[00:00:00] Speaker 03: Next case before us this morning is 24-6226, Thao versus Grady County Criminal Justice Authority. [00:00:19] Speaker 01: Good morning, Your Honors. [00:00:20] Speaker 01: May it please the Court? [00:00:21] Speaker 01: Jennifer Clark, on behalf of the Special Administrator for the Estate of Justin Tau. [00:00:27] Speaker 01: I'd like to reserve three minutes of time for rebuttal and I will monitor the time. [00:00:31] Speaker 01: Thank you. [00:00:34] Speaker 01: We have detailed in our briefing the ordeal that Mr. Tau suffered at the Grady County Criminal Justice Facility on the one overnight that he was supposed to be spending there on his way to be closer to his family to serve out the remainder of his sentence. [00:00:51] Speaker 01: I would urge this court to the extent you have not had the opportunity yet to view the videos that are in the record and the transcript that starts at three, app 241. [00:01:00] Speaker 01: They detail the gratuitous tasing of Mr. Tau despite the overwhelming use of force and restraint that was already in place. [00:01:08] Speaker 01: They detail Mr. Tau's placement in cell 126, an isolated shower cell, provision of a towel despite the existence of an interior door handle. [00:01:19] Speaker 01: his repeated cries with increasing levels of distress over an hour, more than an hour and a half, asking for officers to come kill him, saying he would kill himself, and then ultimately him being discovered having hung himself with the towel provided by the county. [00:01:36] Speaker 03: The district court... Let me first clarify that with regard to the excessive force claim, you are only making it against the entity. [00:01:46] Speaker 01: That's correct. [00:01:47] Speaker 03: And it only refers to the tasing, not to any of the other force that was imposed. [00:01:55] Speaker 01: It refers to the tasing in particular, but of course, whether the tasing was excessive force must be considered in light of the overwhelming force that was [00:02:06] Speaker 01: that was already being applied against Mr. Tao at the moment that it was tased. [00:02:10] Speaker 02: As to your excessive force claim, is your claim based on a facially lawful use of force policy? [00:02:19] Speaker 01: We have two arguments. [00:02:20] Speaker 01: The first is that the policy itself, the county has admitted that its policy here was to tase an individual in these circumstances. [00:02:30] Speaker 01: which includes all of the circumstances. [00:02:31] Speaker 03: Well, I'm not sure they admitted that. [00:02:33] Speaker 03: You're talking about the admissions and the discovery? [00:02:36] Speaker 03: Yes. [00:02:37] Speaker 03: Okay, it seems to me they were admitting that if the facts are as they're saying, it was lawful. [00:02:44] Speaker 03: But the policy itself, I think, is facially lawful, isn't it? [00:02:47] Speaker 01: I think the policy just based on the words that's written on the paper would be lawful, but the county has interpreted that policy to include the circumstances that are here. [00:03:00] Speaker 01: And I think that's our initial claim, which is our view that the district court aired in requiring an additional show of culpability, an additional showing of deliberate indifference. [00:03:13] Speaker 01: But even if your honors were to determine that there has to be an additional showing of deliberate indifference here, then we would argue that the [00:03:28] Speaker 01: policy as applied here, the risk of a constitutional violation under this policy was obvious, and the county's endorsement of the officer's actions in this circumstance show the different difference. [00:03:45] Speaker 01: Is that a ratification theory? [00:03:47] Speaker 01: Did you plead that? [00:03:48] Speaker 02: Yes, I believe I can get the citation for you. [00:03:51] Speaker 02: That's okay, but you understand your own pleadings to have included a ratification theory. [00:03:57] Speaker ?: Yes. [00:03:58] Speaker 02: I wanted to ask you about your medical care claim. [00:04:03] Speaker 02: The appellee invites us to affirm the dismissal of that claim on the alternative ground that there was no constitutional violation. [00:04:10] Speaker 02: Why shouldn't we endorse that argument? [00:04:14] Speaker 01: Well, I think there's two reasons. [00:04:16] Speaker 01: First, that is not an argument that the district court reached. [00:04:20] Speaker 01: They're contrary to my friend on the other sides. [00:04:24] Speaker 01: position, we certainly can show an individual violation just because there's also an entity violation here doesn't mean you can't show an individual violation, but also there is no need to show an individual violation where you have the systemic failures that we have in this instance. [00:04:43] Speaker 01: We've detailed the multiple failings along throughout this entire [00:04:49] Speaker 01: this entire ordeal, including policies on the use of cell 126, a shower cell for out of control prisoners without putting any additional safeguards into place to require more frequent checks for them. [00:05:03] Speaker 01: But your claim is a failure to train claim, isn't it? [00:05:08] Speaker 01: I think the failure to train is one component of the claim. [00:05:10] Speaker 01: There's definitely a failure to train claim in the case. [00:05:13] Speaker 01: The failure to train is also part and parcel of the systemic violations here. [00:05:18] Speaker 02: Sorry, one second. [00:05:19] Speaker 02: So for a failure to train claim, can you rely on a systemic theory for a failure to train claim specifically? [00:05:28] Speaker 01: I think you can rely on a, there's both a failure to train and a systemic failure and I don't think you can disregard the failure to train when that is part of one of the things that has failed in the system. [00:05:38] Speaker 02: That doesn't answer my question. [00:05:40] Speaker 02: Let's talk just doctrinally for a systemic [00:05:43] Speaker 02: Sorry, for a failure to train claim, do you need to establish that an individual constitutional violation? [00:05:49] Speaker 02: In other words, you cannot rely for your constitutional violation predicate on a failure to train theory on a systemic violation, correct? [00:05:57] Speaker 01: I think if you're only relying on only a failure to train, then this court's case law says you have to have an underlying individual violation. [00:06:07] Speaker 01: If there is also a systemic failure, then I think you do not have to have that showing. [00:06:12] Speaker 01: I don't think that in either instance, I think that this court should reverse the grant of summary judgment. [00:06:21] Speaker 02: I'm not understanding how we approach your claim. [00:06:25] Speaker 02: if it's understood as a systemic claim. [00:06:28] Speaker 02: What are you alleging to be the municipal violation here if it's not a failure to train? [00:06:35] Speaker 02: Because you can't rely on systemic liability for a failure to train claim. [00:06:39] Speaker 01: I think that there is a systemic failure of multiple policies in place here that led to Mr. Tau's death. [00:06:46] Speaker 01: We've detailed those in the brief, but one of the things that's at issue here for sure is the failure to train on suicide risk. [00:06:56] Speaker 03: You can't merge them. [00:06:58] Speaker 03: If it's a failure to train claim, you have to have an individual who has committed a constitutional violation. [00:07:10] Speaker 03: Okay, so put that in one column. [00:07:12] Speaker 03: If you're making a systemic claim, then you've got to point to some custom or policy or something that the entity itself did that resulted in a constitutional violation of some kind. [00:07:29] Speaker 03: Would you agree with that? [00:07:30] Speaker 01: Yes, Your Honor. [00:07:31] Speaker 03: What's the constitutional violation that you're pointing to under your systemic claim? [00:07:39] Speaker 01: So I think it is the violation of the failure to provide adequate medical care to Mr. Tao, and it comes from the combination of multiple policies and failings, exactly the kind of systemic failure that this court has looked at, that existed throughout this ordeal. [00:07:58] Speaker 01: And we've detailed some of them, a number of them in the briefing, but it includes the [00:08:04] Speaker 01: use of cell 126 as an isolation cell. [00:08:07] Speaker 01: It includes the reliance on a stale medical evaluation form without actually doing an evaluation for suicide risk upon entry into the jail. [00:08:16] Speaker 01: It includes the individual failures of the officers in providing him a towel and leaving him in the cell without responding to him. [00:08:23] Speaker 03: What do we do with the fact that both of the officers who were on duty that night testified that they understood [00:08:34] Speaker 03: that if a person is suicidal that they should call the nurse and they understood if the person is threatening to kill themselves or saying just kill me, that that's enough that you should call the nurse. [00:08:48] Speaker 01: So I think it's only one of the officers that testified to the just kill me language, but there is the [00:09:02] Speaker 03: the failure to train in detecting suicide risk would have made a difference in this case at many points in the case prior before the... What it sounds to me like they're saying is that we understood, or at least you're saying one of them, we understood the policy was if somebody is either threatening to kill themselves or saying, I want you to kill me, that that's enough to trigger us to have to call in a nurse to have them evaluated. [00:09:31] Speaker 03: It sounds to me like they didn't comply with the policy, which would make it so that there's no entity liability here. [00:09:41] Speaker 03: Help me out here. [00:09:43] Speaker 03: How am I confused? [00:09:45] Speaker 01: So I think there is a benefit to training that was absent here, which is the training to raise this. [00:09:56] Speaker 03: They're saying, I am trained. [00:09:58] Speaker 03: I do know. [00:09:59] Speaker 03: I was supposed to call the nurse when he repeatedly said kill me and threatened to kill himself. [00:10:05] Speaker 03: But for reasons we don't know, they didn't call the nurse. [00:10:11] Speaker 03: That may be an individual delivered indifference claim, but it seems to me that it is fatal to your Monell claim. [00:10:24] Speaker 01: Two of the officers have some testimony that they did know once someone was identified as suicidal or said they were going to kill themselves that they should call the nurse. [00:10:33] Speaker 01: One of those officers, though, also testified, answered the question, no, when asked whether he was trained on detecting risk of suicide, identifying risk of suicide. [00:10:44] Speaker 01: And there were many points along the line here where training on identifying risk of suicide would have resulted in a different outcome for Mr. Tao. [00:10:53] Speaker 01: it would have also sensitized officers on taking these statements seriously, listening to them and understanding when a prisoner is calling out the number of times, you don't just ignore that, you actually take it seriously and making that difficult determination is something that training would have helped to clarify for the officers and would have resulted in a different. [00:11:15] Speaker 01: And there are also other officers who are interacting besides these two who are interacting with Mr. Tao and I would say that Grady, I would point out that Grady County here [00:11:23] Speaker 01: does not deny that they provided no training whatsoever on detecting suicide risk among the turnaround inmate population in particular. [00:11:32] Speaker 01: That inmate population is a population in which the guards do not have familiarity, they don't have a baseline against which- Your complaint didn't mention turnaround specifically, did it? [00:11:42] Speaker 02: You focused on inmates who are coming through the facility, but I don't recall seeing specific [00:11:53] Speaker 02: a specific argument or allegation with respect to the turnaround population? [00:11:57] Speaker 01: In the summary judgment briefing below, there definitely was discussion of the turnaround inmate population. [00:12:02] Speaker 01: We have expert testimony that focused on the earned amount turnaround inmate population. [00:12:07] Speaker 01: And in addition, the county does not deny or actually completely concedes that it provided no special training whatsoever on supervising cell 126 when it's being used as an isolation cell for inmates in some form of crisis. [00:12:23] Speaker 01: and in detecting suicide risk among inmates in those cells. [00:12:26] Speaker 01: And this court should reverse the grant of summary judgment to the county on those bases alone. [00:12:31] Speaker 01: As to the broader inmate population, there is genuine dispute of material fact [00:12:35] Speaker 01: whether officers were adequately trained. [00:12:37] Speaker 01: There's two snippets of testimony from two officers, but there is also evidence in the record that the only policies on which officers were trained was on what to do once someone was identified as suicidal, not on how to detect that risk. [00:12:52] Speaker 02: So if we agree with you that there's a dispute of fact on whether the officers or the county provided training on how to detect [00:13:02] Speaker 02: suicide risk, not just on what to do once someone is identified. [00:13:06] Speaker 02: What's the outcome for you? [00:13:10] Speaker 02: Do we send it back? [00:13:12] Speaker 01: Yeah, so you would reverse the grant of summary judgment that was granted to the county because the district court drew inferences in favor of the county and there's disputed issues of material fact that should go to a jury. [00:13:21] Speaker 02: How should we be interpreting the state policies? [00:13:25] Speaker 02: Are those policies focused only on [00:13:28] Speaker 02: on what you do once someone is identified, or do they focus on identifying? [00:13:33] Speaker 01: No, they are only about what to do once someone is identified, and you can read them in the record. [00:13:38] Speaker 01: If there are enough other questions, I'd like to reserve the last minute for rebuttal. [00:13:41] Speaker 01: Thank you. [00:13:42] Speaker 01: Thank you. [00:13:52] Speaker 00: Thank you, Your Honors. [00:13:53] Speaker 00: Andy Artis for the jail. [00:13:54] Speaker 00: I'd like to just remind the court that [00:13:58] Speaker 00: Municipality's culpability for the deprivation of rights is that it's most tenuous where a claim turns on a failure to train. [00:14:08] Speaker 00: The background on Mr. Tao, I think, is in the briefs, but he was being transported to be closer to his family. [00:14:15] Speaker 00: He had one year left on his sentence. [00:14:18] Speaker 00: He had been evaluated three days prior to [00:14:22] Speaker 00: being sent to the jail and found to be not suicidal or have any kind of medical conditions. [00:14:26] Speaker 02: I'm going to interrupt you if you don't mind. [00:14:28] Speaker 02: I think we're familiar with the facts, but you started your argument by focusing on the failure to train theory. [00:14:37] Speaker 02: Do you agree with the appellant that there are two distinct [00:14:41] Speaker 02: types of municipal liability claims, one predicated on a failure to train, which requires the showing of individual constitutional violation, and one that's a systemic theory? [00:14:52] Speaker 00: Well, I don't remember them pleading the systemic, but maybe they did, but I still think in a systemic, you would need to show an underlying violation. [00:15:03] Speaker 00: With regard to the suicide policy and training, the policy [00:15:07] Speaker 00: was that anyone making a threat of self-harm is required to be pulled for suicide watch and further evaluation. [00:15:15] Speaker 00: And when you're on suicide watch, the policy was you're put into a two-man cell and you're stripped of your clothes and bedding and towels and put in a suicide smock and checked every 15 minutes. [00:15:28] Speaker 00: The policy did not cause this constitutional violation. [00:15:32] Speaker 00: The jail was not on notice to a moral certainty or with deliberate indifference that this policy [00:15:37] Speaker 00: or their training on it was insufficient. [00:15:40] Speaker 02: So you refer in your briefing to the estate says there's a dispute of fact on whether the county trained its officers on how to identify inmates at risk of suicide. [00:15:53] Speaker 02: And you seem to acknowledge that there is some dispute in the evidence and you call it a semantic quibble. [00:16:00] Speaker 02: And what concerns me is that we have [00:16:04] Speaker 02: testimony that in response to a question about whether there was such training to identify inmates at risk of suicide, Officer Duncan literally answered no. [00:16:17] Speaker 02: And I'm not sure what we're supposed to do with that in finding that you prevail here. [00:16:26] Speaker 00: Well, Mr. Duncan, in volume two, page 50, also, so it is a quibble because they were asking him [00:16:34] Speaker 00: kind of a textbook kind of a thing. [00:16:36] Speaker 00: But when he got down to the weeds, he admitted, he said some of the things that he was trained on was to look for changes in appetite, changes in appearance, changes in behavior. [00:16:46] Speaker 00: He says that he got trained on signs of what to look for. [00:16:49] Speaker 00: And that was volume two, page 50. [00:16:52] Speaker 00: Volume two, page 47, he said if an inmate, and this is Duncan, said if an inmate said he was going to kill himself, he was trained to bring them to the medical for evaluation. [00:17:02] Speaker 00: He said he had done that more than five times, so he had a lot of experience doing that. [00:17:07] Speaker 00: John Farley, he said he was trained that if any kind of threat of harm to oneself or another, that needs to be dealt with. [00:17:16] Speaker 00: He said if he heard, I want to die or I just want to die, he would have them taken down to the nurse. [00:17:23] Speaker 00: Trevor Hinneman said, if Tao made a statement he was considering harming himself, he would have gone to medical. [00:17:31] Speaker 00: That is something the jail did not take lightly. [00:17:34] Speaker 00: That's what he said. [00:17:35] Speaker 00: They went straight to medical, did a medical evaluation, and put on suicide watch. [00:17:39] Speaker 02: What about training specifically as to Cell 126? [00:17:42] Speaker 02: Do you agree with the appellant's argument this morning that your client agrees that there was no specific training on Cell 126? [00:17:52] Speaker 00: No, so there is training on cell 126. [00:17:55] Speaker 00: The policy is not to put suicidal inmates in cell 126. [00:18:00] Speaker 00: Charging a guard and a nurse does not mean there is a suicidal risk. [00:18:05] Speaker 00: It means you're a violent and aggressive and an escape risk. [00:18:09] Speaker 02: You don't want to... Once an inmate is placed in cell 126 and is saying the sorts of things that Mr. Tao said, [00:18:17] Speaker 02: Is there training on what you do to remove that person, perhaps, from the cell? [00:18:21] Speaker 00: Yes, as I just mentioned, the training was when they make statements of self-harm, then you immediately remove them, you put them on suicide watch until they get an evaluation form. [00:18:31] Speaker 00: If those jailers, I mean, when you listen to the video, it's very hard to hear what's going on. [00:18:42] Speaker 00: All you can hear is arguing and a lot of [00:18:43] Speaker 03: You don't know what they're saying, but if those... But there's parts where the officer responds and says something like, nobody's going to kill you. [00:18:53] Speaker 03: So he must have heard the statements that you're going to kill him. [00:18:59] Speaker 00: Right. [00:18:59] Speaker 00: And I think in that part, it sounds to me at that point when he's talking to him, he's saying, hey, there's nothing to worry about. [00:19:06] Speaker 00: Just chill out. [00:19:08] Speaker 00: I'm paraphrasing, but just chill out. [00:19:10] Speaker 00: Don't, you know, you're gonna go, all you gotta do is be good for a little while, and he says, okay, sorry, that's what he says. [00:19:16] Speaker 00: So there's no indication of that. [00:19:17] Speaker 03: Right, but if you look at what they testified in their depositions was once somebody starts saying either I wanna die or kill me or I'm gonna kill myself, they were supposed to call the nurse. [00:19:32] Speaker 00: Well, if they, if they, if, you know. [00:19:34] Speaker 03: Would you agree that's what they said? [00:19:36] Speaker 00: No, I don't, I mean. [00:19:37] Speaker 03: In their, I've got it right. [00:19:39] Speaker 03: on my screen. [00:19:41] Speaker 00: The transcript, right? [00:19:42] Speaker 03: Of their depositions, yeah. [00:19:44] Speaker 00: Oh, okay, well, then I don't disagree if it's in their transcript, but I guess what I'm trying to get at is if they heard or recognized and made the connection in their head that this guy is self-harming and then they didn't do anything about it, then that would be a violation of our policy. [00:20:04] Speaker 00: And the policy is a good policy, [00:20:07] Speaker 00: and it didn't cause the constitutional violation here and that's why the court granted our summary judgment. [00:20:14] Speaker 03: What about this argument that they weren't trained how to recognize somebody in a mental health crisis? [00:20:24] Speaker 03: How to identify it? [00:20:29] Speaker 03: Did that lead to the injury here? [00:20:31] Speaker 00: I don't think so because the training is if they make self-harm statements and all the allegations here are [00:20:37] Speaker 00: or that he was saying stuff that could be interpreted as being self-harm or something like that. [00:20:42] Speaker 00: So it's pretty clear, if you hear somebody saying, I'm gonna kill myself or I'm gonna harm myself or you harm me or anything like that, you put them in the suicide watch and the jailers testified they understood that. [00:20:56] Speaker 00: And so the training was adequate for what they needed to do. [00:21:01] Speaker 00: And plus we don't have any patterns of this being a problem in the jail. [00:21:05] Speaker 00: We don't have other suicides. [00:21:07] Speaker 00: We don't have other problems where they were misidentified or anything like that. [00:21:11] Speaker 02: So it's your position that what happened in cell 127, even though it's the same kind of cell, because it wasn't a suicide, is not relevant? [00:21:19] Speaker 00: Or what is your position on how we should think about that? [00:21:22] Speaker 00: Well, I mean, I think cell 126. [00:21:26] Speaker 03: I think 127 was the number done. [00:21:28] Speaker 00: Yeah, but the prior death was in 2015. [00:21:34] Speaker 00: It was an overdose. [00:21:36] Speaker 00: It was a 127. [00:21:37] Speaker 00: It wasn't a 126. [00:21:38] Speaker 00: It was not a suicide. [00:21:41] Speaker 00: Nobody was written up for a failure to recognize signs of suicide. [00:21:46] Speaker 00: And as we cited in our brief, one prior incident, even if it was a constitutional violation sufficiently similar to put officials on notice of a problem, does not describe a pattern of violations. [00:21:59] Speaker 00: And that's Waller. [00:22:01] Speaker 03: But in that, the incident in 127, they were written up because they weren't actually checking on the prisoner as frequently as they should have been. [00:22:10] Speaker 00: And the policy is they have, I'm sorry. [00:22:13] Speaker 03: Am I remembering that correctly? [00:22:15] Speaker 00: Right, yeah, the policy is they're supposed to check every hour. [00:22:17] Speaker 00: And in this case, they were 14 minutes over and they violated the policy on that. [00:22:21] Speaker 00: The policy is you're supposed to go 14 every hour and they went 14 over, they went over, but that is a violation of the policy. [00:22:28] Speaker 00: The policy is good, it didn't cause [00:22:30] Speaker 03: Well, and if they had acted on the statements that they heard and recognized that or I guess they say they did recognize that as evidence of suicide ideation, [00:22:47] Speaker 03: then they would have had to check on him every 15 minutes, right? [00:22:50] Speaker 00: They would have had to pull him out of 126 and put him into a two-man cell where they have video surveillance and where they check and they log every 15 minutes that he's looked at. [00:23:01] Speaker 00: Not only that, all of his clothes would have to be taken off. [00:23:04] Speaker 00: He would not have had a towel. [00:23:06] Speaker 00: He would have been put in one of those, I call them burritos, but these smocks to help prevent hanging. [00:23:12] Speaker 00: And they would have been put in a cell where you can't hang yourself. [00:23:15] Speaker 02: Here he... I don't recall what the record is exactly, maybe you can help me. [00:23:21] Speaker 02: Was he given a towel after he said, kill me? [00:23:26] Speaker 00: No, no, this is right when he was put in the floor and you ask for it because there's water on the floor because as you know, it was also used as a shower. [00:23:31] Speaker 02: So the towel was when he was put into the shower. [00:23:34] Speaker 00: Yeah, right at the very beginning. [00:23:43] Speaker 00: Other things I just want to point out to the court is [00:23:46] Speaker 00: You know, the 14 minutes over failure to adhere to administrative regulations does not equate to a constitutional violation. [00:23:54] Speaker 00: I think probably one of the cases I cite is Bain versus Iron County. [00:24:00] Speaker 00: The argument about the door handle, which we really didn't talk about, Bain talks about these are torts of negligent design, a state remedy, not a constitutional violation. [00:24:10] Speaker 00: And the complaint about no camera in the cell, also in Bain, [00:24:15] Speaker 00: the failure to have a camera in a cell does not constitute a constitutional violation. [00:24:21] Speaker 00: And again, he wouldn't have been put in here if he was suicidal or they had known he was suicidal at the beginning. [00:24:25] Speaker 00: And if the jailers failed to heard that he was saying things that were self-harm and then they made that connection and they failed to do anything about it and they were deliberately indifferent in not doing that, I mean, that would be clearly a violation for policy. [00:24:44] Speaker 00: With that, I think I'm finished. [00:25:03] Speaker 01: Yeah, just three quick points. [00:25:06] Speaker 01: On 126, [00:25:08] Speaker 01: the county has conceded that there was no training specific to cell 126, their opposition brave to 26 to 30. [00:25:14] Speaker 03: I don't understand why that's relevant if they would not have put a known suicidal inmate in 126. [00:25:27] Speaker 01: that many of the statements that Mr. Tala made were after he was placed into 126, and precisely that is why training is needed in order to determine whether to keep someone in there, whether to take the towel away once you've given it to him. [00:25:40] Speaker 01: Yes, they gave it to him at the beginning, but they left it in there with him. [00:25:43] Speaker 01: It was given to him to dry the wet shower floor. [00:25:45] Speaker 01: They could have taken it away, they didn't. [00:25:47] Speaker 01: And I would also just point out that cell 126 is actually even more egregious than cell 127, because 126 is the only cell [00:25:56] Speaker 01: that both lacks a camera and has the covered window opening. [00:26:00] Speaker 01: I would say they're focusing on the policies, but the policies don't have meaning unless there's adequate training on them. [00:26:08] Speaker 01: And here there is multiple disputes of fact on whether there was actually training on detecting the risk of suicide. [00:26:14] Speaker 01: There were multiple officers who interacted with Mr. Tao at multiple contact points throughout this long ordeal. [00:26:21] Speaker 01: At any number of points, any one of those people could have avoided this horrible tragedy, and if they'd had enough training, they would have been able to do so. [00:26:30] Speaker 01: And the one or two snippets where one or two officers said they would have referred to the nurse does not resolve disputes of practice to whether training was adequately provided to the officers at this facility. [00:26:43] Speaker 02: If we're understanding, let's say we're just focusing on the failure to train [00:26:51] Speaker 02: Cell 126, and that's the thesis for Monell liabilities, failure to train. [00:26:58] Speaker 02: So you need an individual, a constitutional violation by an individual. [00:27:03] Speaker 02: In order for you to prevail, you need to have that. [00:27:08] Speaker 02: Why is there a jury question on that, on an individual constitutional violation here, and who should we be looking at specifically? [00:27:14] Speaker 01: Well, I think that there are multiple officers who interacted with Mr. Tao over the course of the incident. [00:27:21] Speaker 01: The testimony that they didn't hear Mr. Tao or didn't understand Mr. Tao is simply not credible. [00:27:28] Speaker 01: You can look at the record, look at the transcript in the video to see that if they heard it and didn't do anything. [00:27:34] Speaker 01: I think that's circumstantial evidence of their subjective knowledge. [00:27:37] Speaker 01: So I think there are multiple officers and there's dispute of fact on whether there's an individual underlying violation here. [00:27:43] Speaker 01: The district court did not reach that issue. [00:27:46] Speaker 01: This court could reverse the summary judgment and return this to the district court to reach that issue in the first instance. [00:27:51] Speaker 01: But I also do think that there is, this is, given the way all of these different [00:27:58] Speaker 01: policies came together and all of the different officers that interacted with him over the course of this period, this does also seem to be a systemic failure of the system and there are no individual violation would be required. [00:28:12] Speaker 01: Thank you. [00:28:12] Speaker 01: Thank you. [00:28:18] Speaker 03: We'll take this matter under advisement and thank you both for your argument.