have that.

[00:04:10] Speaker 00:
He was shot underneath into his right armpit.

[00:04:13] Speaker 00:
And we also have in this photograph that he fell with both arms above his head.

[00:04:19] Speaker 00:
And the photograph shows that the window was substantially raised

[00:04:23] Speaker 00:
and streaked with blood after he was shot and killed.

[00:04:27] Speaker 00:
And to Your Honor's question, even if the video can be construed to show that he might have lowered his arms, and we would dispute that, Your Honor, that would not provide justification for Officer Shelby to shoot and kill Terrence Crutcher when she looked in that car and she saw no gun in that car.

[00:04:46] Speaker 04:
Well, I mean, I think her testimony was that she looked in the car to see if there was anybody in the car.

[00:04:51] Speaker 04:
I mean, she didn't search the car for firearms.

[00:04:56] Speaker 04:
So, you know, I mean, these cases are always extremely difficult in terms of trying to put yourself in the position of the officer on the scene

[00:05:10] Speaker 04:
trying to know what's going on.

[00:05:12] Speaker 04:
And while I do agree, she walked over there and she looked in to see if anyone was in the car, I'm not sure how much we can take from that in terms of resolving factual issues one way or the other.

[00:05:28] Speaker 00:
I take your honest point, but I would direct the court to its authority, for example, in the Ortega case.

[00:05:35] Speaker 00:
That's a recent case.

[00:05:37] Speaker 00:
128 F4 1298, where the court states, we have instructed courts to be cautious on summary judgment to ensure that the officer is not taking advantage of the fact that the witness most likely to contradict the testimony the person shot dead is unable to testify, and also to not simply accept what may be a self-serving account from the officer.

[00:05:59] Speaker 00:
So, you know, respectfully, Your Honor.

[00:06:01] Speaker 04:
And I accept that, but I also don't think we can infer resolution of factual

[00:06:08] Speaker 04:
issues based on speculation about what the officer saw or didn't see when she looked into the car to see if someone was in it.

[00:06:18] Speaker 00:
Well, Your Honor, I absolutely respect that.

[00:06:20] Speaker 00:
I would again just point the court to the statements in the cases that the court should look at the circumstantial evidence to discredit the officer's statement.

[00:06:27] Speaker 00:
And so from our perspective, she's trying to downplay the significance of that testimony or of her statement saying, I wasn't actually looking for weapons.

[00:06:36] Speaker 00:
But I think an inference can be drawn in our favor that she was.

[00:06:39] Speaker 00:
But regardless,

[00:06:40] Speaker 00:
She also encountered the window and it was rolled up much too high for Mr. Crutcher to reach anything inside.

[00:06:46] Speaker 00:
And that is a fair view of the evidence in our favor.

[00:06:49] Speaker 02:
Let me ask you about your Monell claim.

[00:06:54] Speaker 02:
Why would the city be liable here?

[00:06:57] Speaker 00:
Your Honor, what we've alleged on Monell is that there is a custom and practice at the Tulsa Police Department of which the city was aware that encouraged the excessive

[00:07:07] Speaker 00:
use of force in situations where it wasn't warranted.

[00:07:10] Speaker 02:
You have to be more specific than that.

[00:07:12] Speaker 02:
Are you saying this is absence of training or improper training and then you need to point to something specific and I don't see it in the complaint about how they're trained or what they didn't train and why that would have made a difference in this case.

[00:07:28] Speaker 00:
Well we have included a lot of allegations in the complaint about how training was needed and TPD was on notice of that and didn't take action.

[00:07:37] Speaker 02:
You can't just say you needed training.

[00:07:40] Speaker 02:
You needed to say some specific thing that the officer was not trained on and why that would have made a difference in this case.

[00:07:51] Speaker 02:
And that I just, I don't see in the complaint.

[00:07:56] Speaker 02:
It's much too vague, much too generalized to base a claim against the city on from what I can tell.

[00:08:04] Speaker 02:
asking this question so you can point to something that I'm missing.

[00:08:08] Speaker 00:
Yes, Your Honor.

[00:08:09] Speaker 00:
Well, specifically what we've alleged is the existence of a custom and practice.

[00:08:14] Speaker 00:
The city's knowledge that more training was needed on implicit bias.

[00:08:19] Speaker 02:
Okay, so what would implicit bias training have done in this circumstance?

[00:08:24] Speaker 00:
Implicit bias training, Your Honor, we allege in the complaint was needed based on the racial disparity and policing in Tulsa.

[00:08:30] Speaker 02:
What specific part of implicit bias training, if given to this officer, would have made a difference in this case?

[00:08:39] Speaker 02:
Isn't that what you have to allege?

[00:08:43] Speaker 02:
Let's start with that.

[00:08:44] Speaker 02:
As far as I know, that is what you have to allege, and you haven't allege that.

[00:08:49] Speaker 02:
You can't just say they needed implicit bias training.

[00:08:52] Speaker 02:
They needed to be taught not to be racist.

[00:08:54] Speaker 02:
They needed to be taught don't fire too quickly, you know, be more patient.

[00:09:00] Speaker 02:
But it's hard to see in your complaint a specific matter that they were not trained on, that the officer were not trained on that would have prevented this from happening.

[00:09:16] Speaker 00:
Your honor, I appreciate the question.

[00:09:18] Speaker 00:
Our position is, as alleged, that the city was on notice of an overall custom of officers using excessive force unnecessarily.

[00:09:26] Speaker 00:
So that was established by the fact, we've alleged, because they were aware that there were incidents of excessive force that were not adequately investigated.

[00:09:36] Speaker 00:
The city failed to discipline officers, failed to hold them accountable, was aware of racial disparities in policing.

[00:09:43] Speaker 02:
No specifics.

[00:09:44] Speaker 02:
Not one specific.

[00:09:47] Speaker 02:
incident was mentioned, was alleged in your complaint.

[00:09:50] Speaker 02:
Well, obviously, we speak to the circumstances of the killing of Terrence Crutcher, and so... No, no, but the city had to be on notice before this happened that they needed to train.

[00:10:00] Speaker 02:
You need to establish that there was improper police conduct that the city was aware of and did not properly respond.

[00:10:10] Speaker 02:
I don't see that.

[00:10:11] Speaker 02:
Let me get off that because I don't think we're getting anywhere near on that.

[00:10:15] Speaker 02:
Are there any other grounds for the city being liable in this case that you're raising?

[00:10:22] Speaker 00:
Yes, Your Honor.

[00:10:23] Speaker 00:
Again, our Monell claim rests on the existence of a customer practice that tolerated, that allowed excessive force by officers.

[00:10:33] Speaker 02:
Okay, I'm saying aside from that.

[00:10:34] Speaker 00:
Aside from that.

[00:10:35] Speaker 02:
In the absence of training, is there any other basis you're raising here?

[00:10:40] Speaker 00:
We're also, we have in cause of action number eight, we have a failure to screen claim.

[00:10:45] Speaker 00:
At this stage, we also believe that should proceed, Your Honor.

[00:10:48] Speaker 00:
This is a situation where TPD had in its possession records that Officer Shelby had been written up for pulling a butcher knife on her former partner.

[00:10:59] Speaker 00:
And there were records and information in TPD's system that would have been available to them.

[00:11:04] Speaker 00:
So we submit we've alleged a failure to screen claim on that basis.

[00:11:07] Speaker 05:
Is that a failure to screen?

[00:11:09] Speaker 05:
With respect to her individual situation though, is there any other evidence of some custom or policy or a failure to screen in general the officer's past history?

[00:11:24] Speaker 05:
No, Your Honor, we're not speaking to other officers specifically, but specifically... Isn't that a problem for your Monell claim where you're relying on a single instance of a failure to screen just happens to be this failure?

[00:11:35] Speaker 05:
Well, Your Honor... I understand the significance of that, but is that enough for a Monell claim?

[00:11:42] Speaker 00:
Your Honor, with respect to the failure to screen, we submit that it is sufficient because the city can be liable because it was in possession of information.

[00:11:51] Speaker 00:
relevant to Officer Shelby and why she should not be hired.

[00:11:55] Speaker 02:
That sounds like a respondent superior claim.

[00:11:58] Speaker 02:
Why is the city responsible?

[00:11:59] Speaker 02:
Maybe some sergeant should have looked at this before the defendant was hired.

[00:12:06] Speaker 02:
But where's the city's involvement?

[00:12:09] Speaker 02:
It can't just be because one of their employees failed to do the job properly.

[00:12:14] Speaker 02:
It's got to be a city policy or something by, you know, if it was done by the chief of police, it's had not screened it, then you might have a claim.

[00:12:25] Speaker 02:
But where do you have something that makes the city liable other than essentially a respond yet superior theory?

[00:12:34] Speaker 00:
Well, Your Honor, we submit that the allegations establish that the city had these records.

[00:12:39] Speaker 00:
The city was on notice of her criminal record, multiple orders of protection that would have put them on notice that she should not be hired.

[00:12:47] Speaker 00:
So that's the failure to screen claim.

[00:12:49] Speaker 00:
I'm happy to answer further questions, or I could reserve my remaining time.

[00:12:53] Speaker 02:
What do you think?

[00:12:54] Speaker 00:
I'll reserve it then.

[00:12:55] Speaker 00:
Thank you, Your Honor.

[00:13:06] Speaker 03:
May it please the court.

[00:13:08] Speaker 03:
Good morning.

[00:13:08] Speaker 03:
My name is Scott Wood and I represent the defendant in this case, Betty Shelby.

[00:13:17] Speaker 03:
This case was decided by the district court on the second prong of the qualified immunity framework.

[00:13:26] Speaker 03:
The district court held that there was no case that the plaintiff put before the court that would have

[00:13:35] Speaker 03:
put Officer Shelby on notice that what she was doing in her encounter with Terrence Crutcher violated the Constitution?

[00:13:44] Speaker 04:
Well, let me take issue with that.

[00:13:46] Speaker 04:
I mean, that is what the court decided.

[00:13:48] Speaker 04:
But the court decided it on the assumption that it was undisputed that Mr. Crutcher, his hand had come down and he was reaching into the car.

[00:14:01] Speaker 04:
Let me ask you this.

[00:14:03] Speaker 04:
Is it clearly established that if Mr. Crutcher's hands were up, that the officer could not shoot him?

[00:14:14] Speaker 04:
That's a yes or no question.

[00:14:15] Speaker 03:
I would say that is a yes.

[00:14:18] Speaker 04:
Yes, he could not, she could not shoot him.

[00:14:21] Speaker 03:
Correct.

[00:14:22] Speaker 03:
But the district court did not find he reached in.

[00:14:25] Speaker 04:
The second prong, then,

[00:14:28] Speaker 04:
is strictly intertwined in this case with whether we have a material dispute of fact of whether the hands were up or not.

[00:14:40] Speaker 03:
I don't think they disputed the fact that he lowered his left hand.

[00:14:45] Speaker 04:
They just did, and they did in their briefs.

[00:14:49] Speaker 03:
Well, I think they said the window was up and he couldn't reach in.

[00:14:52] Speaker 04:
That was my reading.

[00:14:54] Speaker 04:
They said that his hands were up until he was shot under his right arm, and that even when he fell, his hands were still up, and that the frozen frame from the helicopter that has been enhanced, whatever that might mean, it seems to me, should be subject to cross-examination.

[00:15:20] Speaker 04:
it is taken three seconds after he was shot.

[00:15:23] Speaker 04:
So how can that resolve the dispute of where his hands were at the critical moment, which is the moment that they use lethal force?

[00:15:36] Speaker 03:
Well, that is a factual dispute, but... And is it material?

[00:15:42] Speaker 03:
But here, they are bound by the facts as found by the court.

[00:15:47] Speaker 03:
They did not frame this appeal

[00:15:49] Speaker 03:
in terms of plain error.

[00:15:52] Speaker 03:
They did not allege plain error occurred.

[00:15:56] Speaker 03:
So their collateral attack on the facts found by Judge Melgren, the court doesn't have jurisdiction to hear that.

[00:16:07] Speaker 05:
Judge Melgren specifically said in his fact findings that it was disputed whether the window was up

[00:16:15] Speaker 05:
Yes.

[00:16:16] Speaker 03:
Right.

[00:16:16] Speaker 05:
Right.

[00:16:21] Speaker 05:
Right.

[00:16:33] Speaker 05:
forget that he's made that determination when he's looking at the clearly established prong.

[00:16:38] Speaker 05:
And I notice in your brief, you rely on that single fact, which is the hand going into the open window, to argue that it was not clearly set.

[00:16:51] Speaker 05:
And I don't believe you can rely on that based on what I do.

[00:16:55] Speaker 03:
Actually, on appeal, I think we'd rely on the fact that he lowered his left arm, as found by the court.

[00:17:03] Speaker 03:
can't be contradicted because of what the video shows.

[00:17:08] Speaker 02:
But you spoke of plain error.

[00:17:10] Speaker 02:
Plain error has nothing to do with summary judgment.

[00:17:12] Speaker 02:
This is a decision on summary judgment.

[00:17:14] Speaker 02:
The question is, is there sufficient evidence for a reasonable person to view it differently?

[00:17:20] Speaker 02:
Right.

[00:17:21] Speaker 02:
And that's what all the Judge McHugh and Judge Moritz have been focusing on.

[00:17:25] Speaker 03:
My understanding of the framework of appeals of this sort to this court

[00:17:32] Speaker 03:
is that before you're going to collaterally attack the facts as found by the judge, you have to... The judge can't find disputed facts in a summary judgment motion.

[00:17:47] Speaker 04:
Judges don't find facts on summary judgment.

[00:17:51] Speaker 04:
They're either disputed or they're undisputed, and if they're disputed and they're material, you can't grant summary judgment.

[00:17:59] Speaker 03:
That set of facts found by Judge Melgrain

[00:18:02] Speaker 03:
was adequate in this case, is supported by the evidence.

[00:18:08] Speaker 03:
And those things that are in his list were not contradicted by the plaintiff at the district court level.

[00:18:17] Speaker 02:
Let me suggest what might be causing the confusion.

[00:18:21] Speaker 02:
A lot of our qualified immunity cases come up on interlocutory appeal.

[00:18:26] Speaker 02:
When the judge has denied qualified immunity and the officer

[00:18:32] Speaker 02:
In that circumstance, if the judge says there's a factual dispute about this and I'm making this finding, we're stuck with that.

[00:18:40] Speaker 02:
We can't second guess the judge and say, no, there wasn't sufficient evidence for that.

[00:18:44] Speaker 02:
That's not our standard after there's a judgment.

[00:18:47] Speaker 02:
This isn't an interlocutory appeal.

[00:18:50] Speaker 02:
This is an appeal after final judgment.

[00:18:52] Speaker 02:
And then we're reviewing a summary judgment.

[00:18:55] Speaker 02:
And the judge, anything the judge says about the facts, we review de novo.

[00:19:01] Speaker 02:
It's not clear air.

[00:19:03] Speaker 02:
We're not even deferential to the district court on that.

[00:19:07] Speaker 02:
I think you're missing that.

[00:19:09] Speaker 03:
Well, Your Honor, I understand exactly what you're saying.

[00:19:15] Speaker 03:
I do.

[00:19:15] Speaker 03:
But in the qualified immunity framework, they have failed completely to bring forth any case that would put Officer Shelby on notice that what occurred

[00:19:30] Speaker 03:
Was it a violation of Mr. Crutcher's law?

[00:19:33] Speaker 02:
I thought you acknowledged it under Judge McHugh's assessment of the possible findings by a jury that they could find that he had his hands up when he was shot.

[00:19:46] Speaker 02:
He wasn't reaching in the window.

[00:19:48] Speaker 02:
And if that's possible, we've got plenty of cases saying you can't shoot somebody in that circumstance.

[00:19:54] Speaker 02:
That another possibility too?

[00:19:56] Speaker 03:
I think it's blatantly contradicted by the record.

[00:20:00] Speaker 03:
because you can hear the gunshot on the dash camera video that was present and see that.

[00:20:07] Speaker 03:
I think one of our exhibits was a synced up version that shows the dash camera along with the helicopter camera.

[00:20:16] Speaker 03:
So we hear the gunshot and the taser is fired simultaneously.

[00:20:22] Speaker 02:
And that gunshot, the video from the helicopter shows that when the gunshot was fired,

[00:20:30] Speaker 02:
before the sound of the gunshot, the deceased had his hand in the window?

[00:20:36] Speaker 02:
Is that what you're saying?

[00:20:37] Speaker 02:
You can tell it's lowered.

[00:20:40] Speaker 02:
Okay.

[00:20:40] Speaker 02:
Let me... Is that synchronization disputed at all?

[00:20:46] Speaker 03:
I don't believe it was.

[00:20:47] Speaker 03:
I think it's not disputed that his hand was lowered.

[00:20:51] Speaker 03:
It's whether or not it went into the window.

[00:20:53] Speaker 04:
Okay.

[00:20:53] Speaker 04:
Well, it's also... Oh, I'm sorry.

[00:20:56] Speaker 02:
Let me just ask one thing.

[00:20:58] Speaker 02:
Okay.

[00:20:58] Speaker 02:
There's another issue here.

[00:21:00] Speaker 02:
I don't know if it's been adequately broached, but you can't just shoot somebody without warning.

[00:21:08] Speaker 02:
And it seems to me that before you shoot somebody, because he's reaching his hand toward the window, and you say, don't touch that window.

[00:21:17] Speaker 02:
Don't put your arm in there.

[00:21:19] Speaker 02:
Nothing like that happened.

[00:21:20] Speaker 02:
And it seems to me, given how you have to struggle to reach in and get a gun if it's there, there was adequate time for the officer to give that kind of warning.

[00:21:32] Speaker 03:
My understanding is that the 10th Circuit is a totality of the circumstances circuit versus... We have lots of cases saying you need to warn.

[00:21:43] Speaker 02:
If there's adequate time, you need to warn before you fire.

[00:21:48] Speaker 02:
Do you dispute that?

[00:21:49] Speaker 03:
No, she did not have time to warn him because the hand coming down is what triggered her fear that he was possibly reaching for a gun.

[00:22:01] Speaker 03:
And if you add up all the things that happened from her initial encounter with him when she saw him up at 36th Street North and came to the assumption or finding that was later confirmed by a drug test that he was high on PCP, all the way through her encounter,

[00:22:20] Speaker 03:
when she first starts giving him commands, 88 seconds of noncompliance, him going back to his car at gunpoint with his hands raised in the air, and then turning and looking at her and lowering his hand.

[00:22:33] Speaker 03:
I will agree, it's disputed.

[00:22:35] Speaker 03:
They dispute that the window was down as we claim, but the court found that those facts that he set forth in his opinion

[00:22:49] Speaker 03:
were enough to sustain a motion for summary judgment based on the second prong of qualified immunity.

[00:23:00] Speaker 03:
And I think, I'm sorry, we've gone way too long.

[00:23:04] Speaker 03:
Well, you have some time left.

[00:23:06] Speaker 03:
You don't have to use the time.

[00:23:07] Speaker 02:
OK.

[00:23:08] Speaker 02:
Well, I have the city's attorneys.

[00:23:10] Speaker 02:
This is going up.

[00:23:11] Speaker 02:
I thought it shows in red when that happens.

[00:23:14] Speaker 05:
No, there's city's attorneys.

[00:23:15] Speaker 05:
It's the city attorney's turn.

[00:23:17] Speaker 02:
Oh.

[00:23:17] Speaker 02:
Yeah.

[00:23:18] Speaker 03:
I'm sorry.

[00:23:20] Speaker 03:
My fault.

[00:23:20] Speaker 03:
All right.

[00:23:21] Speaker 03:
So I yield the rest of my time to Mr. Hendrickson.

[00:23:26] Speaker 03:
Thank you.

[00:23:26] Speaker 03:
I think you'll have enough time.

[00:23:32] Speaker 02:
You should stop the mother.

[00:23:37] Speaker 02:
Give him five.

[00:23:38] Speaker 02:
Just make it five minutes.

[00:23:39] Speaker 01:
Thank you, Your Honor.

[00:23:41] Speaker 01:
Good morning.

[00:23:41] Speaker 01:
Jeffrey Hendrickson for the city of Tulsa and may it please the court.

[00:23:46] Speaker 01:
Thank you, Your Honor, for the portion of this appeal relevant to the City of Tulsa.

[00:23:51] Speaker 01:
We'll be addressing the Modell claims only.

[00:23:56] Speaker 01:
I need to urge that the discussion that's been had so far is about evidence that was developed in the case after the city was dismissed from the lawsuit.

[00:24:04] Speaker 01:
And so the focus of the component of the case against the city has to do with what was pled against the city by the estate in the complaint seriatim, ultimately concluding in the fourth amended complaint.

[00:24:19] Speaker 01:
This case is, as to the city, relatively straightforward.

[00:24:22] Speaker 01:
It is an application of the principles that are well known.

[00:24:25] Speaker 01:
from Bell Atlantic Corps v. Twombly and Ashcroft v. Iqbal.

[00:24:31] Speaker 01:
Those require that Federal Rule Civil Procedure 8A's short and plain statement contains, when you plead, facts that are sufficient to raise a claim to a level of plausibility.

[00:24:44] Speaker 01:
The state, in this case, the appellant, did not do so for any of the Minnell claims that were made against the city.

[00:24:51] Speaker 01:
I want to pick up on two in particular that I think are maybe of most relevance.

[00:24:56] Speaker 01:
My friends on the other side argue generally for a custom or practice in the city of using excessive force as their basis for asserting a Monell claim that could proceed into discovery.

[00:25:08] Speaker 01:
As the briefing suggests and as the fourth amended complaint suggests, this might be a generic reference to an informal policy or custom

[00:25:17] Speaker 01:
It is important to note that if your claim is that a municipality violated your constitutional rights because they had an informal policy or custom of doing so, there must be allegations that there was a practice that was widespread and it was permanent and it was so widespread and permanent as to constitute a well-settled custom or usage or something that the city does normal.

[00:25:44] Speaker 01:
The fourth amended complaint contains

[00:25:46] Speaker 01:
no allegations whatsoever of anything prior to this event, prior to what we were talking about in September of 2016, that would constitute a well-settled practice, informal practice, that leads to constitutional violations of the nature that are being alleged against Officer Shelby here.

[00:26:07] Speaker 01:
I want to move to the failure to supervise or failure to train Officer Shelby component as well.

[00:26:14] Speaker 01:
There was a fair amount of discussion about that when my friends on the other side were here articulating what their argument was as to why the city should be liable for failing to train or supervise Officer Shelby.

[00:26:25] Speaker 01:
But one thing that wasn't discussed at length was the standing that the appellant had to satisfy when it came to what they had to plead.

[00:26:33] Speaker 01:
And that was having to plead facts that show that the city was deliberately indifferent to the

[00:26:42] Speaker 01:
need for more or training at all to show that Officer Shelby had done something wrong.

[00:26:51] Speaker 01:
And there was little to no discussion of that standard.

[00:26:53] Speaker 01:
And I think that's probably understandable because to assert that a municipality was deliberately indifferent to a lack of training that led to a constitutional violation

[00:27:07] Speaker 01:
Appellant was obligated by Twomley and Apol and the substantive standards of the Monell Plan to allege facts that show that the City was on notice well before the events in question that this was an area in which more training was needed.

[00:27:22] Speaker 01:
And the fact is, the Fourth Amendment complaint does not contain a single specific factual allegation that the City would have been on notice that there was a deficiency in training in this regard.

[00:27:34] Speaker 04:
Is it enough that this particular officer

[00:27:37] Speaker 04:
had some things in her past that suggested maybe some anger management issues?

[00:27:45] Speaker 01:
Judge McHugh, no, it is not enough.

[00:27:47] Speaker 01:
And that is because that failure to screen claim is a very particular claim that, as the court has already indicated, can easily sound and respond yet superior.

[00:27:59] Speaker 01:
I want to direct the court to a description from the Supreme Court of what needs to be shown for a failure to screen claim.

[00:28:06] Speaker 01:
This is from Bryan County v. Brown, 520 U.S.

[00:28:08] Speaker 01:
397.

[00:28:11] Speaker 01:
And in Bryan County, the Supreme Court notes that when an allegation is premised on a failure to screen, a finding of culpability, I'm reading from this, simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury.

[00:28:27] Speaker 01:
Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff

[00:28:35] Speaker 01:
The connection between the background of the particular applicant and the specific constitutional violation must be strong.

[00:28:42] Speaker 01:
What was alleged in the Fourth Amendment complaint about Officer Shelby's background had to do with an issue of domestic violence.

[00:28:49] Speaker 01:
That is alleged.

[00:28:50] Speaker 01:
It had to do with using a shovel to strike a vehicle.

[00:28:54] Speaker 01:
But those allegations were years before what happened here.

[00:28:58] Speaker 01:
and had nothing to do with Officer Shelby using force in a split-second decision that is obviously much discussed.

[00:29:05] Speaker 01:
So as to the failure to screen claim, no, based clearly on Officer Shelby's actions.

[00:29:10] Speaker 01:
Your Honor, may I make one more point and then conclude?

[00:29:13] Speaker 01:
With respect to the equal protection claim that is also a part of the plaintiff's case or the appellant's case, in the Fourth Amendment complaint, there are no allegations of fact that

[00:29:24] Speaker 01:
assert that Officer Shelby herself acted with a discriminatory purpose.

[00:29:29] Speaker 01:
And that was something that the appellant had to plead in order to advance beyond where they were at.

[00:29:34] Speaker 01:
We urge the court to affirm the order of the district court.

[00:29:37] Speaker 01:
Thank you.

[00:29:57] Speaker 02:
Yes, ma'am.

[00:29:58] Speaker 00:
Thank you, Your Honor.

[00:29:59] Speaker 00:
Just a few responsive points.

[00:30:02] Speaker 00:
First is that we have always maintained that Terrence Crutcher was shot with his hands up.

[00:30:07] Speaker 00:
That's in our briefs.

[00:30:08] Speaker 00:
That was our position in the lower court.

[00:30:10] Speaker 00:
And of course, as Your Honor indicated, this court has de novo review and a responsibility to view the facts in our favor.

[00:30:18] Speaker 00:
The height of the window is a disputed fact as well, and that's clearly laid out in our brief.

[00:30:24] Speaker 00:
We address that in the reply brief at page four and also in our opening brief at page 34.

[00:30:30] Speaker 00:
But what's critical there is that the parties are pointing to two different photographs of this window where it is at different heights.

[00:30:39] Speaker 00:
The photograph that we point to is a still image taken from the helicopter video.

[00:30:44] Speaker 00:
That's in the appendix at 434.

[00:30:45] Speaker 00:
It shows that streak of blood.

[00:30:48] Speaker 00:
down the window, down the door, and Mr. Kretcher lying on the pavement with his hands above his head in the moments after he was shot.

[00:30:56] Speaker 00:
The other side urges the court to credit a different still photograph

[00:31:00] Speaker 00:
of the window.

[00:31:02] Speaker 00:
This is a photograph, though, that was taken at a later time when the vehicle was back in police custody.

[00:31:09] Speaker 00:
The window has been cleaned of blood.

[00:31:11] Speaker 00:
We don't know based on the record when that photo was taken, but the window does appear to have been substantially lowered from its prior position.

[00:31:18] Speaker 00:
So that's a real material factual dispute as well.

[00:31:23] Speaker 00:
With respect to the Monell claims, Your Honor, I'd make a few points.

[00:31:28] Speaker 00:
First, on Bryan County, we addressed this in our briefs, but that case does address the standard of proof required after a trial.

[00:31:38] Speaker 00:
Here, we're asking the court to allow us some discovery to further explore these claims.

[00:31:44] Speaker 00:
We would ask the court to also look at Aston versus City of Boulder, where a similar claim of a custom and practice of excessive force was alleged.

[00:31:55] Speaker 00:
That's 652 F SUP 2D 188.

[00:31:59] Speaker 00:
That's in the District of Colorado, a 2009 case.

[00:32:02] Speaker 00:
And with respect to the city's knowledge and need to address systemic deficiencies in the police department, in our brief, we've also pointed to the officer's statement.

[00:32:14] Speaker 00:
She speaks about how her training justified her use of force against Mr. Crutcher.

[00:32:20] Speaker 00:
and that that was what we were taught to do.

[00:32:23] Speaker 00:
We do think that that statement and other allegations in the complaint support that the Tulsa Police Department was on notice of systemic issues.

[00:32:33] Speaker 02:
Thank you, Counsel.

[00:32:34] Speaker 02:
Thank you, Your Honor.

[00:32:34] Speaker 02:
Thank you, Counsel.

[00:32:36] Speaker 02:
The case is submitted.

[00:32:36] Speaker 02:
Counselors.