[00:00:03] Speaker 00:
At the risk of wasting a few of my seconds here, I have to admit that this is unique for me.

[00:00:10] Speaker 00:
And I'm glad to be back, Your Honor, if it may please the Court.

[00:00:13] Speaker 04:
Welcome back.

[00:00:14] Speaker 00:
Thank you.

[00:00:16] Speaker 00:
Your Honor, every time a deputy failed to check for signs of life or

[00:00:20] Speaker 00:
of distress at a cell, there was a constitutional violation.

[00:00:24] Speaker 00:
The trial court said, look, there are no questions here that they're tribal questions of fact as to the reasonableness of the safety checks.

[00:00:36] Speaker 00:
Now, there were 18 cells in this unit.

[00:00:38] Speaker 00:
The video footage that we've submitted shows that they regularly walked by the deputies and with a hand scanner.

[00:00:45] Speaker 00:
would just click, click, click.

[00:00:48] Speaker 00:
There wasn't that required, very base level, minimal required.

[00:00:55] Speaker 01:
Let's say that I am intrigued by this argument.

[00:00:57] Speaker 01:
I've looked at the evidence.

[00:00:59] Speaker 01:
It does indicate that there was some superficial kind of checking of the cells.

[00:01:05] Speaker 01:
But I'm curious to know how you distinguish this case from Gordon, which is a case from our circuit that seems very similar factually.

[00:01:14] Speaker 01:
and how we get around the holding in that case that the evidence presented, which is similar to what you have here, is merely a single incident of unconstitutional activity, which doesn't rise to the level of allowing for a manel liability.

[00:01:30] Speaker 00:
And thank you, Your Honor.

[00:01:34] Speaker 00:
Probably the most significant difference is that we have more than one constitutional violation here, Your Honor.

[00:01:40] Speaker 00:
And if my math is correct, what's presented in the video evidence is that there are 364 repeated examples of the constitutional violation.

[00:01:54] Speaker 00:
The constitutional violation is the failure to do a proper safety check.

[00:02:00] Speaker 00:
And not only did they do it with respect to Mr. Niretcha,

[00:02:05] Speaker 00:
But they did it with respect to all of the other 18 cells.

[00:02:09] Speaker 00:
They did it two.

[00:02:09] Speaker 01:
Is there evidence in the record about that with respect to other cells with other officers, not just in this case?

[00:02:21] Speaker 01:
Yes.

[00:02:21] Speaker 01:
Can you point me specifically to where in the record we can find that evidence?

[00:02:25] Speaker 00:
Well, in this case, Your Honor, the evidence is that multiple different officers during two shifts

[00:02:33] Speaker 00:
And during two separate calendar days, engaged in a regular practice.

[00:02:45] Speaker 00:
There's no doubt, as reflected by the examples that we have there, that that's the way they did it.

[00:02:50] Speaker 04:
So we can definitely see from the video many cells and many officers over this.

[00:02:55] Speaker 04:
It was two shifts, but it was one night, right?

[00:02:58] Speaker 04:
So do we have any information about whether this night was typical?

[00:03:03] Speaker 04:
Like, do we know if half the officers were out sick that night or something?

[00:03:06] Speaker 04:
I mean, do we know anything about whether this was a typical night?

[00:03:10] Speaker 00:
No.

[00:03:10] Speaker 00:
We don't know, Your Honor.

[00:03:11] Speaker 00:
And I'd respectfully submit that that

[00:03:17] Speaker 00:
The evidence shows that over two separate shifts, and if my memory serves me correctly, there were at least eight different deputies that one could tell visually engaging in the identical conduct.

[00:03:32] Speaker 04:
And I want to- I think there was a mention in the briefs about there not being discovery.

[00:03:38] Speaker 04:
Did you try to get discovery about other nights to see whether this was the same pattern on other nights?

[00:03:43] Speaker 00:
No, we did not.

[00:03:45] Speaker 00:
And I want to narrow the question to this particular unit, and whether or not there is a custom in practice that my esteemed colleague, I think, would assert that, look, this is a very isolated incident in a very narrowly kind of construed circumstance.

[00:04:07] Speaker 00:
Your Honor, what we do know is that that was the practice, the common typical practice in this unit.

[00:04:15] Speaker 00:
And most city jails, as the court probably knows, rarely have 18 different cells.

[00:04:24] Speaker 00:
And if we looked at this as a local jail in some town in South Dakota, respectfully, one would have to say, oh my god, this is the way they do it.

[00:04:36] Speaker 03:
So here the safety check supervisor actually opined that the way that they did those checks shown on the video was proper and correct and does that show that it's their customer policy on how they do their safety checks?

[00:04:51] Speaker 00:
And I did depose that individual myself, Your Honor.

[00:04:55] Speaker 00:
And my recollection of his testimony was that he was very focused as to how it was supposed to be done, Your Honor.

[00:05:04] Speaker 00:
And the requirement was that they very, at the, again, most basic level, just to make sure they're breathing.

[00:05:11] Speaker 00:
They want to make sure that they're alive.

[00:05:14] Speaker 00:
And you know, this happened over the nighttime period, and most of them were asleep.

[00:05:18] Speaker 00:
But even then,

[00:05:20] Speaker 00:
you have to actually look to make sure that they're breathing.

[00:05:24] Speaker 00:
Now, keep in mind, they eventually found Mr. Nyreka in rigor mortis.

[00:05:31] Speaker 00:
He had been dead for a long time, and there's evidence in the record from our expert that saying that, look,

[00:05:39] Speaker 00:
that his death because of the Seroquel would have been detected by looking for breathing.

[00:05:46] Speaker 00:
Because at the late stage of that toxicity, the breathing was so narrow and so shallow that anybody looking for breathing would say, the guy's not breathing.

[00:05:57] Speaker 03:
Your complaint alleged that he missed both dinner the evening before and breakfast that morning Yes, and from looking at the video it looked to me like he never left the cell from the parts that are spliced on the video What we have from the video footage runner is is basically that he is essentially and

[00:06:19] Speaker 00:
In working with the video, it does appear that he essentially remains in his cot.

[00:06:27] Speaker 00:
And again, whether or not he was breathing, we do know that at some point, if the medical evidence here is accepted, his breathing, and this would have happened within an hour, his breathing became so shallow before he died that that would have been detected if somebody was looking for the breathing, Your Honor.

[00:06:50] Speaker 04:
And Sergeant Kellum, who was the supervisor, basically said that they were looking for the breathing, but I think your point is, when you watch the video, that can't be true.

[00:07:04] Speaker 04:
That is exactly our point, Your Honor, and I... Or, sorry, should we understand Kellum to be saying the way this was done, where they really weren't looking, is the proper thing?

[00:07:16] Speaker 00:
Mr. Kellum's testimony was that at the very bare minimum, they have to stop in front of the cell and confirm some sign of life.

[00:07:26] Speaker 00:
That is the term of art that they use.

[00:07:28] Speaker 04:
But didn't Kellum look at the video and say, this all seems fine?

[00:07:31] Speaker 04:
Or what happened with that?

[00:07:33] Speaker 04:
Didn't he say, this looks like they did it right?

[00:07:35] Speaker 00:
I don't have a specific recollection of that, Your Honor.

[00:07:39] Speaker 00:
I do recall that he did not have a problem with it, Your Honor, and I respectfully submit that if Mr. Kellum says doing it that way is right,

[00:07:53] Speaker 00:
that Mr. Kellum is wrong.

[00:07:55] Speaker 00:
Because again, and it's rampant, respectfully, they literally walk by and sometimes don't even look.

[00:08:05] Speaker 00:
They're just looking at the barcode on the wall

[00:08:08] Speaker 00:
They want to record that they did a safety check without doing a safety check.

[00:08:14] Speaker 00:
And at the bare minimum, Your Honor, if we only focus on Mr. Nyreka's cell, we have at least 26 examples.

[00:08:26] Speaker 00:
I'd submit that it happened with respect to all of the cells.

[00:08:29] Speaker 00:
But again, we have evidence of there being a custom and practice of doing them this way in a substandard way in this unit.

[00:08:39] Speaker 03:
Is there any evidence that any of the officers that looked into the cells were reprimanded or disciplined in any way?

[00:08:46] Speaker 00:
No.

[00:08:46] Speaker 00:
We know that they weren't, Your Honor.

[00:08:48] Speaker 03:
How do you know that they weren't?

[00:08:48] Speaker 03:
I couldn't find that in the record.

[00:08:53] Speaker 00:
And there is no evidence of that in the record, and I apologize to the court.

[00:09:00] Speaker 00:
My recollection in their deposition is that none of them were disciplined.

[00:09:03] Speaker 00:
I'd submit on that, and I imagine that would be confirmed.

[00:09:07] Speaker 03:
And they submitted affidavits indicating that they were still functioning in their role?

[00:09:12] Speaker 00:
There were affidavits indicating that they continue to be deputies.

[00:09:19] Speaker 00:
And, Your Honor, I have about five minutes that I would like to reserve for rebuttal.

[00:09:23] Speaker 02:
Thank you.

[00:09:33] Speaker 02:
Good morning.

[00:09:33] Speaker 02:
May it please the court.

[00:09:34] Speaker 02:
Alana Rotter for the defendants.

[00:09:37] Speaker 02:
I'd like to first just to put one thing to the side.

[00:09:40] Speaker 02:
The judgment was qualified immunity for the individual deputies and then on the Menell issue separately for the county.

[00:09:46] Speaker 02:
I just want to note that there's been no challenge on appeal as to the deputies, so whatever would happen as to Menell, there would be no basis to reverse as to the individuals.

[00:09:57] Speaker 02:
On the Menell claim,

[00:09:59] Speaker 02:
The point of the Monell custom and practice prong is to require that the custom be so long standing and pervasive in duration and well settled that it can be fairly said to be the

[00:10:13] Speaker 01:
But if the supervisor's deposition testimony indicates when watching that video that, yeah, this is how it's done, this is what we do, isn't that enough to establish that pattern in practice?

[00:10:25] Speaker 02:
I would say that's not an argument that's been developed.

[00:10:27] Speaker 02:
The appellants have been very clear that their theory is that the video is enough and that the question is whether 13 hours of video establishes the sufficiency of duration and pervasiveness.

[00:10:38] Speaker 01:
That's the only theory that was briefed.

[00:10:41] Speaker 01:
As I understand the argument, it's that

[00:10:42] Speaker 01:
This case is distinguishable from the circuit's precedent because this isn't just an isolated incident of unconstitutional activity.

[00:10:51] Speaker 01:
We have the video that shows these two shifts over the course of two days, the fact that there's evidence that he didn't show up for certain meals, and then we have testimony in the record.

[00:11:03] Speaker 01:
I'm not sure that this is all part of the same theory, which is that there is a pattern in practice.

[00:11:08] Speaker 01:
That's the theory, and then the evidence in the record are all of these things that I just

[00:11:12] Speaker 01:
mentioned, why doesn't that together make this case different than Gordon?

[00:11:18] Speaker 02:
I will say, first of all, again, it's not the theory that was briefed.

[00:11:24] Speaker 02:
If I'm looking at ER 196, which is the plaintiff's opposition to summary judgment, the repeated failure to conduct safety checks as documented in the video footage is the policy

[00:11:38] Speaker 02:
It's emphasizing very strongly the videos.

[00:11:40] Speaker 02:
If you look at both the open brief and the reply brief, the theory articulated is the videos.

[00:11:44] Speaker 02:
There's not a reliance on that testimony by the supervisor or by the missed breakfast and dinner.

[00:11:49] Speaker 02:
Those are not even really mentioned in the briefs.

[00:11:52] Speaker 02:
We generally hold appellants to the theory that they have chosen to articulate.

[00:11:57] Speaker 01:
But moving... This was an order from the Superior Court, or I'm sorry, from the District Court granting summary judgment, right?

[00:12:03] Speaker 01:
So we can affirm or reverse on

[00:12:08] Speaker 01:
on any grounds on a summary judgment order, correct?

[00:12:11] Speaker 02:
Sure, but typically still framed by the arguments that the parties themselves have advocated as opposed to other ones that have not been developed.

[00:12:18] Speaker 01:
Do you have any other arguments for why this case is more like Gordon as opposed to not like Gordon?

[00:12:24] Speaker 02:
Sure.

[00:12:25] Speaker 02:
I would say it's like Gordon in the sense of this is essentially a single incident because the question again is whether this policy can be attributable to

[00:12:34] Speaker 02:
the defendants.

[00:12:35] Speaker 02:
We're not looking at a respond yet superior situation where a few deputies or even a supervisor having something not go correctly on a night over the course of two shifts is then municipal policy.

[00:12:48] Speaker 02:
I mean, that's where we'd have to get to is what is the municipal policy.

[00:12:51] Speaker 02:
and so how do you explain how so many officers at so many cells would do exactly the same thing that we see over and over and over on the video unless it's the standard practice again the possibility is a particular lacks supervisor or a particular as you as as your honor suggested earlier do we know what was happening on this night was representative other nights we don't

[00:13:09] Speaker 03:
But it was two shifts, so you're talking about at least two supervisors.

[00:13:13] Speaker 03:
Sure.

[00:13:13] Speaker 03:
So it's not just one lax supervisor.

[00:13:15] Speaker 02:
Two lax supervisors.

[00:13:16] Speaker 02:
But the question again is, is this policy so long-standing and pervasive that we can say it is the policy that the sheriff's department and the county have adopted for bed checks?

[00:13:26] Speaker 02:
And the number of cases emphasizing the permanent and well-settled standard is very high.

[00:13:33] Speaker 02:
Even an appellant's brief is recognizing that as the standard.

[00:13:37] Speaker 02:
We have this coming from

[00:13:39] Speaker 02:
We have this coming from Thompson, Gordon, Trevino, Hunter.

[00:13:44] Speaker 02:
There are many, many cases that repeatedly ... The descriptions are permanent and well-settled, long-standing, sufficient duration, frequency, and consistency such that the conduct has become the traditional method of carrying out the policy, persistent and widespread.

[00:13:58] Speaker 02:
The idea is to restrict this to situations, again, to prevent

[00:14:03] Speaker 02:
respond yet superior liability and to make sure that this is truly the custom that the sheriff's department has adopted.

[00:14:09] Speaker 02:
And I would say in this case, particularly, we have agreement that the official policy is correct and that the training is correct.

[00:14:15] Speaker 03:
So you say there may be two lax supervisors.

[00:14:18] Speaker 03:
Is there any evidence in the record that any of the officers were disciplined?

[00:14:22] Speaker 03:
No, but they've got a lax supervisor and they're not following the policy.

[00:14:26] Speaker 02:
No, but there's also no evidence that, for example,

[00:14:28] Speaker 02:
is the disciplinary standard that something goes wrong online and we impose discipline?

[00:14:32] Speaker 02:
What is the process for, you know, would there have been a formal reprimand?

[00:14:36] Speaker 02:
Would there have been a discussion?

[00:14:37] Speaker 02:
What would have been the proper measures?

[00:14:40] Speaker 02:
It's not something that was ever developed.

[00:14:42] Speaker 02:
In the same way that there was no discovery taken and no evidence developed about other cells, you know, it would have been easy enough to ask for video of the week before, the month before, a different set of deputies, a different set of supervisors.

[00:14:55] Speaker 02:
None of that was even requested here.

[00:14:57] Speaker 02:
And that is typically the standard for Manel.

[00:15:00] Speaker 02:
The district court didn't find a case, and we have not seen a case, where a shift is enough when you don't have an actual policymaker who's making the decision.

[00:15:08] Speaker 02:
You know, that's a separate category of Manel liability is action by a policymaker.

[00:15:11] Speaker 02:
But here we have non-policymakers.

[00:15:14] Speaker 03:
And the question is... What about Manetti versus City of Seattle, a Ninth Circuit opinion from 2005, where it happened in one day, five officers involved?

[00:15:27] Speaker 02:
So Manati was about enforcement of a policy, I believe.

[00:15:38] Speaker 02:
What I'm reading here is, although plaintiffs allege that Damascus had taught his world politics class for 24 years, they do not allege.

[00:15:44] Speaker 02:
I'm sorry, this is Sabra that I'm looking at here.

[00:15:46] Speaker 04:
Manati is- WTO case.

[00:15:48] Speaker 02:
No, I'm sorry, yes.

[00:15:51] Speaker 02:
I think, again, Manati was talking about, I think it was more of a policy case.

[00:15:56] Speaker 02:
And I don't, I regret that I, we have not focused on this because it's not really what again was briefed.

[00:16:04] Speaker 02:
But in Manati, I see the argument is that the city had adopted a policy of suppressing speech.

[00:16:11] Speaker 02:
And then there's a declaration.

[00:16:14] Speaker 03:
That it all happened on December 1st, five officers involved on December 1st, one day.

[00:16:23] Speaker 03:
So you were asking if there was another Ninth Circuit opinion that happened in one day?

[00:16:27] Speaker 02:
Yeah.

[00:16:36] Speaker 02:
They were talking about whether it was a policy to apply an order in a particular manner in that case.

[00:16:46] Speaker 02:
If the court wants to go there, I would request the chance to brief this, because it's not something that was argued and developed in the briefing.

[00:16:51] Speaker 02:
I'm looking at it on the fly here, and I really would appreciate the chance to look at it more.

[00:16:55] Speaker 02:
Even in the face of the district court having said there is no case on point, appellants did not develop an argument that Minotti was on point factually.

[00:17:03] Speaker 02:
They cited Minotti in their briefs, I believe, just for the general standard.

[00:17:09] Speaker 02:
And I'm just going to flip to where they cited Minotti, which is at page 15.

[00:17:16] Speaker 02:
their brief.

[00:17:18] Speaker 02:
And again, the only citation to minority in this brief is for the general standard that there are three ways to establish liability.

[00:17:24] Speaker 02:
So again, if that's the argument, I would request a chance to look at it in more depth.

[00:17:28] Speaker 02:
But again, I still think in the face of all this other case law indicating that isolated incidents are not enough and the fact that here the question is, again, is this a policy that is so pervasive that we're going to attribute it to the county as having been essentially officially adopted as the way that they want bed checks done?

[00:17:45] Speaker 02:
And the two shifts on one night on one cell block is simply not enough.

[00:17:53] Speaker 02:
Again, I think this is respondeat superior liability based on potential negligence on a particular night or a deviation from training on a particular night.

[00:18:00] Speaker 02:
The question is, is it so pervasive that the policymakers would have known that this is what was happening?

[00:18:05] Speaker 02:
And a supervisor is not a policymaker, so we've still got another level up.

[00:18:09] Speaker 02:
And the question is, do the policymakers have a reason to know that this is the way that they're happening?

[00:18:13] Speaker 02:
that this is happening on a regular basis, that people are departing from their training on a regular basis.

[00:18:18] Speaker 04:
OK, so they show this video that shows many, many officers, many cells over two shifts, two different supervisors doing this exact same conduct.

[00:18:27] Speaker 04:
Why isn't that enough to trigger at least some obligation on your part to show that it's not the policy by either saying they were disciplined or saying half the people were sick that night or saying this is unusual for some reason, look at the next night?

[00:18:42] Speaker 04:
Why haven't they actually raised a genuine issue of fact with at least in the absence of some response that would distinguish this?

[00:18:51] Speaker 02:
The the standard that they had to prove was pervasive well settled long-standing custom evidence over the course of the one night We believe under the case law that they had developed Is does not meet the standard of well, you know, it is by definition not long-standing It is by definition

[00:19:12] Speaker 02:
no evidence of widespread.

[00:19:13] Speaker 04:
Well, it might, by inference, seem like this must be longstanding because everyone is doing the exact same thing in the absence of some other explanation that it's, I mean, what is the inference other than that this is longstanding when you have this many people doing the exact same thing?

[00:19:28] Speaker 02:
So again, we have the evidence of what the official policy is we've put in, and it's undisputed.

[00:19:32] Speaker 02:
And we have the evidence of what the official training is, and that's undisputed.

[00:19:36] Speaker 02:
It's in both sides briefs.

[00:19:39] Speaker 02:
And then you have this one example, which appears to be a deviation from those official things.

[00:19:44] Speaker 02:
Inferences have to be reasonable and not speculation.

[00:19:48] Speaker 02:
And in this case, in the face of the official policy that is undisputed, the official training that is undisputed, and the narrowness of the evidence here, didn't think they got over the bar for making their case that would shift the burden to be rebutting with the evidence that Your Honor is suggesting.

[00:20:06] Speaker 02:
Because again, it doesn't seem to get past the threshold of pervasive long-standing well-settled.

[00:20:13] Speaker 04:
Again, in the lack, in the... I agree that one night might not itself be long-standing, but it's very hard for me to imagine how you have this kind of pattern in that one night unless it is long-standing.

[00:20:28] Speaker 04:
Like, there is an inference from this.

[00:20:30] Speaker 04:
Unless you can, maybe you can give me some explanation that would be the more intuitive inference.

[00:20:35] Speaker 04:
But I don't know what it is.

[00:20:36] Speaker 04:
How do you have this many officers doing the exact same thing unless the inference is this is how they always do it?

[00:20:43] Speaker 02:
Again, the possibilities are a lax set of officers or a lax supervisor.

[00:20:47] Speaker 02:
And the question is not

[00:20:49] Speaker 02:
The question is not about this one night.

[00:20:51] Speaker 02:
Again, I'll go back to the question for Manel purposes.

[00:20:55] Speaker 02:
Would the policymakers have known about this?

[00:20:56] Speaker 02:
Is it so clear?

[00:20:57] Speaker 04:
I agree.

[00:20:58] Speaker 04:
I agree.

[00:20:58] Speaker 04:
But hopefully, they would know about it if this is exactly what happened every single night.

[00:21:03] Speaker 04:
Hopefully, if it is not supposed to be what happens every single night, they would have watched this video and disciplined these people, and then you'd have evidence of that.

[00:21:10] Speaker 04:
I mean, there are lots of things you might be able to say, but you're not giving us any of them.

[00:21:13] Speaker 04:
So we're left with what seems like an inference that this is how it was done, and they should have known.

[00:21:19] Speaker 02:
Again, I think in the absence of any evidence from the plaintiffs who have the burden here about how this would have come to the attention of a policymaker, what is the setup for reviewing this video?

[00:21:36] Speaker 02:
You're saying, well, how would they not have seen the video?

[00:21:38] Speaker 02:
There's no evidence in the record that policymakers

[00:21:41] Speaker 02:
The frequency with which they watch this video.

[00:21:44] Speaker 04:
This individual died.

[00:21:46] Speaker 04:
I hope they watch the video.

[00:21:48] Speaker 04:
I mean, are you telling me they don't watch the video when someone dies?

[00:21:51] Speaker 04:
Like, why wouldn't there be discipline or something that happens once this happens?

[00:21:55] Speaker 04:
So if it's unusual.

[00:21:57] Speaker 02:
So again, the fact that he died, I'm not saying they didn't watch the video in this particular instance.

[00:22:02] Speaker 02:
The question is, were they on notice of a pattern such that this could be said to have been adopted as the way that things are always going to be done?

[00:22:10] Speaker 04:
I understand.

[00:22:11] Speaker 04:
But if the expectation is that you would be more careful than this, then one would think, once they watched this video, that they would have disciplined these officers because they did not look to see whether he was breathing.

[00:22:24] Speaker 04:
That's very obvious.

[00:22:27] Speaker 04:
Maybe then you'd have evidence, OK, the way I can show that this isn't the longstanding policy is that these people were fired, but apparently they weren't fired.

[00:22:34] Speaker 04:
Maybe you could have told us they were reprimanded, but you haven't said that either.

[00:22:37] Speaker 04:
So we're left with everyone acted like this was normal, which would suggest that it's longstanding.

[00:22:45] Speaker 02:
Again, I think to extrapolate from the response to one incident, to leap from there to the well-settled, longstanding,

[00:22:55] Speaker 02:
I think is perhaps a bridge too far to be a reasonable inference, again, because this is bordering on liability for allowing this to happen in a particular instance as opposed to evidence that this is what is intended to happen, what is happening on all the shifts all the time.

[00:23:13] Speaker 02:
Again, in the absence of evidence about how discipline works and how many violations there need to be, and again, this was not the theory

[00:23:22] Speaker 02:
Because it wasn't the theory that was developed, it's not a theory that has been really developed with evidence, because it's not the theory that plaintiffs articulated.

[00:23:30] Speaker 01:
And we usually, at summary judgment, the plea- I know you keep saying that, but the theory in this case, Menell liability, is that even though the written policy is X, the longstanding pattern and practice of the county is to conduct

[00:23:51] Speaker 01:
the checks in this way.

[00:23:56] Speaker 01:
Here is video evidence to suggest that the checks are done in this way.

[00:24:00] Speaker 01:
There's other evidence in the record to suggest that this is typical because the supervisor testifies that, yeah, that's how it's done.

[00:24:07] Speaker 01:
And we know in this particular case, the individual wasn't checked for

[00:24:13] Speaker 01:
breathing.

[00:24:13] Speaker 01:
So I know you keep saying that the theory wasn't developed, but I don't understand what you mean when you say that because there's only one theory for mental liability here and that is that

[00:24:22] Speaker 01:
notwithstanding the written policy, the practice is something else.

[00:24:26] Speaker 02:
Thank you, Your Honor.

[00:24:27] Speaker 02:
Let me just try to clarify that.

[00:24:29] Speaker 02:
The theory, yes, is that the policy is that people are not doing what they're supposed to be doing.

[00:24:33] Speaker 02:
But my point is that the way that that theory was demonstrated by the plaintiffs, the way that they chose to try to present their theory was just the video evidence, not an argument about the lack of discipline, not an argument about the supervisor's deposition.

[00:24:46] Speaker 01:
Well, I don't disagree with you that there could have been even more evidence that maybe they should have asked for

[00:24:53] Speaker 01:
you know, video of other days or depose more people.

[00:24:56] Speaker 01:
I mean, we can always have a conversation about how in litigation strategy you could have done more or less or something different and would have made your case better.

[00:25:02] Speaker 01:
But we have the record that we have before us.

[00:25:06] Speaker 01:
And if there is enough there to suggest that this was the pattern in practice, then you're not saying that simply because there's a written policy that says something else, we can't find that the pattern and practice of the county is different.

[00:25:21] Speaker 02:
Sure, if there had been video of 10 more nights over the course of a couple of months, the fact that there was a written policy wouldn't be sufficient.

[00:25:27] Speaker 01:
What's the number?

[00:25:28] Speaker 01:
What's your argument as to when you hit the magic threshold for it to not be a single incident?

[00:25:35] Speaker 01:
If the plaintiffs had asked for video evidence from two nights, three nights, a week, 10

[00:25:45] Speaker 02:
Four years, I would say certainly it's more than the one shift that's at issue here, and we don't have to do that blind draw.

[00:25:50] Speaker 02:
But there's two shifts here.

[00:25:51] Speaker 03:
It's not just one shift.

[00:25:52] Speaker 02:
Two shifts in a row, so you've got the same night, and you've got a couple of supervisors.

[00:25:58] Speaker 02:
But this is not, again, for the pervasive and longstanding.

[00:26:00] Speaker 02:
I would compare this, for example, to Hunter, which was cited in the appellant's opening brief.

[00:26:06] Speaker 02:
There you've got evidence of 40 to 50 excessive force incidents over the course of five years, which is just a very different situation.

[00:26:15] Speaker 03:
So we have to wait five years and have multiple deaths?

[00:26:18] Speaker 02:
Not necessarily, but I'm saying as a contrast, you know, that's the other end of the scale.

[00:26:22] Speaker 02:
You're asking sort of where's enough and there's a scale here from one incident to 40 or 50, but there's a lot of room in between, but one is still on the very end of the scale.

[00:26:31] Speaker 02:
I think you've also got Trevino versus Gates, which is cited in the briefing where the question was,

[00:26:35] Speaker 02:
The alleged policy was about indemnifying for punitive damages for deputies.

[00:26:41] Speaker 02:
And there they look at the examples.

[00:26:44] Speaker 02:
There's like 10 different cases and a couple of them come out this way, but not in every case.

[00:26:50] Speaker 02:
And they say, there's not enough here to say longstanding and pervasive.

[00:26:55] Speaker 02:
Here we've got one.

[00:26:57] Speaker 02:
And it might be tempting to say, because we have one, let's treat that as the example.

[00:27:01] Speaker 02:
But that is, I think, a dangerous path to go down, because then in any Menell case, we get to a situation where we've got the one, and now you're going to put the burden in every case on the defense to rebut that the one is a typical.

[00:27:13] Speaker 04:
It's just that there's a way to look at this video and think that we have more than 200, not just one, because we see so many of the same behavior.

[00:27:20] Speaker 02:
Sure, although I would say you could think of it as 200, but you could think of it as seven or eight deputies.

[00:27:27] Speaker 02:
You know, if they're going to do one wrong, okay.

[00:27:30] Speaker 02:
So seven or eight deputies have done something not correctly in the course of two shifts.

[00:27:34] Speaker 02:
And there aren't any that do it correctly, right?

[00:27:37] Speaker 02:
It depends on what you're going to define as correctly.

[00:27:38] Speaker 02:
We're on summary judgment, and we've just got a video here.

[00:27:42] Speaker 02:
But looking at all the facts in the light, they all appear to do a similar kind of check.

[00:27:47] Speaker 02:
But again, I think that is shifting the burden from requiring the plaintiff to put on some kind of affirmative evidence that this is a longstanding customer policy to the defendant to prove it's not based on a single incident.

[00:27:58] Speaker 02:
And typically, that's not the way that Menell cases are working because it's the plaintiff's burden to prove a customer policy.

[00:28:05] Speaker 02:
And if all the plaintiff needs to do is put up

[00:28:08] Speaker 02:
the one or two shifts and that flips the burden, now we're requiring the defense to put on evidence that it is not the customer policy as opposed to having the plaintiff put on the evidence that it is the customer policy.

[00:28:22] Speaker 04:
We have you over your time.

[00:28:23] Speaker 04:
Thank you for your argument.

[00:28:24] Speaker 04:
Thank you.

[00:28:33] Speaker 00:
Unless the court has any specific questions for me, I'd stand submitted.

[00:28:36] Speaker 00:
Thank you.

[00:28:38] Speaker 04:
Thank you.

[00:28:38] Speaker 04:
Thank you both sides for the helpful arguments.

[00:28:40] Speaker 04:
This case is submitted.

[00:28:41] Speaker 04:
And I think we need to take a break before the next case because the courtroom will be sealed.