good morning judge and i are very honored and very pleased to have sitting with us today and earlier this week judge richard go burge from he's a senior judge from the united states court of international as many of you may know we are one of the busiest courts in the country and we depend heavily on the services of good people like judge goldberg who are willing to give their time and come visit with and sit with us and judge goldberg has has sat with this court of a great many times and we are always very pleased to see him and we're always very appreciative of the service he's rendered in his rendering again this week sent thank you jeff goldberg all right our first case today is martin the city would still not be entitled to relief mother and her two minor children were at their residence apparently one of the minor children a young man ethan had been throwing pine straw at a dog who was in the apartment complex on the the young man throwing what she defined as crap at their dog she sent text message to her boyfriend indicating such whereupon mr fox returned to the apartment complex and tried to identify the youthful offended at his girlfriend asked the younger brother what he arrived at the home he pounded on the door and when the war was opened the officer immediately told the young man turned around and put your hands behind your back and he ultimately forced his way into the apartment on the  because not to prejudge but you're not suing the officer in this regard on this today we're here not on the officer or on qualified immunity or are the officers liability you're here for a different kind of defendant which is the municipality itself is and  honor and so and that brings us to the core issue whether mondale allowed government liability in this case whether we can impute the actions of this officer to the governmental entity based on the presence of a policy custom a practice and he was in fact terminated yes or on the issue though is the officers indication that he was trained to place juveniles in handcuffs and then to conduct an investigation and figure everything out and that test secondarily when i proposed my asking the question plainly so do you just place handcuffs on people and then conduct an investigation he said well yes there was a little conflict there he said sometimes he did it first thing first thing he said was when mark quit king asked a question he said here i was trained by my fuel training officer to do this then when i asked him he said well yes i just put handcuffs on people  third thing he said was well sometimes i do in the district judge found that that equivocation the third time he answered the question dispense of any notion of there was a genuine issue of material fact that you got to show why testimony was that he was trained in that regard he said and we believe that that training a stablish is there and that the governmental liability in other cases most recently does court decided the coon case just last year coombs and some other cases well all different none of those cases dealt with a situation where an individual was trained in that regard and there may be some  that that's what you thought your case depended on ask him are there situations where you do hand one officer say he's not involved that if i was a man we'd all be crystal clear yes i wish i had asked that question but b as it is right now i didn't ask that question and so we have a situation where he gives a qualified response and then he gives to unqualified responses my argument is that that ambiguity requires us to determine what's the next step the law says that i don't have to show that i have the better of the argument i don't have to present a winning argument i have to meet an evidentiary threshold do i ways a factual issue that rises to the level of genuineness that's rule fifty six two i created issue of material fact now on balance the court may say well i think that the defender has the better of the argument you have evidence shows carnes pointed out the problem is we're not talking about a suit against the officer or claim against the officer your claims now against city yes your honor the city's policy apparently without any contradiction at all is you don't use hangups in this situation you only handcuffs on people when officer safety isn't what he said that the second or third time he was asked he does it at the first time or the second time he was asked so he gave the third answer which is which is fine but we cannot disregard wh almost up so we will i'm sure hear more from you on this topic thanks dan back up again thank good morning your honour's the may it please the court i'm dong lewis and i'm here for the city of bacon and as we might expect the court has gotten right to the heart of the matter that mr fox who is the bad actor in this scenario is not here he was a party to the last who earlier and all the claims against him have been dismissed with prejudice so here we are looking for some relief against the city of make and now mak county and we would submit that even as distasteful and even agree just as the the factual scenario in the situation was the plaintiffs have simply not made their case to hold the city liable the city county i will refer to them as the city for the actions of mr fox and i think that mr denmark is of the same issue but i think he's saying here that you've heard the argument because in the deposition fox one time or two tom said yeah i was trying to put handcuffs on during an investigation even though he clarified that that statement indicates that was his trying therefore we have a disputed issue of fact what is your response to counsel's argument well your honor even if mr fox unequivocally testified that yes i was trained to put handcuffs on and then investigate that's not sufficient to hold the city liable for his actions and that is because he has to demonstrate a policy or a custom of ma the city of macon that gave rise to this violation and as judge day has a stately noted the policies directly prohibited contradicted all of these behaviors on the part of mr fox  and with respect to this issue of whether his training was sufficient or an adequate or even trained him so as to go out and unconstitutionally handcuff this eight year old child and there has to be a pattern of constitutional violations in other words one instance of unconstitutional cond is not sufficient the city would have to be on notice of a need for additional training or on notice that training was deficient in this area and there's been absolutely no showing of that with regard to case law to the extent that that we need to go into that as i said the city would have to be on notice of this need for training and this this line of reasoning goes back to a u s supreme court case the city of canton case  which talks about the possibility of a need for training being so obvious that it can be imputed without direct proof of actual notice to to the  city and in that case the supreme court left open or sort of hypothesized about this area of the provision of firearms to officers and the fact that they were called upon to exercise deadly w in certain situations but since then we've had the gold versus city of miami case that was an eleventh circuit case the case in this court that discussed handcu complaints and that was a disorderly conduct charge and then a complaint about excessive force for use of handcuffs and in that case again the the court found this court found that there were not other complaints related to the use of handcuffs and it did not create an issue that the need for training was so obvious that the city would be on notice of the need for additional training in that regard  a policy even in instances where the incident involves several employees of the municipality craig versus floyd county the court noted this court noted that the plaintiff couldn't point to another  three persistent and widespread practices but there was no evidence that the practices had been employed for any other detainees in likewise in mcdowell versus brown also an eleventh circuit case the plaintiff allege that there was a policy or custom of the jail understaffing that resulted in excuse me a constitutional violation by virtue of a delay in transporting this individual to receive medical care and again it was a tragic situation but this court noted that it was an isolated incident the plaintiff didn't point to any other occasion when jail under staffing created that sort of situation and you just cannot pin liability on a municipality without that culpability showing a fault and the required calls a link and in this case the district court rightly determined as a matter of law that the plaintiff had not established an essential element of the claim so again even if officer fox unambiguously testified that that's the way he was trained it's not sufficient there has to be more than that this was one incident and there was absolutely no evidence no attempt no allegation of any other incidents involving handcuffing juveniles or handcuffing folks before before they conduct an investigation thank you thank you available for the first victim of a policy or custom that would be in affordably because an individual be subjected to deprivation of a constitutional right as it is for the second and subsequent victims so what the supreme court was saying is you don't get a freebie you don't get a valid somebody constitutional right as all that was just the first time and we can't be held liable for that one but the second third fourth and fifth now you can get us that's it the system with basic logic and emotions of justice in this court has so held in gilman eighty five that a single act can be the basis for mondale liability so the notion that was only one act i think we really need to dispense with that and if for no other reason i think that that law course should be reversed because it's holding was inconsistent with this course determination and the u s supreme court's determination i also want to quickly address the issue about the written policy you can't create a written policy against constitutional deprivations on the one hand and the that works i mean that's certainly an infrastructure to be drawn but i didn't read it that we are really as him explaining why he would do that if he said he doubled down on that in his deposition when i asked him a question and he said yes so i think that in in the district or even pointed that out on recross examination council plane of x box whether it was his testimony that the training part to the place people in handcuffs while you conducted an investigation responded yes so that's the second time he said it he said it did he doubled down on it and then the third time he cleaned it up i don't think that that destroys a genuine issue of material fact i think that's the essence of a genuine issue and i think that is if this court the whole court opposing counsel me say on balance i think they got the better of the argument maybe they do but under our laws that's for jury to decide so i'm not here saying that i should win on the ultimate question i'm here saying that the district court here when it granted somebody judgment in the face of this gin will issue a material fact which i've met my evidence we burden i cross that even through threshold i point to specific evidence in the record that was uncontroverted now in response and i point out in closing that the notion that that fox it was only a single incident the district court raised that in response to my argument about fox indicating he was trying to do so opposing counsel stated that fox a statement is simply not credible and should be regarded as a self serving statement like the earth would in a grass an attempt to see this job that was their response the notion that he came and clarify his testimony the district court brought that up as well as a whole new set of required a single incident and so that put me at a disadvantage because i did have an opportunity