is whether the defendants may be held accountable for their actions or their failure or about  viewpoints maybe credibility looks strongly on the side of your client but there is another viewpoint that was expressed how do we know what really happened i think you're i was referring to the fact that officer f witnessed the whole event from start to finish and the other people sort of came into it at different points so what actually initiated it who ran off the road you really would have to have seen the whole event to know when it's stored and mr livelihood can't tell us it's after the witnesses come in and that all of the eyewitnesses to the driving erratically all said that officer fear was the one who was the aggressor and then once he had pulled in mr lives he over all of the responding officers all initially agree that mr live cd was pinned against his truck an officer fear all was standing there were in his face scream that's not central to the cage you can move on your honor's in the past month we have seen violence by police officers against civilians and by civilians against police officers and certainly there is absolutely no justification for violence against a police officer but apart from that your honors there's a tremendous amount of resentment out there in the public because they don't feel it police officers in cities are being held accountable for the bad actions of a few and dell is police chief brown was interviewed right after his officers died a few days later by c n n and he said something that's relevant to this case your honour's he praised his officers of course but he said quote there's cops that don't need to be cops and i've been the first to say we need to separate employment with those types of cops one or two percent in this case your honor officer fiero was clearly one of the one or two percent that should not have been a police officer and after he pleaded guilty to the criminal charges the lives the family agree to let him have probation rather than a five year prison sentence five year minimum prison sentence if he would surrender as peace officer license forever and he did that so he can't ever heard anyone else like that again there's no doubt that you know the facts in this case as with many of these one thousand nine hundred three cases the facts are great just i mean they're just tough but you have to and even assuming some version of facts that would be more favorable to your side you know the supreme court's law going brown and how sure are cases i mean that's that you're hurdle so so with respect to you know the facts of his view or even take him in that light i mean that is as the measure just said i mean it is a substantial hurdle so the question for us one is you know what do you do about brown in those cases i mean why why if at all is this case different you know because if you don't get over that hurdle even if the otherwise you know attuned to your factual arguments that's a lot of circuit that's a law from the supreme court so how how does your case mesh with the brown line of cases i but we believe there is a very narrow pathway knowledge that but there is a narrow path to a hiring case and the supreme court could have but did not for ever foreclose the possibility of a herion case they decided that in that particular case the facts weren't there but they did not foreclose that there could be a hiring claim and one of the cases that i discussed with the magistrate judge on summary judgment was there's a case in the eleventh circuit called griffin v cert on it so that gave the supreme court another opportunity to say if they want would have granted it and made it an opinion on it that there was no such thing as a foreign claim but they haven't done that but brown makes clear the supreme court was extremely concerned about responding at superior and they said as much about ten different ways and i understand that but in this case your honor of a belief that it's the actions of chief mitchell in the city of malakhov that are issued not to respond it's a period just for officer pharaoh's actions and your honor really there are two points that are two questions that i raised with you today in first is in my brief i raised the question about you know what level of screening is necessary what is an adequate level of screening and brown talks about that repeatedly on or adequate screening and we don't believe that's what occurred here it was rather more of a dog and pony show officer fear oh gave chief financial limited access to his personnel and disciplinary record and chief mitchell talked to a personnel clerk at city of dallas didn't talk to anyone else about him and with the city affairs where he'd just been fired he meets with said you know even if greater inquiry you know in hindsight should have been made it separate setter the case to say you know no liability for you know not having made the extreme car not having gotten  even if it later were shown that asking the other questions would have disclosed more information about a person's background the cases say you still can't get down hard so in this instance how are you getting into whatever the narrow path you say is there help me understand what that pathway is that in between these cases i think your honor it's the fact that the argument that's been made by the defendants is they did not have to do any screening none at all and we raised this case honestly to test what that means is that  really the law of the circuit that when you a quip someone with a badge and a gun and you send them out there to use potentially deadly force on someone whether they really don't have to do any screening on this or when you say mean to me that there was some i mean with those cases too similar to his brown itself or is it brian county or whatever it was in oklahoma where the supreme court said in maybe it is org you build a better investigation of this son nephew or whatever of someone else should not have been howard as a policeman still based on what was found not on what could have been found by a better investigation there was no liability so distinguished brown for me from what you constitutional violation in the young man's past that there was here and that's why what happens in the ferrers is relevant for us in that he just come from a position where you use excessive force on  changes it's almost no longer an obligation of the hiring department it's almost per se that you have to if there's that kind of violation of the in the policeman's past that overcome any kind of shortcoming in the investigation and it must be found or it must be of value weighted by the fact finder later as as a disqualifier national understand the importance of what wasn't found if it's a particularly serious bit is just as you said it does does distinguish brown and it distinguishes the fact that under the facts of brown they didn't get there because the two violations were not similar enough and here we have a pattern of identical violations and whether that ultimately makes a difference to the court your honor as i say that the reason that we raised the case is that because they are so similar there was an identical violation in the officers very recent past whether it essentially that would foreclose hiring claim if that's the case or i guess we also have to balance that with the fact that he was a certified law enforcement officer so he'd been commissioned or whatever it is by the state of texas as a law enforcement officer so it wasn't like a total person off the street you had someone the hood received some training and was certified as a peace police officer balance that out with his prior acts but at least there was some grounds for employing him are hiring him that made him qualified i the global sense runner but the city of dallas fired him not once but twice in the city affairs fired him as well so again it goes all back to the point of he committed these violations at both places in dallas i'd knowledge your honor that they were and sustain and not sustain but that's the other point i was raising as what what is a sustained complaint from the defense of argued that sustained can only mean that literal word be applied to it a particular set of facts and or human also your honor was that  if you have a videotape i have a videotape that that shows to any observer the incident excessive force then you have a witness in the city who if excessive force of witnesses says yes i saw it i hear that the young man was complying with instructions and he still threw down the ground and then chief lives letters about that and then you've got chief love verbal or a reprimand  so that's hard again of what we are seeking a finding on your honor is whether it's only the word sustained or whether other kinds of evidence can be regarded as substantiated of the claims together follow from the same thing so court the district court's ruling was supported by over forty years of well established municipal liability law the situation in this case as the  as i think the record shows is that i think the key element here is that mr de niro in his past when officer p earle was hired by the city of malakoff his past record was investigated was investigated by chief mitchell and that in his record which included employment with the city of paris with the city of dallas one of the largest police forces in the country and with the city of dallas district attorney's office he had absolutely no prior sustained convictions or sustained complaints of either excessive force or unlawful arrest these are the key issues here he had a number of other claims and another number of other issues that that he had been found responsible for  reckless driving of a police patrol unit and various things along those lines he had been in fact disciplined for writing false reports but at no point in time did he did he when investigated by the internal affairs department of the city of dallas police department did they ever find or sustain an excessive force claim against him he was employed for approximately eight years and when chief mitchell i think that the record will show that certainly chief mitchell did a did some investigation of the background of officer pirro before he hired him there's never been an argument night in this case nor his art is it our position today that he should not have had to do anything now that is it clear from the record what chief mitchell found was he aware of all the incidents that plaintiffs are talking about including the claims were not sustain is that settled on his record i think that what he what he had at that point time and i think what is  is up as i recall the record on appeal i think pages thirteen zero four and thirteen zero five are the are the documents that he had in hand whenever he appeared he  showed up at the dallas police department documents that pharaoh had to know that mitchell had that showed the arrows background and his findings under investigation with the city of dallas not only did it show what his offenses were what his disciplinary issues were but it all show showed what his credentials were what his what is awards were and those all those things it was  instance in essence a resume what it showed was that over eight years of the patrol duty in downtown dallas that he had been accused of unlawful arrest on one occasion and he had been accused  of excessive force several times they had all been investigated and each of those had been investigated by the internal affairs department now as the case of brown states that anything that is that is not sustain that is not is not similar or not sustained is not something that should be considered because otherwise we do exactly what we're what we're always of voiding doing in municipal liability cases in that he is falling back on responding it's appear what these cases showed what his resume showed that officer mitchell had it or chief mitchell had in and was that the excessive force claims that had been investigated had been found to be inconclusive in other words they were not sustained they were not substantiated now counsel has made an argument in our brief that and investigate further investigation of of the investigations done by the internal affairs department would show that many of these on these exclude excessive force cases the reason that they were found to be inconclusive is because the it came down to a variation of what the stories were own drug arrests and those those types at this one in particular when one of the it was  heroin arrest in one of the it's the suspect was trying to swallow the heroin rocks and they took him to the ground the officers the it officer pierre it was one of those and the i think the suspects spit the rocks out he was arrested in the in charge and he told a different story about what happened that evening that officer pirro and his partner did nonetheless the internal affairs invest in mr gator found it that it was in as they were being and she was being arrested that the boyfriend decided that he didn't want to press charges and so they changed the charge to public intoxication she was  decided that she was not safe to be left on the street that night and went ahead in a respite or public intoxication in buttering jail but the later on that sustained unlawful arrest klein was reverse it was rescinded by a subsequent internal affairs investigation and let me ask you look at what role did just that the city council or did the city council play in the horror in firing of a police officers i think that  given at the time and that provided him with a some nation of what officer fear owes employment history was the important thing is that it showed no it showed no sustained claim claims for excessive force or unlawful arrest and that's where it comes becomes very important in this case but so was he hired by the city council or by the chief of police or a combination of both or earl did to hiring and firing him and the city as our police officers work and the police chief made the decision to hire but the police chief as we point out in our briefing was not actually the policy approve of the of the hiring but cheap mitchell made the decision that based upon what he saw in that resonate that he was providing that that internal affairs resume that decisions there's an affidavit from someone that says that the city council has over ridden herring decisions in the past i think is what the affidavit says is that all the evidence we have of the city council's role is at fleshed out any what haring decisions were overridden was a wand that was very special segment as we know anything other than that conclusion restatement it's wrong label for probably but that well that the affidavit that you're speaking of your honor is the affidavit of city city administrator city manager and barker and what end barker's at the david was presented was in conjunction with the city charter that sets the the powers of the of the governing body the city council and the point that we were trying to make in presenting that affidavit was simply b s that there has been that state law clearly establishes policy makers in the city malakal these there had been no there has been no evidence presented in this case by the plaintiffs that the city council was involved in any way and any deliberate indifference or any  at that would that would imposed some sort of monet all liability upon the i mean we were attempting to point out at the david the testimony of an barker that affidavit is clear enough what i'm the question really goes to the role of these are no cases in this wichita falls in this matter i don't know it's aren't always particular well written opinion but it does talk about the valuation to decide if in fact as a police chief it is been delegated implicitly final decision making authority on the relevant activity and here is the hiring police officer so what i was trying to get into is what evidence is there that the city council has taken any role in haran decisions of police officers other than this this  gaining a better word to use it again conclusion restatement that some decisions have been overridden in the past what evidence is there you're saying there's nothing to counter it that's fine me that's all we need but just ask my question what evidence is there of how the city council has ever affected a that delegation of policy making authority is is one thing that city councils having dealt with them for many years have to be very careful about it and i think that it do think it's an outlier and i think it's an outlier for this reason because number ones are no involved a recall a home rule city the city malakoff is a type a general law city and the rules that govern these the governing bodies of these two different types of cities are set forth in the texas local government issue of the training of an officer in this particular case there has been absolutely no evidence that officer the arrow who was a masterpiece master certified peace officer in texas that is the highest level of certification under the been a v t s case and i believe under limone versus bell counties there is a longstanding law that a provides that when a when a police officer meets the state standards for training that in order to prove that he has no insufficient training in order to support a training flight the plaintiff has to show and has to produce evidence that the state did a particular area of deficiency and that why that state training provided in that area is th what the plaintiff is trying to persuade the court to do is to is to take a look at the meaning of of what these terms mean in the city of  dallas internal affairs investigation report and to somehow construe take the term inconclusive and do a large these claims to determine whether in fact they should have been substantiated or not and to give some kind of credibility to these claims that were in the in the report and labeled inconclusive to some houses consider those as being sustained because as as the court is well aware in a long line of cases ending with with the link looting the stock sources bolen's case the dive is versus  situation a hiring situation or even a trying situation in order for the court to order the police chief the deputy ship or that the sheriff to consider prior claims in determining whether in fact this the connection of the background of this officer is close enough that he replies it's a high risk of of committing this specific type of  constitutional violation those prior claims must be some sustained they must be substantiated and where they're not it it drives us and we run a particular risk in the hiring cases such as this of breaching that that longstanding prohibition against respondents appear and mowen ale it was clearly established that th will not be liable to respond it's a period and the court is well aware in the long line of decisions in this court that that is that is in fact the beginning spot no respondeat superior liability and in this case when you're dealing with a hiring case you are particularly in dangerous ground because the as the as the supreme court i believe states it is in this particular case that the actual hiring the action of the city may in fact not be in a big sale unconstitutional in the hiring action it only becomes unconstitutional down the line if though is not a constitutional requirement and when faced with those things on with those questions on several occasions this court has has decided not to impose such things as criminal criminal investigations and certain particular issues that may have seemed good in writing one case but in fact wouldn't would not make a would not be a wise move to  task of trying to meet these constitutional requirements and it also runs a very serious risk of their alyssum the i think it's best said  in in the supreme court in the in the bryant case where they clearly cited only where adequate scrutiny of the applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party spitter only protected right in the official's failure to adequately scrutinize the applicants background constitute deliberate indifference in this case deliberate indifference to steal the stand and it requires a city actor a municipal actor a policy maker to make a conscious decision to do something that is deliberately indifferent to the constitutional right of a third party that's not what happened here in this case sheet major will reviewed the background he saw nothing to connect the the background of officer pirro to  to the risk the high risk of an excessive force around lawful arrest and the man was higher he was not there was no excessive force claim in in the city of paris in back when you're on a first lines that things are know is exceptionally well written and it's not an outline your honor i would like to just tweet something that mr fenton said we really or i really was not trying to use the city of dallas complaints to show that inconclusive really meant that it was a finding the purpose of doing that was chip mitchell testified that inconclusive meant no evidence whatsoever and i was simply making the point that with the affidavit from the dallas sergeant that was not the case that your honors i'd like to use the rest of my time to simply draw your attention to some facts that i will concede i'm not asking you to consider from this case but in her affidavit it's in the record of five sixty in her affidavit she went to her seven years of data for excessive force complaints allegations against dallas police officers seven years she found eleven hundred eighty nine allegations of excessive force own sergeant mansi felix she is the sergeant in charge of the records she was required to in another case to analyze t ninety eight percent of the time says and complaints over a period of seven years or not sustained so ninety eight percent of the time the citizen was not believed and the officer was believed the officer was not believed only two percent of the time so your  in your great wisdom you placed tremendous store on sustained findings and i am not questioning that by simply i'm drawing your attention to facts i don't know if anyone has ever brought those facts to your attention but i'd like to percentage embraces the components that were filed against the chief here is there are actually two of the inconclusive complaints about officer fear