[00:00:00] Speaker 01:
All right, we'll proceed with our next case this morning.

[00:00:03] Speaker 01:
It is Willis versus Oklahoma County Detention Center, number 246247.

[00:00:13] Speaker 01:
And counsel, I think, Francine, your counsel for appellant, you may proceed.

[00:00:21] Speaker 03:
Thank you, Your Honor.

[00:00:21] Speaker 03:
May it please the court, Derek Francine, on behalf of the estate of Mitchell Willis, who

[00:00:28] Speaker 03:
died while in custody at the Oklahoma County Detention Center, a detention center that has had longstanding issues and concerns and constitutional violations against its detainees for many years prior to this event.

[00:00:45] Speaker 03:
So much in fact that the Department of Justice had to intervene and enter into a memorandum of understanding

[00:00:51] Speaker 03:
to start overseeing and exercising control over them to get them to get back on path of having a constitutional facility.

[00:01:02] Speaker 03:
In this case... You said there was an overseer?

[00:01:08] Speaker 03:
They come in, they do inspections, they evaluate issues, they identify concerns between staffing, funding, failure to provide medical.

[00:01:17] Speaker 02:
How long did that overseer remain involved?

[00:01:20] Speaker 03:
They are still involved.

[00:01:23] Speaker 03:
Okay.

[00:01:24] Speaker 03:
And in this case, plaintiff has had three separate attempts to bring back in the county

[00:01:33] Speaker 03:
to hold them accountable for their policies, procedures that were the moving force behind the death of Mitchell Willis.

[00:01:43] Speaker 03:
The first one was a amended complaint that a motion to dismiss was granted.

[00:01:49] Speaker 03:
Plaintiff had very limited facts, no discovery in order to fully flesh out all the details.

[00:01:55] Speaker 03:
and the court just found that there wasn't sufficient information to move forward finding a policy violation.

[00:02:03] Speaker 03:
Plaintiff believes that the facts ultimately bore out that the allegations claimed by plaintiff were presented to the court in subsequent filings as well.

[00:02:13] Speaker 03:
And I think this highlights why the motion to dismiss stage, if there's any evidence and allegations suggesting

[00:02:23] Speaker 03:
that there is a moving force behind the policy's procedures causing the injury of the person who has a constitutional violation.

[00:02:31] Speaker 03:
Because it's not disputed that the other two, actually, I think there was five individual defendants at one point, two of which that court allowed to move forward finding constitutional violations and denied qualified immunity, that it was based upon the training, especially in the instance of Jonathan Johnson.

[00:02:51] Speaker 03:
Which gets us to the motion to amend the complaint to try to join back in the county after limited again, limited discovery was done.

[00:03:01] Speaker 03:
The parties did not get a scheduling order until late in 2019.

[00:03:05] Speaker 03:
I believe it was November 2019 at some point.

[00:03:08] Speaker 03:
As we all know, COVID hit in March of 2020.

[00:03:12] Speaker 03:
At that time, the plaintiff had issued written discovery, issued requests for admissions, and even requested depositions that were not scheduled yet when everything was shut down.

[00:03:23] Speaker 03:
In order to preserve any concern over Oklahoma's saving statute in amending the petition to bring back in the county on a motion to, after a dismissal without prejudice, plaintiff filed its motion to amend based upon evidence

[00:03:40] Speaker 03:
and admissions of Jonathan Johnson and other information obtained during that time period.

[00:03:47] Speaker 03:
That included Jonathan Johnson himself admitting in a request for admission that his maneuver performed on Mr. Willis that caused the injury was based upon his training received at the Oklahoma County Detention Center.

[00:04:02] Speaker 03:
This was not a maneuver that he came up with on his own.

[00:04:06] Speaker 03:
This was not a maneuver that he performed based upon some outside training or just some rash decision.

[00:04:15] Speaker 03:
He was following his instructions and performed a maneuver, which is called a three-point maneuver, and it's where you place your foot

[00:04:25] Speaker 03:
wedged within the neck of the person that you're supposed to be using it when they're combative.

[00:04:33] Speaker 03:
The testimony ultimately bore out from the training officer, Officer Slayton, that he gave them full discretion to use it at any time that they wanted to.

[00:04:42] Speaker 03:
They were not prohibited under Oklahoma County Detention Center training rules to perform it on non-compative detainees.

[00:04:50] Speaker 03:
And so this maneuver was put in place.

[00:04:54] Speaker 03:
puts his foot in there, he's trained, and if he wants to hold the person down further, he shifts his weight from his toes to his knee, which is critical because Officer Slayton also instructs them to place the knee diagonally over the spine, which is the critical fact that is contradicted by the appropriate training techniques of this maneuver by Major Heron and Jason Ruge and

[00:05:22] Speaker 03:
I am plaintiff's own expert in this that you should never cross over the spine because of the concern and risks that are known to cause injury to the spine.

[00:05:31] Speaker 02:
You made it sound like part of the training process was put your knee across and over the back.

[00:05:39] Speaker 02:
I'm a little confused about that.

[00:05:41] Speaker 02:
I mean,

[00:05:44] Speaker 02:
Where we're in training manuals or processes or proceedings Is that is it said this is the way we teach?

[00:05:52] Speaker 03:
Uh this three-point maneuver Well, there's two places you can look one is an affidavit of jason rugi That is in the record and uh, he he ultimately contradicted his own affidavit from another case I believe that's at appendix volume two page 566 He shows himself

[00:06:13] Speaker 02:
In this position wherein you can clearly see his knee is directly over the back the second week That affidavit was not a training That was an after the fact statement demonstration of how he thought it should be done So but your your statement to the panel was that they were trained to do it the way it in fact was done and my question is Where is the evidence of that that they were?

[00:06:38] Speaker 02:
affirmatively trained with in with a

[00:06:42] Speaker 03:
evidence not historical or after the fact, but... Well, Officer Slayton, the training officer, confirmed in testimony that he trains officers to put the knee diagonally over the spine.

[00:06:57] Speaker 03:
Appendix volume three, page 56.

[00:07:02] Speaker 03:
And Jonathan Johnson affirmed that he was trained to put it at the 45 degree angle over the spine.

[00:07:07] Speaker 03:
Now it's Herron and Ruge that say, wait a minute, that's not how it should have been trained.

[00:07:13] Speaker 03:
They weren't the training officers.

[00:07:15] Speaker 03:
They were supervisors to Slayton and never correct to Slayton in training in this fashion.

[00:07:20] Speaker 03:
And they said the appropriate way to train it is you put your knee parallel to the spine.

[00:07:26] Speaker 03:
One of them even described the spine as an equator and you say on your side of the equator and that is the critical

[00:07:34] Speaker 03:
moving force behind this.

[00:07:36] Speaker 03:
If Jonathan Johnson is never trained and isn't purely just following his training, thinking he's doing what his instructors and his training instructor told him to do, he is never going to put Mr. Willis at risk for this spine injury during this positional restraint.

[00:07:52] Speaker 03:
When Mr. Willis, it is undisputed that Mr. Willis was noncombatant during this time period.

[00:07:58] Speaker 03:
There was zero reason.

[00:08:00] Speaker 02:
The point I just wanted to make was the evidence of their training

[00:08:03] Speaker 02:
that you're relying on is testimony and demonstrations after the accident.

[00:08:10] Speaker 02:
I'm asking, what I thought I was asking was, is there training material or demonstrations or videos before the accident that supports this is the way you're being trained, that is before this accident happened?

[00:08:26] Speaker 03:
There are no videos or

[00:08:29] Speaker 03:
instruction manuals that they provide any of their training, any of their officers on how to perform this maneuver.

[00:08:38] Speaker 03:
So he must rely on Officer Slayton's testimony and how he affirmatively trained Mr. Johnson prior to this event.

[00:08:47] Speaker 03:
This training was done prior to this event.

[00:08:49] Speaker 03:
He testified.

[00:08:51] Speaker 03:
So I think all of that would be just another fact, another piece of evidence that supports the statement.

[00:08:57] Speaker 03:
I think we can't discount the statement.

[00:08:58] Speaker 03:
of a training officer.

[00:08:59] Speaker 02:
I understand that.

[00:09:01] Speaker 02:
And I understand that.

[00:09:04] Speaker 02:
OK, that answers my question.

[00:09:06] Speaker 02:
Thank you.

[00:09:07] Speaker 02:
And I think that's OK.

[00:09:10] Speaker 01:
So could I just jump in and ask for some procedural context here?

[00:09:18] Speaker 01:
It seems that the evidence you're pointing to and the arguments you're making now go to your second issue, which has to do with

[00:09:28] Speaker 01:
the denial of leave to file the amended complaint.

[00:09:31] Speaker 01:
Is that correct?

[00:09:32] Speaker 01:
Is that what we're talking about?

[00:09:35] Speaker 03:
Correct.

[00:09:35] Speaker 03:
It's both information raised and presented, the denial to leave and information raised and presented at the motion to reconsider stage is that the court abused their discretion.

[00:09:44] Speaker 01:
All right.

[00:09:45] Speaker 01:
So you haven't made, you're not arguing that the original decision to dismiss the amended complaint

[00:09:54] Speaker 01:
At least I haven't heard any arguments this morning that we should reverse on that decision.

[00:10:03] Speaker 03:
We did make arguments on that.

[00:10:04] Speaker 03:
And I think there are bases in the amended complaint that show that statements were made that support the subsequently found information.

[00:10:12] Speaker 03:
The only one real tweak to the information found was that we thought it was a knee strike due to the severity of the injury caused to Mr. Willis.

[00:10:21] Speaker 03:
We assume that this had to have been some sort of

[00:10:23] Speaker 03:
big strike.

[00:10:24] Speaker 01:
Well, I guess, I mean, this may be getting a little more technical in terms of procedure, but if we disagree with your argument on the second issue, the futility issue on the motion for leave to amend, if we disagree with you on that, doesn't your first issue fail as well?

[00:10:52] Speaker 03:
I think that the concern would be is we never had the opportunity to do full discovery on this county, which is why the motion.

[00:11:00] Speaker 01:
So, let me just put it this way.

[00:11:03] Speaker 01:
You're saying that the discovery process revealed information that was not available to you in drafting the, I guess the.

[00:11:15] Speaker 01:
the amended complaint.

[00:11:17] Speaker 01:
And so you're coming back to the district court and saying, oh, look, we just took discovery and now we're enhancing our complaint.

[00:11:27] Speaker 01:
We can make it better.

[00:11:28] Speaker 01:
We want you to let us file a second amended complaint.

[00:11:32] Speaker 01:
And my question to you is, doesn't this appeal hinge

[00:11:37] Speaker 01:
on that issue, not the first one.

[00:11:40] Speaker 01:
Because if we rule against you on the motion to amend leading to a second amended complaint, how can you succeed on your first issue?

[00:11:53] Speaker 03:
I will concede.

[00:11:54] Speaker 03:
If you believe that the information provided is futile, that would end the argument.

[00:12:00] Speaker 03:
But I would want to point to the recent decisions beyond what plaintiff presented, the Weigel v. Broad and Booker cases,

[00:12:08] Speaker 03:
The more recent ones, Kruger and Lynch that were determined, or Kruger and Teets that were determined that showed this type of positional restraint, the prone positional restraint on a noncombatant person is a constitutional violation.

[00:12:23] Speaker 03:
And on top of that constitutional violation that has been confirmed and said long standing by this court is the moving force of the dangerous

[00:12:32] Speaker 03:
knee position over the spine that the district court determined was not futile as it pertained to Jonathan Johnson.

[00:12:40] Speaker 03:
And if a defendant officer is purely following his training, how can that not be the moving force behind the ultimate injury if that action is deemed to be unconstitutional?

[00:12:53] Speaker 03:
And I would like to reserve the remaining time for rebuttal.

[00:12:58] Speaker 01:
Thank you, counsel.

[00:13:00] Speaker 01:
Mr. Hendrickson.

[00:13:02] Speaker 00:
May it please the court.

[00:13:05] Speaker 00:
My name is Jeffrey Hendrickson, counsel for the appellee, the Board of County Commissioners for Oklahoma County.

[00:13:11] Speaker 00:
Your honors, the district court properly dismissed plaintiff's amended complaint.

[00:13:15] Speaker 00:
And it'll be clear, there was an original complaint that was filed.

[00:13:18] Speaker 00:
And then prior to, I can't recall if it was served or not, but prior to any action by the defendant, there was an amended complaint that was filed.

[00:13:26] Speaker 00:
So the offer of pleading at

[00:13:28] Speaker 00:
for the first instance in the court's review in the 2019 order was actually an amended complaint.

[00:13:34] Speaker 00:
The district court's decision to dismiss the amended complaint as failing to state a Monell claim, a claim of municipal liability, against Oklahoma County was correct.

[00:13:44] Speaker 00:
Beyond that, the district court's decision to deny the plaintiff's motion to amend

[00:13:50] Speaker 00:
which was filed after the deadline to do so, was also correct.

[00:13:54] Speaker 00:
And lastly, the district court's decision to deny the estate, the plaintiff's request for the district court to reconsider its order denying the motion to amend was also correct.

[00:14:06] Speaker 01:
Council, do you agree with the district court that the first amended complaint plausibly alleged a municipal policy or custom?

[00:14:16] Speaker 00:
Your honor, we're not contesting the finding from the district court in that

[00:14:20] Speaker 00:
However, the district court's finding in that regard was sort of narrowed down to the sheriff of the Oklahoma County Sheriff's Department was the policymaker for the jail.

[00:14:32] Speaker 00:
And that was the basis for the district court's conclusion that there was a municipal policy at issue.

[00:14:37] Speaker 00:
And so the briefing in this appeal hasn't really had anything to do with whether the municipal policy was established.

[00:14:44] Speaker 00:
But for the purposes of the argument today and for the briefs, we're not contesting the district court's finding.

[00:14:49] Speaker 00:
a policy was established.

[00:14:52] Speaker 00:
The district court, whether or not was right about that, was plainly correct as to its conclusion that the estate had failed to plead any allegations, which would have suggested that the county had any notice of problems with training, had any reason to believe that there was an issue that would lead to potentially a constitutional violation.

[00:15:13] Speaker 00:
And so as such, at the very least, there was no

[00:15:16] Speaker 00:
causal relationship.

[00:15:17] Speaker 00:
There was no moving force and there certainly was no deliberate indifference.

[00:15:21] Speaker 01:
So, uh, whether or not, uh, you can't, you can't control the power going out, right?

[00:15:27] Speaker 00:
Some sort of power surge.

[00:15:29] Speaker 00:
All right.

[00:15:29] Speaker 00:
Imagine my surprise.

[00:15:31] Speaker 00:
So, okay.

[00:15:32] Speaker 01:
I don't know if you remember where you were.

[00:15:34] Speaker 01:
You were sort of in a mid sentence and will be a little flexible on the timing, uh, uh, on, on this to make sure you get a chance to present your argument.

[00:15:44] Speaker 01:
But, uh,

[00:15:46] Speaker 01:
You can pick up where you left off.

[00:15:48] Speaker 01:
Let's proceed.

[00:15:49] Speaker 00:
Thank you, Judge Matheson.

[00:15:50] Speaker 00:
And I appreciate that.

[00:15:51] Speaker 00:
And again, my apologies to the court and to my colleague on the other side.

[00:15:56] Speaker 02:
Excuse me.

[00:15:57] Speaker 02:
Oh, there we go.

[00:15:58] Speaker 02:
OK.

[00:15:58] Speaker 02:
I didn't see the timer going down, but it is now.

[00:16:02] Speaker 00:
Very good.

[00:16:03] Speaker 00:
As I was discussing, I don't necessarily think the district court was correct that a municipal policy was found, but I don't think it is outcome determinative.

[00:16:12] Speaker 00:
because I think whether or not the finding of delivered indifference points to the existence of a policy, which I think that is actually what the law is versus whether the finding of delivered indifference points to the existence of a cause is kind of immaterial.

[00:16:30] Speaker 00:
The argument where the district court was correct was that the original amended complaint did not contain any allegations which would have

[00:16:38] Speaker 00:
established delivered indifference, which is a requirement under cases like Connick v. Thompson, which discuss what must be shown in the event the allegation is that the municipal policy was one of failing to train or failing to supervise.

[00:16:56] Speaker 00:
And I don't think there's any disagreement that the policy at issue would be the allegation of a failure to train.

[00:17:06] Speaker 00:
Your honors, that's why it's kind of important to start off exactly with what this case is about.

[00:17:12] Speaker 00:
It has several procedural components to it.

[00:17:15] Speaker 00:
It has standards involved at the rule 12b6 motion to dismiss stage.

[00:17:20] Speaker 00:
It has standards involved at the

[00:17:22] Speaker 00:
motion to amend stage under rule 15 and then the interpretations of rule 15 including that including that amendment should not be allowed if doing so would be futile which itself incorporates the rule 12b6 standard all over again and then it involves standards at the motion to reconsider stage where the district court has the ability to rule and it only can be overruled if it's found that the ruling from the district court was

[00:17:48] Speaker 00:
arbitrary, whimsical, or, you know, capricious or in some manner in that regard.

[00:17:53] Speaker 00:
So there are multiple procedural components to this case and different standards to be asserted.

[00:17:58] Speaker 00:
But the key, the central key of this case, and what I didn't hear any words on this from my colleague on the other side, and I think I understand why, is because it has everything to do with municipal liability.

[00:18:11] Speaker 00:
In fact, I think I heard Mr. Francine tell this court that how could it not be the moving force if it's the case that

[00:18:18] Speaker 00:
Mr. Officer Jonathan Johnson had said or was found that his action cause was an unconstitutional violation, unconstitutional use of excessive force.

[00:18:31] Speaker 01:
Well, Mr. Hendrickson, one of the procedural components that makes this case a little different from the usual 12b6 motion to dismiss is that

[00:18:47] Speaker 01:
there's discussion in the briefing about the discovery, what came out through discovery after dismissal of the first amended complaint.

[00:19:03] Speaker 01:
And there's sort of a summary judgment feel to that because we're looking at the complaint, but there's also arguments based on what

[00:19:14] Speaker 01:
is in the discovery record.

[00:19:16] Speaker 01:
And so I guess the question I have is if we're still talking about 12b6 and amendment and futility, should the district court and should this court be looking strictly at what was alleged in the amended complaint or the proposed second amended complaint

[00:19:43] Speaker 01:
should we even be looking at the discovery record?

[00:19:48] Speaker 01:
Why wouldn't that convert this into more of a summary judgment discussion?

[00:19:52] Speaker 00:
Your honor, I think this court can rule for the appellee of Oklahoma County, even if it takes a look at the proposed second amended complaint and just reads the allegations on its face.

[00:20:05] Speaker 00:
I think the court absolutely can do that.

[00:20:07] Speaker 00:
And I frankly believe that is what the district court did as well.

[00:20:10] Speaker 00:
in its order denying the motion to amend, was it assessed specifically the allegations that were made by, or the proposed allegations that were to be made by the state?

[00:20:20] Speaker 01:
Well, okay, but in the proposed second amended complaint, here's one of the allegations.

[00:20:24] Speaker 01:
I wonder what you would say about this or what we should say about it.

[00:20:30] Speaker 01:
There's an allegation that defendant Johnson admitted

[00:20:33] Speaker 01:
that any use of force on Mr. Willis was based on training received by the OCDC, including placement of his knee on Mitchell Willis' spine.

[00:20:44] Speaker 01:
Why doesn't that plausibly allege a policy causing injury?

[00:20:51] Speaker 00:
Judge Matson, that's an absolutely fair question.

[00:20:53] Speaker 00:
And the reason for that would be because of the holdings from the Supreme Court that discuss, and I believe Pembauer v. Cincinnati is one, Perotnik v. the City of St.

[00:21:02] Speaker 00:
Louis is another,

[00:21:03] Speaker 00:
that discuss how individual officers' statements about what their training was or what their training was not, you know, by themselves do not serve as the basis for any sort of municipal policy.

[00:21:14] Speaker 00:
So, Officer Johnson could say, well, this was based on my training, but that doesn't make it his training.

[00:21:21] Speaker 00:
And even if you assume that to be true, it still does not relieve the estate of the obligation to establish

[00:21:27] Speaker 00:
a municipal liability claim and that leaves open the door for the additional requirement that they must show which is okay that was based on the training did the county have any idea that a constitutional violation was going to occur because of the way that it was training its employees did the county have any idea that a constitutional violation was likely to occur based on the way it was training its employees did the county have any reason at all to believe

[00:21:54] Speaker 00:
that the way it's training, it was training its employees could result in a constitutional violation.

[00:21:59] Speaker 00:
And so even if you look at the proposed second amended complaint, and even if you say, we won't look at any of the actual discovery material that was submitted to be ruled upon, the outcome would be the same.

[00:22:11] Speaker 00:
Because as Judge De Juicy and as the district court found, even if you credit those as accurate,

[00:22:17] Speaker 00:
you still have to bridge this gap, and the estate did not do so.

[00:22:21] Speaker 00:
The only effort the estate made to do that was to cite two items.

[00:22:25] Speaker 00:
One was a 2008 Department of Justice report, which was issued nine years prior to the alleged facts in this case, which happened in August of 2017.

[00:22:37] Speaker 02:
But was there continued supervision of the sheriff's office after that?

[00:22:44] Speaker 00:
Your honor, at the time in 2017 when the allegations occurred, I certainly am not aware that there was continued supervision.

[00:22:53] Speaker 00:
But even if there was continued supervision at the time, Judge Ebel, the fact of the matter is there's nothing that's been put in the record in this case that would have to do with continued supervision for the types of facts that are at issue in this case.

[00:23:06] Speaker 02:
And that was frankly- And we're really dealing with pleading.

[00:23:09] Speaker 02:
I mean, your point is, I think your point is that this is

[00:23:13] Speaker 02:
A pleading analysis rather than a factual analysis.

[00:23:16] Speaker 02:
Is that right or did I just get that inversed for you?

[00:23:19] Speaker 00:
I think that is certainly a way that this court could go and it's back to judge matheson's question as to What do we do with this discovery material?

[00:23:27] Speaker 00:
You know, I think that in moving to amend the court is certainly allowed to consider

[00:23:32] Speaker 00:
any of the items that are put before it, when it determines whether or not the allegations are sufficient, in the same way that the court would be permitted to consider any discovery material that was attached to the amended complaint to begin with, which in this case actually was the Department of Justice report.

[00:23:48] Speaker 00:
It was submitted as an exhibit.

[00:23:50] Speaker 00:
So my position would be, Judge Ducey, the district court was certainly allowed to consider the discovery material that the estate put to the court when it moved to amend,

[00:24:01] Speaker 00:
to amend its amended complaint, but even if the court considers only the facial allegations.

[00:24:07] Speaker 01:
Well, I'm just, I'm interested in that point though.

[00:24:10] Speaker 01:
Why was the district judge permitted to consider this material that is outside the four corners of the complaint?

[00:24:22] Speaker 01:
Why is that permissible in a 12b6 type context?

[00:24:30] Speaker 00:
Well, Judge Matheson, my recollection is that, and I believe the record shows that that material was submitted as an effort to move to add, basically.

[00:24:41] Speaker 00:
It was a request for admission from Officer Jonathan Johnson, where he said, yes, I admit everything that happened was based on my training.

[00:24:48] Speaker 00:
And then it was also some emails.

[00:24:51] Speaker 00:
And as far as I understand it,

[00:24:53] Speaker 00:
that that was considered because it was submitted to the court.

[00:24:57] Speaker 00:
But even if the court erred in considering those materials, looking directly just at the text of the proposed second amended complaint itself and finding that it was futile was an appropriate decision for the court to make.

[00:25:10] Speaker 00:
And that goes back to my point with respect to bridging the gap between an unconstitutional event occurring and establishing municipal liability.

[00:25:19] Speaker 00:
And so I believe that the district court was correct

[00:25:21] Speaker 00:
in its assessment that, you know, even if it considered the truth and adjudged those allegations to be true for the purpose of the motion to dismiss, what was not shown and what Mr. Francine has spent no time on is

[00:25:33] Speaker 00:
bridging the gap.

[00:25:34] Speaker 00:
And what is bridging that gap?

[00:25:35] Speaker 00:
It's the causal connection between the underlying event and the municipal state of mind.

[00:25:42] Speaker 00:
And in this case, there is nothing that has been submitted at any point that would show that causal connection, that deliberate indifference, that municipal state of mind.

[00:25:52] Speaker 00:
It wasn't pled

[00:25:53] Speaker 00:
the original amended complaint, it wasn't contained within the proposed second amended complaint, and none of the materials that were submitted to the district court, for example, on the motion to reconsider, would have established that that additional prong, the causal prong, the delivered indifference, existed in this case.

[00:26:11] Speaker 01:
Those are two prongs, aren't they?

[00:26:14] Speaker 01:
I mean, there's causation, but you also have to show

[00:26:19] Speaker 01:
delivered indifference, right?

[00:26:21] Speaker 00:
And that's correct.

[00:26:23] Speaker 01:
What would the complaint need to allege to show a deliberate indifference on the training, on their training theory?

[00:26:33] Speaker 00:
Certainly.

[00:26:33] Speaker 00:
So you can establish on the training theory by allegations of similar conduct in close in time

[00:26:42] Speaker 00:
where an officer has taken an action that was similar or close to similar, that would have been in the same time period where the type of training involved would have been similar and you could allege, hey, here's what happened in 2015 and 2016, for example, and you had these incidents, all of which stem from a use of force.

[00:27:00] Speaker 00:
And I would add, in fact, that that exact scenario was presented by the Layton v. Board of County Commissioners case.

[00:27:07] Speaker 00:
That case is a 2013 appendix opinion from this court that

[00:27:12] Speaker 00:
Discuss the denial of medical care to an inmate who was known to have medical conditions and need medication for those and the allegations in that case were that the medication wasn't provided despite the knowledge from the officers that it was needed.

[00:27:27] Speaker 00:
And the way that municipal liability was established in that case was by referring to the 2008 Department of Justice report, which factually occurred only a year before the allegations in the latent case, and elicited basically specific facts that the Department of Justice found that were not happening at the jail, many of which had to do with the passing of medication, the paying attention to inmates and knowing of their medical conditions.

[00:27:52] Speaker 00:
And so not only because of the DOJ report in 2008, but because of the Sheriff's Department's own investigations two years prior to Layton, an additional outside agency investigation just prior to Layton, the TIT Circuit in that case found that there was a pattern of conduct shortly beforehand that would have given rise or given the basis for a failure to train claim.

[00:28:14] Speaker 00:
unlike this case, which the DOJ report happened seven years or nine years before.

[00:28:20] Speaker 00:
Layton happened at least five years before and had nothing to do with what the allegations in this case were.

[00:28:26] Speaker 00:
So, Your Honors, I see I'm running out of time.

[00:28:28] Speaker 00:
We would urge this court to affirm the rulings of the district court in this matter.

[00:28:33] Speaker 00:
And I'll take any questions if needed.

[00:28:35] Speaker 00:
Otherwise, thank you.

[00:28:35] Speaker 01:
Thank you, counsel.

[00:28:39] Speaker 01:
We have some time for rebuttal.

[00:28:43] Speaker 03:
Yes, thank you.

[00:28:44] Speaker 03:
I'd like to just start with the why does a report of if they're continuing under DOJ.

[00:28:51] Speaker 03:
supervision, which they were at this time.

[00:28:55] Speaker 03:
Why is a report that also talked about the prevalence use of force by the staff as being a constitutional issue by DOJ not be relevant?

[00:29:04] Speaker 03:
Just because a report was written nine years ago doesn't mean that they're not still having it.

[00:29:09] Speaker 02:
I mean, we are dealing, I mean, I'm confused because we're really dealing with pleadings here.

[00:29:14] Speaker 02:
That's what Judge Matheson pointed out.

[00:29:16] Speaker 02:
Was there anything in a pleading that they are under continued observation right now?

[00:29:24] Speaker 02:
I don't know.

[00:29:25] Speaker 02:
I think it was inferred.

[00:29:26] Speaker 02:
The question was whether it was correct to dismiss the case in a pleading environment.

[00:29:38] Speaker 02:
Was it ever pled that they are under continuing examination now because of their

[00:29:46] Speaker 02:
the fear, I guess, of current policy, which is reflected by past defense.

[00:29:54] Speaker 03:
I'd have to look closely at the amended complaint to see whether that was pled, but it's my belief that it was.

[00:30:02] Speaker 03:
But regardless of whether that's the hinging point, the notice on a municipal's constitutional violation also hinges on them updating their training based upon rulings by this court and the Supreme Court.

[00:30:16] Speaker 03:
In 2014, in the Booker case, the courts declared that putting weight on a detainee's back who is noncombatant is a constitutional violation, and that was agreed to by Roogie and Herron.

[00:30:31] Speaker 03:
Unfortunately, the county continued to allow Austin-Slaton, one of their head trainers on uses of force, to continue to train Jonathan Johnson and others in this manner.

[00:30:43] Speaker 03:
It doesn't matter that Jonathan Johnson

[00:30:45] Speaker 03:
at this stage was the only person to cause the injury.

[00:30:48] Speaker 03:
The notice is knowing that you're training someone in an unconstitutional matter which over the spine is unconstitutional, dangerous and it occurred in this case and severed the spine of Mr. Willis.

[00:31:03] Speaker 02:
Well, aren't you also making a claim

[00:31:05] Speaker 02:
One claim is that that process, that three-point process was unconstitutional.

[00:31:11] Speaker 02:
But the second argument I thought was that their observation of the person in the cell was inadequate.

[00:31:18] Speaker 02:
Is that a, am I correct or incorrect that that's being alleged as a separate claim?

[00:31:23] Speaker 03:
That's incorrect.

[00:31:24] Speaker 03:
What we were doing is using the officers, I believe it was Cornelius, his observations confirming that Johnson placed his knee and weight

[00:31:33] Speaker 03:
on Mr. Johnson's spine, confirming the facts that that was the mechanism of injury at the same spot.

[00:31:40] Speaker 03:
Failure to intervene.

[00:31:41] Speaker 02:
So, no, I'm not talking about failure to intervene.

[00:31:44] Speaker 02:
Are you or are you not claiming that the observation of the defendant, I mean, the decedent was inadequate, their monitoring of him in the prison was inadequate?

[00:31:57] Speaker 03:
That was, and we don't have a policy and procedure claim on that portion of it.

[00:32:03] Speaker 03:
That was an official office.

[00:32:05] Speaker 03:
Yes.

[00:32:06] Speaker 03:
Okay.

[00:32:06] Speaker 03:
Thank you.

[00:32:10] Speaker 03:
I believe I'm out of time.

[00:32:11] Speaker 03:
Thank you, Your Honors.

[00:32:12] Speaker 01:
Thank you, counsel.

[00:32:13] Speaker 01:
If there are no further questions, we'll consider the case submitted.

[00:32:19] Speaker 01:
Appreciate your arguments this morning, and counsel are excused.

[00:32:23] Speaker 01:
Thank you.

[00:32:24] Speaker 01:
Thank you.