already versus the miami dade county school board enforcement officer who was thrown into a mental health facility all because she exercised her st in a rights record a police officer after her incident she saw articles where the school board had developed a custom a policy or practice of a correct individuals who did not qualify the lower court erred in grand summary judgment for three particular reasons st which i think is pretty clear from the record that the lower court and i just want to get some of the facts straight before i before i ask a few other questions my understanding from reading the deposition testimonies was that miss curry had an agreement with the school board and it wasn't just ms c but also the neighbors that those gates would be locked that's correct wasn't that was the understanding and officer williams in his deposition testified that he did not know correct even though ms corey was trying to tell him that he did not have authority to open those gates writes in fact was accurate that he did not have the authority to open those guest correct but he did not do any investigation as to whether or not her claims were honor that is that is what he said i'm not sure necessarily if that's the case part of the issue your honor i believe is that our claim is that he fabricated facts and including if you look at the video and you watch it very carefully he said that he unlocked the gate so that he can allow students to come in so that they wouldn't have to hop the fence or people in the baseball field when you look at that video there is nobody around there is there are new people coming back and forth in that particular atmosphere there's there's there's no one around the there are other things to show that he purely fabricated like for example he claimed that all the cars were legally part you can clearly see in the video that there was a great many of in this park the wrong way in the street well the the issue here was aren't run a summary judgment and so the question is whether or not there are genuine issues of material fact that should go to the and so for purposes of the order that judge cole entered he made a determination that one of the reasons that officer williams said that he baker acted your client was because  essence she was delusional that he was not an officer because he she kept asking for metro dade to be called but in fact the video shows objectively as judge gola indicated in his order that she identified him as an officer below officer can you tell me your name in the video and in the nd video where she is being detained and she's asking for people to call nine  someone says he's an officer she says yes but he says school board i think you hit the the on the head and judge scola specifically recognised that those facts were disputed he put that in his order he put the fact that she contested that she exhibited the behaviors that officer williams claimed that she had he acknowledged the fact that ms corey stated that she did not push officer williams and he even stated as your honor pointed out that the video objectively showed that miss corey understood who he was but even though he ruled that way or made those findings he ruled that for some reason officer weems had argued both probable cause which i don't believe that he did inform the kings in cases which is one of our points when the officer fabricates probable cause then that officer is not entitled to qualified immunity and that was our point and there are other things that your honor that those are genuine issues of material and let me ask you a question and ask the other side the same question with respect to qualified immunity you have to have a statutory or constitutional right that is  established yes and obviously under the baker act that is a statute it's a statutory right it's not new in florida police know about it right and one of the criteria i mean you have to order to baker act someone as a law enforcement officer there has to be created that is met and in this case the only criteria that could be the reason to baker act her woods was that either she was a harm to herself or a harm to others but it has to be at that moment in time not in the future and not in the past what evidence was there that she was a harm to herself or harm to others judge unless unless recording w phone can somehow harm somehow harm someone there is no evidence and that was exactly the point there is absolutely no evidence she wasn't wielding the phone she wasn't doing anything except recording his police car how close to probable cause establish arguable probable cause i mean that's a pretty exceptionally low standard some some may say too low but how how close you have to be well i don't think that there is i think you just have to base it on the totality of the circumstances i think as far as obviously it's a lower standard but this one doesn't even come close because he felt were kate at the facts that would even give him arguable probable cause there was no calls whatsoever to baker act her in that particular day i got a question for you about the other half of your argument which is the policy and custom it let's say for purposes of argument that eva stablished that in two thousand and twelve there was a policy on the part of the miami d school board to baker act instead of arrest how how much evidence once you've established or let's even say this let's say that someone else established a different case and had a different policy was in effect in tw d i understand you're asking so you're basically asking how much evidence is sufficient evidence to show that there still is a widespread custom policy or practice exactly so i believe that it's on a case by case basis there are some cases this said too  thirteen months is not enough there are other ones that says that you know in a span of a couple of years there are some but i want to i'm going to answer a question i want to point out one thing that's very very important here we also are moving on the fact that there is there a actual policy because the former chief hurley stated that quote we're going to be correct people even if it's some warrants it in we have statements like that from the whistle blowing officers and also our friends in the area who was a school psychologist who basically said that they told people to big correct individuals interim chief kitchell three days later after the f d a only report came out said that there was no validity to that and so did so did chief moffitt but neither one of those individuals  reviewed the report other than for statutory compliance the issue wasn't statutory compliance the issue was whether or not they were fabricating reports i don't understand how they can conduct an investigation and without speaking to people who actually were committing the baker act or maybe some of the students or the teachers so this was kind of a wink wink nod nod hey we can i think that there is sufficient evidence as far as a policy is concerned we're jury can find that the statements by chief  that was a school board's policy because chief moffat confirmed after if you watch the very same videos that we produced to you that officer williams bay correct i missed cory pursuant to the policy as far as the custom or the practice is concerned as far as the number i really believe that the school board should be stopped from making that argument because from the briefs and from the record you can see every single point of the way i had to follow public records request and also bring it into federal court just to get the reports they provided us with productive copy of big direct reports and every time i try to take any type of deposition or speak to anyone they threw up all these roadblocks so their position basically is she can't have access to the potential witnesses but she needs those very same witnesses to show a widespread practice of constitutional violations and i raise that below and i raise it again here they should not have been allowed to make that argument because every step of the way they prevented us from gaining discovery and that's going to doesn't the magistrate judge have a particular range of authority to manage the community concerns of confidentiality for students or for other  discovery but in a case where there is a constitutional violation there's a widespread practice of constitutional violations if you don't allow a widespread latitude of some form of discovery it's impossible to meet the court's standard to show that there is a wise pay practice but as far as the magistrate is concerned every time that the issue was raised the magistrate never addressed any of the legal arguments that we put forth before the magistrate we put forth evidence that act statute in and of itself allow for disclosure of the of the reports and we also cited several cases where the magistrate could have tailored some parameters as far as depositions that could have been concern like for example they could have limited the amount of time that i could have deposed the miners and how i know you made those arguments the magistrate did how i don't think you've i don't think you challenge the substance of the discovery orders here a correct me if i'm magistrate's ruling and we did ask for i know that i'm running out of time but we did ask for the district court to look at the magistrate's order and that is also in the record in the district court basically said without citing any law that the believe that that is point three that's actually raising the brief where we stated that the district court erred in precluding miss corey from accessing unredacted baker act reports thank you thank you properly against this curry and in favor of officer williams absolutely the issue is whether the undisputed record there was are arguable probable cause to  miss corey and based on the totality of circumstances there is no question that that was the case ok well tell me exactly what the tally the circumstances is because this is his testimony you understand under bake correct that in order to have even argue probable cause you have to know that the person is a danger to themselves or a danger to others at that moment correct carets is under the rest of the evidence from which a reasonable officer could couldn't write that and under the cases i may and others that are from the th circuit those are cases where there was this individual who there was a call the officers were responding to either an e mail that pertained to suicide or there was a relative who called the police to say my relative is in danger of committing suicide so there was at least some evidence of harm here this is your client's testimony did she ever make any threats to you or anyone else did she make any verbal threats like i'm going to harm you i'm going to hurt you know she never made any verbal threats to me if she ever make any verbal threat to she was going to harm herself no did she have any weapons on her no did she ever say that she had a weapon or anything else like that no did she never make threats to anyone else who was around that area not in my presence did you hear her make a threat to anyone in that area no you didn't see her approach anyone in a threatening manner now so what evidence videotaping her in her car and according to mr bianca being aggressive and combative and you understand there's case law in the state of florida that being belligerent is not enough to be baker act again the criteria is you need to be a harm to yourself or a harm to others understood understood and the trial court properly considered the totality of the circumstances and determined that a reasonable officer in mr williams position could have made that conclusion in fact there was a nd i point out what point do you say that she posed an arguable risk of harm to herself or others well i think that again it's under the totality of circumstances however mr officer williams testified that he made that conclusion when towards the end of the encounter when he was trying to pick up miss corey from the ground she was screaming i  mean that she was being harassed claiming that she was being attacked and she clearly was not in fact judge toler made it made a ruling that she was not being attacked the plane judge will also made a ruling that even though the video object of lee showed that she understood that he was an officer because in fact she called him an officer that she was in essence delusional and perhaps she was hallucinating and she didn't know that he was an officer is that not a credibility to determination that the trial court made though the judge the judge accepted that the that the miss corey understood that he was a police officer the judge that even accepting that under the totality of the circumstances is reasonable basis for an officer to conclude so there is more how could he have possibly have concluded that there was any evidence that she did know he was an officer because that's one of officer williams testimony was that i thought that she had something wrong with her because she kept saying call nine  metro and so she didn't understand that i was an officer well an officer williams believe that to be the case but judge toler said i did he believe that to be the case because when you watch the video again isn't this a credibility determination that a try or a faction make because when you watch the video it shows he may think that he can testify to that in front of a jury and then the jury can make and watch the video and see that in fact what she's saying is false arrest call nine  metro dade because she lives in metro dade and that's a police jurisdiction that should be there an order because she's claiming that this officer is extra exceeding his jurisdiction and exceeding his authority and detaining her falsely and she was screaming that he was harassing her and attacking her and that was not the case and in fact the other officer of the office isn't that isn't that something again for a trier of fact to determine because at the end of the day a trier of fact may decide and say that that was can decide for themselves whether or not that was excessive force that was used correctly your honor assuming there was arguable probable cause then the amount of force that was used was clearly consistent with the case law and and or use the the person's reaction to being detained as an excuse to for that and i still detention i think it's part of the total picture and if i could just explain i think it's important to realize that officer williams was called because of a complaint from a resident that miss corey was  being aggressive in combative and he also said that is not a resident she is a parent who is part of that league but she does not live in the area because her affidavit from the come flying away from the complaint now officer williams also heard from other witnesses there and here's what here's what he testified about that this is at page seventy nine to eighty of his deposition they were saying they were all frustrated and that they were tired of this ongoing situation that every time they arrived to the park with their children she comes out of nowhere she's taking pictures she's videotaping and it was disturbing because they don't know what what the why she's doing this and what's going on and why is this woman taking pictures of our children and you know rightfully so as parents are concerned about what's going on so i don't think she ever looked sort and then at page eighty one and again he did not do any investigation because if he had bothered talking to ms currie when she kept telling him why did you open the gate because you don't have authority to open the gate he did testify that in fact he found out after the fact that in fact the gates were supposed to be closed correct well that's correct that he understood after the fact that there had been an agreement as in i see or not have a duty to investigate is that not something that precludes  argue caused the failure to investigate properly your honor the fact that there may be disputed issues of fact or that the officer may not have had everything right does not mean that there was an arguable probable cause minder all there is an th circuit case howard versus g that officers failed to take even the most basic investigatory investigatory steps the question of argue probably cause cannot be decided at the summary judgment stage officer williams was concerned because he heard from miss dubyago and from the other witnesses at she was videotaping again how is videotaping a threat that you are going to harm someone or harm yourself do you not have a st amendment right to videotape there is a st memory it's a video that the complaint was that she was being aggressive in combative and what the other residents testified was i do recall someone saying several times that she was out there you know and they would ask her to stop and she would get in their face and you know several of them said that they were even afraid of her but that was the context in which the officer did not push officer williams officer williams said she did then that part of the encounter is not on videotape right it is not yeah so it's not inside not a disputed fact that needs to be decided by a jury well i think i think judge scola was very careful to look at the testimony and say it and play it well no i don't i don't think so your honor i think what he did is he said taking the evidence in the light most favorable to the plaintiff even assuming even assuming that all he said that said he didn't do it did he because at the end of the day you can say objective lee something the video shows something and then say and disregard it that's a credibility finding that's putting your thumb on the scale i don't think there's anything in the video that this is not on the video a judge or distribute as to whether or not officer williams pushed her correct and judged as well as knowledge that he had knowledge that he said there's a dispute as to whether miss corey pushed off for williams he says although there's a dispute there's another eyewitness supporting the claim that miss plaintive curry did push him so in essence what he did is he said ok she said this but there's cause the standard is arguable probable cause and whether the taking all of the undisputed facts into account a reasonable officer and judge in officer williams position could have concluded there was there was probable cause i would i would say that the facts in the light most favorable to me are i'm really frustrated about this continuing situation with the ball fields near my house i saw people illegally parked or filing certain agreements i thought i had reached so i went out to video those people at some point they called the police as i was asking the police officer to identify himself he approached me he pushed me down and then he he arrested our baker act and me and a way that led to my needing surgery on my arm if those are the of those are the facts in the light most favorable to miss corey how how does this not go to the jury well your honor there's a little bit more to it than that the the witnesses including missile bianca and the other witnesses told the officer that miss corey was behaving in an aggressive or combative or threatening way ok not just that she was videotaping but that she was aggressive  more example there was not one single evidence the issue here is was she a harm to herself or a harm to others and there is not any evidence in this record other than her being the female larry david ok and angry but she there is no evidence she did she make any verbal threats to them no does she spit at anyone did she hit anyone did she verbal e say to anyone i'm going to kill you know saying to someone i can videotape you because when you read the affidavit admissible aga because that's what she said i asked her to stop videotaping me and she said no and she was she was not nice in her response there's case law in the state of florida that being belligerent in even aggressive are not grounds to be baker acted there has to be more the in disha has to be you are a harm to others your honor if you take a look at it what i've been trying to explain is that if you start from the beginning of the encounter from the time that officer williams arrives he is told by several residents that miss corey is acting in a threatening the police having received complaints over the years about miss miss corey and that she had several aggressive confrontations with the with with residence that is in the record now what mr what officer williams knew is that these witnesses and these residents complained to him when he arrived about miss corey's behavior and that they were concerned that they were concerned before you run out of time i'd actually like to ask you a question about something where you may in the game or mileage let's let's assume for purposes of argument that there was a policy in two thousand and twelve related to baker acting it's interesting i'm asking you to concede that there really was one let's presume that there was such a policy but how much evidence would you need to show that that policy still existed what evidence would ms corey need that she doesn't have to show that that policy still existed at the time of her detainment well she would have to show that the police department  or the school board exhibited a deliberate indifference to that and didn't take corrective measures so what we do know is that assuming that there was some issue in two thousand and twelve that there were three separate investigations one by the another one by the acting chief of police kitchell a rd one by the new chief of police moffitt they all investigated whether there was improper use of baker acting with students and they concluded that in fact there was  not in fact what was really going on at the time is that the there was a concern about mental health and the school board was concerned about making sure that they properly took that into account when they were dealing with students however even assuming there was a problem chief  the chief of police moffitt instituted additional training and safeguards to make sure that his officers were doing things the right way and in fact there was a sixty four percent decrease in the amount of baker acts from two  records undisputed chief moffitt since two thousand and thirteen has never received a single complaint about improperly baker acting students second the record is undisputed or sorry the record testimony makes abundantly clear that the the baker act incidents since two thousand three hundred and thirteen dollars were fully justified the deposition testimony fully supports the findings and i will read if i could it end you can wind up as you do sure  in the initial brief the the appellant argues that the deposition testimony by the way he took over forty depositions around forty depositions so the argument either way doesn't sound like landing on said sorry that he didn't that he didn't have enough time here is the testimony of one of the witnesses at one of the incidents anthony tons and he was in an uproar what was he saying or doing he was saying i'm going to get you i'm going to hurt to who the teacher the teacher was the only one who to get  and so the deposition testimony is fully consistent with the baker act and status reports that were produced to the plaintiff so even if there was a policy back in two thousand and twelve it had been addressed it had been corrected and it had nothing to do with adults it had to do with students during school thank you your  before the encounter actually started when when mrs video kicked on officer williams said that i am going to baker act you he said that from the very beginning so all the things that they claim happen where there she was screaming  kicking on the ground he had already made that determination and i think that that is something to to that's very important particular case also as far as what the other witnesses told officer william this is on documentary one hundred and fifty one dash six page twenty five lines three through seven officer williams testified that he did not to speak he did not speak to anyone other than  decided to baker act miss corey so the lower court's finding that multiple people complained about miss corey filming individuals and he had talked to multiple witnesses is clearly refuted by the record also his claim officer williams claim is completely disingenuous because he said and he testified to the fact that he told miserable laga the miss corey had the right to film so i don't believe that  your honor is required when you take do novo review of that particular effect to just take him at his word that he spoke to all these people if you look at the recordings there are not a lot of people who are actually around in this particular case as far as the policy is concerned or customer practice they cannot raise a privacy right and say that there's a right to privacy but then preclude us from gaining the very same information that we need for that particular case what about the forty depositions what's your response at that point as far as the forty depositions are concerned i was provided with over five thousand eight hundred baker wreck report and you have to keep please keep in mind that i didn't have the right to speak to any of anyone i couldn't talk to the school board employees st because they are employees of the school board i didn't have the parents contact information i could i was i was deprived of basic discovery on my own to try to figure out what happened so i'm basically at a wish on trying to find a needle in a haystack for for lack of a better term but the reality of it is that when i did take those depositions there was very troubling information that was found for example to assistant look in the principal an assistant principal basically said that the information in the big report was flat out not true were this kid claim that he was going to to  kill two individuals with a gun and the reason why that's important is because they made a mistake and did not provide the unproductive copy of that report and i was able to ask the principal and the assistant principal about that particular incident and the reason why they were so adamant that that was never said because they said that they knew that student they knew who he was and he never said anything like that and they will remember if he says something like that eleven dollars thought that i had was it seems that the policy as i understand it that's alleged was that the school would baker act students rather than arresting them in order to keep crime statistics down but it sounds like that allegation is more that the allegations are completely false not that the student should have been arrested rather than baker acted but just this nothing should have happened at all which is a little bit it's a little bit different than the policy the evil edged up i believe that regardless of the reason why they were doing it at the end of day they were doing it the policies that they were be correcting people who do not qualif to answer other questions far as the number depositions that were taken i had an opportunity to take the depositions and if you look at the if you recall in the transcript i asked the magistrate as far as the number of depositions because i tried to explain to her that this is a wise for a practice the constitution violations she gave me the ability to take some depositions in the beginning she gave me the ability to only take ten depositions before ms corey and before me scores incident in two out of those incidents i found that there were serious problems and we actually put them in the record  understand that i am running out of time and i see to it that our past judge martin gave me a look and i would probably request that you reverse summary judgment and equally important reverse the ruling regarding mrs corey's ability to have access to the unredacted baker and we appreciate the presentation court isn't recess until nine o'clock tomorrow morning