[00:00:00] Speaker 01:
Case number 21-7206, Gregory Smith, appellant versus District of Columbia et al.

[00:00:06] Speaker 01:
Mr. Klaproth for the appellant, Mr. Fatah for the appellees.

[00:00:13] Speaker 00:
Good morning, council.

[00:00:15] Speaker 00:
Mr. Klaproth, you can proceed when you're ready.

[00:00:18] Speaker 03:
Good morning.

[00:00:19] Speaker 03:
May it please the court.

[00:00:20] Speaker 03:
My name is Brendan Klaproth.

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I represent the plaintiff appellant, Gregory Smith.

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This is a civil rights case brought by Mr. Smith under Section 1983 in connection with an unlawful over detention by the District of Columbia.

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On March 18th, 2014, a judge in the DC Superior Court ordered that Mr. Smith be released from custody of the Department of Corrections.

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Rather than release Mr. Smith from custody as ordered, the Department of Corrections detained Mr. Smith for 23 days.

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The cause of Mr. Smith's over detention was a computerized system used by the Department of Corrections called my justice.

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And the problem with my justice is that it had a one to two day delay in the system.

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Let me ask you, Mr. Claphart, are you not relying on

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the failure of the order that was accompanying the Marshall and Mr. Smith to be uploaded into TMS.

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Is that not part of your case?

[00:01:35] Speaker 03:
So it's not.

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And the reason why is to go back a little bit.

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During the course of discovery in this case,

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we requested TMS data for that order, which was not produced.

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And this really resulted in a sanction to the District of Columbia.

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So we never received the data regarding the TMS.

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One other point about the TMS system is that the rule... I'm sorry, but you do know that the order, I know there was a failure to produce it and there was

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wrongheaded briefing on the summary judgment on the premise that the order didn't exist and then the district ultimately found the order but ultimately, as I gathered that order was logged into the system at 930pm.

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So you're not relying on that delay or the fact that, you know, so if Mr. Jones was checking the system at whatever it was 6 p.m.

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and that order didn't show up until 9.30 p.m., that's not part of your case at this point.

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You're focusing on the my justice gap.

[00:02:42] Speaker 03:
That's correct because when Mr. So just as a point of clarity, as far as we know, it could be an error from discovery that

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That information relating to that order was never uploaded at all into the TMS system.

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But what's at issue here is the fact that Mr. Jones processed the one order at approximately six o'clock, as your honor indicated.

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And as part of processing that, he was required then to check the My Justice system to see if there was any other detainers or orders that have been released in related cases.

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And the problem is that there was a one to two day delay in the My Justice system.

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So Jack Jones testified at trial and also in deposition.

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I thought that the inherent delay was an hour.

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One hour delay.

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And then there have been instances where there's been a delay of two days.

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That's correct.

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So in exhibit P6, which was the policy statement for the Department of Corrections regarding releases, it indicates that there is a one to two day delay.

[00:03:49] Speaker 04:
Uh, and one of the witnesses did say that it was frequently in our, uh, or the court didn't credit that apparently because the finding I believe is that it was ordinarily there's inherently a one hour delay.

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And of course you have these instances in the past where not 23 days, but two days have passed.

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Yes.

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And so the district of Columbia knew that though, and they memorialize that in their policy statement and document.

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And unfortunately, in this case, when Mr. Jones checked the release, which was issued earlier that day around 130 or 124, actually, I think.

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And then when he went to process to release at six o'clock, he testified that the order was not in the system.

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That if the order had been in the system, he would have seen it, but he didn't have any actual recollection of that day and that order.

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So he did testify that quite explicitly during trial that when he looked at the system, it was not in the order.

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The order was not in the system.

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And so that's the evidence we have.

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And had the order been in the system, and he even testified that, he checks the very closely because it's important.

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Had the order been in the system, he would have processed the release.

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Mr. Smith would have gone home.

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And so that is the causation of Mr. Smith's over detention.

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And the issue we had, you know, here the court found that there was a constitutional violation.

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The court found that we plan to prove the existence of a custom.

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The court found, however, that plaintiff failed to prove that my justice system was the cause of his over detention.

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And the issue,

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The court misapplied the law when it came to causation.

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Specifically, the court erred by requiring that plaintiff prove a pattern of prior constitutional violations caused by the MyJustice system.

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And this is just not required.

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Essentially, that is the test for deliberate indifference under Baker's fourth prong.

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not the third problem where we were proceeding at trial.

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It's, I agree that the district judges holding is a little bit confusing on this point, but she does clearly state the standard and I think correctly state the standard around.

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J.A.

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543 to 544.

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She says, did the plaintiff also need to show deliberate indifference under prong three?

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All you have to prove is the policy is the cause.

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Official knowledge of existence of the practice, not knowledge of the results.

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In other words, not knowledge that there were a lot of similar overdetentions in the past and deliberate indifference to that pattern.

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So she seems to

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to get that right.

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And then she says deliberate indifference is about the failure to train prong.

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So it is a little confusing why she then later focuses on the lack of a pattern.

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But do you agree that at least at that stage she's correctly stating the distinction between the need for deliberate indifference on an omission case under Baker prong four, but that it isn't needed on a custom or practice claim under prong three?

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So yes, that's what's interesting about this case because the District of Columbia was arguing throughout trial and even here on appeal that under the third prong, you have to prove deliberate indifference, right?

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And so the District Court did clarify, it was clear in correctance articulation of the law saying we did not need to prove deliberate indifference.

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However, in practice, in the application of the actual law to the facts of this case, the District Court did on JA552,

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And again, on JA564, go through and fault the plaintiff for not proving a pattern of prior constitutional overdetentions.

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And that's where the district court's decision ultimately came down.

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But she makes a lot of, she makes a sort of a series of alternative holdings.

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And at the end of the day, why isn't plaintiffs exhibit 14 fatal to your case?

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Exhibit 14 being the over detention reports, I believe?

[00:08:20] Speaker 00:
No.

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Exhibit 14 is the My Justice printout.

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And as the district judge points out, both orders appear there.

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And I think at a trial, she said it wasn't clear

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when that order was added to my justice.

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But then later in her ultimate conclusions of law, in an alternative holding, she seems to say that because both orders, the order from the 2012 case and the order from the 2014 case, both show up there with time stamps.

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And I'm looking, I think, at 559,

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of the J.A., that that is fatal to the case.

[00:09:18] Speaker 03:
And I see the amount of time, but if I can answer, Your Honors.

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Certainly, if you can continue our practices that we'll use whatever time we need to ask questions and to give you a chance to answer them.

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Thank you, Your Honor.

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And so with respect to, I think the best analogy to use for MyJustice and court view dichotomy is it's almost like PACER and PACER monitor.

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All right, so we have court view, which is PACER and it's uploading information immediately.

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And then you have this secondary system which pulls the data later in the day.

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And so obviously when we printed out, we received in discovery during the course of litigation, the complete record for MyJustice

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It contains the release order and reflects that it was received at approximately 124 by the Department of Corrections.

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However, Jack Jones testified, we showed him that excerpt at trial, showed him that precise excerpt and said, was this information in the system when you looked at it?

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And he testified unequivocally, no, it was not.

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And so- What page is that, Mr. Klapper?

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For Jack Jones' testimony?

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So that would be GA 405 through 407 and 413.

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405 to 07.

[00:10:45] Speaker 04:
Where's the specific passage that you're describing?

[00:10:50] Speaker 03:
So line 13 of 405.

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Okay, now when you looked at my justice for Mr. Smith on March 18, 2014, did you see that he had been ordered released?

[00:11:03] Speaker 04:
No.

[00:11:04] Speaker 04:
If we could, could you turn the exhibit 14, please?

[00:11:07] Speaker 04:
Okay, the court.

[00:11:08] Speaker 04:
And how do you know now that you didn't see it then?

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That's the court.

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And the witness says from, this is just from general experience of working through justice.

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When you look, you read everything carefully just to make sure, and you double check

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before you finish completing the process in justice, just to make sure.

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And I would have noticed it and caught it right my second look.

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He never testified that it was there.

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pardon me, that it was not there because he couldn't possibly recall that particular date in his work routine.

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And I'm quite sure that the findings of fact specifically at some point make clear that she does is rejecting that any and your claim that Mr. Jones testified to that effect and, and saying, in fact, that he testified as we just heard.

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Now, am I wrong about the finding of the court?

[00:12:00] Speaker 03:
Well, if we also then look at JA407 line two, question reads, okay, it then reads, defendant is released in further status and set at defendant's request.

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Did I read that correctly?

[00:12:12] Speaker 03:
Yes.

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Question, to be clear, you did not see that entry on March 18th, 2014 when you were processing and releasing the 2014 case.

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Is that correct?

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That's correct.

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And I don't think it's credited because the prior testimony was only that that would have been the general practice.

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So where in the findings do you have anything supportive of this?

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So, well, I mean, there's also evidence during his deposition, which was questioned when he was questioned by findings of the court, not the input, but the output.

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This is the evidence we have, though.

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So I understand that.

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But when there's contrary evidence or the evidence is insufficient in the court's view, that it's in the record is no longer material.

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The question is, what were the findings and were they clearly erroneous?

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So, well, with respect to this, though, we have two or three instances.

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There's no contradictory evidence and there's no disputed fact.

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And so, I mean, the position, the contradictory evidence is out of the mouth of Mr. Jones.

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First, that would have been he would have seen it if it were there.

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And then two pages later, yes, to the question, did you see?

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I mean, it wasn't there.

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And he says, that's correct.

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He just pointed it to us for seven.

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Right.

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Which is contradictory to four or five.

[00:13:29] Speaker 03:
Well, I think 405 is providing context about his general practice.

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I don't think it's contradictory.

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And during his deposition, the District of Columbia's lawyer questioned him.

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Was this information there?

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No.

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And then she followed up and asked, well, can you explain why?

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And then he explained the delay in the system, how sometimes the system is not accurate.

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So that's the evidence.

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You know, there's there's nothing to the contrary to suggest that, you know, what I think an important point here, too, is that the rule 30 B6 witness for the District of Columbia testified that all staff members comply and process the order pursuant to the District of Columbia's policies and practices.

[00:14:15] Speaker 03:
So this isn't a case of staff error where we're trying to hold the District of Columbia liable for under respondeat superior.

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This is a case about the failure of the process, not a failure by the person.

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And I see I'm well beyond my time.

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So if the court has any other questions, I'm happy to address those.

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Otherwise, I'll yield my time to my colleague.

[00:14:38] Speaker 00:
Do my colleagues have further questions?

[00:14:42] Speaker 00:
We'll give you a couple of minutes.

[00:14:45] Speaker 00:
Oh, I'm sorry.

[00:14:45] Speaker 00:
Go ahead, Judge.

[00:14:46] Speaker 04:
I'll come back and rebuttal on the findings if I could trace this down further.

[00:14:50] Speaker 00:
We'll give you some time on rebuttal, Mr. Klappra.

[00:14:53] Speaker 04:
OK, thank you.

[00:14:55] Speaker 00:
Yeah.

[00:14:56] Speaker 00:
And now we'll hear from Mr. Is it Patek?

[00:14:59] Speaker 02:
Patek.

[00:15:00] Speaker 00:
Patek.

[00:15:01] Speaker 02:
Patek.

[00:15:01] Speaker 02:
Heart P, yes.

[00:15:02] Speaker 02:
Thank you, Judge Piller.

[00:15:03] Speaker 00:
Great.

[00:15:04] Speaker 00:
Thank you.

[00:15:04] Speaker 02:
And may it please the court, Ashwin Patek for the District of Columbia.

[00:15:09] Speaker 02:
This case concerns Mr. Smith's wrongful over detention in the D.C.

[00:15:12] Speaker 02:
jail for two and a half years.

[00:15:15] Speaker 04:
Let's go to the argument.

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We know what it concerns.

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You've heard what we're talking about.

[00:15:19] Speaker 02:
Yes, your honor.

[00:15:20] Speaker 02:
And I think there are two primary reasons why his municipal liability claim, which is the only claim that's up on appeal, fails.

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The first is that he did not prove that the policies he suggests were lacking were the cause and fact of his over detention.

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And second, whether framed as a knowing failure to act or see ability or deliberate indifference, Mr. Smith did not prove that the district should have known the policies he challenges would result in the error that led to his over detention.

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and I'm happy to address each in turn, I think the most important being that Mr. Smith simply did not prove cause and fact at trial.

[00:16:00] Speaker 00:
Mr. Patak, is there any dispute that Mr. Smith would have been released had the release order in the 2012 case been seen and acted on as a result of Mr. Johnson's check of the MyJustice database?

[00:16:16] Speaker 02:
I don't think there's any dispute about that.

[00:16:18] Speaker 02:
Of course, if the Department of Corrections knew that a release order existed, no matter how they found out about the release order, they of course would have processed the release order because nobody wants a person who's supposed to be released to be released.

[00:16:32] Speaker 00:
But- I'm a little puzzled by the district courts references to MyJustice as justice as not a system they relied on for release.

[00:16:44] Speaker 00:
That may be true, but I don't think and I don't take you to be arguing that that defeats causation here.

[00:16:53] Speaker 00:
The fact that it was a further step that they should have had the order in hand in both the 2014 case and the 2012 case.

[00:17:02] Speaker 00:
And it was a bit of a fortuity that Mr. Jones was checking my justice at all.

[00:17:06] Speaker 00:
But given that he was,

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If Mr. Klappert had proved that the time delay was a cause here, then you would have to agree that that would be sufficient.

[00:17:24] Speaker 02:
Well, so I just want to be clear about the timeline here.

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What we know is that the practice, so Mr. Jones gets the 2014 order and everybody agrees that that process seems to have gone correctly.

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And at that time,

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He says that he must have checked my justice.

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And he thinks apparently that my justice didn't show a release order in the 2012 case.

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But what we don't, and that of course is a testimony that district court judge did not really credit because it was based on a speculation about what he would have done.

[00:17:56] Speaker 02:
But what we don't know is that when the 2012 order came in to the Department of Corrections, which everybody agrees that it did, whether or not

[00:18:06] Speaker 02:
the 2012 release order was also in my justice at that time.

[00:18:11] Speaker 00:
And so the 2012 order came into the Department of Corrections.

[00:18:14] Speaker 00:
I thought there's a timestamp that's nine 30 PM.

[00:18:17] Speaker 02:
There is your honor.

[00:18:19] Speaker 02:
Okay.

[00:18:20] Speaker 02:
And so in other words, everybody agrees that the 2012 order came into the Department of Corrections and then was not processed.

[00:18:28] Speaker 02:
And there just was not evidence about why it was not processed.

[00:18:31] Speaker 02:
but it wasn't not processed because of any failure in my justice.

[00:18:36] Speaker 00:
And in fact- That's the nub of it, isn't it?

[00:18:39] Speaker 00:
Go ahead.

[00:18:40] Speaker 02:
I think you're right, but the truth of the matter is what may have been happening on my justice at 6.30 that evening when the 2014 order was being processed,

[00:18:55] Speaker 02:
isn't really what's at issue here.

[00:18:57] Speaker 02:
It's whether or not when the Department of Corrections should have processed the 2012 order, whether my justice had anything to do with the failure to process it.

[00:19:07] Speaker 02:
And the district court judge found that it didn't.

[00:19:10] Speaker 02:
The problem- Wait, wait.

[00:19:11] Speaker 00:
You're going to have to run that by me again.

[00:19:13] Speaker 00:
I'm not sure I follow.

[00:19:15] Speaker 02:
The problem in this case is that everybody concedes that the 2012 order did show up at the Department of Corrections and was stamped

[00:19:24] Speaker 02:
at the records office, but then for whatever reason, it wasn't processed.

[00:19:30] Speaker 02:
And that failure to process the 2012 order had nothing to do with my justice.

[00:19:36] Speaker 02:
My justice was a later step in the process.

[00:19:39] Speaker 00:
So you're saying that even if it were proved decisively,

[00:19:47] Speaker 00:
that the 2012 case order should have been promptly reflected in MyJustice but was not reflected until let's say midnight that night.

[00:20:00] Speaker 00:
And Mr. Jones was checking MyJustice because he was processing the 2014 order.

[00:20:07] Speaker 00:
Are you now taking the position that

[00:20:12] Speaker 00:
the time delay in that scenario would not be a cause of Mr. Smith's over detention because it doesn't matter what my justice showed when Mr. Jones was checking the 2014 order.

[00:20:29] Speaker 00:
All that would matter would be, were he checking or pursuant to the 2012 order showed?

[00:20:36] Speaker 02:
Yes, because the process of the

[00:20:41] Speaker 02:
processing a release order only happens when the Department of Corrections gets a release order.

[00:20:46] Speaker 00:
And in this case- Well, that's an extraordinary position.

[00:20:48] Speaker 00:
And this is the first time I've heard that position.

[00:20:50] Speaker 00:
The cross-check I understand the district to require of my justice is to see whether when someone has a release order that's being processed, there are any other cases that require the individual to be held.

[00:21:08] Speaker 00:
and the only reason that he's held pursuant to the 2012 case.

[00:21:14] Speaker 00:
is because on checking my justice, I mean, again, this is, I understand that the district's position that this may not have been proved, but Mr. Clapra's position is that on checking my justice on the 2012 case, it erroneously failed to show that he had also been released on that case too.

[00:21:32] Speaker 00:
So I'm not really understanding your effort to somehow categorically render the status within my justice

[00:21:42] Speaker 00:
of the 2012 case to be irrelevant unless and until it's being checked pursuant to a TMS or other, you know, verification of the 2012 case itself.

[00:21:57] Speaker 00:
But maybe I'm misunderstanding your new position.

[00:22:00] Speaker 02:
Well, I think the reason it's irrelevant and I agree with your honor that we are also, of course, making the argument that the question of what was going on on my justice throughout that day has just not been proven adequately at trial.

[00:22:13] Speaker 02:
However, I think the reason that it is it is irrelevant is because even if they had gotten the 2012 order at nine thirty at night and even at that time, for some reason, my justice didn't reflect

[00:22:25] Speaker 02:
that same release order, the 2012 release order in the system, you know, at that late time, still the release would have been processed and the Department of Corrections record as examiner would have simply contacted the court's quality assurance office and made sure that the order, the release order was, you know, in fact, legitimate.

[00:22:45] Speaker 02:
So the MyJustice, sorry.

[00:22:48] Speaker 00:
Now I'll finish with that.

[00:22:50] Speaker 02:
The MyJustice system was simply an effort

[00:22:52] Speaker 02:
to check whether there were any other cases that merited a person continuing to be incarcerated.

[00:23:00] Speaker 02:
It was not the method by which release orders were transferred from the court to the Department of Corrections.

[00:23:07] Speaker 02:
The method by which release orders were transferred were either through the TMS system or on the last load envelope.

[00:23:12] Speaker 02:
And here, everybody agrees that the 2012 order was in the last load envelope and did arrive at the Department of Corrections

[00:23:20] Speaker 00:
Do they?

[00:23:20] Speaker 00:
I mean, I thought there was some confusion about exactly how it got, and that the district's position was that it's to this day not known actually how this order got to the Department of Corrections and was timestamped.

[00:23:35] Speaker 00:
And I think it's an inference you're drawing because of the time of day corresponds to a timely processing or timestamping after the last load.

[00:23:44] Speaker 00:
But I thought the district affirmatively said it did not know.

[00:23:48] Speaker 02:
Fair enough.

[00:23:49] Speaker 02:
I think it's an inference based on the timestamp.

[00:23:51] Speaker 00:
So I know this isn't the focus of Mr. Klappar's claim, but is there any question that Mr. Smith would have been released had the Department of Corrections refused to retain him without a March 18th recommitment order?

[00:24:05] Speaker 00:
You know, I'm referring to the judge, the district judge was quite interested in the fact that typically a prisoner return or another commitment order on the day that the person returns from court is needed and that there wasn't one in this case.

[00:24:18] Speaker 00:
Had the district insisted on affirmative evidence that what the Superior Court Judge intended

[00:24:26] Speaker 00:
was recommitment, that would have also triggered the quality assurance, at least, investigation or some further steps, no?

[00:24:36] Speaker 02:
I think that's probably right.

[00:24:40] Speaker 02:
Again, there is pretty scant evidence on that point, but I think that's probably a fair inference.

[00:24:47] Speaker 02:
But that, of course, is not the policy or custom that Mr. Smith is challenging in this case.

[00:24:52] Speaker 02:
he is not suggesting that there was some issue with those types of recommitment orders.

[00:24:59] Speaker 02:
So that isn't the policy that's the suggested Monell violation here, but I agree with you that that does seem to have been a failure here.

[00:25:09] Speaker 02:
There should have been that type of order to incarcerate him once more.

[00:25:15] Speaker 00:
And you're not standing on the notion that there is a requirement of deliberate indifference in a prong three, a Baker prong three policy, I'm sorry, custom or practice case, are you?

[00:25:30] Speaker 02:
So I think what I would say in response to that is I think there are different ways to formulate the test here.

[00:25:37] Speaker 02:
And I agree that in Baker, the court only used the words deliberate indifference under when it was describing

[00:25:45] Speaker 02:
you know, so-called wrong for.

[00:25:48] Speaker 02:
But I think there is some level of culpability that a plaintiff does need to show in every municipal liability case.

[00:25:58] Speaker 02:
And the way that Baker framed it was a knowing failure to act.

[00:26:02] Speaker 02:
The way the district court framed it was foreseeability, which was an aspect of causation.

[00:26:07] Speaker 02:
But whatever it is, there does, I think, have to be some showing that the district was on notice about some

[00:26:14] Speaker 02:
prior pattern or reason to know that a particular policy would cause a constitutional violation.

[00:26:21] Speaker 00:
Mr. Prior Pattern, why?

[00:26:22] Speaker 00:
I'm not sure I follow that.

[00:26:24] Speaker 00:
If a policy says, you know, let's say you had a policy where everyone knew that there was a two-day delay,

[00:26:35] Speaker 00:
In my justice and I mean just for for fun let's say a day delay and in TMS and the instrument examiners were doing checks, you know sooner than that and finding you know inadequate information.

[00:26:52] Speaker 00:
you wouldn't need to have any proof of any prior practice.

[00:26:56] Speaker 00:
It just stands to reason this is the policy and the policy caused this detention, no?

[00:27:03] Speaker 02:
I think that is correct.

[00:27:05] Speaker 02:
But I think that is the very rare and extreme case where purely on the face of a policy that doesn't itself, that isn't itself unconstitutional, you know it will result in unconstitutional outcomes.

[00:27:18] Speaker 02:
There is no question, because it's built into the system, that you're going to have a one or two day delay, and there's no way to get around it.

[00:27:25] Speaker 00:
That actually is Mr. Klaproth's case, I think.

[00:27:29] Speaker 00:
He has this policy document that says, beware when you look at my justice, there's a one to two day delay, and then consistent testimony from Myrick.

[00:27:43] Speaker 00:
Brown and Jones saying, yeah, we saw that there was often a delay in my justice.

[00:27:49] Speaker 00:
So it's not as stark facts.

[00:27:52] Speaker 00:
But I think that is the nature of his case.

[00:27:54] Speaker 00:
And if he could prove that, there's no need for any prior cases of this very dysfunction, is there?

[00:28:04] Speaker 00:
This is a legal matter.

[00:28:05] Speaker 02:
I think there is, and that's for a couple of reasons.

[00:28:10] Speaker 02:
First of all,

[00:28:12] Speaker 02:
The way in which the Department of Corrections gets release orders here is not through MyJustice.

[00:28:18] Speaker 02:
So the one to two delay in MyJustice is not going to be the kind of situation where it's just obvious on the face of a policy that overdetentions are going to occur.

[00:28:26] Speaker 02:
Release orders show up through TMS or through the last load envelope, and those happen every day.

[00:28:31] Speaker 02:
You know, multiple release orders every single day pass through that system, and there's no indication

[00:28:37] Speaker 02:
that it ever results in the situation which happened here, which is that an order shows up to the Department of Corrections in whatever way is stamped by somebody in the records office and then for some reason is not processed.

[00:28:51] Speaker 02:
With regard to the MyJustice two-day delay, I think the other issue is there has been no case offer where that delay has caused an over detention.

[00:29:05] Speaker 02:
It just

[00:29:06] Speaker 02:
know, before this case, there is no example of that.

[00:29:09] Speaker 02:
And so I think that is a problem with Mr. Smith's culpability, with the culpability aspect of this case.

[00:29:17] Speaker 02:
I think when the district is just not on notice that a particular policy is resulting in overdetentions, where the policy is not on its face, obviously going to result in a constitutional violation, I think that is a problem.

[00:29:31] Speaker 00:
So it requires that there be two parallel charges or two parallel cases being processed because the only reason that Mr. Jones would have been checking my justice at all, given the absence

[00:29:46] Speaker 00:
of the order hand delivery system working is because he did have the order in the 2014 case, right?

[00:29:57] Speaker 00:
So the category would be limited to such a situation in which you had two orders and somehow maybe they were mistaken as lappies of the same order and not properly handled.

[00:30:09] Speaker 00:
So we're limited to that category because otherwise, as you say, you wouldn't be looking in my justice.

[00:30:14] Speaker 00:
But in that category,

[00:30:17] Speaker 00:
Is there not, on the face of it, this exact risk?

[00:30:25] Speaker 00:
No.

[00:30:25] Speaker 00:
Bracketing the question, bracketing the question whether the proof shows it occurred here, seems to me that the district is a little bit on thin ice because could one show causation?

[00:30:37] Speaker 00:
I don't see a problem with the municipality being responsible for this custom or practice.

[00:30:44] Speaker 02:
No, Your Honor, because

[00:30:46] Speaker 02:
my justice was not what the district was relying on in order to timely process release orders.

[00:30:51] Speaker 00:
No, but it was relying on it to determine whether somebody should still be held.

[00:30:56] Speaker 00:
And that was an error in this case.

[00:30:59] Speaker 02:
Right.

[00:30:59] Speaker 02:
But the error was the result of not failing to process an order that did admittedly show up to the Department of Corrections.

[00:31:07] Speaker 00:
So the error is the error in the late delivery of the order

[00:31:13] Speaker 00:
in the hand delivery of the order or failure process or whatever of the 2012 order is a rationale or a justification here as opposed to a further problem that simply hasn't been the focus?

[00:31:31] Speaker 02:
Well, it certainly was a problem, the failure to process.

[00:31:34] Speaker 02:
It also is, I suppose a justification would be one word for it.

[00:31:40] Speaker 02:
In other words,

[00:31:42] Speaker 02:
is the method by which orders are delivered and processed, not my justice.

[00:31:48] Speaker 02:
And so when something goes wrong, as it certainly did in this case, the reason something went wrong is because that process of transmitting the order went wrong, not because my justice had some sort of delay.

[00:32:03] Speaker 00:
It's both.

[00:32:04] Speaker 00:
I mean, it could be both.

[00:32:05] Speaker 00:
And again, assuming that there's proof that the delay was the problem here,

[00:32:11] Speaker 00:
Those are equally causes, no?

[00:32:14] Speaker 02:
Well, they're both but four causes.

[00:32:16] Speaker 02:
I agree with that.

[00:32:17] Speaker 02:
But I don't think they're equally causes.

[00:32:19] Speaker 02:
I think only one is the actual proximate cause of what happened in this case, because it is the method by which DOC is receiving orders.

[00:32:30] Speaker 02:
If there are no further questions, we would ask that you affirm.

[00:32:39] Speaker 00:
Thank you, Mr. Patak.

[00:32:40] Speaker 00:
Mr. Klapproth.

[00:32:43] Speaker 00:
Yes.

[00:32:45] Speaker 03:
So my colleague for the district really tried to drive home the point that my justice is not a method to receive release orders.

[00:32:54] Speaker 03:
But I think it's important to remind the court on summary judgment at documentary 83, page six through seven, the district wrote examiners are able to access release orders through an e-system known as my justice.

[00:33:07] Speaker 03:
which provides access to the information contained in the superior court's e-system court view.

[00:33:12] Speaker 03:
Thus, misdemeanors are processed by a system that does not rely upon the transport of a paper order to the jail for processing.

[00:33:20] Speaker 03:
So there on summary judgment, the district is saying, we're using my justice and not relying on a paper system.

[00:33:26] Speaker 03:
So their position has changed here on appeal.

[00:33:29] Speaker 03:
And in Mr. Jones' testimony, a trial really drove home the point, the method of how to receive a release order

[00:33:37] Speaker 03:
through my justice and that's you can download it directly or you can call quality assurance at the court to have a copy faxed over.

[00:33:53] Speaker 03:
I'm just referring to the summary judgment briefing that was in down below.

[00:34:00] Speaker 03:
And so, you can download it directly.

[00:34:03] Speaker 00:
So tell us again exactly where you're looking.

[00:34:05] Speaker 00:
It's the districts.

[00:34:08] Speaker 00:
Summary judgment brief?

[00:34:10] Speaker 03:
Yeah, it's Docket Entry 83.

[00:34:12] Speaker 03:
Okay.

[00:34:14] Speaker 03:
And it's at page six through seven where they made that representation.

[00:34:21] Speaker 03:
And then again on Joint Appendix 400 to 401 where Mr. Jones describes the method of receiving a release order through MyJustice.

[00:34:30] Speaker 03:
And that's downloading it directly through the MyJustice system or calling Quality Assurance to receive a release order.

[00:34:36] Speaker 03:
And it was also not in dispute.

[00:34:38] Speaker 03:
In fact, the district even conceded at trial that it was appropriate to receive release orders through FACS from quality assurance.

[00:34:50] Speaker 03:
Whereas here, they're stating on appeal, you can only receive them through TMS for the last load.

[00:34:56] Speaker 03:
Another point of clarification just on the record, TMS, the rule 30B6 witness testified unequivocally

[00:35:05] Speaker 03:
that TMS is not a system to receive release orders, but instead a system to monitor staff.

[00:35:12] Speaker 03:
And the fact that there was a document in the queue, and I quote her, meant absolutely nothing to the corporate witness.

[00:35:19] Speaker 03:
And so that's what we were basing on.

[00:35:21] Speaker 03:
That was the evidence in the case.

[00:35:25] Speaker 03:
Council also referred to the language in Baker, knowing failure to suggest that plaintiff

[00:35:32] Speaker 03:
needed to prove the existence of prior overdetentions.

[00:35:37] Speaker 03:
That language in Baker is cites to the city of St.

[00:35:43] Speaker 03:
Louis v. Propotnik case, and that case by the Supreme Court has no mention or reference of a knowing failure or any sort of notice that is required, and that's Supreme Court precedent.

[00:35:56] Speaker 03:
So there is no requirement.

[00:35:59] Speaker 03:
There's a body of case law where there is such as the Connick case that does require a pattern of prior constitutional violations, but those are all deliberate indifference cases.

[00:36:11] Speaker 03:
Now, one of the cases cited by the District of Columbia to advance that argument is a custom case.

[00:36:20] Speaker 03:
They're all deliberate indifference cases, including blue.

[00:36:24] Speaker 03:
uh, as well as conic.

[00:36:26] Speaker 01:
Mr. If, um, if a custom is not facially unconstitutional, then what showing do you have to make though to show that the city is culpable for, for the constitutional violation?

[00:36:40] Speaker 01:
I mean, where a custom itself is not, you know, unconstitutional.

[00:36:46] Speaker 03:
So, well, county of Brian, the spring for case from 1997 tells us

[00:36:51] Speaker 03:
when you have a situation such as here where the policy or the custom itself violates the law, then issues of culpability and causation are straightforward.

[00:37:04] Speaker 03:
And so I think when it comes down to moving force and showing that there is causation, we just apply the causation test, which is- I think that, well,

[00:37:18] Speaker 00:
Judge Rao, you can follow up.

[00:37:19] Speaker 00:
I think you haven't quite answered her question.

[00:37:21] Speaker 01:
Right.

[00:37:22] Speaker 01:
I mean, what is unlawful precisely about the custom here on its face?

[00:37:28] Speaker 01:
I mean, it may have, obviously, in your view, led to an unconstitutional result, but the policy itself is not unconstitutional, or the custom itself is not unconstitutional.

[00:37:41] Speaker 03:
Well, and so I don't think it's necessary for us to prove that the custom itself

[00:37:47] Speaker 03:
is unconstitutional, I think it's just necessary that we prove that the custom or practice causes the constitutional violation.

[00:37:56] Speaker 01:
But in those instances, don't you also need to somehow show culpability for the city?

[00:38:03] Speaker 03:
Deliberate indifference, right?

[00:38:04] Speaker 01:
Right.

[00:38:07] Speaker 03:
And so, well, I'm sorry I didn't hear Judge Ginsburg there.

[00:38:11] Speaker 04:
It's deliberate indifference.

[00:38:14] Speaker 04:
once you're in the world of the failure, it's not unconstitutional on its face, but it can produce these sport results.

[00:38:23] Speaker 04:
Then you need to know that, show that the district is aware of it and was deliberately indifferent to it.

[00:38:30] Speaker 03:
Yes, that's the test for the fourth prong, but here we're proceeding in the third prong.

[00:38:35] Speaker 00:
Right, and I think that the question is, does the custom or practice, if it is,

[00:38:44] Speaker 00:
clearly the custom or practice of the municipality and it causes the constitutional violation.

[00:38:52] Speaker 00:
Is there any difference between the kind of causation or knowledge of the policy of the practice that has to be shown between a practice that on its face is unconstitutional?

[00:39:09] Speaker 00:
We have a practice of hanging people up by their fingernails.

[00:39:12] Speaker 00:
or a practice that is not on its face unconstitutional, but that causes a constitutional violation.

[00:39:20] Speaker 00:
So, you know, we rely on a database

[00:39:27] Speaker 00:
with a known eight hour delay, and sometimes we check it within the eight hours, sometimes we check it after, is there a different standard of knowledge or culpability if the practice or custom is not manifestly on its own unconstitutional?

[00:39:47] Speaker 03:
I don't think it is.

[00:39:49] Speaker 03:
And I think the distinction with the level of culpability that differs is when

[00:39:55] Speaker 03:
a plaintiff is trying to hold the municipality responsible for the actions of an employee, right?

[00:40:01] Speaker 03:
So like in deliberate indifference cases, you're trying to hold whether it is a failure to screen case, a failure to train case, where an individual then goes and employee commits a tort or violates the constitutional rights of an individual.

[00:40:21] Speaker 03:
And the plaintiff comes in and tries to hold the municipality

[00:40:24] Speaker 03:
So deliberate indifference has that higher culpability level to guard against instances of respondeat superior.

[00:40:33] Speaker 03:
And so here though, that's not an issue.

[00:40:36] Speaker 03:
There is no risk of respondeat superior.

[00:40:38] Speaker 03:
We're not trying, we're not, there's no evidence that any individual did anything wrong in this case.

[00:40:44] Speaker 03:
We're trying to hold the district accountable for its own policy that resulted in this constitutional violation.

[00:40:54] Speaker 04:
Mr. Clapworth, the district court, I won't say admonished, but pointed out that you, in your proposed findings, in fact, were taking testimony out of context.

[00:41:10] Speaker 04:
And I think you did it again this morning in the opening part of your argument, saying that Mr. Jones checked and saw no

[00:41:20] Speaker 04:
relevant order on March 18, 2014, when the district court has made a finding that Jones has no present recollection of what my justice showed when he accessed it on March 18, 2014.

[00:41:31] Speaker 04:
I think we're going to have to be more careful going forward.

[00:41:41] Speaker 04:
That's advice.

[00:41:43] Speaker 03:
Not always.

[00:41:46] Speaker 03:
If I can just respond briefly, the court then further states under finding a fact 59, Jones's testimony was less definitive.

[00:41:54] Speaker 03:
But when we looked at the joint appendix 407, my reading of it, it was quite definitive.

[00:42:00] Speaker 04:
You're looking at testimony.

[00:42:01] Speaker 04:
I'm looking at the facts that were found by the court.

[00:42:03] Speaker 04:
Don't you understand that once those facts are found, unless you want to argue they're clearly erroneous, which you have not even suggested, those are the facts that we deal with.

[00:42:14] Speaker 04:
almost justified by one witness and not credited by the court.

[00:42:18] Speaker 04:
It's not that complicated.

[00:42:25] Speaker 03:
Unless the court has any further questions, I'm happy to yield.

[00:42:28] Speaker 00:
Thank you, counsel.

[00:42:32] Speaker 00:
Case is submitted.