coleman versus suffolk county had taken this court's admonishment in o'berg versus vargo vargo which is three thirty one fed there are twenty nine when viewing the evidence on a summary judgment motion where the plaintive is deceased or where the victim is deceased and we're dealing with the a state that officers testimony has to be even more scrutinized and it has to in a summary judgment matter as it generally does the court could have found disputed issues of material fact every step of the way it's beginning in december thirty first two thousand and ten and i'm going to divide this into two steps from december thirty first through june twentieth the jury and judge really should have found that time and again every time the different members of the suffolk county police department came in to actual actual contact with mr jenkins they basically said to him in some insteps is the way they interacted with him don't worry you can do as you please to ms williams  they know that he has taken their car and that that jenkins has taken ms williams car without her consent that she has not returned it and that oh yeah absolutely because that page five all one and the reasonable inference is ok when asked and this is that joint appendix five a one at his deposition he said he probably spoke with junkets for always had very little recollection of  events of december thirty first and so the fair inference was that he a spoke with jenkins about it jenkins denied it and he believed him because otherwise probable cause would have existed to arrest jenkins for it was the car at the time they were the officers responded i don't know the answer that judge i don't know if it's hard to return it it had been returned and not sure if it had been returned at the time because it would be such as these officers in their individual capacity which means that we have to find enough evidence as to each of them individually to go for i understand it correctly this is the only incident that officer for we saw response to it correct there is no allegation of violence by mr williams on this occasion it's that the car was taken and the cars then returned why would you think that officer ver least has implicitly sent a signal to mr jenkins that he is free to engage they implicitly sent the message tell us which officer you're dealing with and what the evidence is so appears interacts with jenkins and december thirty first that would not be enough can i just make one statement before i continue anyway even if you find that there is insufficient evidence with respect to a unrelated to the can someone who's taken away in handcuffs have skum unit catered to them implicitly that he's free to continue beating the woman because it's not  incident what what authority would you have that officers who arrests someone even for another incident have communicated to him that the other conduct he's free to continue to engage in you know the the cases where we've recognize implicit condemnation are ones where the officers pretty much by not interfering not taking any action allowed the  harmful conduct to keep going on and here they interrupt it because they thought the other arrest was on stronger grounds after all on the beating by the time they arrived the two bridges it's are telling different that that kind of action by the officer is implicit condemnation can i just take issue with one statement that you major anything that you think responds to or you said that because they they she asked jordan testifies her daughter and her sister testified that she heard her sister asked morgue in via us why they were arresting him for being violent towards her cases from the circuit and i don't have a case that says to respond to your point about why the arrest for a on a bench warrant or an arrest when i don't remember which one it was is it doesn't send a sufficient message but what i do know is that we have v r s twice not dealing with his meaning jenkins i'm sorry conduct towards williams so then we get is not arresting jenkins for anything he's done visa v williams and then we get to the fifth june twentieth which judge hurley's treatment of june june twentieth is  furniture i absolutely oh absolutely but don't forget the call that you can't i don't think you can ignore the nine one one call he's violent towards her he's drinking his violent drinking kick the door down that's violent and i don't think the case law but judge hurley drew a distinction about the facts of oak and i don't think that's a legitimate distinction being physical violence which of course is a critically important point and huge violence that doesn't right but you don't you cannot argue that a failure to arrest when there's probable cause equates to condemnation because that's not the law the law the law does not require the officers to arrest every time  probable cause it the question is whether the failure to rest in the circumstances would say to him go ahead continue to do this and the suggestion we're making to you is that where the viol conduct is the officers see it is directed toward furniture and they stand there until he puts whatever furniture he can back in place and brings whatever furniture is to  destroyed beyond retrieval into a dumpster that hardly suggests that they're saying to him be our guest tell to tell us what we're missing ok so this interesting case in the sense because it seems like the law is not and the law is a small body of law and what you're missing is what jordan says to the officers  him saying it's not the judge really said well it's his property too it's not reasonable jury could find that it was not his property and that is to me a difference also i'm just trying to find what jordan said to her he's throwing stuff out it's not as important important why don't you arrest him get him out of here he's doing all this stuff to us he's torturing us that's force for twenty twenty one of the record i  agree with you judge reggie that an officer with who has probable cause does not have to arrest somebody that's and that's a well established principle but what you're what i think what you're results in her death your time is up and i want to ask you to incidents that are more serious mecurio and mccauley when they return on six twenty at seven forty pm the allegation is that one of the first of all are you able to identify which officer says that or what's your view on why they're both responsible for that or they present their both mecurio jenkins one that's being said i don't know the answer i thought he may cannot judge just as a pressing matter but that's so you would say that those that circumstance which i described as troubling cannot be viewed as conduct that sent jenkins the message as for both incidents she called in a panic threatening that he's threatening to burn the house down with the child and that there's a history of violence she claims there's weapons in the house and they speak with jenkins that's property destruction and then being told or knowing that he's threatening to burn down the house and nothing happens that does send a message thank you just please the court i'm brian mitchell an assistant county attorney in suffolk county to represent the defendants in this case and it's the county's position obviously that we believe this court should affirm judge hurley's granting of our rule fifty six motion  and dismissing the case finding that there is insufficient evidence in the record to support a theory that the plaintiffs substantive due process violations of subs and due process was violated based upon the several different events that occurred in modelled claim be pursued against the county on the theory that the totality of officer conduct here suggests that there is inadequate training about how to deal with domestic disputes and that that is rose to the level of civil rights violation here why would we not conclude that whatever we do with individual officers well obviously it if you found that there was no violation on the part of any of the officers then that's step one is there has to be an underlying violation i believe you are with me is that we the officers have to be treated as individuals you saw me go through with counsel you know officer veer away since only there for the first incident but all together you have officers responding to you no more than a half dozen inciden various ones of them involving violence no one officer mate might have you know been so so non responsive as to amount to condemnation but does the fact that all these suffolk county officers fails to respond support a view that the county has not adequately trained so that it amounts to condemnation if i could just amplify that one if in  addition the the failure to file a domestic incident reports into two readily perhaps avoid out reports would be part of the collection of facts in suggesting that the failure because it seems that this might be for have to be viewed separately even if we were to rule favorably for any officers what's your position on now now my position on ows i just mentioned is if there is no underlying violation i appreciate your own to looking at the totality concept that regardless of whether it's like individually or a totality concept there has to be a finding that the point is that ms williams constitutional rights were violated in the first place in this instance the right would be what she's claiming is a substantive due process right without an underlying violation you can't get to mono there has to be an individual who by somebody whether they're whether they're identified in the caption as a name felice officer or by somebody who is john doe or not are not identified in the event that the court were to find some violation which of course i would argue should not then the question would be is this sufficient evidence is sufficient evidence of failure to train we believe that in the record when it looks at each individual event and when you view the reasons why officers in many instances filled out domestic violence reports or the instances when they chose not to that when you look at the rules and procedures of the county when they're supposed to do that when they're not supposed to do that that ultimately there is insufficient evidence to support a mono theory on there even a failure to train because the officers consistently throughout this case when looking at all the facts a relation to why they did or did not fill out reports why they did or did not take conduct or if they're absolutely consistent with the rules and procedures so might you be three how is that true on the second response of kids when they've just been there they come back to me you know the first conduct throwing out of furniture and as we reviewed with counsel the officer stand there and make him put it back which might be construed to send a message of we're not going to tolerate this but then ten minutes later east doing the same thing and they come back and they don't do anything and they tell her don't call us and you're on are you talking about in relation to a mono concept  well you know it will start with you think the officers can't be liable so you can tell us why you think the officers can't be liable in those circumstances and why it doesn't support now surely judges farms that the liability of the officers in the is the crux of this case is that your honor use the phrase communication that there has to be in this instance it's implicit it's not explicit and implicit affirmative communication in this case to the person who is the bad w the bad guy mr jenkins and nowhere throughout this case is there any evidence that there is any communication to mr jenkins at all and so for example in the instance with july of june throughout the whole case if you look at each of these events there no evidence that it was communicated in any fashion implicitly to mr jenkins that he could act with impunity that he could continue with violence that the officers ever said to him they want to arrest him punish him or most importantly interfere with  because it every different you go through each one you will see that the officers that you do are us them as they did on march thirteenth or they stelle him things that are inconsistent with the suggestion that he can continue as far as the june to june twentieth secondary event with officer mecurio he doesn't ignore the conduct while he doesn't arrest him he advises mr jenkins he has to stay away from ms williams  he speaks to him he makes a determination subjectively that he doesn't believe he's a danger but in any event he tells him that he has to stay away from her he doesn't say go ahead and do what you want he doesn't say to him you can stay here and go continue to bother her he literally told her you have to stay away from her he communicates then goes and speaks to ms jordan as williams and indicates to them i've told him he has to stay away from you and says to them you stay away from that when we look at the underlying violation of whether there's an implicit communication to mr jenkins that he can continue with impunity there's no evidence and ever occurs once you might argue that the department as a whole communicated by tolerating this sequence of events a willingness not to move to the next level and restrain him judged the officers and it's this comes up in the concept of  shocking the conscience and the officers in this instance throughout this case do faced with that concept of competing obligations they have when they respond to these various calls they respond and when they get to the call i understand counsels argument about nine one one calls are what are made and whether egregious first thing is the records clear that the officers don't hear the nine one one calls that they becomes a dispatch sometimes the dispatch will have information for them that may be consistent with the nine one one call but they don't hear the actual call however when they arrive at the scene of these events and then they make in korea about what actually occurred and if they don't believe there's probable cause they're faced with a situation where what can they do and for example with off with that regional december event counsel neglects to mention that ms williams advised officer very wise she did don't want to have mr jenkins arrested there are other times when the officers arrive where  although something is occurring they do not believe there's probable cause to move forward they have the competing obligation of saying ok we have a guy and in most of these incidents by the way or are these are these are mostly rent and custody mostly custody disputes and not not disputes of physical violence who when they do arrive and they make their inquiries they are now faced with a situation of for example mr jenkins has a baby it's an infant child by the way and they say well she wants to be back but clearly under the law we can't just arrest someone because he's because he is the father and takes the baby on there's times later in the case was in order protection issues plaintiffs make great deal out of that mr williams it done things that they claim violated that order however we look at june twentieth these things go on to july eighth which is the last contact that law enforcement has the last seven contact with mr jenkins she's meet with ms williams all involved custody situations of those seven only to mr jenkins even present so there's no evidence that jenkins is even aware that the police are with her and what the police may or may not do the two times that they do encounter mr jenkins one is when off callahan advises him that there's an order of protection callahan really realize it hasn't been served and so he he reads it to him and says to him if you violate this you will be arrested it is the exact opposite of what the case open vs formal talks about that case talks about sending a message that you won't be arrested sending a message that we want to he's told you will be arrested later he's confronted  and then lastly on july eighth the sheriff's department actually physically serves him with the water and once again tells him if you engage in conduct violent of of this you will be arrested so the communication throughout this that week that there's any evidence of is communication that he will be not that not that he'll be ignored but the opposite that he either has to put the stuff back in the house that he'll be arrested that he's not supposed to be near her all of these different things are absolutely distinguishable from the things that happen in the open case which i think is really the one that underlies whether there was liability here and this case is extremely distinguishable from ogun that the the person in open the particular relationship between the police and the salem and this guy sears had a bar where the police drank they drank together he bragged about being able to abuse the victim and the police essentially acquiesced to few i won't say very briefly but i'm sure you'll make it very brief you are going to tell us that we're not i have i have not been it was present i was i have not been able to locate that in this short amount of time twelve minutes i points june twentieth the second incident with the curia he tells williams quote we can't keep coming here don't call us again and quote when the mother asked what is what is her daughter supposed to do one of them responded that in mrs coleman the mother doesn't remember which one she should go upstairs to her sister's apartment don't say anything to jenkins as he's not supposed to say anything to you that is not or kill somebody burn the house down destroy the property and you still walking around i don't think that's much of a message that they could have done more you know as it was it's correct and as far as cases where the officer is not found no officer is found to violate it constitutional rights as an individual but yet the totality of circumstances have supported a claim against the