we called two thousand and sixteen zero zero zero three courtroom today on behalf of the appellant in the instant appeal your honor is permitting i will focus on the following two reasons why this court should reverse the decision of the corporal out first the refused to consider the i pod the court considered it but just said it wasn't eliminate the situation because it wasn't during the right time period the court only consider the department of justice letter  evidence of notice but not as evidence of the unconstitutional policies that existed at the jail because it's not during the relevant time period would you rather i wasn't that the basis i'm not deciding that issue i'm just at the question you say that they didn't consider it the court did but the court said it's not this doesn't we don't know if those policies were in effect or that sort of thing correction or the court ultimately the district court determined here that the report may have been evidence past policies but that it wasn't evidence of persistent policies and further concluded that there was no evidence of policies in the interim and i would take issue respectfully with that opinion in two respects first in order for a plaintiff to prove that a policy existed courts have made in dated that the plaintiff look to both past policies to determine the existence of a present policy in fact the united states supreme court has specified that considered wavier there are a number of relevant findings that the department of justice reached that we would contend are relevant and for the convenience of the court i provide this court with three different charts that detail the specific details would be sure none are over yes your honor there are three first there are findings with respect to the excessive use of force second there are findings with respect to the unconstitutional look to and in evaluating these incidents the department of justice concluded that quote certain conditions at the jail violate the constitutional rights of deal detainees specifically the department of justice fine found and i would quote th the jail fails to provide detainees with adequate medical care mental health care and protection from serious harm or about excessive force yes right now there are a number of findings that the department of justice reached with respect to excessive force and those would be indicated on the blue color coded chart an example our sample and of some of those fine means would be we have serious concerns about the use of force at the jail of these charts in evidence and  yet court yes they are yes they are they the entire department of justice the letter that was submitted to harris county was provided a summary judgment evidence that's not a question in this format is this some sort of adverse to something you created for argument today and if so when did you give it to opposing counsel yes your honor i gave it to opposing counsel this morning and it was not in this format no this before the district court however each of the relevant findings were in fact before the disappoint the district court did ha four layers you need to address first of all switches and this could be quick with the record cite did you object on the basis of your primary argument because as i remember it the district really doesn't address any of it both sides object to the use of the or in the report you've got to be able to say and i think this is what you were just arguing that the department of justice report a den of fide a pattern of unconstitutional behavior that corresponds to what happened to your client who are actually here and so you're saying that can be a broad enough level as were department of justice and we see excessive force happening here and mentally ill inmates are being treated well if that level of generality is analogous enough that i know it's a little more particular so i guess let me give you a question what's the case that's most illuminating that's an enormous precedent for us but shepherd doesn't get to this what i could think of is the mismatch question the pattern has to be the same the department can't just say there are unconstitutional activities and then you would allege that's a sufficient pattern to put on notice correct or on a we when we don't have to this court would have to reach that problem the instant case we do have a number of very specific findings true but there's nothing that says that mentally ill people had excessive force used against them and there's nothing that says that inmates who had excessive force used against them weren't given medical care to act and there's nothing about an attorney booth being in an appropriate place so again it really does seem important that you've got a case that holding here that we're reviewing is the magistrate saying whether there's a pattern that matches or not it's stale and the date of the report was two thousand and nine which means that the incidence looked at were even before that so in a way the magistrate was being generous saying it's two years because in fact the incidents that would have to be your pattern for a notice and pattern were three years or more before so presumably harris county took the report and maybe change show that there were viewed incidents from two thousand and seven up to the date that they were port was ok and this incident is two thousand and eleven correction it is two thousand and eleven there is nothing in the record that would indicate that harris county in fact implemented policies that would the constitutional concerns the department of justice had and your honor because this is a summary judgment or view any inferences that are to be drawn should be drawn in the appellant favor so if this court were to presume that any a policy is borne acted it would lapse of time the eighteen month period again there is no evidence that those policies ever ceased to exist and the fact that mr hicks himself was subject to this very incident would reflect that those policies were in fact still in place and were in fact being followed by officers at the harris county jail and yours if i make judgments and if i may go back to your question about the fit we have alleged a constitutional violation with respect to three different policies first the excessive use of force second the unconstitutional handling of mentally ill inmates and thirdly rendition of medical care we wouldn't require that all of those be considered together and therefore wouldn't have to have an incident that were flecked i can excessive use of force against a mentally recommendation indicated that these three different policies and stated specifically they pull it stated specifically that the court finds the life plate in raise the allegation that harris county policies caused these alleged constitutional having taught evidence it's still problematic for me to be able to think that the department of justice can come in and interview many many inmates and yet the entire report becomes admissible for the truth of the matter asserted w built on in made statements and the civil rights department is aiming towards litigation you have all the concerns that eight zero three eight would say don't admit it use it just for the purpose the magistrate said notice but not for the truth of the matter the dixon court specific i know that's the texas ok so there's no court this disagreed with our shepherd decision no there's not not that i'm aware all use even for the truth yes your honor and i would point out that we are not contending that this report is conclusive in fact remand harris county could certainly were but the report harris county could present witnesses and evidence and make the arguments to the jury that the report is not conclusive of the policies that are on the report might not even come into evidence i mean right correct your honor it may not however be an odd thing where it could be used on summary judgment but not come into evidence at trial or only portions come in we don't know any of that well correct or not however that the court did determined only to consider it as evidence a notice in the actual admissibility of the report is not before this court on appeal harris county did not cross appeal that particular question but did you raise in your in the first question th cries for some treatment both parties are saying the use of this evidence that is dispositive wasn't properly assessed both parties are saying that this court does nothing but just as adopt in full that's correct  limitation of the evidence for notice purposes only what's not appropriate that it should have been considered as evidence of the policies that existed at that here and that's the sheppard decision direction it is and with respect to the objection institutions exist what's the limiting principle well the woman in principle at the department of justice has issued such findings to variable every jellicoe you have to have an unconstitutional deprivation to start with corrections and you would have to have a pattern and that just hasn't been explored yes correct every time once issued every inmate has a lawsuit for pattern practice is what your position is no no you are not at all of course the inmate would actually have to suffer and if they suffer some and some incident obviously this was a very serious incident so i'm not minimizing met yesterday but that would mean that every inmate who has an incident can bring pattern and practice just because there is an exist this d o j report from some to some during some relevant time period no your honor not at all again not harris county presented evidence or were there any evidence no record that would show that these constitutional violations had been remedied or rectified then certainly this court could reach a different conclusion but the plain fact of the has condoned a pattern a practice of excessive use of force by its officers against and mates and that pattern the practice has promulgated in come together in constituted the official policy of harris county of is to encourage excessive use of force that is the official policy of harris county that is your argument no dinner and well that's a first and foremost an official policy doesn't then you extrapolate from that specific policies such as excessive force and i don't that's the connection that alternately left thing troubles me about your claim you rest you do a very good job of d necessary for this court to infer that a policy existed based just on these broad general principles we have in this record specific evidence of specific examples of excessive use of force by input by officers and in even the officer involved in this very case by way of example and record on appeal seventy want to wait there seventy one twelve on october thirty first of two thousand and ten and i witnessed him reported that he watched pool begin kicking and punching a twenty two year old african american inmate in order to brutally beat your answer perhaps a judging about i mean if you cleave to the report i think your theory is the report in january of twenty twenty or nine tells the sheriff and harris county that quote your jail exposes detainees to harm or risk of harm from excessive use of force so they've informed them put them on notice you have a now here's the question a pattern or is it just conditions and i take it the report says here are four or five incidents but they're built on many did cite to a number of specific incidents those are referenced in the record record seventy two i did to them as illustrative of others cited to them as examples in of themselves specifically identified inmates by initials specifically identified specific of go ahead did you answer just chicken broth question i just had one other if i may one of their points and that being that despite the the number of incidents we do have specific incidents that were flecked frankly  terrible pattern that has existed there are excessive use of force the facts of which are very controversial and very troubling this is this has to do with what is the customer practice i usually it's well you don't have to people are they're allowed to use some procedure that's bad or they don't have a right medical person supervising something this is just bad i'm trying to figure out to me it seems like it's bad things happen therefore the custom is to have bad things happen and so what is the specific thing that you say that the harris county did what is the practice  of another way of asking judge higginbotham's question i don't see in these each of these areas what is the practice and what is the evidence to support that practice just saying you have x people get beaten up which is terrible i'm not saying that's a good thing by any means by the question is not a practice it's like you don't have the right number of people there or they didn't have certain training about how to avoid deescalate yesternight when you have  that repeat themselves over and over and these incidents are so severe we're talking about inmates actually dying as a result of uses of force that's when it becomes a practice when you take all of these pieces of evidence all of these incidents coupled together it's not just the department of justice report it's a department of justice report plus the use of force incidents with respect to this particular off practice that causes the excessive force what is the practice that cause the poor medical attention or the other the third shouldn't be engaged and i can understand those you're working backward from the outcome of confrontations and we don't know the numbers it so if you translate this into a statistical pattern and we don't have a number that's a kind of a sense i get from it i are it is not just failure to train the we are also contending the existence of this pattern constituted a custom and therefore under no that's i don't want the pattern of excessive use of force against inmates where you have officers taking i oh i have one last question should not arguing that the data that's in the houston chronicle is somehow appropriate for us to consider are you we didn't know going to look just put that in for flavor in your brief because they actually have numbers in there but that's court to take traditional notice however this court doesn't need to do so there is other evidence in the record that just what case those cases that you cited do not support taking judicial notice of the underlying facts in a newspaper article they only support  noted noting that there weren't newspaper articles so what the new and the cases that you cite don't stand for that proposition do you have any authority that supports that proposition i would contend that the evidence in the record aside from those is sufficient for this court to determine that there was and least a question a stacked with respect to the existence of the unconstitutional policies ok and we can much more time with yes and you still have saved a rebuttal but in the effort to try to get both sides  same amount of time but just guesstimating then the posing council will have five more minutes if they choose to have five more minutes just because we allowed you to go on and on but mostly because we asked a lot of questions yes certainly and i thank you liable on a vicarious liability theory for three detention officers x and emissions in this case pool jamieson and taylor the officers who were involved in the hicks incident were all fired for violating well established policies procedures and post orders that were put into place for the very purpose of protecting inmates from harm and the record yes that is in the record but it's also in the record that all but taylor the want to blow the whistle on the other two gets reinstated that seems sort of awkward well in other words the two pool the undisputed pool does a straight to the face right the guy hits the concrete and dies on the floor and the policy is you have to get medical attention after force it's undisputed nobody got medical attention so it's not disputed in this case there was a that's that's you just did that's not in this record no it isn't is ok so at that point taylor if i remember factually is the one who says we in fact paul did hit he hasn't told you he had but he did it and the end result seems to be pool gets fired never reinstated no taylor the one who said the truth about the hitting but the other two were reinstated but we're looking at x from someone else oh i know i'm just saying when you say you think the record shows they're all fired hence we can assume a policy existed that led to their firing that's not really have there yet you have got there ok go ahead after the use of force incident the case was referred to the d a s office for investigation and possible criminal prosecution of pool it was it was were furred by the harris county sheriff's office to the d a s office after the d a s office concluded its investigation the case was presented to the grand jury the grand jury decided not to indict they no bill poole so the case came back from the d a s office to the sheriff's office the sheriff's office did its administrative investigation of the hicks incident and after  the case was investigated the i'm in a straight and disciplinary committee recommended that all three officers be fired then the head of the detentions bureau major brand fred brown terminated all three of these officers  employment with the sheriff's office on behalf of the sheriff then sheriff a drink garcia and they found that each of these three officers failed to post around she and failed to conduct the rounds necessary to monitor inmate hicks condition they also found that although the facts and mediately preceding pools use of force were in dispute it was undisputed the i will use force against mr hicks they then found that each of these three officers failed to render aid to provide or obtain assistance in providing a medical attention and professional care for mr hicks immediately after the incident they found that each of these officers failed to immediately report the the case that says that subsequent discipline for violating a policy that was on the books proves that the policy was actually ever in force the question in front of us is whether or not as a result of the sheriff being told in two thousand and nine that you have a pattern of excessive force you have a pattern of mentally ill people being maltreated whether or not they were on notice that that was occurring i mean i guess i agree with their i'm not i'm not this isn't critical because you objected as firmly as they did to the magistrate's use of the of this d o j report and it's become sort of the sword that cuts the gordian knot right up to get there yeah ok ok the case i think that you're looking for maybe jackson v ford and that's out of the fist circuit it is an m publish case but in that case the office not the officer it was a nurse who was who was fired in that case and in that case this court said then the policies could not be the moving force underlying the constitutional violation so there's one case i'm sure that there are others kind of statement well in this case what happened the case errors were fired then they went through an internal appeal through the sheriff's office and on appeal to the sheriff the sheriff has some designees listened to the officers  requests for reinstatement and in this case the sheriff's office affirmed their terminations so then pursuant to a civil service rules and this is all the civil service commission is created  complex civil service all but just go to the basic question of how could there not be a question of fact as to mono liability given our court shepherd decision and given the fact that there's a d o j report here saying you've got patterns right before and i'm constitutional deprivation occurs how could that not always raise just a question of fact well if shepard held that in each one of these cases there's a fact issue then then sixty seven thousand and at the time the d o j investigation had over ninety four hundred two thousand of them were receiving some form of soccer program medication which made their obviously you don't fetter i don't see justice as controlling an enemy but i'm trying to get perspective over there so how we get to put it before us the context of what we're dealing with we're talking about more the largest population centers in the country and one of the objections to the admission of exhibit p p the report before the judge and we provided those objections which looked at at the number of incidents that the d so we just don't know when the department justice report says here are seven instance of acts as excessive force and we've just given you those as examples of many more that we found you said well wait a minute that can't be true we want to challenge that it could be he say with all the appropriate junctions not trustworthy but there's no finding well there is there is no specific finding on the right so so shepherd was dallas county i'm assuming that's a huge jail right well yeah right and judge jones said well that's a fact question for the jury if dallas county didn't administer pills whether or not there's a pattern and practice that you can impute to the jail is a fact question for the jury that's what shepard holds and in this shepherd case that was  cases and there are times when the courts find that there's a fact issue as to the individual officers potential liability but and but there are cases where the record quoting harris county the trial of the record comical and ellis in clear statement that these are examples of many others the department failed i'm not saying i'm comfortable with shepard or that document but with it in the record and you did object to it and they objected to the limited use of it there are a lot of unanswered questions well let me first go back to shepard shepard as i said was a conditions case this is an episodic x or missions case and then there is this circuit precedent stand it well and i'm published case i think it's andersen versus the daniels case again and daniel's it's a conditions case it's a systemic deficiencies case rather than an isolated acts or emissions case in that case they are of course compared to hicks which is episodic and emissions unlike hicks there's no evidentiary gap between the timing of the report and the timing of an incident back to that you're not questions to opposing counsel where if we'd had any adversarial testing of this report as to even it being admissible under eight of three eight we might have the data set questions we could explore the staleness issue which which is what the magistrate home her had on and then my question about pattern and fit as to whether or not the patterns a den of five correspond to what happened here i'm guessing you'd say no they don't they don't know but they did relate to maltreatment of mentally ill and they did relate to excessive force not being reported so what's the best case that gives me insight into how clear the two patterns how clear the pattern d o j says exists has to be the one what's the best case that talks about the best case i have off the top of the hat is the kitchen pay attention right i get of that where there is ok that's the best you know and going back to daniel's just just a note that was a case involving at two thousand and eight ninety eight page d o j report but but the plaintiffs bridge the gap in that case because they also included a two thousand allegations with any and you didn't really object and they objected and nothing happened below right ok well let me let me go back to the beginning and say that the appellant's in this case and this is an answer to judge l rudd's questions failed to preserve in the trial court the arguments that they now raise on appeal with regard to the june fourth two thousand and nine section one thousand nine hundred seven notice letter the eight were required to file specific objections to the judge to judge johnson's propose sitting on found that specific objections are required frivolous conclusory or general objections need not be considered judge l rod you kept asking what specific objections did you make they made no specific objections and you asked them where can we find that in the record in the record at pages fifty one sixty nine through fifty one seventy that's the only place you're going to see any reference by the plaintiffs to the d o j notice letter and what they say is this two years prior to the incident involving mr hicks the department of justice civil rights division generated a report summarizing their investigative findings of conditions of the harris county jail in addition to their findings  inadequate chronic care inadequate medical documentation and quality assurance and inadequate access to mental health treatment the d o j had serious concerns about the use of force in the jail specifically the dia j found that neither the jail's policy nor training provided its employees with a concrete and clear understanding of prohibited use of force practices then one more sentence the fourth sentence which constitutes their entire references to the d o j letter in their objections to the magistrate seminar they say and they misquote the magistrate the magistrate states that there is no evidence that these patters can patterns continued into january two thousand and eleven actually the magistrate judge says so even if the letter proved a prior pattern of unconstitutional conduct there is no evidence that these patterns continued into january two thousand and eleven that is it that's all they included in their objections to the m n r they did not specifically object to the judge's findings at all are easy at thirty eight and fifty nine the two times she brings it up it's really not clear to me what i think the essence is she just says it's too stale for either notice or pattern i believe that that's the essence but we have to look at those fine that's what makes our objections right and well they didn't do that ok but why why just focusing on that stay on this what's your best case for too long again to be a relevant pattern and i'm not sure i have would this report be tool if if we're looking at it we're knowledge i'm not saying pools incidents are necessarily analogous but what's what's the why difference d o j versus pool but they failed to bridge the gap that's what the judge  id and she was able to bridge the gap yeah you've got it you've got a report issued two years earlier it's hard for plaintiffs to do so pattern mono liability is high but here we have no one's disputing the unconstitutional deprivation and yet the plaintiffs who have none of the access to the department of justice have it's not often d o j goes in like this comes up with a full report that concludes pattern it i can see why judge jones wrote in shepherd in the seventh circuit has been saying pretty loud and clear that's enough to get by summary judgment unless the report is vulnerable under eight zero three eight and you have a real you say it is but it hasn't been explored well yeah ok so that's all they said they didn't object to the report they didn't they didn't ences dedicated to that in their objections to know that it needed to decide in the first instance whether it's too stale that's exactly right none of the arguments that they have raised on appeal were raised before judge like an andersen versus dallas county and a host of other cases this court held if an opportunity is not raised to such a degree that the district court has an opportunity to rule on it we will not address it on appeal they failed to preserve their judge l they didn't all they did was planted three or four sentences regarding the report in their objections they didn't apply they didn't they didn't make any arguments with regard to the report and that was insufficient that day of judge judge lake no the time of the d o j i know you say it's on them to submit that it's not changed so that it's not stale but did the county have evidence that it was changed in the record well yes  that our objections included substantial changes that had been made to the operations of the harris county jail facilities and the notice letter the nine hundred ninety seven b notice letter also recognize some of the changes unlike dallas county and unlike these other jurisdictions harris county did not enter into any sort of agreement with the department of justice instead harris county filed extensive one hundred ninety eight pages of objections to the d o j section one nine hundred ninety seven notice letter and with through every single scenario described and there were a total of twenty two incidents that covered five separate issues harris county responded to example and there there are lots of examples there are one hundred eighty eight page objections but we objected saying that the d o j advocates letter was untrustworthy since they failed to apply constitutional standards under section well that's a pretty general question again this isn't a conditions case it's an episodic jackson emissions case but give let me just give you an example some changes that are included in the record relating to use of force  we catalogued how the office of inspector general started a process worked on a process whereby each of these uses of forces would be analyzed closely when a use of force is completed when the incidents over the officers involved have to complete extensive reports of taim and their sergeant has to tame witness statements and the like all this information goes to the office of inspector general the office reviews each use of force and determines whether further development or investigation is needed and the d o j has been very complimentary of that process that's just one of many changes what the sheriff's office upon when the d o j came in and listened to the recommendations made by the d o j they came in during the summer of two thousand and eight they reckon or they were viewed documents from two thousand  documents from two thousand and six to two thousand and eight during the course of their tour their two tours they'd made recommendations in harris county to the extent possible implemented the recommendations saw or made while they were there and then after they left and after they left harris county submitted to reports updates if you will explaining other changes that had been made prior to the issuance of the june notice letter june two object to the fact for example that they and that they came in under crip under section one thousand nine hundred seven eg crippen of the civil rights of institutionalized persons act the department of justice has authority to assess jails and other detention facilities compliance with constitutional standards and when they open their investigation on march seventh of two thousand and eight they expressively inform the harris county judge in a letter that they would be assessing the constitutionality of conditions of confinement in the jail but when they reported the results of their investigation they failed the lawyers failed to file failed to follow constitutional standards instead they base their quote unquote findings and propose remedial orders on and define community based standards including for example generally accepted correctional standards generally accepted correctional medical and mental health standards generally accepted professional standards of care of correctional practice then they applied these ambiguous undefined standards throughout their notice letter their section one thousand and ninety seven b notice letter and they recommended minimum remedial measures based on those ambiguous standards harris county objected to that methodology because the advocates the d o j advocates had no with the warranty under crip to require local jurisdictions to comply with community practice standards or best practices under its then so what they did is they went outside the authority the limited authority granted to them under credit and for example section one thousand nine hundred seven and i love the act specifically provides that provisions of the subchapter shall not authorize regulations defining standards of care harris county objected to the quote unquote findings and propose remedial orders because the d o j advocates letter did exactly what they weren't supposed to do applied  i have so much more the harris county asked this court to affirm the judgment of the district court plaintiffs raise no genuine issue as to a material fact in this lawsuit thank you i was even going to quote you on that pattern can i quote just i think you i think that's ok ok thank you your honor is three points on or about off the first touch a bottom with respect to your particular concern about seven incidents i would present to this court that this case is not just about seven incidents in fact the department of justice in its letter noted  we use them to illustrate systemic deficiencies the department of justice considered far more than seven thousand six hundred thousands of pages over a large period of time to determine that there were systemic problems within harris county  that with respect to counsel's argument she specifically indicated when asked what measures has here is county taken she only cited the objections that harris county proposed the other other and she cited the cataloguing there's no indication  the record of one that policy wasn't in a fact or that that policy was taken direct response but here you are either her concern you're hearing i think from me at least to both sides is the department of justice report can't always work to create it and yet here so many of our questions about dataset about constitutional about number by a bit haven't been explored they say you wave your objection they did object but there was no treatment of any of this so if shepard's going to have any to address the gravity of the argument on appeal we know that the district court did so because in fact the district court reached a conclusion with respect to the what about the argument that that well they were disciplines of policy must exist that would not indicate that the policy the unconstitutional policy policy was done in fact as the united states supreme court noted in border county commissioners a byron county versus brown the municipal policy may be proper where where it can be shown that the policy makers were aware  acquiesced in a pattern of constitutional violations and that's precisely what we have in the instant case what about their claim that the cases that were citing are conditions cases not episodic jacket you know maybe andersen courts i did not directly hold that the department of justice we would contend that there would be a number of issues developed at trial that have developed here is the plaintiffs ultimately would have an opportunity to prove their case before a jury before battlers of their peers and they should be entitled to do so but you have to demonstrate in response prove more but the time to demonstrate that there is a tribal issue as a response to that summary judgment not having looked at this record so my questions are just kind of freeform not apologetic but look at when i look at  ill and they're dead it's a difficult situation they're trained to not use excessive force in that direction but the question of whether that truly excessive as it depends it depends on  harris county is need to protect those individuals however harris county has a duty to protect those individuals within the confines of the constitution and even inmates have rights yes thank you thank you