indifference in our circuit and the second is the summary judgment standard to prove deliberate indifference out what needs to show two things one that hartford was on notice of a pattern of police misconduct and second that hartford failed to take appropriate action to protect a violation about was right to be free of excessive force some cases talk about the third test  being causation but the jones combines them in and that second element so summary judgment asks whether out what was able to put forward some evidence of a material dispute fact how far back how far back before december two thousand and four should we look for evidence to substantiate the you're mine eloquent well i think that could we can simplify this by if we examined those first we could go back to let's say nine hundred ninety nine because glenda's is the first notice that hartford has that is an a federal judge saying that there is a pattern of misconduct that i have in front of me she itemizes this and i'm looking at case i'm looking at lists from i believe nine hundred ninety eight to two thousand and one you have allowed these cases to be moldering great you don't investigate them and you've sent a very bad signal to law enforcement officers in your city who went as is decided in two thousand and three mr out was beaten on december seventeenth of two thousand and four but then we also have the significant number of both lawsuits and nonsuch complaints that were presented to the district judge in our case we included lawsuits and nonsuch complaints that went back to nine hundred ninety eight but i narrowed those down in the my reply brief brief to the court  to just include the period from two thousand and one to two thousand and four so certainly hard for it as notice of an immediate problem but then there's a furred notice the things because you have a problem one you must hire eight investigators to clear up a very bad backlog of uninvestigated cases to you must follow reasonable timelines in investigating and closing these cases either taking action we're making determinations that there's been no misconduct and then third you must require at least summary reports from the investigators the internal investigators that are are going over these internal affair complaints now we go to the failure to could properly the action it was hard for didn't take appropriate action and it's why we're here today on this particular issue the contempt order or findings made by  burns issued in two thousand and seven based on the extensive fact findings of special master richard better but what we know from this very detailed court water is that hartford didn't begin to cure the problem until two months after pylon outlaw had his right knee cap broken and was drac sixty two feet with a broken knee and with the there are some evidences and there are efforts to improve handling of citizen complaints of excessive force one that that handling of yes but that doesn't but that does not begin until two months around two months after tight mr outlaw was beaten and that was i understand in my sister's brief well look you know we did take care of the to that contempt and the consequence is that it opened the door to him and oakland and that's it if this case does not present anough facts to move forward mono claim i don't know if we have a deliberate and different standard in our circuit if you could you move on to the qualified immunity question yes thank you your honor with respect to qualified immunity a little unusual but we all agreed to allow judge crawford to make both fact findings and findings of walk with respect to qualified immunity those findings are detailed he told you what happened in this case and it's consistent with the jury's specific finding that the officer used excessive force as i understand it your are contending that we should review the district court's denial of  stood did i understand that no no i think you may be confusing mr other wrong side right yes right that's the cross appeal so we're we're satisfied with the trial judge's findings on qualified immunity bad there is no review process you're not taking it seriously and you're setting a dangerous example to officers it's just a matter of time before somebody is a victim of of constitutional misconduct excessive force secondly judge order to herself indicates that in the good to go and as decision she makes that connection the causal connection but i want to be clear imagine this if we obviously and so we're not among necessarily here to say well though i believe if this gets to a jury they're going to find hartford liable but we're not here to look at whether we're going to succeed on issue at trial if the evidence is enough to take us beyond a fair partner it's it shows is there enough here to take this to a jury and my my time is running out but if i may just conclude with my policy argument i had the pleasure earlier this year to read professor moore an adams book it's a lovely little book it's a primer on the bill of rights and they spend some time only a few pages but it's jurors as political participants and i kind of bollixed it up i thought in my reply i was under the gun and i'm just not that skilled writer but the public policy concerns here are just that it is the public that needs to make these decisions as to whether or not and given the timeliness in again what's going on nationally and i realize police officers have a very tough job this isn't about picking on police but there must be review and the civilian review process in hartford was very broken and i do think that even though perhaps it does not have as much gravity if you go back and look at that report from one nine hundred ninety four it's shocking and i think it speaks volumes that hartford doesn't even complaints what they're doing to address these complaints settlement figures to put this information in some meaningful form ok to keep an eye on the police and if you don't do any of that then what makes it clear is  that they are able to hide behind this well we don't keep statistics on anything and i thought that was shocking and i thought it was shocking that the chief of police we deposed him stand up guy right didn't bother to keep track of the for of force reports and our expert was shocked at that as well his  good morning to your honor's william j mellie m e l l e y on behalf of officer mike allen we are here to challenging the court's denial of the qualified immunity i'd like to point out three separate factors that appear in the record but i just want to highlight number one when the court's decision on the qualified immunity is reviewed one of the fascinating things to keep in mind is that there was originally a claim for punitive damages and the decision almost speaks of something that sounds a punitive at the conclusion of the evidence of the entire case the court struck the claim for punitive damages that was not appealed that is not before the court it's just yes yes that's why i have limited time the second point is that if we're going to in lies an excessive force claim one of the things that the plaintiff testified to was that when he was on the ground in the fetal position detective gordon kicked him in the face that's pretty excessive however the jury did not buy it at all because the verdict on behalf of  detective gordon was in his favor the jury had to disregard the plainest testimony not entirely what not in your isn't titled to believe parts and disbelieve parts of any witnesses testified absolutely but the essence of the claim against detective gordon was several kicks when he's just standing there and the kicking in the face when he's down anyway the jury found in favor of detective cord the other element that comes in here i mean doesn't doesn't our president discourage speculation as to reasons for a jury's verdict yes but we do have evidence of actual conduct by detective corey i'm just pointing it out is a factor the other thing is the number of other officers that appeared on the scene in the plaintiff go through that in the reply brief as to how many other people are there participating in this officer allen testified as to what he did and what he didn't do he responded to a situation so i would submit when the analysis starts contrary to  judge crawford did you have to begin when officer allen sees and hears something in front of them as to what happened before that which judge crawford spends a lot of time going through there's no evidence  officer allen was aware of any of them what officer allen c s is an officer in trouble and he responds and he responds in a manner that he thought was appropriate this gets into the verdict form because the way the charge was set out and this is all based upon the request of the plaintiff at the end of the day maybe there's some confusion there however did you get to the verdict form no  special interac authorities to the jury we had an extensive charging conference on that in the end of the day the way the court presented the problems dealing with the state law claim i felt was enough so no nothing specific was submitted however that state law claim of the a so battered battery gives rise to the question ok we know that there's foresee use the question is is it unlawful and the connecticut statute that the court specifically incorporated says that if an officer's out using force to defend a third party then that conduct is excused in that would seem to imply that directly that the jury found that the conduct was lawful in that ties in with a qualified assault but that there was excessive force there can be excessive force but it can be excused if it's lawful and we get into the fine point in there's a just be inconsistent so connecticut law permits you supports recently believed to be necessary to the defense of others tailored to particular circumstances so it might just be that the verdicts are inconsistent and you seem to be inviting us to speculate about what happened no because if the common law is based upon lawful conduct even though it might be excessive that gives rise to the qualified immunity to is splitting up that oxymoron as you're on to refer to it in that there can be conduct which is excessive and which is not a violation of the constitution the last point is the law clearly established this is a department issued baton with which the officer is trained in the court has found a case that he said should have put the officer noticed that it was inappropriate except it's four years post incident that the just could help me understand something the district court found facts right based on the trial testimony and admitted exhibits correct yes so  should we review the court's factual findings for clearer i believe it's a din of a review because we have to begin with yes we agreed that the court could make it determination of facts but it has to start with the jury verdict and the jury verdict that's why i say the jury found in favor of detective gordon but he spends how many pages going over what detective gordon did who swore who how they approach he talks about a minor traffic accident i mean that has nothing to do with the incident we have the analysis has to begin with officer allen seeing the situation unfold before  good morning your honour's not only feel agrarian i represent the city of hartford in defense of the district courts grant a summary judgment in its favor as a preliminary matter if the officer allen is successful on this cross appeal and  found to be entitled to qualified immunity because the right allegedly violated was not clearly established that outlaws appeal of the grant summary judgment in the city's favor should be dismissed because outlaws deliberate indifference claim against the city allen violate a clearly established constitutional right the case of towns versus city of new york is set in page one of my brief for that position and all of the plaintiff originally allege that the city was deliberately indifferent based upon a municipal policy customer practice of failing to adequately train its police officers including these officers the plaintiff abandoned that claim and essentially had their expert admit that in light of the overwhelming undisputed evidence of the training and the adequacy of the training the city of hartford provides its police officers that that claim was deemed abandoned the plaintiff here does not appeal the decision of the court in granting summary judgment on the basis of the failure train claim was a failure to supervise that is correct your honor the plaintiff here alleges that and taken in the light most favorable to the plaintiff the evidence court found that the evidence the plaintiff submitted in opposition to summary judgment was simply insufficient to establish that there was a policy customer practiced by the city of hartford that rose to the level as of citizen complaints and the resolution for the period between two thousand and one and two thousand and five you know that that's not correct or on the court was never the court was never presented that they were represented the plaintiff never submitted in evidence in opposition to summary judgment any evidence that would establish that there was a a consistent failure to supervise what the plaintiff did the city provide data there being a claim that i'm not sure that they did request it your honor i can't speak to that i was no that was not an issue that was presented on appeal what the court did here was about the request was overruled overly burdensome it may have been your honor it may have been but the evidence that they did present was strictly listings of lawsuits without backing any details of those lawsuits without any determination of whether or not investigations were inadequately done the cintron case was a settlement agreement between parties not including the city of hartford actually and what the parties agreed to was that they were going to complete these they were striving to improve the citizen complaint procedure in that they wanted to get these complaints investigated within thirty days now that is just a a day limit that the parties themselves agreed to and when the court went when the plaintiffs in that case went to court they complained that they weren't being done within that time limit that the parties had originally read to by and by the time the court looked at it all of the backlog was cleared and we caught up on the investigations but what the plaintiff failed to do in contrast to the cases that are cited in my brief where the second circuit has   or reversed a grant of summary judgment the plaintiffs in those cases presented evidence that there were investigations that were performed in adequately that there was prior notice of a problem with the police officers that despite the fact that there was notice of problems with these particular about the incident involving climate nurses that was that was there was a set of citizen complaint filed in two thousand and five a year like almost a year after the incident occurred and the investigation was mae west conducted and completed and the officer was found to be cleared the plaintiff's expert didn't need to visit nurses residence to interview possible witnesses or to take a statement from nurse your honor the plaintiff failed to even and review the entire investigative file but the city of hartford has on this matter and mr stahl there's their answer my question  please your honor i can't say whether or not they did that because i did not review the entire investigation myself complain and nurse and help me if i missed misremembering the record it was filed in february two thousand and as correct that was after the incident involving the plant that is correct here on that would have been no notice would serve as no effective notice to the absence of annual reports filed after one thousand nine hundred four your honor we file reports this city of hartford prepares reports by virtue of its police department the chief of police issues a listing by annually of all internal affairs investigations and the results and the names of the officers so contained in that and there were honest it doesn't complaints against officer allen himself no your honor those are use of force report so the city harper requires right the city of our for requires at all officers who use any amount of force any amount of force aside from handcuffing to document that use of force officer allen did document that use of force whenever he had to use force the plaintiff did not provide any analysis of those use of force reports didn't the files that may have come with that in other words police reports didn't analyze any of that and in fact in this particular case officer al there's no question reported and documented his his use of force it was reviewed or the use of force incidents i think eighteen months prior think it was about that and the fact that the chief of police doesn't have  they're all documented it's all within our records system the use of force reports can simply be pulled and reviewed and before they are filed they are reviewed by a supervisor to determine whether or not level to the public yes absolutely your honor absolutely they have always been available to the public if there's some privacy that needs to be redacted and that's redacted but otherwise it is a public record the entire investigative files of citizen complaints are public force he himself never filed his family never made any statement or report to the city of hartford they had no notice that there was an issue he himself never filed a citizen complaint which would have resulted in  internal affairs investigation into this incident into the use of force which includes your honour's with statements taken by witnesses say it was taken under oath by the officers there given their  weingarten rights they were vies this is a serious matter and that anything they say is actually being tape recorded so all of that could have happened if there was some indication that maybe there was an issue mr outlaw never  took or availed himself of that process and if after the findings are reached by the internal affairs division there is a letter that goes out and if mr allen if mr outlaw was unsatisfied with those findings in that report there he could have taken in the letter he's advised that he can take an appeal to the civilian police review board which is comprised of citizens as well as general members of the public and  a couple of police officers and they review the investigation that is conducted by the internal affairs division to determine if there was something that they didn't look at if there was someone that they wanted to speak with that the should have been spoken to that just never occurred here and so the city apart for cannot be held to be on notice of a problem with officer allen when he documents his use of force as required when there's no complaint against him that should send a red flag of her for that he has a problem he is out there on patrol and unfortunately he is in the thick of it and for that reason as long as he documents it is reviewed by the officers there's nothing that's being hidden here everything is being looked at and reviewed and the officers are trained to adequately there's no you know with the two thousand and three when this decision the clinton's decision is not controlling but in addition you're on to the core had before it testimony and evidence that this court this district court did not have what the plaintiffs here have done is to simply say look at and what the court found and interpreted it's the evidence before it to have meant and that's enough well your honor on summary judgment the plaintiff has to come forth looking vs that when this it's looking at the list two thousand and four federal court order use of force reports filed by office around which we which you've just discussed is looking at all this together that wasn't actually a different officer alan you honor that was a completely different officer but in that case your honor the court had before evidence that raised a question of fact to it with regard to the officer all involved in that case a separate officer alan and i cited to a case of cycle versus a hard for in my brief where you know simply submitting registers a list of lawsuits doesn't provide the sort of evidence that a jury cories in the league conclude that the city had a widespread policy of indifference there's no there was no analysis by the the expert or any evidence that would suggest that the lawsuits were sustained that had any merit that any of the claims that had been filed were not withdrawn or dismissed on the merits your honor it was there was just not sufficient evidence presented on this particular case that would rise to the level to show that the city had some policy that it was condoning unconstitutional acts of its police officers what thank you honor i'll be brief i did want to respond to just a couple of things with respect to climate nurse you know there really are three levels of review and hartford when you use for sure required to submit a form it's a form of sixty  there is an internal review of the use of force then the citizen has a right to complain and submit a complaint to the department think it's investigated as well then the third level of review is a citizens group the citizen review board so it may well be that internal affairs is submitting a report from the police chief to the plaintiffs class and central and they're not following your municipal code club it nurse filed his complaint in february of two thousand and five but the incident occurred five weeks before time on out one and there are some eerie similarities to the incidents the clinic nurse incident he's part of a joint task force with federal law enforcement he's performing we're sentry duty which is as they're busting in through the front door he's in the back so that the guy can't get out now i'm not saying that clement nurse wasn't misbehaving or didn't have a bad record any of that any of that but what we do know from deposition that was never disclosed to us until we requested it obviously but he broke the time in half this man used deadly force and there's no report would never have been believed ever given his record that this officer did something like this and that it wasn't quite nurses fault and that's scary because taiwan law is not clement nurse and so we know that officer a phase of his career was quick to go to the baton and nobody said nothing nobody said nothing my expert was frankly shocked at that that phone call was do you know what for would have to have to break a temper baton it's deadly force so did mr out why file a complaint with the civilian review board without have done anything that had it such a backlog that they had to be water to hire eight full time officers to clear up the backlog and they didn't do it one thing that's interesting take a look at the record about the percentage of what percentage of assembling complaints related to excessive force as opposed to the other parts of the complaint jurisdiction no because it'll keep records they don't keep they don't fill the requirement of a new report so we don't know that what we do know get information and discovery we asked we have asked for were prior incidents with with with this officer any complaints about officers in hartford and they sandbagged ok and you can see that it's actually in the joint appendix one of a discovery follow up discovery analyze all the citizen complaints for a particular period of time but that was my recollection and we had big discovery battles for about two or three years and so that was my recollection but frankly in the circuit and it's is me in the district of connecticut there's a requirement that that be disclosed regardless of whether you ask for any relevant information is supposed to be turned over within a certain time frame and that's all part of this that's all part of this they don't follow court orders they don't keep track of any of this and it's for good reason because if you keep track of it well then now you're setting yourself up possibly for a monopoly but that's what's ironic here all they had to do all they had to do is do a meaningful investigation it doesn't have to be columbo but you have to do something keep track of it right and then when an officer allen does what he does well then you can take whatever disciplinary action you deem required under those circumstances and we wouldn't be here because i wouldn't be able to come in and say that there was this deliberate indifference is this custom on the part of this police department and frankly it's speaks volumes that this officer is still on the active role in hartford that's a terrible message to send to the citizens that live in their community thank you thank you off your arguments the court will reserve decision