johnson in this matter against the city of philadelphia i would kindly ask for two minutes of work bottle time very well squared to go ahead thank you your honor your honor this as everyone knows this is a very tragic event that occurred in march of two thousand and eighteen it was a fire involving my client's three relatives horace mccollum was sixty three years old there is a young child eleven thirty eight pm to the nine hundred and eleven operator who transfer the transfers her mediately over to a fire department operator where she gives her their location and it's then instructed to go into the back room to close the door to open a window and place at cal under the door and that police would be there that they should stay calm and that they right is also correct or are then the p f d this doctor is obviously in touch with the firefighters in constant communication with the firefighters over the course of fighting that fire correct you are very very good now they've done your compl appears that the following is also true that the leader johnson is never in touch with the p f b dispatcher is that correct that is correct not not by direct communication only through what she is telling th is never in touch with the firefighters that is also correct or are so the only basis for the p if the dispatcher have information about this a we don't johnson the fact that they were in distress and the fact that they needed help oh god that's what i just wanted to make sure that we agreed on that we do agree on that we just we just certainly don't know at this point in time because the radio communication can we do proceed from the city philadelphia which we preserve very intensive patient a litigation gives us two separate bands of the band between actually three the nine  eleven call to the regular operator and then the communications between the leader johnson and the game go operator and then the dispatchers communications with the fire department but there is there are no audiotapes at least that i am aware of respectfully if it's one of the six motionless granite can i jump in at this point i'm sorry yes of course it's judge porter so i'm looking at i'm picking up on judge greene or his questioning and i'm does that's or never informed the firefighters that's the johnsons were in there in that room waiting and that seems to me to be a disconnect because you don't say that the operator he said the operator told the dispatcher the correct address th the dispatcher for not giving information to the firefighter that we don't know if she ever received from the from the operator we we know that we know this much your honor that the doe operator would have had to tell the jingo dispatcher about them being on the rd floor because in the in the radio communications between jane doe dispatcher in the fire department the dispatcher is heard saying we are getting reports of people on the rd floor so we know that much what we don't know is the detail to which the jango operator instructed the cha if she had secret them into that room but we do know at least that there was d an initial real relation of some type of information between the jingo operator and dispatcher otherwise the dispatcher would not have been able to communicate to the firefighters that there had been reports of the fire on the rd floor importantly your honor that that initial communication with the jane doe dispatcher was when they had the fire department personnel to the wrong address so it was never repeated in anything that i have heard on the nine hundred and eleven tapes from the dispatcher to the fire department after she reroute them to the correct to say either one i have more information on the rd floor rear waiting in a close room for you or to that you are now going to st street instead of rd street remember that there are people on the rd floor in fact it is so vague it's not made our clients to see even more vulnerable to harm in this case and what i mean by that is if there is an instruction by the game go operator team stay in a certain place stay at the pick up point assuring you that the fire department knows where you are all are they know that you are going to stay there and that you are to remain there because that is where they will go to look for you that take that out of order never ordinary negligence or honor and create an action by the state which lead to additional harm to the individuals because they did have an opportunity to act upon themselves now i'm not saying that they  that sense in custody like some of the cases for state created danger but what i am saying is that they restricted their movement in such a way with and with with alliance on a very important fact that they would that the fire department would be told where to look for him and that action in doing so without ensuring that the fire department knew more and we know that they didn't know more because they never searched for the rd they never searched the rd floor for them they were found three they found three days later we know that they relied on that information we know that that act created harm for then and ultimately led to their death let me ask you this as a follow up to judge porter question as as you focus on this notion of the instruction as you say was stripping their movement the there there is nothing in the complaint about th e operator knowing that there is a choice now i understand how you could say the instruction is an affirmative act but you allege in the complaint that they could have gone out of a window onto the nd floor roof but yes the operator didn't know that so how how is the you know we can spoke for a moment about the degree of culpability and what should apply but just as a general matter how can you ascribe that to the p s the operator when the operator did not know herself to offer advice and yet she never asked to leave the johnson part of part of our claim under mo now is that the policies and procedures of the fire department in this sense didn't or defect that there was a failure to train and there was deliberate indifference as to their own policies and procedures had a prop it's part of our argument and it's part of our case that had the fire department had appropriate policy then place when it involves transfer of information between a victim of either a crime or fire and the fire department it has to be relayed in such a way that arms are on the same page so that that's one page and to your question and then i'm sorry go ahead you're on no no please you had a nd point  and honestly your honor my nd point and if you volunteer to take upon yourself the fire department operator did in this case place them in a certain area you shouldn't least know what their options are when that instruction is to secret yourself in a room and most importantly close the door now i understand it's common sense close the door so you don't and smoke inhalation patel under the door because you know you want to avoid smoke inhalation open the window for the same reason however if you were doing that you were now we're strict being the fire department ability to know that they're there or to locate them so i think it was incumbent upon the chain go operator quite and now they're delayed in getting to that location and that knowledge within the chain the law paraders again repertoire in terms of what have all he's going to for and because of that reason and knowing that they're now the late if i were the jane doe operator  appreciate that thank you you bring up the mono claim and i think that he's not to argue the merits of your modelled claim to clearly the district court didn't get into a discussion of the them policies and procedures so you know i see a clear argument that it should go back for that consideration but with regard to putting a greater onus personalized but essentially that's what they were talking about they were they were talking in that context about police officers that have to make decisions in haste under pressure we can only without the luxury of the nd han we finally got today and not to say that the other questions were weren't important but i think this case who lives in falls d in terms of the state created danger on exactly what you're asking me which standard we apply to the jingle operator than jane doe pulled over or was involved in in one incident as he's finishing up that call and motorcycle good driving at a very high rate of speed that passes him and then can is all merged with speeds of up to one hundred mph and we know that strap was driving that there in that instance that share a state of mind or they did that law enforcement official state of mind and here are my competing interests i had two idiots on a motorcycle going one hundred miles per hour that can kill themselves they can kill other individuals in fact there's evidence in that case that the motorcycle was driving so radically that accords were moving at of the way and potentially causing other accidents and then i have to balance those two competing interests with media harming myself and meet harming the general public and in that case in that very particular case under that particular set of back yes that was a highly pressurized set a set of facts that intermediate standard a great work of harm as opposed to the higher standard and would you have a jane doe operator whose job it is peak time job it is to take down information and relate information accurately they are taught to be not emotional about it we know that from other cases they are told that they are d to they want to concentrate on their job that they remain judgement and all and a luxury of time like and in the situation in the case where the would didn't we huge because he was not providing proper care was enacted and made he had plenty of time to think about what the right thing to do was but this this department one term main task what completed her responsibility was to just comfort and ensure that the folks who remained on the line and did the right thing that's not highly pressurized that could be considered hairy but like the case law that follows these different standards if anything within an hour ten minutes and we know we had eight to ten minutes of communication this this operator had the ability to actually work late to collect information to either the game go dispatcher or to ensure that it got to the fire department once that initial call was completed she's no longer in a high speed chase she says she's back to just making sure that she comforts someone that's why i think it's the intermediate standard in this case i thank you judge  a it is not a situation involving confinement it's not analogous to confinement in the custodial sense it is analogous to the fact it is night and read it very clearly  the police officers that officers that eventually responded and misconstruing and perhaps falsifying that she had been assaulted d in the st place so in that case when these officer there's their sense of urgency it in by the fact that this information was not properly relayed that's the type of conduct that i'm talking about that doesn't involve custody but involves a miss relaying misinformation or not the correct information which was found actionable in read it and then in night it's simple and th largest argument that conduct causing harm to samantha knight was not the up the search taking her into custody which is what your question is because samantha knight was in custody for school while her husband was free to go he was not free to go private source of rescue which was her husband and so it is this case just analogous to night the harm is not so much putting the guy taking them in the custody in the sense they closed them in the room but by closing them off to the firefighter study and not telling the fire department where they were in their hyper pressurized environment i hope that answers your question judge conscience so my question is what they have deliberation or what state of consciousness must you read in order to for liability to impact in terms of in terms of before ridiculously putting up a good putting up against a nugget state troopers had pulling the trigger and killing the state trooper tragically in that case the court dealt exactly with the question that you one evidence that the works with obvious poor matter common sense and i would say it's significant spectrally judge porter that it is obvious and a matter of common sense that if you don't tell where the fire department where these folks are and that they can't be seen that park will ensue and it did in this case it can also be according to the father circuit panel in this case in the coda kate canter case evidence that the actor had particular professional training or experience what we know that fire department they are giving is sailed in terms of the state the the others in safety of the individuals who were very to protect we know in this case that that did not occur and that the training if there was training that it was not fall back to normal one operator and then they go on d to state that evidence could be active was expressed we advised of the worst informed and the procedures designed to prevent that form and proceeded to violate these procedures we aren't yet at that stage because we haven't taken the train  operator but just based on common sense judge porter we know that if you tell someone to go somewhere and hide and then you don't tell anybody else where they are going to be a long time before they find them and that turned out to be correct in this case three days later dispatcher it's the fact that she did the information that she learned in toto or maybe not from the p d operator so we resist it it agreeing with you in that there was an inference that the fire department was told by the jingle operator anything i've listened to those tapes that i told you that we secured in no in no way shape or form do we know what was told of the fire department awkward and what was told by the dispatcher to the fire department so it's not that i can it's not that i want to disagree with you i just think that we don't know because we haven't had deposed these individuals yet but there is nothing on the tapes telling any fire department personnel going to the scene of this accident that there are people ringback on the rd floor and that  of room they are waiting lax you and that they have the door closed the only thing that we know that the fire department knows is there are quote unquote reports from the rd floor i don't know what that means judge and i would submit that that that isn't a fair or reasonable inference at least as important my arguments concern that they had to go to the nd part of your question whether this was an act of a mission or or a  and active act i think the courts and i forgive me i can't remember the case but their case like think it was the united states supreme court that said we can't we cannot continue to get hung up on mission verses versus affirmative action they when we say for affirmative and it may be a rd circuit case but when we say affirmative we're not saying anything permanent back they'd have to make some kind of action that increases the vulnerability of these individuals so your honor whether you want to call it an act of omission in not passing on the proper information to the fire department or whether i want to argue that the act the affirmative act is placing them in in the room and cold d seeing the door without doing more and went out and knowing more i think we end up at the same result which is they increased the vulnerability d of these individuals and that act whether you want to call it of a mission or or affirmative is what created their their harm in this case but i thank you no i said no because they'd accurately transit trains i had actually said what was heard on the tapes and i think that that is in the eye and that is in the appendix it where the district court agreed that he does not need to have the case i think i even offered during the argument to provide them what we requested is that your honor and if and if the city and i have no reason to doubt them if the city through the fire department accurately complied with our subpoena requests we did ask for that we had for anything  big in fact that that's that's been the gripe about the fire department for ever and the same thing with nine hundred and eleven is big no one can accurately connect the dots between the band because the radio communication system is the outdated now how far that goes i don't know yet because the twenty six dollars motion is granted but that is certainly going to be an inquiry into discovery on the mono plane because the fire department and ended up committing affidavit saying i relied upon that information that the doctor gave me and if he hadn't given me that information i would have taken my dad immediately because emergency workers to the emergency room and he would have been treated for danger and yet that weapon out because allowing an individual or a lie upon representation that turns out to be an accurate insufficient it's not restricting his liberty to blow off what the doctor said and got wel violation of parole and i'm not doing that and tragic circumstances are vulcan with the younger daughter being killed by the doctor and the court there and mr bright made a similar representation and i n his response to the american he said if i had known that this man was going to take the offer and the cut that day i would have thought i can i would have taken other measures to protect my family but again that wasn't enough because she she could have done what she did which is give specific instructions to do this and what he she could've done something more fulfilled although kind of make the very point that that if not it's not a reflection of poverty for an operator can get and take in the argument would be it's not a reflection of liberty for for the operator to give them instructions on how to stay safe and can help or i that's not a is for the operator to give them instructions on how to say thanks and tell the firefighters arrived if you're rendering her liable for giving the construction then you're creating an incentive for her to do if he doesn't know the lay of the land and i would imagine that the last thing that you want her doing is giving them all i'm giving them oxygen to get the more you can say in the room with the door closed to keep the smoke out until they get there or you can try to take action yourself and jump out a window which actually someone did according to the allegations in that building and when they are part of the ride they found that person to see and so to me it's a real problem to hang all that on the operator which is what t i was prepping yesterday but i was looking up there we got to twenty eight today let me ask you this question given the fact that there were no amendments to the complaint and in the had the district court heard when he dismissed the complaint without offering full of the opportunity to amend the complaint it does not matter whether or not applying to speak to leave to amend we have instructed that if a complaint is vulnerable to twelve p six dismissal a district court must permit a curative amendment an amendment would be inequitable or hue time out that i just want to just want to make sure that we're talking about the right standard with respect to affirmative exercise of authority to one that we're talking about applying brighton to shany because i think that's really important i understand that part of  need for an immediate communication of what the caller communicates to you with the operator to push that information on down the line there's no opportunity for deliberation there and so if an operator leaves information out i  don't know how you can interpret that as anything other than negligence because of the timing issue you know it's a very different case miller was a case where a social worker and an attorney for our office had hours to to determine whether to  find that a parent had had abused a child or not and that's simply not the same timeline here and further there are cases like the carty that do concern st responders but in that case but in that case the city for intent to harm and furthermore the court pointed out the paramedics there weren't treating the case as an emergency they were treating it as an intoxicated person and so there would be no reason to run upon intent to harm standard but that doesn't apply here and so i  point because even if some sort of miller sliding scale standard applies or the factors alleged there's not enough here to infer that there was any kind of abuse of exercise of authority where have st of all if you all pointed out there's very little out with respect to the dispatcher and i neglected to also point out that there's nothing there that satisfies the th element there but moving back to the operator she gave instructions on how to stay safe she stayed on the phone for eight minutes therefore you simply can't infer that she was committing some kind of subjective disregard that a great harm within our current of the family but that she appreciated that she had actually told the firefighters everything they needed to know and in fact i think you can also take into account the fact that firefighters did show up and did try to get out to the rd floor of that building and the nd floor the staircase in the nd to rd floor collapsed and they had to be evacuated so it's not even a suppose i suppose if you told firefighters to stay away and not come at all if you did if you knew the firefighters weren't coming at all and you said and you ordered someone to stay in a room i suppose that could be consci porter's question i chatted with your adversary a little bit about the hyper pressurized environment it seems that the cases that talk about that are generally talking about instances where  thought that the two cases were trying to draw a distinction between a stressful situation on the one hand and the what what what i saw as a i threw pressurized  something different than struck i'm not sure any of these jobs you can argue on struck you know you can maybe argue level of stress and certainly this is a stressful job but i thought that the cases were trying to over that time there were there were no then i could just sort of tell me if i'm wrong there were no split nd judgments to be made it was the rolling of information and then you know  that it says our mere knowledge of the fact that you are in danger or even our expression of intent to help you is not what gets us on the hook for purposes of the cessna due process cars look at us on the hook is that we've somehow very general the allegations are that we didn't properly train fire department employees how to communicate information properly and i would commit all that all that could lead to very general our gay friends that don't really was referring to something that radia tapes i don't remember seeing that anywhere in the complaint and again you know i invite the court's attention back to exxon twamley on that work we're taking the mono i think as we see them and particularly assuming there's no unconstitutional conduct on the heart on the part of the actors here i'm not saying have as allegations could lead to a causal link to unconstitutional conduct on the part of fire department employees and bright or completely different paces then our case and completely different cases from read this and night with what i think are fundamental differences between my colleague and myself is what what is and what isn't merely surance as opposed to an affirmative act or an instruction that my case could not be more different than you versus united states in that case yes  the patient went to the doctor six times he comes back nothing's getting better he's complaining of shortness of breath he's given some cough medicine and sent on his way nothing were strict it his ability to take him  to the emergency room and that is that that is the absolute difference between my case and a gentleman who suffered from shortness of breath his movements were restricted by the doctor and they were able they weren't restricted by his physical limitations at the time my client was already restricted on the rd poor and then told to further restrict yourself that's more than a mere assurance when someone says they are on the way but you have to do x y and day that different case than you same thing went for a person's westmorland there was a delay in will broking the defendant's probation but the court correctly reason that nothing prevented the father of the twelve and eight year old daughters from each away from this this for lack of a better term child molester nothing whispered restricted their movement to do so the th amendment has never guaranteed citizens in this country the white absolute protection by its government what they do guarantee is that when the government acts or that can make them more vulnerable then it is they did then it is actionable and then just very briefly the my case in that case individuals in a car were tact by people with that with bottles and they will haunt and they continued to drive big then further into a nother city they called nine from continuing to drive all the way to california if they wanted to to get away from then they'd made the conscious decision to go back to denver to go back to their attackers and when they did one of them was tragically shot and killed that's not for e that is really bad advice if negligence but it is not an act that made them more vulnerable because they had a choice a leader johnson didn't have a choice thank you let me ask you a question about your adversary response bill but having seen the well reasoned opinion with respect to that count we've abandoned that claim and asked the judge not to deny that claim as well so that i can move on to the rd circuit and i know what your next question is going to be which is you did not work question of the district court amend your complaint when i when i read the complaint i realized that i had to go to turn to the rd circuit because because of the issues that i his opinion in this case and having reviewed the rd circuit case paul i felt more confident in respectfully a good applying applying for an appeal to the rd circuit based on their interpretation of the case