philips and i represent so right a florist who is the sister of erica flores deceased and her two young daughters as this court knows the standard for a motion to dismiss  notice pleading according to the supreme court and ashcroft feet all plaintiff need not plead detailed factual allegations but we did as this court is well before he hit her car you know said that it was that we're not saying that he had haves if a content to commit vehicular homicide on ms florus but what i'd like to know is your theory of what exactly sufficient nature of the danger and conscious just regard i'm out to hear what do you think because i know you in your brief you repeatedly say you're relying on the fact that you pleaded more facts what is it that would allow a jury to find the requisite level of conscious disregard i think i think that a very telling opinion that will explain right at the beginning and if we can hear these facts compared are facts the remarkably remarkably similar after finishing his shift at the albuquerque pope i'm sorry let me restart adam keisha's was going nowhere fast right and doing it we've we've looked at the case i'm sure but it's what what the what then judge course such finds is that conscious contempt of the lives of others not call in and ask permission to assist he decided on his own to go across town to an area where he was not assigned and then get involved in a traffic stop it's all it was it was a call of about someone speeding this was not a fleeing person and no one had even attempted to stop this man yet and they had other squads there were going to stop an attached proposed amended complaint is that correct i don't think there was a proposed amended complaint attached in the trial or how does that proposed amended complaint get into the record well we tried to attach it to the appellate court record in the court declined it but the court gave an order that inference is in facts that could be consistent with the original complaint would be considered by this  court correct me if i'm wrong but i thought in the record there is a proposed and maybe mr augustine or can speak to this during his turn i thought in the record there was a proposed amended complaint to the bar as part of the record there is and it was filed in the appellate court around ok thank you you may continue thank you your honor officer varney was not assigned to this area he drove two miles on his own rarely using his lights not using his siren and he went through nineteen intersections nineteen intersections two miles on residential surface streets faster and then he only one through ten different intersections over a stretch of eight miles those were more rural i once a rural but those were less congested less urban than the streets that officer went through he the light was red and he pressed on the gas ignored the light and then there was a crash i think this case is very close to the broader case factual but i think it's remarkably close we haven't had a chance yet to talk so and then if you can just clarify exactly the state of mind that you think of us are corny had to have in order to support liability i just want to know your position on this your theory under louis deliberate indifference your honor and i think that goes with browder i think that goes with the wells case i think that goes with sours i think that's all very consistent and deliver deliberate in difference means knowledge of the risk and conscious disregard that's defined probably it's a reckless disregard that you know we're words to that effect deliberate indifference your honor i think is the standard or reckless disregard i think that's used in her interchangeably in both browder sours servant and well it's ok i think that the only difference and in some of these other cases is it is the speed i look at the five cases that all describe this similar conduct where these officers are on their own particular mission so to speak and not responding to emergencies or fleeing felons and the common theme is speed in five of the cases we cited there's only one case that had a greater speed than officer gorney did in this case and  interstate highways or roadways that were less congested than this case and in some of these they actually some of these other five cases we cited the officers actually had their headlights off i'm sorry  emergency lights which officer gorney did not most of the time he was going up to ninety eight miles an hour and you say without consistent use of lights or sirens such that one could one doesn't know act the siren was on as he approached the fatal intersection or not right the forensic evidence which we've not been allowed to get into yet is that he turned his lights on literally two seconds before he got to the intersection and that's pretty strong evidence here of a reckless disregard or deliberate indifference didn't have the siren either so you say that's one of those facts that's consistent with your complaint though not yet in the record which on a twelve  yes ma'am and as i said we have not had an opportunity to even depose or talk to officer born yet so we're limited that they have knowledge that we don't but we've got strong factual circumstantial evidence to make the case under twelve b and under rule eight that we should be allowed to go on with this case you know as i read the briefs and everything over the weekend it's one point yesterday i said i almost feel like i'm responding to a summary judgment we're not even there yet but according to my time my ten minutes is up your honor but i welcome any questions that the justice thank you good morning and may please the court my name is peter augustine on behalf of the city itself ben and officer corny and i want to start with what is in is not in the record  addressing judge brennan's question earlier proposed the many complaint was at no time ever submitted to the trial court for consideration nor was any allegation made before the trial court  awarded proposed to the man a complaint would contain was no effort done in that respect nor is there a separate motion filed in any time to try and seek to amend the complaint and we have a situation here where a complaint was filed follow the rules if you're going to try to get an amended complaint in the end and so let's look at what is alleged in this case and whether it meets the pleading standards to get past the twelve b six i think we have to start with what was the exact holding in the lewis case because i do think that's instructive in her internet case was that a high speed in high speed chase pretty broad wording of the holding in the case because obviously the circumstances are quite different in that case from a routine traffic stop where you're not on duty where you're driving over on believable rates of speed to join other officers so i point to that your honor because that is what the court says that they hold in that case supreme court says we hold so that is the specific holding in that case and it may be somewhat odd but i think it's a bug in the sense of understanding these different states of  that there's never a viability unless the officer has deliberate animus against this suspect who is being pursued in this high speed chase but of course he's not pursuing anyone in this  case so you really do think he has to basically know i'm going to kill separated i'm going to kill this florus is that what his state of mind has to be i don't think it's i mean he's going to kill her but he has to harm so why isn't there that knowledge unless the city of south bend really bottoms up in the evening they're going to be motorists on the rope and so he knows when talking about the conscious disregard if one is going at this speed and if one isn't using lights or sirens if one can't see the intersection now maybe if you're driving on some deserted texas highway late at night where you can see everything for forty miles around you maybe it's not reckless going to drive one hundred and twenty miles an hour but in the middle of the city of south bend through a residential area you don't think this alleges officer corney knew that there was a risk of collision and he consciously disregarded it by his method of driving i think that if we focus on what's important in determining whether or not there's a constitutional violation which deals with what was the purpose and motive of the act in actions of the act or in this case why is that i was trying to do it state of mind and so i take it you disagree with my statement that if  criminal recklessness requires proof that the defendant had knowledge of the risk and that he consciously disregarded the allegations in this case which may or may not be proved but the allegations describe that you don't think that's the law i don't think that that's precise enough i think that we're dealing with a situation here where you have to look at is there some evidence that there was some group or some motives in officer going his actions would suggest that he was  actions the motive behind his actions were to get to help fellow officers in pursuit of a van and these are the allegations that are in paragraph fifty five of the complaint that was filed in the court below that he treated this officer going he treated this as an emergency situation in responding to it now whether that was right or wrong that's a matter of of negligence which does not rise to a level that gives motive to join the other officers i'm worried about his choice of his deliberate choice of method to get there which was to drive at ninety miles an hour through a residential area with utter disregard for the safety of the people who live there he chose to do that nobody else was putting their foot on the accelerator it is his choice to drive quickly to a scene to assist other officers i think that that's when you get into this deliberate deliberate time and span for deliberation which i think you need for the  deliberate indifference he has decided to get quickly to a scene to help other officers or our pursuit of a van you know where the officer have warm requisite  target depending on the developing circumstances as you can process through there if you look at the different types of cases the wells case from the sun just give indiana where you have an officer who's drinking consuming alcohol before and while he's driving and also has his eyes off the road because he's on a computer instant messaging i think that that carries forward throughout his conduct whereas in this be i think goes to a question of whether or not he was never seen as actions but not so whether or not he was deliberately indifferent to her presence in that area why does it go to negligence instead of deliberate indifference if as is alleged here the view of the intersection is obstructed i believe it's obstructed by building but whatever it says it's obstructed so why isn't it reckless to just drive out in the middle of an intersection running a red light running red lights actually it seems to me that's worse than negligent indeed i wouldn't be surprised if south bend chose to pursue such things criminally that actually i mean that bumps into your mono claim in a way i bet which i think is briefed adequately i don't particularly feel a need for discussion here about it but if you really think that officers in south bend think that it's ok to drive ninety eight miles an hour through a residential area to respond to a call where their response has not been asked for for minor traffic violation that would shock me that they don't know that that's not supposed to ha well i don't know if you have the specific knowledge or allegation here they've gone e he may have been driving ninety eight but he was not continuously driving ninety eight miles he drove at different speeds at different times as is alleged in complaint gray and having that specific awareness as he's going into that intersection i don't know that that's well played in this complaint and i do think that there has to allegation here for example that said he saw her he saw her about to enter the intersection he saw people at the intersection there was traffic an intersection something more  n not knowing that she was anywhere near there because that's what the facts of the case are and that's what's been alleged it's been alleged that he did not know she was there so that something it is some type of knowledge of of that some harm will happen and then if he continues to take on a course of action knowing that that harm is going to happen you can infer there was an intent to harm know everything in favor of of the plaintiff in that situation that might get you past as a summary judgment or a motion to dismiss it may not get to pass a summary judgment motion but there has to be that allegation and there isn't in this case and so and i think this also i want to point out i think the running of nineteen red lights that sense not in the record either and i also want to point out that there was a record so to speak developed in advance of the fine in the complaint here during a disciplinary hearing relative to officer gorney where the plaintiff's attorney was present for part of he attempted to actually file that record with the court so this is not a case where the plaintiff did not know the facts that the city does not know they knew all the facts going into this and i think that they knew they could not plead certain things because the facts in fact would not support that and i think that's an important point to consider here in terms of what could have been alleged and what was available to be alleged more could have been alleged to satisfy the pleading requirements to meet the standard to get to get past the most and so we think the trial court to get it right following hill it's consistent with lewis and  to plead that office are going to new and it made it that he was trying to run over this lady that's what his argument boils down to and that is not a pleading requirement indifference and reckless disregard but i would like to remind us all the pleading requirement is to put them on notice they have searched they have notice of what happened here they have a fair opportunity to defend the claim it's not intended to throw a plaintiff or the family of a plaintive out of court based on a hyper technical interpretation of pleadings this is simply a twelve p six motion and it's very important that when we talk about intent the case law is legion that says case law can be interpreted i'm sorry intent can be interpreted from facts and circumstances we haven't had an opportunity to pose officer gorney we haven't had an opportunity to depose the chief of police it's interesting that they threw mr  the police force after this incident that's an evidentiary point it's not a pleading point but it's never one hundred point that we haven't had an opportunity to even explore so her if he saw her headlights coming across the intersection it was dark certainly one can see headlights if they can't see a vehicle which is information which would speak to his intent or his reckless disregard or indifference we've got good forensic evidence that that the lights would be shining across the intersection but we're not there yet and the defense says that no one alleged he did not know she was there that's not true and we did not say that he blew off one thousand red lights we said he went intersections that's in the two miles and the court can take judicial notice of where this was and where this chase started and where this chase and he went through one thousand intersections where he started to where he finished and this was not a chase i misspoke when i said that he injected himself into this this was not a high speed chase this is not governed under those higher standards he had plenty of time to think about this he had plenty of time to deliberate and those are all facts that we would ask this court to give us the opportunity to explore to determine what was going on in his it and be aware of the particular person it's a group of people who may be out on the roadways or out in the general area and the same holds true in browder and sours those are all circumstances where bystanders not involved in the chase were injured by policeman or who was being chased so i asked the court to keep in mind that when those five cases that we cited when they talked about the speed every single case that we cited of the five cases but want officer of corney speed was higher than all of those considerably higher and some of those cases that involve lower speeds were on highways and the one case that involved the higher speed over one hundred miles an hour was on a highway not on the residential streets in that order on the motion for reconsideration so thank you for answering my questions i apologize for any confusion that might have been engendered earlier no problem going on thank you all right