may please the court my name is matthew weiner i represent the plaintiff appellant jennifer donahue your honour's defendants in this action acted in at least four affirmative ways which increased the danger to lieutenant scott don e that he would be susceptible to the risks of suicide first defendants affirmatively adopted the weapons removal policy which acts as a deterrent to police officers seeking mental health treatment second defendants affirmatively adopted the restriction to residents policy third defendants enforced the restriction to residents policy with respect to lieutenant on e u and fourth defendants punished lieutenant donohue for violating the restriction to home policy these are all affirmative decisions these are all decisions which police lieutenant donohue in a worse position than if the municipality had not taken action and we know this because if we remove these decisions from the equation then the conditions change if we remove the weapons removal policy from the equation we remove a deterrence from lieutenant dan you seeking help and in fact lieutenant dan you told his wife that he did not want to seek mental health treatment because he was worried about the policies the hampstead police department if we remove the restriction to residence policy something for the for the courts to do i'm not asking the court to second guess the policy is what i'm suggesting is that these policies increase their risk as well as implementing these that's true but  mitigating steps mitigating steps which are widely accepted by leading police departments including the new york police department and it becomes a film here to take action argument as opposed to an affirmative stop pardon i think it's a totalit circumstances and it's like in pena where the the defendant officers were condoning the conditions that led to a drunk driving accident similarly here the defendants are acting affirmative acting by implementing policies they're condoning their officers to restrain themselves in hiding their mental health issues and in that way they're also condoning all of these conditions which are fostering mental health issues amongst their officers which are leading to these risks of suicide so it's it's a two step implement a policy to address a legitimate concern but also implement the mitigating policy to reduce the risk that the polic creating in that respect it's also like the conrad case where the police might have had a legitimate purpose in seeking to arrest the suspect but they still went about doing that in a way that could have been unlawful similarly here the defendants may have had legitimate purposes in seeking to implement certain policies but they needed to do them in a in a record to show that failure to take these mitigating steps is reaches around rages or shocks the conscience thank you your honor so first of all these defendants know that their officers will need mental health counseling these defendants know that their officers will not seek mental health counseling these defendants know that their officers will not seek mental health counseling because of the policies that they've implemented and the defendants know that they can implement other policies which might mitigate those risks in the briefing we correlated the actions to sending firefighters into a fire without protective gear you know your firefighters are going to be injured i think any reasonable person would find that shocking it's like withholding bullet proof vests from police officers you know if you send your police officers out into the field without tools to protect themselves you know they will be injured in this day and age it's absolutely shocking if a police department did withhold bulletproof vest it's similarly at the point where it shocking that a police department withholds lifesaving tools for a mental health crisis and police departments which is well documented pervasive and widespread which these defendants know about to for their decades of measure that would have somehow saved his life the weapons policy that they adopted according to the complaint that all things seems to me to be a typical red herring obviously the weapons removal policy is necessary if a police officer reports michael problems you don't want that police officer to be in possession and excuse me to be in possession of a service revolver that he may use on himself or some others and the second step that flows from that is the allegation as well that might have had a legitimate purpose but you failed to adopt policies to address the mental health situations that might arise from those that your typical passive in action the words of this court in the supreme court of years is we don't want to turn the constitution into a font of tort law that's a that's a negligence crime if anything  pena which was referenced as distinguishable in that case the police supervisors encouraged their officers in the precinct to drink and drive while on duty and assured them that they would not be disciplined for that there was a consequence of that and that resulted in pedestrian that's again i was not a suicide case but that was shocking and egregious misconduct on the part of the supervisors conradt there was a custodial situation judge sure that was your case i can think of maybe one hypothetical egregious scenario where they might be and that would be where the supervisors had knowledge of a distressed officer who had exhibited a long signs of suicidal tendencies maybe expressed that to the supervisors so the supervisor i can't take it anymore i'm going to kill myself for some reason and have a weapon maybe the supervisor says here use this i mean i don't mean to be thank you your honor i would just note this is the third time that a cli suicide case has reached the second circuit this case is on like the other cases and not in the other cases the allegation was really that there was a trial the failure to train the police officers that's not what we're alleging in this case in this case we're alleging there were affirmative policy decisions which increase the danger that police officers would hide their mental health issues and that police departments have a duty when creating that risk to mitigate the risk as well and i think that this being the third time that such a case is reached this court undermines the importance of making a point that police departments have to take some level of