[00:00:06] Speaker 03:
a procedure yes good morning and may it please the court my name is under a lot of mercy no and i represent the appellants rosa lamis and her daughter g r l

[00:00:18] Speaker 03:
This appeal comes here on a Rule 12b6 dismissal.

[00:00:22] Speaker 03:
The question is whether the Second Amendment complaint plausibly alleges that CCSD, through an affirmative placement decision and pursuant to its longstanding policy and practice, placed GRL in a more dangerous position than she otherwise would have faced, and whether the district court erred by applying only part of the allegations and part of the complaint

[00:00:45] Speaker 03:
and drawing inferences against the family in its analysis.

[00:00:49] Speaker 03:
I'd like to make two points.

[00:00:51] Speaker 03:
First, the dismissal order below focused on only part of the pleaded allegations and omitted two to three references to prior violence by NA.

[00:01:03] Speaker 03:
Additionally, the court also ignored same-day warning signs that mattered to the foreseeability and deliberate indifference analysis.

[00:01:12] Speaker 03:
Second, once the actual allegations are credited, the second amended complaint plausibly pleads both moving force causation and foreseeability under Monell.

[00:01:24] Speaker 01:
So counsel, what are the allegations of?

[00:01:27] Speaker 01:
violence or physical incidents here.

[00:01:30] Speaker 01:
I see that there was an incident of an A throwing a bottle of lotion at another student three years before the start of this case.

[00:01:40] Speaker 01:
Is there anything else that you alleged that would be physical or violent towards another student?

[00:01:47] Speaker 03:
Yes, your honor.

[00:01:49] Speaker 03:
First, I'd like to start with the violence, but then get to the threats of violence.

[00:01:53] Speaker 03:
But there was a prior reference to a battery, a previous battery with injury in the allegations.

[00:02:01] Speaker 01:
But do we know if that was anything different than the lotion bottle or something else?

[00:02:06] Speaker 03:
All we have is that entry, and that goes to the inference, Your Honor, that that should be construed in favor of the plaintiff appellants here.

[00:02:14] Speaker 03:
All we had, that reference was made.

[00:02:16] Speaker 01:
I mean, I guess you're arguing that because there's a school report of a battery that we could infer that that might have been a separate incident than the lotion.

[00:02:26] Speaker 01:
Yes, Your Honor.

[00:02:27] Speaker 01:
Why is that a reasonable inference?

[00:02:29] Speaker 01:
We just don't know.

[00:02:30] Speaker 03:
Well, it definitely occurred before the incident that brought us here, and it was referenced in the report that there was a previous battery incident.

[00:02:43] Speaker 03:
That's all we have.

[00:02:46] Speaker 03:
I think it's well known that many times records can be incomplete, and we should be afforded the opportunity to discover it.

[00:02:51] Speaker 03:
There was some discovery here, right?

[00:02:52] Speaker 03:
Yes, Your Honor.

[00:02:54] Speaker 04:
Discovery in this case?

[00:02:55] Speaker 04:
very very early uh... we're provided with initial disclosures and then but no discover no depositions uh... nothing like that so uh... i'm looking at something is not the uh... appellate record uh... but it was uh... in the believe the district court record because there were some expulsion documents right yes your honor

[00:03:24] Speaker 04:
And so what I'm looking at is something down at the bottom, which I don't know exactly what this means, CCSD 032.

[00:03:34] Speaker 04:
And it's part of the expulsion record.

[00:03:38] Speaker 04:
It's dated 2016-2022.

[00:03:41] Speaker 04:
And it says at the bottom, a review of

[00:03:47] Speaker 04:
the offending student's disciplinary chronology over the course of the past calendar year include the following infractions, truancy, bullying, battery, student with injury.

[00:04:03] Speaker 04:
That looks to me to be perhaps the source of what's in your complaint.

[00:04:09] Speaker 04:
But I think it's also possible from reading this that that's a typo in the report.

[00:04:16] Speaker 04:
I'm not sure about the previous year.

[00:04:18] Speaker 04:
Was that ever presented to the district court or relied on the CCSD 032 with that language in it as with any explanation to the district court about what in that 2016-2022 report talking about over the course of the past calendar year meant?

[00:04:39] Speaker 03:
I do not believe it was, Your Honor.

[00:04:41] Speaker 03:
However, to answer the actual question, the previous lotion incident was in 2019.

[00:04:46] Speaker 03:
Right.

[00:04:48] Speaker 03:
That, again, previous battery could mean, if it was written February 16th, that the previous battery in the expulsion report was the incident that brought us here, or it could mean that it wasn't.

[00:05:00] Speaker 03:
We should be afforded an opportunity to do that discovery.

[00:05:03] Speaker 04:
Was there ever anything offered, and this is sort of just a yes or no question as opposed to bringing it out in the oral argument, your complaint talks about

[00:05:14] Speaker 04:
NA was documented and I think hospitalized for a quote, mental long-term condition.

[00:05:22] Speaker 04:
Was there ever any evidence offered or proffered to the district court as to what that referred to?

[00:05:31] Speaker 04:
No, just the nature of the long term.

[00:05:33] Speaker 04:
But that could be like almost anything in the DSM, right?

[00:05:38] Speaker 04:
It could be, Your Honor.

[00:05:39] Speaker 04:
I mean, it could be something with no major behavioral ramifications.

[00:05:46] Speaker 04:
It could be something with symptoms of very violent tendencies.

[00:05:52] Speaker 04:
But the phrase mental long term condition, especially

[00:05:58] Speaker 04:
considering the IDEA.

[00:05:59] Speaker 04:
I mean, that provides the district court with nothing, right?

[00:06:02] Speaker 03:
Well, I disagree respectfully, Your Honor.

[00:06:04] Speaker 03:
Under Mergia, the 2023 case that Judge Bea wrote, erratic behavior can be an indicator that should not be ignored.

[00:06:14] Speaker 03:
And in that case, there was erratic behavior that the offender in that case, who I believe killed her children, made statements to her other children that end days are here and had certain kind of statements that, at 12b6, were not sufficiently resolved against the plaintiff.

[00:06:33] Speaker 03:
So it could be, but again, if we're going to be drawing inferences, it shouldn't be drawn inferences.

[00:06:37] Speaker 04:
But you're required under our case law, and I'm just citing from Sinclair, but Sinclair is citing other cases like Hernandez versus San Jose and Kennedy versus Richfield, that the injury suffered has to be foreseeable.

[00:06:55] Speaker 04:
And so the complaint under Twombly and Iqbal needs to provide things from which the district court can legitimately conclude that injury based on displacement was foreseeable, right?

[00:07:10] Speaker 03:
I think, yes, that injury is foreseeable, but not the exact nature of the injury, under Kennedy and Merguia.

[00:07:18] Speaker 03:
Both of those cases hold that you don't have to predict that there were going to be 33 punches and a blow-for-blow recitation, as long as there's the potential for injury.

[00:07:27] Speaker 03:
And I think even here, going farther, a child threatens another child multiple times, two to three times in the record.

[00:07:35] Speaker 03:
Three years prior.

[00:07:37] Speaker 03:
Well that's again that's an inference I think is misleading because COVID shut down the schools here in Nevada in March of 2020 and it was all remote instruction in the 2021 school year.

[00:07:49] Speaker 03:
The 21-22 school year involved the offender

[00:07:53] Speaker 04:
But basically your argument is essentially events for the most part three years before should have put the school on notice that readmitting this child to school and placing her in a mainstream classroom created a foreseeable risk of injury.

[00:08:16] Speaker 03:
The Constitution, as Your Honor is aware, doesn't draw lines at one year, two years, three years.

[00:08:21] Speaker 03:
It's really a fact-based analysis here, and I think when you look at all of the facts that the school and the school district had in front of them, it was a foreseeable danger of what happened, because in this case,

[00:08:35] Speaker 03:
the student threatened before he attacked.

[00:08:38] Speaker 03:
In the prior cases, the student threatened before he attacked.

[00:08:42] Speaker 03:
In this case, the student was told by the teacher, stop.

[00:08:46] Speaker 03:
In the other cases, there was insubordination, not listening to the teacher.

[00:08:51] Speaker 03:
So I believe it was foreseeable and it was a moving force.

[00:08:54] Speaker 03:
Yes, Your Honor.

[00:08:56] Speaker 02:
in the in in the second event a complaint which is of course in the record starting er 3 on paragraphs 80 through 96 their allegations about other lawsuits I think all of them ccst was a defendant in any of those lawsuits was there did the court make a manel

[00:09:18] Speaker 02:
Did a court face the Monell question?

[00:09:21] Speaker 02:
Did a court find that CCSD was liable under Monell or did it face like we do here a pleading situation where a court said yes, the plaintiff in one of those cases adequately pleaded Monell liability in a factual situation that's similar to this one?

[00:09:42] Speaker 03:
Candidly, Your Honor, we did not go that deep with those prior lawsuits.

[00:09:47] Speaker 03:
The purpose of citing public records and the prior lawsuits were to show examples of prior injuries to demonstrate plausibility here.

[00:09:56] Speaker 03:
Of course, if we were to get into discovery and to be able to look at the facts in those prior cases and to be able to show a long-standing practice, then we would be able to do that.

[00:10:05] Speaker 03:
But at least at a minimum, we showed, I think, close to 50 examples of incidents where there were prior offenders who attacked students after being readmitted to school.

[00:10:16] Speaker 03:
But candidly, Your Honor, we did not go that deep in the analysis.

[00:10:21] Speaker 02:
Following up on Judge Bennett's foreseeability question,

[00:10:25] Speaker 02:
Are there degrees of foreseeability?

[00:10:27] Speaker 02:
I mean, you talked about the test cannot be that it's foreseeable that NA would strike your client 33 times.

[00:10:35] Speaker 02:
That's not what we're talking about.

[00:10:37] Speaker 02:
But it's certainly foreseeable that students would fight.

[00:10:40] Speaker 02:
This is high school.

[00:10:41] Speaker 02:
Teenagers are going to fight.

[00:10:43] Speaker 02:
It's foreseeable that there would be fights.

[00:10:45] Speaker 02:
It's foreseeable that somebody would be injured.

[00:10:48] Speaker 02:
Where is the line for the purposes of this case, for the purposes of Minnell liability in the analysis?

[00:10:53] Speaker 03:
I think for the purposes of this case, Your Honor, we just look to the prior Ninth Circuit precedent, and we look to Kennedy, we look to Merguia, and we see that in Merguia there was a prior conviction for child abuse of other children.

[00:11:09] Speaker 03:
And yet, the court found that it was enough that, with respect to the children that were killed, that was foreseeable.

[00:11:18] Speaker 03:
So for that, we looked at prior incidents.

[00:11:21] Speaker 03:
I think that's the really easy answer.

[00:11:23] Speaker 03:
I haven't found a case where threats alone are going to be the standard.

[00:11:30] Speaker 02:
But what must be foreseeable?

[00:11:32] Speaker 03:
that the foreseeable risk of just injury.

[00:11:35] Speaker 02:
I think that's what I'm talking about.

[00:11:37] Speaker 02:
Any injury is sufficient for you to meet the foreseeability element of the test.

[00:11:43] Speaker 04:
Yes, your honor.

[00:11:44] Speaker 04:
So any student, I'm sorry to interrupt you.

[00:11:46] Speaker 04:
Please go ahead.

[00:11:47] Speaker 04:
So any student who has threatened any other student shouldn't be mainstreamed because there is a foreseeability that a threatening is going to be an assaulter.

[00:12:01] Speaker 03:
No, Your Honor, and that's not what we're arguing here.

[00:12:03] Speaker 04:
No, I understand that.

[00:12:04] Speaker 04:
But I mean, that's what I took from your answer to Judge Holcomb's question, that any type of violent activity makes a risk of injury foreseeable, and that gets you past the pleading stage on a claim like this one.

[00:12:22] Speaker 03:
That's not what we're asking for here.

[00:12:24] Speaker 03:
Here we're showing prior incidents of violence.

[00:12:26] Speaker 03:
We're showing prior threats.

[00:12:29] Speaker 03:
I think in the everyday world, if you have somebody in the workplace that was making threats, physical threats against other coworkers, most people would believe that that's a reasonable thing and that person should be fired.

[00:12:39] Speaker 03:
Kind of a different analogy, different facts, but the doctrine is the same.

[00:12:43] Speaker 03:
You have threats, you have violence, you have erratic behavior, you have mental health, long-term admissions, and this is, I think, you can't, I don't think it's fair to use long-term issues that occurred two or three years ago and then exclude the fact, the possibility that long-term mental health behaviors are somehow disconnected from that.

[00:13:06] Speaker 03:
We have to get into this in discovery.

[00:13:08] Speaker 03:
There's a time on summary judgment when the court can decide that, Your Honor.

[00:13:14] Speaker 04:
Did you want to reserve the rest of your time?

[00:13:16] Speaker 04:
I do, Your Honor.

[00:13:16] Speaker 03:
All right.

[00:13:17] Speaker 04:
We'll give you two minutes.

[00:13:17] Speaker 04:
Thank you.

[00:13:33] Speaker 00:
May it please the court?

[00:13:34] Speaker 00:
My name is Aki Levin and I represent the Clark County School District in this case.

[00:13:40] Speaker 00:
The second amended complaint that the district court dismissed alleged an unforeseen act of aggression by one student on another, not a constitutional violation by the school district.

[00:13:54] Speaker 00:
This is not a closed case and plaintiffs had two chances to plead their claim.

[00:14:00] Speaker 00:
Even after requesting and receiving significant discovery, before filing the second amended complaint, the allegations were still insufficient to support each of the four elements of the Monell claim that they had to state.

[00:14:16] Speaker 01:
What was the nature of that discovery that was turned over?

[00:14:19] Speaker 00:
Before, they received approximately 400, actually I think this is exact, 498 pages of discovery, including the entire student file, the student discipline report, her attendance record, so they had significant information about the specific student.

[00:14:46] Speaker 00:
And this is why the court should affirm that this court's order dismissing the complaint with prejudice without leave to amend.

[00:14:54] Speaker 00:
The Monell claim fails on the first element alone.

[00:14:58] Speaker 00:
This is because this is student on student conduct.

[00:15:02] Speaker 00:
They bring their claim under the state created danger doctrine.

[00:15:06] Speaker 00:
The first element requires an affirmative act putting the plaintiff in

[00:15:11] Speaker 00:
actual particularized danger.

[00:15:14] Speaker 00:
They have not alleged an affirmative act.

[00:15:17] Speaker 00:
Inaction is not enough.

[00:15:19] Speaker 04:
Well, they left the student in school in class.

[00:15:27] Speaker 04:
I mean, the school district can't be arguing that no matter how much of a violent history a student has, that it's just a passive act to allow them to attend school and so the state can't be, the school district can't be liable.

[00:15:46] Speaker 04:
I mean, that can't be your argument, right?

[00:15:48] Speaker 00:
Well, there has to be an affirmative act putting the plaintiff in an actual particularized danger.

[00:15:54] Speaker 04:
Yeah, but couldn't that come from the school being on notice of a particular type of extraordinarily severe violent history?

[00:16:08] Speaker 00:
No, that is not enough.

[00:16:09] Speaker 04:
So it wouldn't be enough, for example, if this student had assaulted many prior students and said, if I come back to school tomorrow, I'm going to beat up everybody in geometry class?

[00:16:26] Speaker 00:
That would be a different situation.

[00:16:29] Speaker 00:
Those are different allegations.

[00:16:31] Speaker 00:
But as this court held in Polanco, not any risk of danger suffices.

[00:16:37] Speaker 00:
There has to be an actual present danger that is sufficiently severe to raise constitutional concerns.

[00:16:45] Speaker 00:
But they're not saying what that severe danger is on the date that this incident occurred.

[00:16:51] Speaker 00:
They repeatedly say that this student had a history of escalating conduct when in fact their own allegations show the opposite.

[00:16:59] Speaker 00:
The only incident that they've alleged, if it was a physical incident at all, is the lotion bottle incident in May 2019.

[00:17:08] Speaker 00:
Thereafter, there was a verbal threat in November

[00:17:12] Speaker 00:
And from there, all we have are three incidents where this student was rude and defiant to her teachers, not anything related to another student.

[00:17:27] Speaker 00:
So by their own allegations, the conduct de-escalated.

[00:17:31] Speaker 02:
On the issue of the passage of the three years, I'm not sure which way that cuts.

[00:17:38] Speaker 02:
I mean, we're talking about high school students.

[00:17:39] Speaker 02:
We're talking about high school students who mature, get bigger, get stronger.

[00:17:44] Speaker 02:
To the extent that NA was a threat, wasn't she more of a threat three years later?

[00:17:55] Speaker 02:
I'm putting this in the foreseeability bucket, and that's the way I'm thinking of it in terms of the three years.

[00:18:02] Speaker 02:
Isn't that problematic for the school district, the passage of the three years and the maturity of NA?

[00:18:10] Speaker 00:
No, I don't believe so because, again, the severity of the injury must have been foreseeable.

[00:18:17] Speaker 00:
And in all of this court state-created danger doctrine cases, there was always, none of them involved isolated minor incidents that happened years ago.

[00:18:29] Speaker 00:
All involved serious prior incidents and an imminent precedent danger making the injuries foreseeable in the specific case.

[00:18:38] Speaker 00:
So my friend on the other side cited the Murguia case versus Langdon.

[00:18:44] Speaker 00:
But in that case, the mother of her 10-month-old babies had three criminal convictions for child abuse, and she alleged that the cop knew that.

[00:18:56] Speaker 00:
But more than that, the cop saw that this woman was in an active mental health crisis at the time.

[00:19:03] Speaker 00:
None of these allegations are present here.

[00:19:08] Speaker 00:
So it would have been different.

[00:19:09] Speaker 01:
Wasn't there an allegation that after NA threatened the student, the student went to the teacher and said, do something about it, and nothing happened?

[00:19:19] Speaker 01:
And so why isn't that somewhat similar to Morghia?

[00:19:24] Speaker 00:
Because now we're looking at what the teacher did and did not do, if I understand your question correctly.

[00:19:32] Speaker 00:
And if we're looking at the teacher, the teacher did not create this incident.

[00:19:38] Speaker 00:
She did not put this student in more danger than she found the student in before.

[00:19:45] Speaker 04:
I'm looking at paragraph, I think this goes to

[00:19:48] Speaker 04:
to Sanchez's question, but I'm looking at paragraph 33.

[00:19:52] Speaker 04:
And it says basically on February 1, GRL relayed to teacher that student NA had made threatening statements to her and GRL indicated her concern for her physical safety resulting from such statements.

[00:20:09] Speaker 04:
Relay those to the teacher.

[00:20:10] Speaker 04:
Teacher took no steps to protect GRL as a result of this information.

[00:20:16] Speaker 04:
That seems pretty specific.

[00:20:18] Speaker 00:
Correct, Your Honor, but there is no respondeat superior liability.

[00:20:24] Speaker 00:
So to hold the school district liable for what the teacher did and did not do, they would have to allege more than the teacher's failure to act.

[00:20:35] Speaker 00:
and they would have to show and allege that her failure to do something was pursuant to a widespread practice, for example, of teachers not doing anything.

[00:20:46] Speaker 00:
But that's not the problem.

[00:20:47] Speaker 01:
I mean, the complaint has pages and pages of allegations of just that, of either from public reports for a bill or from these other lawsuits that numerous times parents and students have gone to the school district

[00:21:04] Speaker 01:
or to administrators to complain about bullying or violent incidents or other things and those have fallen on deaf ears.

[00:21:12] Speaker 01:
So why doesn't that establish more of a pattern for purposes of a Monell claim?

[00:21:19] Speaker 00:
Well, the pattern, the custom that they're alleging is a custom of knowingly putting violent children with a mental health condition back into classes.

[00:21:32] Speaker 00:
And the mere fact that prior incidents have happened, that parents have complained about bullying, and by the way, most of these incidents were 10 years prior,

[00:21:45] Speaker 00:
It's not the same thing as saying that this is pursuant to a policy whereby CCSD ignores these violent incidents, allows these students to freely return to school.

[00:22:02] Speaker 00:
They're not saying that the CCSD didn't discipline these students.

[00:22:08] Speaker 00:
They do not allege that most, many or even more than a few of these incidents were committed by

[00:22:13] Speaker 00:
repeat offenders known to Clark County School District to be a violent.

[00:22:19] Speaker 00:
and or the result of CCSD knowingly and routinely putting such students back in classroom, there has to be a causation between the incidents occurring and the school not doing anything about it.

[00:22:37] Speaker 00:
And they have not alleged that.

[00:22:39] Speaker 00:
And by simply by trolling the dockets for other cases in which similar allegations were made,

[00:22:46] Speaker 00:
That is insufficient.

[00:22:49] Speaker 00:
I believe one of the justices asked what happened with some cases.

[00:22:55] Speaker 00:
I looked one of those cases up, the one that is mentioned in paragraph 91.

[00:23:01] Speaker 00:
In that case, the 1983 claim was dismissed.

[00:23:05] Speaker 00:
So the mere allegations in another lawsuit or parents' complaints about bullying years and years prior or comments in legislative sessions in and of itself is insufficient to allege that this is all the result and because of those deliberate policies putting these kids back into class.

[00:23:35] Speaker 00:
And again, so we're touching on the foreseeability of the injury.

[00:23:41] Speaker 00:
Again, this court's jurisprudence shows that in each of those cases there was an imminent and present danger present.

[00:23:53] Speaker 00:
And so the mere fact that this student, for example, was in a mental hospital nine months before the incident occurred in and of itself doesn't show that this

[00:24:07] Speaker 00:
This is a foreseeable incident.

[00:24:10] Speaker 00:
As Justice Bennett pointed out, it could have been for depression.

[00:24:16] Speaker 00:
It could have been for any disorder.

[00:24:18] Speaker 00:
And then you also have to meet the deliberate indifference standard.

[00:24:23] Speaker 00:
And so you would have to show that the school knew, knew that

[00:24:30] Speaker 00:
And this is a stringent standard as the court held in Hernandez and in the Herrera case.

[00:24:37] Speaker 00:
CCSD must have known that something was going to happen that day.

[00:24:42] Speaker 00:
yet ignored the risk and intended to expose the plaintiff to it anyways.

[00:24:48] Speaker 00:
This is not an objective standard, and this is what plaintiffs appear to rely on, where they say, well, the school should have anticipated that something could happen because look at her history, but that's not the standard.

[00:25:03] Speaker 00:
It's the subjective standard on the state-created danger.

[00:25:06] Speaker 00:
And there are no allegations that the school district subjectively knew that something was going to happen.

[00:25:13] Speaker 00:
Merely failing to realize something may happen is not enough, but that's all they have.

[00:25:18] Speaker 00:
And again, they repeat the same conclusory buzzwords, escalating conduct, when in fact the allegations show the other way around.

[00:25:29] Speaker 00:
And so if you don't have a constitutional violation, if you cannot plead a

[00:25:37] Speaker 00:
deprivation of a constitutional right, you don't get even to the other three Monell factors.

[00:25:43] Speaker 00:
And again, the custom and practice, which would be the next factor, it cannot be based on isolated incidents.

[00:25:53] Speaker 00:
It has to be so widespread that it is essentially well-established policy, and that's the Torino case.

[00:26:01] Speaker 00:
And so what they've alleged is, again,

[00:26:04] Speaker 00:
the same series of conclusory allegations that CCSD had such practice without saying what that is and how it applied.

[00:26:15] Speaker 00:
And those allegations are not presumed to be true.

[00:26:20] Speaker 00:
And so again, as we went over before, all the prior incidents, they do not establish such custom.

[00:26:31] Speaker 00:
I believe they only allege one other incident involving violence.

[00:26:36] Speaker 00:
And by the way, none of the incidents that they mentioned pertain to this school.

[00:26:41] Speaker 00:
None of them.

[00:26:42] Speaker 00:
But only one incident that they alleged happened at a different school that's in paragraph 90 on excerpts of records 022 to 23, where CCSD allegedly knew about violent tendency of the child, which is plainly not enough under Trevino.

[00:27:03] Speaker 00:
In other words, we have

[00:27:06] Speaker 00:
You know, arguably, if this specific incident that's a subject of the appeal is one incident and then we have this one other one in paragraph 90, that is not a persistent widespread practice.

[00:27:24] Speaker 02:
And... You don't know any more about the Jackson case that's discussed, referenced in paragraph 90, correct?

[00:27:32] Speaker 00:
No, I don't.

[00:27:36] Speaker 00:
Council says that, well, we need discovery.

[00:27:39] Speaker 00:
That is not the rule.

[00:27:40] Speaker 00:
Under the well-established precedents, the doors do not open to discovery if you have only conclusory allegations.

[00:27:49] Speaker 00:
So the discovery happens before you file the, or the fact-finding happens before.

[00:27:56] Speaker 00:
But in this case, even more so, the plaintiffs, the family had

[00:28:02] Speaker 00:
did receive significant discovery before pleading their second amended complaint.

[00:28:08] Speaker 00:
So if they cannot plead their allegations and sufficient facts for each of the elements that they need to meet, that they should not be allowed another chance to correct it.

[00:28:20] Speaker 00:
Because again, this is not a closed case.

[00:28:30] Speaker 00:
And I see my time is up, and I thank you for your time.

[00:28:34] Speaker 00:
All right, thank you.

[00:28:42] Speaker 03:
Thank you, your honor.

[00:28:44] Speaker 03:
I'll go quickly.

[00:28:45] Speaker 03:
I think there's a lot to unpack.

[00:28:47] Speaker 03:
The affirmative act was the policy.

[00:28:50] Speaker 03:
That's the district's affirmative act.

[00:28:52] Speaker 03:
It's a Monell case.

[00:28:54] Speaker 03:
The actualized, actual particularized danger can be a group of people.

[00:28:58] Speaker 03:
This isn't the general public.

[00:28:59] Speaker 03:
This is the people in NA's classroom and at the school.

[00:29:04] Speaker 03:
It wasn't nine months before

[00:29:07] Speaker 03:
The attack that she was institutionalized, it was just a few months.

[00:29:13] Speaker 03:
N.A.

[00:29:13] Speaker 03:
was not in school between October and February.

[00:29:16] Speaker 03:
The present danger was being announced.

[00:29:19] Speaker 03:
The threats were being announced on the day it occurred.

[00:29:26] Speaker 03:
There's a reference to saying, all we have is the policy itself.

[00:29:32] Speaker 03:
There is a policy.

[00:29:33] Speaker 03:
The district's not required to exclude a violent person from the classroom.

[00:29:38] Speaker 03:
They leave that up to various factors, but it's not an automatic exclusion, so that's permitted.

[00:29:45] Speaker 03:
I think it's a misstatement of the law to say that the severity of the injury has to be foreseeable.

[00:29:51] Speaker 03:
That's not consistent with Kennedy and Merguia.

[00:29:57] Speaker 03:
And finally, foreseeability was never briefed by the defendant in this case or the respondent.

[00:30:06] Speaker 03:
What happened, there was no hearing on the motion to dismiss.

[00:30:10] Speaker 03:
It was issued with an order.

[00:30:12] Speaker 03:
And so when we received the order saying foreseeability was one of the issues and it was connected to the moving force analysis, that was a big surprise to us.

[00:30:23] Speaker 03:
Even so, we've now provided the court with sufficient cases to demonstrate that foreseeability existed because of the prior violence, threats, and all the facts, including insubordination and the mental health treatment.

[00:30:36] Speaker 03:
But at the at the lower level just wasn't fair for us not to be able to even argue it an oral argument or even to brief it Thank you honor.

[00:30:46] Speaker 04:
I would thank counsel for their arguments the case just argue to submit it and with that we are adjourned for the day