[00:00:00] Speaker 05: Call our first case, 24-1367, Packard v. City and County of Denver. [00:00:05] Speaker 05: Council. [00:00:09] Speaker 05: And I do note that we have some council splitting time here. [00:00:14] Speaker 05: We try to honor that, but be forewarned that if we get in the heat of the moment and use up all the time before the second one of you gets up, we'll just go ahead and apologize now. [00:00:27] Speaker 05: All right. [00:00:30] Speaker 04: Thank you, Your Honor. [00:00:31] Speaker 04: Fred Yarger for Appellant City and County of Denver. [00:00:36] Speaker 04: And may it please the Court. [00:00:39] Speaker 04: A municipality can be held liable under Section 1983 only if a plaintiff satisfies rigorous standards of causation and culpability. [00:00:50] Speaker 04: Here, the District Court failed to enforce those rigorous standards, making rulings in this case that contradict the rulings of other judges from the same district [00:00:59] Speaker 04: in cases arising from the very same protests in Denver in May and June of 2020. [00:01:05] Speaker 04: Through those rulings, the district court allowed plaintiffs to submit a wide range of confusing theories to the jury, some of which other judges in the same district have rejected. [00:01:16] Speaker 04: And instructing the jury on those claims, the district court lessened the culpability required to hold a municipality liable, blurring the line between municipal and vicarious liability [00:01:28] Speaker 04: and violating this court's precedent. [00:01:31] Speaker 04: We've raised five issues in the briefing, which is likely too many to address today. [00:01:36] Speaker 04: I'm happy to answer questions about any of them, but I'd like to focus on two of them this morning, which we believe are the clearest errors by the district court, either one of which separately requires reversal and retrial. [00:01:49] Speaker 04: First is the erroneous admission of the testimony of Nicholas Mitchell, the former Denver independent monitor. [00:01:56] Speaker 04: And second is the instruction to the jury that deliberate indifference would be an element only on plaintiff's failure to train theories of municipal liability and on no other theories. [00:02:09] Speaker 04: Turning to the first issue, which is the district court's erroneous admission of Mr. Mitchell's testimony, before admitting this testimony, the district court took a very unusual step. [00:02:19] Speaker 04: It explicitly warned plaintiffs not to call Mitchell to the stand. [00:02:23] Speaker 04: It told them that they were, quote, [00:02:25] Speaker 04: risking their entire case. [00:02:29] Speaker 04: And the court said, if it causes your verdict to be reversed, that's on you. [00:02:33] Speaker 04: I think you're making a mistake. [00:02:35] Speaker 04: That's my ruling. [00:02:38] Speaker 04: More unusual and more problematic, the district court cited no valid basis. [00:02:42] Speaker 05: Let me ask you about that. [00:02:43] Speaker 05: Let me ask you about that. [00:02:44] Speaker 05: I mean, he wasn't ruling as to the admissibility of the testimony. [00:02:49] Speaker 05: He was recognizing that they might call him. [00:02:56] Speaker 05: expressing concern that even though if they did, he would be able to testify, it could be on shaky ground. [00:03:03] Speaker 05: Is that fair? [00:03:05] Speaker 04: Well, it was during the final statements of the court after hearing arguments from the parties. [00:03:13] Speaker 04: And the problem was that the court gave no valid basis for admission of Mitchell's testimony. [00:03:20] Speaker 04: Really, the only basis in the record is that Mitchell's work as independent otter was, quote, [00:03:25] Speaker 04: paid for by the taxpayers, and taxpayers sitting in the jury box are entitled to hear about it. [00:03:31] Speaker 04: So the court didn't do an analysis under rules 602 or 701, did not do an analysis under rule 407, and didn't do an analysis under rule 403. [00:03:40] Speaker 04: That's a textbook example. [00:03:42] Speaker 05: I mean, the city chose to have an observer, didn't they? [00:03:47] Speaker 05: A monitor? [00:03:48] Speaker 05: A monitor, yeah. [00:03:49] Speaker 05: It did. [00:03:50] Speaker 05: And they allowed the monitor to go do his job? [00:03:55] Speaker 05: Of course they did. [00:03:56] Speaker 04: Yes, he was specifically asked by the city council to do this work. [00:03:59] Speaker 05: So they must have felt that there was something relevant to what he was doing. [00:04:03] Speaker 04: To the extent it was relevant, Your Honor, that's the problem. [00:04:06] Speaker 04: It was a subsequent remedial measure. [00:04:09] Speaker 04: It was also the work of someone who was not personally present. [00:04:12] Speaker 04: He couldn't testify to any facts that actually occurred based on his own perception or knowledge. [00:04:19] Speaker 04: He admitted that on the stand. [00:04:20] Speaker 04: He said he was not personally present to observe anything. [00:04:24] Speaker 04: whether with respect to individual protesters or the action of any DPD officers. [00:04:29] Speaker 00: Can I ask you a question about that? [00:04:31] Speaker 00: Yes. [00:04:32] Speaker 00: Was there a hearsay objection raised and preserved? [00:04:37] Speaker 04: We did object to the admission of certain memoranda that formed the basis for Mr. Mitchell's testimony. [00:04:47] Speaker 00: But those memoranda [00:04:49] Speaker 00: did not come into evidence, is that right? [00:04:51] Speaker 04: They did come in and he testified to the substance. [00:04:54] Speaker 00: Were they submitted as exhibits and admitted as evidence? [00:04:59] Speaker 00: I believe they were, Your Honor. [00:05:01] Speaker 00: I'm not sure about that, but in any event, other than objecting to memorandum, did you ever give a hearsay objection to Mitchell's report? [00:05:17] Speaker 04: The report itself, Your Honor, was excluded. [00:05:20] Speaker 04: Not on the grounds of hearsay. [00:05:21] Speaker 00: The testimony about the report. [00:05:22] Speaker 00: I know it was excluded because they worried about remedial comments. [00:05:26] Speaker 00: But did you make a hearsay objection to his discussion of the content of the report? [00:05:35] Speaker 04: No. [00:05:35] Speaker 04: There was not a hearsay objection. [00:05:37] Speaker 00: Right. [00:05:37] Speaker 04: That was my understanding. [00:05:38] Speaker 04: There was an objection based, Your Honor, on rules 602 and 701. [00:05:43] Speaker 04: And the only way [00:05:46] Speaker 04: that Mr. Mitchell could testify to the substance of a post-hoc report based on his review of four months' worth of evidence would have been had he been qualified as an expert witness. [00:05:58] Speaker 00: And everybody agreed that he was not. [00:06:01] Speaker 04: Everyone agreed he was not. [00:06:02] Speaker 00: And so they're not even trying to authorize his testimony on that grounds. [00:06:06] Speaker 00: They are trying to authorize it on the grounds that even non-experts can give opinions of things they have observed. [00:06:14] Speaker 00: And so then the question is, what does that mean? [00:06:16] Speaker 00: Does that mean things you've observed from your study of the records, or does it mean you were out there when the bullets were flying and you observed all that stuff? [00:06:25] Speaker 00: And that's the question in this case. [00:06:27] Speaker 00: Correct, Your Honor. [00:06:28] Speaker 04: That's correct. [00:06:29] Speaker 04: And he was not there to observe any of it. [00:06:32] Speaker 04: He admitted that on the stand. [00:06:35] Speaker 04: And the problem with his testimony, sometimes lay opinion testimony can come into evidence. [00:06:41] Speaker 04: If there's an opinion about [00:06:43] Speaker 04: Evidentiary material already before the jury. [00:06:47] Speaker 04: For example, a photograph. [00:06:49] Speaker 04: Someone can say, I visited the site of that photograph. [00:06:52] Speaker 04: I believe the distance between two points on that photograph is about 50 yards. [00:06:57] Speaker 00: And they don't need to be qualified as an expert for that. [00:06:59] Speaker 00: They do not. [00:07:00] Speaker 00: Because that's common knowledge. [00:07:01] Speaker 00: I mean, that's within common experience. [00:07:03] Speaker 00: Precisely. [00:07:04] Speaker 00: And I would suppose that even though riots are not common [00:07:08] Speaker 00: hopefully not yet in our country, common experience, it does involve real on-the-road experiences that people probably have encountered. [00:07:18] Speaker 04: It absolutely does. [00:07:20] Speaker 04: And that's why they qualified, plaintiffs qualified two experts to testify to much of the same material. [00:07:25] Speaker 04: And not only that, Mr. Mitchell was testifying based on his training as a lawyer, his understanding of department policies, and in fact, his understanding of the Constitution [00:07:36] Speaker 04: And whether any of the actions he was testifying to violated those policies as informed by the Constitution. [00:07:43] Speaker 04: That's volume 23 of the appendix, page 70, where he specifically says, I'm testifying based on the Constitution. [00:07:49] Speaker 04: That is classic expert testimony. [00:07:51] Speaker 00: And Judge Brooks said that he was testifying as an observer of materials that he has reviewed. [00:07:58] Speaker 00: I must say, when I read that, and I expect this to with my colleagues, that struck me as a bit odd. [00:08:05] Speaker 00: because usually you think of it as first-hand observation. [00:08:09] Speaker 00: But what is the law on that about people qualifying as a non-expert to testify as an observer of things they read which reported other things? [00:08:21] Speaker 04: So the case law in the briefing cited on this, Your Honor, typically comes up in the context of surveillance activities by agents or detectives. [00:08:30] Speaker 04: And so typically the line is, [00:08:33] Speaker 04: If you were there and you conducted the surveillance, or if the basis of your testimony and your opinion can be gleaned simply based on what you are reviewing in front of the jury, for example, identifying the voice of a defendant after hearing that defendant testify and after conducting hours of surveillance, there's no problem with that testimony. [00:08:53] Speaker 04: The trouble is when it crosses the line into opinions based on an officer's general experience as a law enforcement investigator, for example, in drug [00:09:03] Speaker 04: investigations testifying to the meaning of certain words and phrases used by people on recordings. [00:09:09] Speaker 04: That's the People's case and the Johnson case cited in the briefing. [00:09:13] Speaker 04: Both of those cases were reversed because agents were allowed to testify about the meaning of words or phrases used on recordings that were not clear to the jury, would not be clear to a lay observer. [00:09:25] Speaker 04: So it really is the distinction between mundane testimony that anybody could give as an observer or somebody who's using their experience. [00:09:32] Speaker 04: And Mr. Mitchell, plaintiffs emphasized Mr. Mitchell's experience. [00:09:37] Speaker 04: They told the jury that Mitchell spent months with a team of experts looking at everything to give the jury the full picture. [00:09:45] Speaker 04: And that leads me to my second point, Your Honor, which is that this was prejudicial. [00:09:53] Speaker 04: The purpose of admitting the testimony and for the plaintiffs to argue so hard in favor of admitting his testimony was to influence the jury. [00:10:02] Speaker 04: He is the only witness they could use to tell the jury that he was the Denver official tasked with assessing the department's response to the protests and giving recommendations and assessing [00:10:18] Speaker 04: the police's response to that protest. [00:10:20] Speaker 03: That was the very... Council, a moment ago, though, you referenced the other two experts that were called by the plaintiffs. [00:10:26] Speaker 03: Yes. [00:10:26] Speaker 03: And I think I heard you say that they essentially testified about the same things. [00:10:31] Speaker 03: So why wasn't this harmless if the plaintiffs call two experts? [00:10:36] Speaker 03: My understanding is the city called none. [00:10:38] Speaker 03: So this isn't a battle of the experts. [00:10:40] Speaker 03: There are two experts plus the independent monitor called by the plaintiffs. [00:10:44] Speaker 03: So why wouldn't this be harmless? [00:10:46] Speaker 04: Because the sole reason they called him was so that they could tell the jury that the Denver official tasked with assessing the response. [00:10:57] Speaker 04: This is what they said to the jury. [00:10:58] Speaker 04: I'll just read it for you. [00:11:00] Speaker 04: Mitchell concluded after his months-long investigation that Denver committed extremely troubling acts. [00:11:05] Speaker 04: Those were his words. [00:11:07] Speaker 04: The government official from the city of Denver tasked with investigating the police, they committed extremely troubling acts with very dangerous [00:11:15] Speaker 04: weapons, they could say that about no other expert. [00:11:19] Speaker 00: Are you saying if it were not Mitchell that gave that testimony, but if it was a third person who did exactly the same studies as Mitchell, but it was an outside person, that you wouldn't have had any troubles with it? [00:11:33] Speaker 00: Your trouble is that it was done by Mitchell, who I assume you didn't object to doing the report in the first place. [00:11:42] Speaker 04: Well, of course not. [00:11:44] Speaker 04: Cities like Denver employ independent monitors so that they have the benefit of someone looking at this information and making recommendations. [00:11:53] Speaker 00: And the word independent has some weight. [00:11:54] Speaker 00: Shouldn't it have some weight? [00:11:56] Speaker 00: What's that, Your Honor? [00:11:57] Speaker 00: Well, independent monitor. [00:11:59] Speaker 00: You're now saying he's painted because he was associated with Denver. [00:12:03] Speaker 00: But now you're calling him independent. [00:12:05] Speaker 00: Doesn't that remove some of that painting? [00:12:08] Speaker 04: Fair enough. [00:12:09] Speaker 04: He's not independent. [00:12:10] Speaker 04: He was tasked by the city council. [00:12:12] Speaker 04: to do the work. [00:12:13] Speaker 04: His title is independent monitor. [00:12:14] Speaker 04: He's independent from the police department. [00:12:16] Speaker 04: He's a civilian. [00:12:18] Speaker 04: But cities like Denver employ monitors to do this work so that they can learn from unprecedented events like the Denver protests. [00:12:28] Speaker 04: And by weaponizing that fact, the fact that he was tasked with a months long after the fact investigation to make recommendations to the city to change their practices, [00:12:41] Speaker 04: disincentivizes cities from hiring and employing roles just like those, and then having them embedded against them as fact testimony not even subject to the protections of Rule 702. [00:12:54] Speaker 05: Did he testify as to his opinions and whether any remedial measures had been taken by the city? [00:13:04] Speaker 04: So the court did [00:13:08] Speaker 04: preclude him from testifying about the specific recommendations that were at the end of his report. [00:13:15] Speaker 04: But our position, and what's very clear from the record, is it was impossible to separate the post hoc remedial nature of his investigation from his testimony. [00:13:25] Speaker 04: In fact, he told the jury, and I'd like to find the quote because I think this is important, that one of the [00:13:35] Speaker 04: things that he wanted the jury to take away is that he believed DPD should learn from their mistakes and change their practices. [00:13:47] Speaker 04: And that was in his redirect testimony. [00:13:49] Speaker 00: Did you object? [00:13:51] Speaker 04: Well, it was objected to based on Rule 407, and he was allowed to take the stand. [00:13:56] Speaker 00: There was no specific objection to that particular... Did you make a contemporary objection? [00:14:01] Speaker 00: When those words came out of his mouth? [00:14:03] Speaker 04: When those words came out, Your Honor, no, there was no contemporary objection. [00:14:06] Speaker 04: But there was the objection to him taking the stand. [00:14:09] Speaker 04: Were you the trial attorney? [00:14:11] Speaker 04: I was not, Your Honor. [00:14:12] Speaker 03: Counsel, can I have you pivot quickly to instructional error? [00:14:15] Speaker 03: Yes, Your Honor. [00:14:15] Speaker 03: So the theory of liability here under Monell with the failure to train, the deliberate indifference was obviously part of that instruction. [00:14:23] Speaker 03: So again, why does this merit reversal if there was error? [00:14:27] Speaker 04: Sure. [00:14:27] Speaker 04: There are two issues with that instruction and with the instructions as a whole. [00:14:31] Speaker 04: That instruction did say that deliberate indifference was an element of failure to train. [00:14:37] Speaker 04: It did not say this was element four of that instruction, that it was an element of failure to supervise. [00:14:43] Speaker 04: So that instruction in and of itself had an error in the elements. [00:14:46] Speaker 03: But didn't you agree to that instruction? [00:14:49] Speaker 04: We submitted an instruction with those words in it subject to our objection at the pretrial conference. [00:14:57] Speaker 04: So plaintiffs have asserted that we've invited that error. [00:15:01] Speaker 00: Because it was your submission. [00:15:02] Speaker 04: We did submit that instruction on the understanding that we'd have the opportunity to object. [00:15:07] Speaker 00: Why did you submit to it in the first place? [00:15:09] Speaker 00: Why was it your submission in the first place if you didn't agree to it? [00:15:12] Speaker 04: Well, we offered an instruction that dealt with failure to supervise. [00:15:16] Speaker 04: Their instruction didn't even mention failure to supervise. [00:15:18] Speaker 04: So there were problems with that instruction. [00:15:20] Speaker 04: But at the hearing, at the pre-trial hearing to discuss the instructions, we made very clear what our position was. [00:15:28] Speaker 04: But even putting that aside, even if you agree with them, [00:15:30] Speaker 04: on invited error. [00:15:32] Speaker 04: The separate problem with that instruction is that the plaintiffs were, the verdict was based on finding liability on all theories of municipal liability. [00:15:43] Speaker 03: But doesn't it just take one? [00:15:46] Speaker 04: Well, the concern is, from our perspective, the jury was making its damages determinations based on which theories of liability Denver proved. [00:15:58] Speaker 04: Plaintiffs have admitted that in their briefing. [00:16:00] Speaker 04: One of the plaintiffs in particular received a lower damages award simply because the jury found that a First Amendment violation and not a Fourth Amendment violation had been proved. [00:16:14] Speaker 04: So there is a likelihood that by misinstructing the jury on theories of Monell liability, the damages would have been different had the instructions been correct. [00:16:22] Speaker 05: OK. [00:16:22] Speaker 05: Thank you, counsel. [00:16:23] Speaker 05: You had a time. [00:16:43] Speaker 02: Good morning, Your Honors. [00:16:44] Speaker 02: May it please the Court and welcome to our new colleagues. [00:16:49] Speaker 02: The three-week jury trial that underlies this appeal proceeded exactly as it should. [00:16:53] Speaker 02: The jury was correctly instructed, the trial judge permissibly exercised discretion in making evidentiary rulings, and the jury returned a unanimous verdict, finding for the plaintiffs on all their theories of Monell liability. [00:17:07] Speaker 05: Do you disagree that deliberate indifference was needed to be instructed as to all of the theories? [00:17:15] Speaker 02: We do, Your Honor. [00:17:16] Speaker 02: Deliberate indifference was required only for the inaction theories, the failure to train. [00:17:20] Speaker 02: That's precisely what this court has held in Schneider. [00:17:23] Speaker 02: All of this court's cases sort of go back to Schneider. [00:17:26] Speaker 02: That's from 2013. [00:17:26] Speaker 02: To quote this court on page 770, the challenge practiced may be deemed an official policy or custom for 1983 liability purposes if [00:17:37] Speaker 02: is a formally promulgated policy, a well-settled customer practice, a final decision by a policymaker, or a deliberately indifferent training or supervision. [00:17:48] Speaker 02: Specifically carving out, and I can talk about first principles of Modell and how the Supreme Court got there in City of Canton, but deliberate indifference is about inaction theories. [00:17:57] Speaker 02: Failure to supervise, failure to train, failure to screen for hiring purposes, because that's how you know [00:18:05] Speaker 02: that the city made a choice, and it's being held responsible for its choice. [00:18:09] Speaker 02: Because when you're deliberately indifferent to not doing something, you have to be on actual or constructive notice that it's likely to lead to a constitutional violation, or it's so obvious that a constitutional violation will result that you should be taking some action. [00:18:25] Speaker 02: So that's the dividing line. [00:18:26] Speaker 02: That's how the jury was instructed. [00:18:28] Speaker 02: And that's precisely what they found. [00:18:30] Speaker 02: And I want to say that [00:18:32] Speaker 02: We can prevail on any one of the Monell theories. [00:18:35] Speaker 02: The verdict can be sustained to Judge Federico's point, which is why Denver is arguing error in all of them. [00:18:41] Speaker 02: They have to. [00:18:42] Speaker 02: They have to run the table. [00:18:44] Speaker 02: And the arguments that they've made on appeal and today are either waived, they're incorrect, or they're inconsequential to the outcome, sometimes all three. [00:18:53] Speaker 00: But I want to be- So your argument is just four square, yes, the only deliberate indifference [00:19:01] Speaker 00: was failure to train. [00:19:03] Speaker 02: Any of the failure theories, right? [00:19:05] Speaker 02: There was one instruction on failure to train and deliberate indifference was included as a required element of that instruction and a jury found it. [00:19:11] Speaker 00: And there was no other claim of yours that had deliberate indifference in it, that the jury had to find deliberate indifference. [00:19:21] Speaker 02: That's correct, Your Honor, and that follows this Court's precedence as well as the Supreme Court's precedence. [00:19:25] Speaker 02: The introduction of deliberate indifference came a few years into the Monell line of cases. [00:19:30] Speaker 00: And the argument is that deliberate indifference only applies to failure to do something rather than affirmatively doing something. [00:19:38] Speaker 02: Correct, Your Honor. [00:19:39] Speaker 00: But there was other failures that were argued against Enver, not only failure to train, but failure to supervise, for example. [00:19:48] Speaker 02: So the instruction that Denver proposed included both failure to train and failure to supervise. [00:19:54] Speaker 02: Our instruction, competing instruction number 16, did not include an instruction on failure to supervise. [00:19:59] Speaker 02: That was not our theory. [00:20:01] Speaker 02: And the instruction that Denver submitted, and this is why this is invited error, included deliberate indifference and everyone understood that the entire instruction included deliberate indifference. [00:20:11] Speaker 02: For the first three elements, Denver wrote the words failure to train or supervise. [00:20:16] Speaker 02: For whatever reason, they didn't include the words or supervise in the fourth instruction. [00:20:20] Speaker 02: That wasn't our call. [00:20:23] Speaker 02: We advocated for our instruction, which wouldn't have had that error. [00:20:26] Speaker 02: And so this issue is actually subject to the 28J letter by the parties. [00:20:32] Speaker 02: This is the tier link decision. [00:20:33] Speaker 02: And let me just read one quote for you, because this precisely describes what's happening today. [00:20:38] Speaker 02: Parties cannot craft jury instructions, propose them to the court, [00:20:42] Speaker 02: then change course on appeal and argue plain error in their own instructions. [00:20:47] Speaker 02: That's exactly what we have here today. [00:20:50] Speaker 02: But if we step back and look at that instruction as a whole, the jury understood that deliberate indifference was required. [00:20:58] Speaker 02: I want to take a moment. [00:20:59] Speaker 00: So you're arguing a belt and suspenders on, are we talking supervision or training here? [00:21:07] Speaker 02: So the entire instruction 16, which was called failure to train. [00:21:11] Speaker 02: We didn't actually propose supervision. [00:21:15] Speaker 02: And the verdict form was called failure to train. [00:21:17] Speaker 02: And that's what they checked in their box. [00:21:19] Speaker 02: The jury understood they had to find deliberate indifference to check that box. [00:21:23] Speaker 02: And they did. [00:21:24] Speaker 02: And I want to offer the court the past of these. [00:21:27] Speaker 00: So are you saying that failure to supervise was not ever submitted to the jury as a claim? [00:21:31] Speaker 02: It was included as a word three times in their instruction. [00:21:36] Speaker 02: And the box that they had to check was that we satisfied the elements of instruction 16, which included deliberate indifference, and the jury found that we did. [00:21:45] Speaker 00: And was 16, did it also include failure to train? [00:21:51] Speaker 02: Yes, it was failed to train or supervise, which is what the formulation that Denver proposed. [00:21:56] Speaker 00: And that submission had deliberate indifference in it? [00:21:59] Speaker 02: Yes, Your Honor. [00:22:00] Speaker 02: Yes, Your Honor. [00:22:01] Speaker 02: So the path of least resistance to affirmance through all of Denver's arguments runs through failure to train. [00:22:10] Speaker 02: Let me tell you why. [00:22:12] Speaker 02: Denver does not contest on appeal the sufficiency of evidence to find constitutional violations for every single plaintiff. [00:22:19] Speaker 02: Denver does not contest that they had a failure to train policy on crowd control measures. [00:22:24] Speaker 02: They do not contest the sufficiency of the evidence that that failure caused the injuries in this case. [00:22:31] Speaker 02: The only thing that they dispute is whether there was sufficient evidence to find deliberate indifference, and there was. [00:22:38] Speaker 02: We had unrebutted expert testimony that covered both of the prongs of deliberate indifference. [00:22:43] Speaker 02: Chief Stamper said that large-scale protests were utterly predictable in a metro area like Denver. [00:22:50] Speaker 02: Dr. McGuire, who's a professor of criminal justice, said there was an obvious potential for violation of the rights of protesters. [00:22:58] Speaker 02: Expert testimony is enough under this court's decisions in Valdez and Allen. [00:23:03] Speaker 02: But Denver's own officers acknowledged the lack of training and what the consequences would be. [00:23:10] Speaker 02: There were statements made inside the command post. [00:23:12] Speaker 02: How were the officers supposed to know what to do without being trained? [00:23:17] Speaker 02: There was evidence of Denver officers testifying that training was taken off the table by the chief of police. [00:23:23] Speaker 00: Did Denver put any affirmative evidence in of what they're training? [00:23:26] Speaker 00: was, any training materials or anything like that? [00:23:30] Speaker 02: Ms. [00:23:30] Speaker 02: Wong can probably talk to more detail about what the training was. [00:23:33] Speaker 02: This was focused on what the training wasn't. [00:23:35] Speaker 00: OK. [00:23:35] Speaker 00: Well, just watch that time, then. [00:23:37] Speaker 00: I am. [00:23:37] Speaker 00: I am. [00:23:38] Speaker 00: I can feel the eyes behind me, Your Honor. [00:23:39] Speaker 00: I'll be very interested in that information. [00:23:42] Speaker 05: Yeah. [00:23:42] Speaker 05: And so that's an important point. [00:23:43] Speaker 05: Let me stop you for just a minute. [00:23:44] Speaker 05: Since we're running short of your time, I'm going to ask you to tell us about the independent observer and whether you think the independent observer's testimony was harmless. [00:23:56] Speaker 02: So it was harmless, but let me also say why Judge Jackson's rulings were correct. [00:24:00] Speaker 02: Let's start with 602, personal knowledge. [00:24:02] Speaker 02: Judge Jackson limited Nick Mitchell to testifying about what he did, his personal observations and his personal conclusions, and the notices that he previously gave to Denver about the inadequacies of their policies and training. [00:24:16] Speaker 02: And the dividing line, I just want to have one quote from on 701 to 702, because that took up a lot of time on the other side. [00:24:22] Speaker 02: And I want to direct this court's attention. [00:24:24] Speaker 05: Hold on. [00:24:24] Speaker 05: Let me ask you a question. [00:24:25] Speaker 05: Notices about their policies and training, were those pre-incident notices? [00:24:34] Speaker 02: Yes, your honor. [00:24:35] Speaker 02: This was on rebuttal. [00:24:36] Speaker 02: They said that he hadn't given notice. [00:24:38] Speaker 02: It was about the Occupy protests in 2012 and Denver's decision not to take those recommendations and go forward. [00:24:45] Speaker 02: And so on the line between 701 and 702, which was discussed, [00:24:49] Speaker 02: The Dermen case from this court in July, that's 143 F4 1148. [00:24:53] Speaker 02: The dividing line is that 701 testimony is based on particularized knowledge based on investigation. [00:25:01] Speaker 02: 702 testimony is based on specialized knowledge based on training or experience. [00:25:07] Speaker 02: To the extent there is a gray area there. [00:25:09] Speaker 02: It is not an abuse of discretion for Judge Jackson to draw the line within the permissible range of choices. [00:25:15] Speaker 02: And he limited Nick Mitchell's testimony in important ways, precluding him from talking about remedial measures and other recommendations in his report. [00:25:22] Speaker 03: But didn't Mr. Mitchell tell the jury or essentially give his opinion as to the adequacy of crowd control, crowd management, the use and training for less than lethal weaponry, [00:25:34] Speaker 03: And that sounds a whole lot like expert testimony, doesn't it? [00:25:37] Speaker 02: So the two opinions that Denver identifies are that Nick Mitchell said that it was extremely troubling. [00:25:43] Speaker 02: That's not based on specialized knowledge. [00:25:45] Speaker 02: We all can conclude that from the 127 videos that were submitted to the jury, but also that Denver lacked internal controls, which is what he concluded based on his personalized investigation. [00:25:55] Speaker 05: This is no different than if a company... Well, that's sort of a specialized determination on whether someone has an internal control, because I suspect that people from Denver feel like they do have some internal controls. [00:26:06] Speaker 02: And they came and the individual officers testified and corroborated Nick Mitchell's testimony, which will get to the harmlessness, and I'll allow Ms. [00:26:12] Speaker 02: Wong to address that. [00:26:13] Speaker 02: Okay. [00:26:13] Speaker 02: Thank you, Your Honor. [00:26:14] Speaker 05: Thanks. [00:26:19] Speaker 05: Look at that. [00:26:20] Speaker 00: You've got your five minutes. [00:26:21] Speaker 01: Good morning, Your Honor. [00:26:22] Speaker 00: This is a historic first. [00:26:25] Speaker 00: We ought to get the Denver Post in here to record this. [00:26:29] Speaker 01: All right. [00:26:29] Speaker 00: And I'm going to let you go over 12 seconds. [00:26:32] Speaker 01: OK. [00:26:32] Speaker 01: My name is Elizabeth Wong, and I represent the Fittori Plaintiffs. [00:26:34] Speaker 01: Let me quickly address the issues. [00:26:36] Speaker 01: Nick Mitchell's testimony was entirely harmless. [00:26:38] Speaker 01: First of all, he testified to facts, as Mr. Anderson explained. [00:26:41] Speaker 01: But also, Denver elicited the exact same testimony that he gave [00:26:46] Speaker 01: on the facts and on their lack of internal controls from their own witnesses. [00:26:50] Speaker 01: Their own less lethal training coordinator, Ryan Grothe, admitted that they didn't have inventory tracking and in fact that they had changed the policy after the protest. [00:26:59] Speaker 01: Their crowd force training forced [00:27:02] Speaker 01: Field Force Training Coordinator Eric Knutson testified that they reduced the amount of training in the years leading up to the protest and that they had inadequate training. [00:27:10] Speaker 00: A lot of the same training came... Did he say the word inadequate or simply that the budget was reduced? [00:27:15] Speaker 00: Those are two different questions. [00:27:17] Speaker 01: Well, he testified that he offered to have DPD officers trained over a three-day period and the commander said no, they didn't want to do that. [00:27:26] Speaker 00: Right, but you told us [00:27:28] Speaker 00: that he said that the training was inadequate. [00:27:30] Speaker 01: Let me be more specific. [00:27:32] Speaker 00: That's a very critical statement you've represented to us. [00:27:35] Speaker 01: Nick Mitchell never said inadequate. [00:27:37] Speaker 01: He was never asked to opine on the facts that he testified to. [00:27:41] Speaker 01: He simply testified to the facts. [00:27:43] Speaker 01: He testified about their inventory tracking or lack of inventory tracking. [00:27:47] Speaker 01: He testified about the reduction in training in the years leading up to the protest. [00:27:54] Speaker 01: And so this testimony came not only from our two experts, Chief Stamper and Professor McGuire, but it came from Denver's own witnesses. [00:28:02] Speaker 01: And in fact, the capstone. [00:28:04] Speaker 01: of Denver's defense at the end of the three-week trial was Division Chief Thomas getting up there and admitting that mistakes were made. [00:28:13] Speaker 01: That's what they had him testify to. [00:28:14] Speaker 03: Counsel, how do you respond to Denver's argument though that Independent Monitor Mitchell was called because essentially Denver hired him as an expert and that way the plaintiffs were able to highlight to the jury in closing that sure we brought forth two experts who oftentimes are [00:28:32] Speaker 03: attacked on cross-examination as being hired guns by a party. [00:28:37] Speaker 03: But Mitchell's different. [00:28:38] Speaker 03: He's categorically different because Denver recognized his expertise when they hired him. [00:28:43] Speaker 03: So how do you respond to that argument? [00:28:45] Speaker 01: The response is that they're picking out a single sentence from an hour and a half long closing argument that the plaintiffs gave over a three week trial at which 32 witnesses testified and 127 videos were shown. [00:28:57] Speaker 05: Well, that's powerful though, isn't it? [00:28:59] Speaker 05: For you to be able to say that Mitchell's their guy [00:29:03] Speaker 01: Mitchell was their guy, but he was also the independent monitor. [00:29:05] Speaker 01: But just because evidence is bad for them doesn't mean that it violated 403. [00:29:10] Speaker 01: And the fact is, the standard of review here is abuse of discretion. [00:29:15] Speaker 01: And that means, did the district court judge make a permissible choice within the range of choices? [00:29:20] Speaker 01: And he absolutely did. [00:29:21] Speaker 01: And let me quickly turn in my remaining time to the failure to train claim. [00:29:25] Speaker 05: I'm going to stick with me for a minute. [00:29:26] Speaker 05: I'm going to make sure you get to say something about failure to train. [00:29:29] Speaker 05: Thank you. [00:29:31] Speaker 05: Do you have any cases where somebody like him has testified before and have been found to just be sort of inconsequential cumulative testimony? [00:29:40] Speaker 01: I don't have any cases like that. [00:29:42] Speaker 01: There is a case from about 20 years ago, a district court case, where there was the testimony of the independent monitor at that time. [00:29:50] Speaker 01: I think his name's Richard Rosenthal was considered at summary judgment. [00:29:53] Speaker 01: I don't know whether that case went to trial or was settled after that, but it was considered at summary judgment. [00:29:59] Speaker 05: OK. [00:29:59] Speaker 05: Thank you. [00:30:00] Speaker 01: All right. [00:30:00] Speaker 01: On the failure to train, this is why we win, all right? [00:30:03] Speaker 01: Because the plaintiffs, my clients won on both their First and Fourth Amendment claims. [00:30:07] Speaker 01: So whatever you think of the First Amendment claim, they won on their Fourth Amendment claim, which the other side does not dispute. [00:30:12] Speaker 01: They won on the failure to train. [00:30:14] Speaker 01: The jury checked a box saying that they won on the failure to train. [00:30:18] Speaker 01: The jury instruction that they proposed was given before the final pre-trial conference. [00:30:23] Speaker 01: The language that they point to where they made an objection about deliberate indifference was in objection to instruction 15, which is the official policy instruction. [00:30:33] Speaker 01: Nobody ever argued not them not us not the district court below that somehow deliberate indifference did not apply to failure to supervise It absolutely did and it was in the instruction if you look at volume 11 page 161 that is the instruction that was given it was in [00:30:50] Speaker 01: the paragraph that defines deliberate indifference. [00:30:52] Speaker 01: And so any objection to their instruction that they gave now is completely invited error and cannot be considered. [00:30:59] Speaker 01: And so that leaves us with the only other question, which is whether or not there was sufficient evidence of deliberate indifference. [00:31:06] Speaker 01: And there absolutely was, not just from our experts. [00:31:09] Speaker 01: McGuire actually on the stand at the end of his direct testimony said, [00:31:13] Speaker 01: Did the failure to train present an obvious potential for violation of First and Fourth Amendment rights? [00:31:18] Speaker 01: He said yes. [00:31:19] Speaker 01: Denver didn't even cross him on that. [00:31:20] Speaker 01: And they did not argue deliberate indifference in their closing. [00:31:24] Speaker 05: Thank you. [00:31:25] Speaker 05: Thank you, counsel. [00:31:28] Speaker 05: All right. [00:31:29] Speaker 05: The case will be submitted and counsel are excused.