are third cases taiwan smar versus the city of miami case number sixteen dash one six seven four zero this renders may please the court for sanders and kerry mcnulty on behalf of the macnulty and i will be dividing the argument i will be addressing the nine hundred eighty three claims as well as the prejudicial evidence that warrants a new trial miss macnulty will be addressing the false imprisonment claim so you're going to split make sure you got the splits of time you're going to take eight minutes on your initial argument and three for rebuttal correct and miss macnulty will take five minutes right ok whenever you're ready the district court's order denying the city's motion for judgment as a matter of law and motion should be reversed because there was no evidence that the city had a policy or practice of violating individual's rights by allowing the first forty eight to film individuals or their property without consent the district court's order the dish of course finding in this case of a policy was based on the city's access agreement with the first forty eight but an important condition of that access agreement was a requirement that the first forty eight obtain consent before filming individuals or their property that demonstrates not deliberate indifference which is required for municipal liability but that the city took reasonable measures to protect individual's rights so for that reason there was no policy i thought there was no please go ahead you said something first so i defer to you because i thought there was one of the city's own witnesses who testified aside from the agreement and i'm summarizing this is not a quote that there was a practice if not a policy of letting the show go anywhere and film anything as long as they didn't interfere or get in the way of the investigation it was not to film anything it wasn't because of the access agreement they the first forty eight was allowed to be present with the officers but it didn't say that they could film no your honor i don't believe it was commander cooper that you're referring to and it was that based on the agreement they were to have the first forty eight present with them but i do not believe that any of them said that the first forty eight was opposed to film and or is it your position that investigators so long as there is no filming can take any third party even though that third party has no investigative purpose into somebody else's resonance in order to watch what the police do when where in the context of nine hundred eighty three there has to we have to look at what the city's action or inaction is and because the city's policy in this case didn't have the direct effect of violating constitutional rights because they took over you remember in this case the agreement requires the first forty eight to get consent merely being present is concept it doesn't violate the constitution and didn't cause the violation in this case it was the filming in this case that caused the violation and the city did not have a policy of allowing the first forty eight to film without consent nor did it have a practice as there were no prior similar incidents of this which a final policy maker had notice of you i know in this case or was filming in that's would lead to the claim and the trial and the ultimate damages but going back to the judge duffy's question you think the police act let's put the city aside for a moment if you think the police act constitutionally by taking third parties along with them whenever they are running an investigation performing a russ doing a takedown accent or accent or and going to people's homes people's businesses you think that's constitutionally permissible i acknowledge the wilson versus lane case where in which the supreme court stated that if the third parties are not serving a legitimate law enforcement purpose then that may be a constitutional violation i think that they will then if that case was longstanding before this agreement was entered into that the city already on thin ice i don't believe so i think because that case involved qualified immunity with individual that the this is a city or municipality was not a defendant in wilson versus lane it was individual officers the issue was you know with the city can no more violate the constitution than an individual officer obviously to hold a municipality liable under mono you've got to find a custom practice policy etc but the city can't let people third parties go into people's homes no more than an individual police officer can but i think that this is a unique situation where the city is taking steps by saying you can't film anybody you can't violate people's rights you can't do this without permission that's what my question was you think you think if they had if the city just takes people along without filming that that's ok constitutionally ok the facts in this situation i think so but even if there was a constitutional violation there was no policy or practice of allowing this and there was no policy or practice that was the moving force of a violation because the violation that was the violation it was created was by the first forty eight an independent entity of the city which the city should not be responsible for because it's not it was not an obvious consequence of this agreement that the first forty eight would violate the agreement and not get consent before filming so it was a year miami's position that because they had this agreement that shifted to the television program the responsibility of getting consent i don't remember the record although i'm not going to send other who have to be unequivocal on this but was there any evidence of all the consensus that the filming company had gotten in each of the instances in which they went in with police officers there was no evidence of any prior incidents one way or another and that's that another reason why there was no policy in this case because we have to look at deliberate indifference which is the city knowing of an obvious risk and disregarding it and because there were no prior incidences which would put the city policy makers on notice that the first forty eight was filming without consent you can't if you get to the city in order to create liability under mono help me i'm sorry you finished yes help me understand agent williams testimony because it sounds kind of like a policy to  me where he testifies with respect to restes that were charged if they were charge he says if they were charged they would offer you know they would get the footage from the video that's how they would do it even if he didn't want to do it what that meaning the suspect didn't want to be filmed and that's what it sounds like he's saying the way that that was the explained during the trial was that they would get it from the police department because the interrogations they talk about interrogations which were filmed by the police department which are public records and so the first forty eight would go that route to get it as a public record which doesn't violate the constitution doesn't violate anybody any individual's rights they have no reasonable expectation of an interrogation room and so that's what that means not that they would go ahead and fill many ways what you find a policy maker wouldn't know about it's that they would just ask for the public record from the city and that's how they would get it i thought there was some evidence on the record that they didn't actually get it that way or my am i wrong about that i don't believe that's the case i believe that they did get it requesting it from the city because the city is the one who maintained the video equipment and the videos and so they would get it that way  is there any compliance office that the city of miami had that looked at the compliance of forty eight hours company to make sure that they were in fact getting the consensus that were there there was not  again because there the city was not on notice that this was something that would occur the first forty eight is a production company that has been in existence for a long time they have experience with this and there's no incidence and there's no evidence in the record that the first forty eight didn't get consens in the past the only evidence of a violation if at all was this case which under this court's precedent does not constitute a custom or practice because the customer practice has to be pervasive and widespread in order to put the city policy makers on notice that's but you know that that requirement comes out of cases generally where police officers are allegedly doing things that the city fathers or mothers don't want them to generally do beat up people with excessive force use deadly force without reason and gaijin unlawful searches and seizures that sort of the stuff that you would think is isolated and not part of a government practice but here the government enters into the city enters into a contract it knows what is going to happen generally speaking and do you think the city has any obligation to figure out whether or not that contract is being carried out in a constitutional way or not i believe the way the case law interprets deliberate indifference is that of course but for many things there probably wouldn't be a constitutional violation however had the city has to be on notice of a space of a particular incident and just knowingly disregard the need to train orders or to do some follow up measures oversight in an area in which it's obvious that the examples that your honor just gave i think those are obvious situations where you would want to have some type of oversight in this case there's no evidence that the city was aware that this was that there was a need for this based on that lack of evidence i see that over my time out there were two other evidence sheree issues that i wanted to get to regarding the trial you can you can certainly use your rebuttal time if you'd like  give you an extra minute you can do that thank you and after that you're eating into your rebuttal time i'll take that one minute i can do it both together there is prejudicial evidence that permeated this trial the polygraph evidence the plaintiff's willingness to take a polygraph eighty five times combined with the fact that he testified that he would that he took a polygraph or he was released shortly thereafter the only reasonable conclusion the jury could reach after that is that he took the polygraph and he passed it even though that evidence is inadmissible under this court's precedent always always admissible it is in and unless there is a foundation that is night and they didn't meet that foundation and this was the willingness of his he wanted to see his willingness to take a polygraph that is inadmis and then didn't the jury didn't wasn't there a jury instruction limiting or telling the jury about the purpose for which that polygraph evidence could be used and couldn't be used that instruction respectfully i don't believe was adequate to cure any prejudice because they were misleading and contradictory judge instruct the jury that it was admissible to determine the results of the investigation but then gave two instructions saying that a polygraph is not admissible and that the police don't have to use it so i don't think that that adequately cleared the prejudice you also have the third party confession word detective was allowed to testify that in in may told an inmate that he killed these individuals that's double hearsay for which there is no exception and we believe that that unfairly undermined the city substantial rights at trial and so we would respectfully request a complete reversal on the one thousand nine hundred three claims or in the alternative given to given the incorrect i'll put it that way testimony of a police official in mr smart case how do you think that last issue is prejudicial to you if the one of the reasons he was released from custody and charges were dropped with because one of the city's own did something he shouldn't have done or testified in a way that was not actually accurate i think that's a separate issue which miss macnulty will address with shortly but i think that independent of the detective's testimony the fact that you can't cure something that was wrong with something that is wrong and having that prejudicial either is negated by finding a probable cause it is undisputed here that probable cause existed for the drug related offenses in fact the district court judge found so and granted summary judgment in favor of the city on the false arrest claim on that basis however the fal to the extent the probable cause which existed at the time of an arrest by the police at some point dissipated or evaporated when the plaintiff's continued detention was no longer valid in that case however it was there was no judicial process it was just an arrest of someone who cause to arrest them at the time when they pulled them over because they did seem intoxicated that since the test came back negative they no longer had probable cause for the continued detention and so they had potentially a viable fossum prison claim for their continued detention past that point of the test coming back negative imprisonment claim the judge values are only up to that point at from that point forward no not if not if it turns out that all the other ones that i'll give you hypothetical not this case if all the evidence the government presented the probable cause hearing is knowingly false you can't defend on the judge's ruling going forward right ok let's let's be clear if it's not that the evidence was i don't know i'm giving you a hypothetical i understand i'm not asking you about this case right now ok defendant gets arrested yes under state law he gets a pretty good he's in for forty eight hours give or take and he gets a probable cause hearing all the evidence the government presents at the probable cause hearing is knowingly and deliberately false to everyone involved on the government side every piece of evidence presented by the government is false ok the judge accepted the evidence on its face and based on that evidence says there's more than probable cause to hold you to life i so find and you remain in custody everybody except the poor judge knows at that moment and the defense lawyer know at that point in time that all that evidence is false and fabricated you're telling me that that order precludes as a matter of law a false imprisonment claim going forward until that misconduct is figure valid judicial process that is clear under the case law the same analogizing to a search warrant there's no liability for a search warrant if the police officer lies in the probable cause affidavit gets a warrant and then carries out the search but knows that everything he or she presented was just a flat out lie ok so that's a distinguishable case and that's actually the case is relied on by the plaintiffs are those cases because it depends it depends on who is executing the war vs who swears out the false affidavit if it is the same officer you can bring a false arrest kit claim against that officer because they're the ones that know it is false it is false as to them if that if they if an officer was swears out a false affidavit and the magistrate or the judge doesn't know it's false and they issue a warrant and then it's given to a different set of officers to execute the warrant it is officially valid or agree those officers agree it so but the but your claim is against the officer for malicious prosecution your claim is not against your claim is not it's not against the sort of well i guess those are a little different to arrest warrant but your claim wouldn't be against the city it would be against the officer who lied even in the case of an arrest warrant you couldn't sue the officers for false imprisonment individually under for state law yes you could you could sue the officer who lived if they were the ones who lied and they executed the warrant and you if they learnt i'm sorry so your claim is that at best they have a claim against any against the officer who may not have testified accurately but no one else correct that's wallace we kato united states supreme court no but that's that's that that doesn't deal with state law but it's a it's a malicious prosecution yes under state law is a malicious prosecution we know but that's the you were you started out by saying you want to talk about the state law  supreme court case dealing with nine hundred eighty three in the tort of malicious prosecution there's a lot of overlap but it's not exactly the same or not necessarily the same as a state law claim that might have different elements correct that you think it's analogous enough to he to apply here false arrest and it makes the exact same distinction that once you have officially valid judicial process even if there was a law a law i that's the basis of that process so long as the judge is not aware of the lie it's still  process and your your remedy lies with a malicious prosecution claim against the officers who lied one of the one of the arguments made by mr c my mr smart is that this valid you dish will process theory was presented by the city for the first time in its rule fifty b post trial motion but was not raise in its rule fifty a motion for judgment as a matter of law before we get to any consequence is that accurate because the preservation standard is also about unfair surprise and being ambushed and they were fully aware of this issue it was reason a motion for summary judgment in their response was that people raise things that summary judgment that they then decide for whatever reason tactical or otherwise that they're not going to raise a trial and so the fact that you may put in a motion in limine e or a motion for summary judgment doesn't answer the question of whether you raised it and a rule fifty a i still believe the city raised it at the rule fifty what did you argue with the rule fifty eight on that issue the city's argument was that the was that the there was no false there shouldn't be a false prosecution i will admit than on the probable cause hearing in the fifty a or all motion but he certainly talks about being held over pursuant to the process and says that that severed the actions by the police officers and the initial and their initial actions the trial court in denying that motion specifically focuses on the lies at the probable cause hearing so this has been the focus of this issue the entire case so the idea that they have somehow the they were  they they they were prejudiced by it also and that's one of the standards in the eleventh circuit for the fifty motion because this is a pure legal issue there's no dispute of fact it's not like they would have put on something different this idea that the officer lied to the probable cause hearing was one of the main focuses of the trial it's not like with the city wasn't taking a position in the fifty motion that wasn't true we were saying accepting that it's true legally from a you know just pure legal standpoint this claim still it's your clock we took mr andrews a miss macnulty over there time so if you need more time at the end we'll give you some thank you judge and please the the first point i think we need to deal with is the fact that the trial judge below found that there was a policy the state's position or i'm sorry the city's position appears to be that the only way of establishing the existence of some kind of policy is by prior incidents they seem to ignore the fact that if you have three police officers that are responsible for the administration of this policy all of whom say this is the policy each of them said and then that read the contract each of them said the policy is that the first forty eight people can follow us around to do anything they want to do as long as they do not interfere with what we're doing the judge found that there was a policy that's the policy for some reason the city seems to think that when you have testimony of officers which is unusual i mean usually you have to have prior incidences because there was claiming something didn't happen in this case the officers also sergeants the sergeant said hey you know this was the policy the policy was that they were allowed to follow us around anywhere we went and they did when you say that their testimony was that they could do anything they wanted that include according to their testimony filming yes as a matter of fact i think that's touched upon in sanchez's tedward item where this one section of testimony here document want to seven page one hundred one doesn't it concern you at all that you're conducting an investigation with a camera crew next you taking pictures of everything answer sir that is what the department based on the policies and that is what i had to do that's what the department's policies would say they had an agreement with the first forty eight i have no control over their agreement with the first forty eight question so your instructions were to cooperate with first forty eight correct answer my instructions to be filmed in if you take that testimony all the police officer is saying is that whatever the contract is is the contract and if they're abiding by the contract i don't like it but i gotta live with it doesn't say that but we knew that they were violating  of the contract your honor i think that what they were saying and i may not have seen the exact same things you're referring to they're not saying that there was a contract blah blah blah they said they didn't see the contract they had no idea of the contract was they said this is the policy this is what we're supposed to do each of them testified that they had read the contract they had many there was no training one of the officer said we knew this was a retraining this policy he laughed and said training there is no training so the policy that they understood and they all testified about was that first forty eight can follow them around and tape and do whatever it is they want to do as long as they do not interfere with the investigative process that's the policy and that's the policy the judge cooke found at the end when she was ruling on the various motions she said that's evidence of the officers who testified the officer who testified said that was not necessary they were allowed to follow them around the tape anything it was that they did now the contract said that they had to get permission to go into a house but they never did that and the judge as you know directed a verdict on that particular point but the fact of the matter is that they allowed these cameras to follow them around there's testimony the officers gave that the first forty eight folks were actually embedded in the homicide unit on the fifth floor of the city of mine a police station that they had the cell phone numbers of all of the the police officers the detectives and they had their cell phone numbers and they were alert them when there was a crime the other thing judge i think that is significant here they're trying to take the position that the city fathers didn't know what was going on there were seventy six episodes that were taped in the two thousand and eight i believe it's a two thousand and eight annual report the police department says it introduces exhibit seventy three they have a picture of all of the detectives and homicide with stars next to their name these are the stars they explain in the text that goes along with it that this was designed for a public purpose ok to show what was going on in terms of crime in the like the city of miami basically was promoting the city through this exercise and the suggestion that the normal kinds of latitude that we give to police officers who are stuck on the scene of a crime trying to make a decision doesn't apply when you have the city basically promoting itself that's what they were doing it was a commercial enterprise like the one in a parking garage but they want to have all of the constitutional protections including some that don't exist so the fact of the matter is is that clearly there was a policy they paid no attention whatsoever they never got a consent from mr smart and the various places that they filmed were places that you could not normally the public was not allowed to go judge cook even estimate one point in time she said well you mean it tell me that these people could just come to any crime scene normally without this policy and do what they're doing so well no no they couldn't do that it's because of the existence of the policy the only other thing is i mean i think was adequately of the court's interested in the argument as far as probable cause is concerned but they waived that they waive that argument in their briefs and then when they came to the the motions after trial what they wanted to do at that point in time was they introduce this new argument but at the time of the probable cause hearings and at the time that they made their initial motions the court they didn't raise these issues their argument was if you want to mean the prob cause you mean you mean the the rule fifty hearing yes sure but initially the argument was that whatever probable cause had occurred in the beginning of the bond hearing and judge kwaito who is at the time in da county they had the circuit judges the active circuit judges here in bonn hearings because that's the way they were doing at that point in time the judge refused to find probable cause in the first appearance he wanted evidence to show a connection he said there's no connection here it brought in detective sanchez who then lied he just lied about what happened and based on that lie was what they were then able to to retain this young man for nineteen months mister andrew says that or miss macnulty i'm sorry says that if there's a claim for false imprisonment based on the holding of mr smart after the probable cause hearing where mr detective sanchez testified it's a claim against him were maybe other officers but not against the city what is your sponsor or under state law the city is responsible for its employees my one of the points that council one of the council raise was  outlier case from the fourth district i think maybe in the second district that outlier case they are erie bound to follow is a state law case so the fact of the matter is the city is responsible for what its employees do and this entire thing was basically designed against the pressure of making sure that things were done within forty eight hours and they did it within forty eight hours and within forty eight hours they basically stuck this young man in jail for nineteen months for something he had not done and your state law position even though there are cases it's a state law term is the contours are with this case it's the state claim that if somebody misrepresents or intentionally falsifies information to judicial officer has responsibility for determining if a warrant is issued then so all you have to do is find that there was a misrepresentation intentional or unintentional and in the city would be liable if that person arrested even though the judicial officer believed in good faith relied upon the information presented to them if the judicial officer believed the lies that were presented by the employees of the city the city is balland the responsibility for those lies and is bound for the false imprisonment not the judge and not the judicial process juvenile process isn't responsible for the fact that the detective came in and lied to make sure that everything happened within forty eight hours and you're the judge i think i'm just it's the law of florida if if a magistrate judge or some judicial officer is presented with information that they accept as true because it's presented to them under oath and they say that's enough for me to a warrant if if it's determined later that the information submitted to the just to show officer was false the city is liable i think that's a different point your honor for this reason generally speaking when you're looking at probable cause you have an arrest affidavit ok if that arrest affidavit contains information that might not be true there's a different standard in this case the judge looked at the arrest affidavit he said hey there's not enough here for me to find probable cause i want to hear it two days later they bring in detective sanchez who just comes in lies based on those lies are the reason why this man was detained not because of what was in the arrest affidavit or the probably initials detained because the judicial officer hearing detective sanchez says oh that's enough information me to for me to find probable cause i'm going to issue a warrant to have him detained right no we didn't issue a warrant to have a detainee kept him in custody he was in custody already this wasn't this is that that i think there's there's a judicial determination that there's probable cause to detain judge i think respectfully that is a big difference between what happens on a roll of papers on an arrest warrant and what happens when somebody comes into court and lies to a judge and the and the the juliet case the supreme court the united states talk about the fact you can't rely upon lies to validate a judicial proceeding and that's what happened here those lies were validated the judicial proceeding let me just ask a practical question and the verdict in this case was the general verdict or was it was there a separate verdict on each on the underlying state law claim in the one nine hundred eighty three the lottery or on so there were separate verdicts sure city's policy to allow access for the first forty eight but that wasn't the injury that's not what they allege occurred at trial the injury was the filming and so the city's policy of the city's agreement which required the first forty  consent before doing any filming before entering anybody's property does not constitute deliberate indifference under the united states supreme court or this court's press if you do is there anything of relevance to the fact that at least in this case they didn't get consent to enter either and the testimony of the various police officers it seems to me at least could be interpreted to say that at least with regards to entry they were just coming in all the time no questions asked without consent i don't believe that there was that specific evidence of that in this case perhaps but one case by itself one incident cannot make a policy or practice or pervasive custom and that's what we have while police also while police are executing a search warrant the first forty eight is going out there and bringing out the people who own the home and talking to them and saying hey by the way listen we're production company we wan out this you know program which shows search warrants being carried out people being arrested and right away when it's really fresh and all of that and we like to do that here so you want to sign this consent form that's what first forty eight is supposed to be doing  presumably that is what they're supposed to be and by the way we can't even go into film unless you give us permission to go in we've got this camera crew here we'd like we'd like to have access to your house to just go through it and take whatever pictures we'd like so here's a consent form and want to sign that too that's what's presumed by the contract correct because you had neither you nor the plaintiff i'm not saying who the burden was on presented any evidence of whether or not those contract provisions were followed or not followed i believe it was their burden to do it by no it was my question was no evidence no no evidence either way how long had this contract been in place by the time that mr smart's arrest took place there were different iterations of the contract honor just very briefly i want to address the point made by mr klock that the that the city is liable if its employees lie at a probable cause hearing under state law section seven sixty eight points when any of the florida statutes actually addresses cities municipal governments and states torah law liability with respect to kind of the balance between employees and governmental liability when there's a tort involved it strikes a balance by allowing injured individuals to sue governmental entities it steals governmental employees and certain for certain torts that they may be they may commit and it allows exposure of the governmental entities like but caps it at a certain limit but it also has a very important point in it which is that if the governmental employee does something takes an action that involves malice then the they are then responsible individual in the responsibility is no longer on the governmental entity and this is  course not jamaica's you could have you could have gotten out on that theory you admit that what what the officer did was deliberate willful an intentional tort and then you get out because you're right that the statute doesn't allow respond the at superior liability for that sort of a tort but respectfully it's the same argument as the most just prosecution argument because the argument that you were malicious prosecution claim against the officer rather than a false imprisonment claim against the city it's a it's analogous the reason it's analogous for the reasoning of this letting the you know that the division of liability in this case i think i interrupted judge duffy i just duffy you asked for jury instruction asking the jury to determine whether or not there was malice i don't know i don't believe so because false to and i think what we're both to get at is that testimony that turns out to be false need not be intentionally so it can be the product of a mistake or a faulty memory or deficient investigation or something like that or it c something really nefarious where i'm just going to lie right right and they can be one of the two and if and if your position was that detective sanchez might have made a mistake but he didn't intentionally lie the judge kwaito then you know different cards were on the table for the jury right but i was that issue played to the jury in closing argument by by you and by the plaintiff's well i mean he wasn't a defendant so right but he was a focus of some of the testimony at trial right we're in recess until tomorrow morning