good morning your honors may please the court my name is andrew pro bono counsel for mr alston in this case the jury viewing the evidence in this record could conclude that it's more likely than not the defendants forced mr alston into the focus deterrence program because he is black there are three categories of evidence that support mr alston's claim first defendants have admitted under oath that the goal of their program was to target and decrease disproportionate minority statements of the parties here but your statistics are totally go ahead make your argument well i would say on the statistics your honor the district court found it striking that four point five percent of the madison population is black but eighty six percent of the population in the program is black and i think the statistics year are striking if you look at the arrested population which is maybe more of an appropriate comparative which your honor would like the arrested population is only thirty seven percent black but again compared to the population of the program it's eighty six percent black and i don't submit that statistics alone would prove the case as the court explained in ortiz you have to look at all of the evidence available the jury seeing the motive of the program the statistics and the fact that individuals were identified by racial proxy a jury could certainly draw a reasonable the reasonable conclusion that race was a motivating factor for selecting mr alston for the program now i'd like to turn back t goal of the program and the goal of the program was to decrease disproportionate minority confinement the defendants have never offered an explanation for how their program would do that and the only explanation that's been offered to any court is that they targeted black individuals to accomplish their goal of decreasing disproportionate minority confinement and i would encourage counsel my friend on the other side today to explain how their program would do so would decrease disproportionate minority confinement without going after minorities then turning to the racial proxies the racial proxies in this case where that every individual was identified as being in a gang or not and that individual and the individual's gang was listed and this label only appeared at the very end of the selection process when they narrowed it down from eighteen individuals to ten individuals five individuals were identified as being in a gang four were identified as being in gangs such as black disciples gangster disciples and vice lord one individual was identified as being in hell's angels the individuals identified in black disciples gangster disciples and vice lord were all chosen the one individual and white in the white king hell's angels was not selected and i finally turned back to the statistics the statistics in this case are a start as this court has probably seen in a long time eighty six percent of those in the program were black and only four point five percent of the madison population is black and even if you look at that arrest population thirty seven percent is black or black and eighty six percent in the program are black  thirty one standard deviations away if you look at the popular the general population and the population in the program and that means that blacks are eighteen hundred percent more likely to be chosen for the program is the initial  that may be a noble cause to try to help and do crease that disproportion well it may be a noble cause but the supreme court has instructed us to apply strict scrutiny even when it's a beneficial purpose is this some sort of fruit of the action  they may try to say it's an affirmative absolute it or not i just wondered what was going on but i think that's the ultimate goal may be beneficial to decrease the number of minorities that and get on at least that's something sure but you have to also look at the effect on the individuals but the effect on the individuals is quite harsh they are targeted for increased scrutiny asset seizure and eventually face judges who have heard about how they've been in and out of the system and that has turned to process argument but on the equal protection claim i think you have to look at the individuals not just the goal as to society as a whole but even that goal is subject to strict scrutiny because it's targeting minorities and they're not just trying to decrease minority confinement generally it's the disproportionate minority confinement so they have to explain how their program would decrease the disproportionate number either they have to increase the proportionate or the proportion that are white that are incarcerated or non black or they have to keep him from being the rican find because of whatever he did well on probation would be subject to put him back in prison because a breach some of the rules that he was supposed to follow on probation i don't i don't know i never thing is in peril either this program is in other places around the country and that's maybe that's where they got the idea so i let you go on i'm just curious and you know it looks like there was you know madison is not known for a place where they aggressively discriminate against people because of their race and maybe there's some people that whatever the policy is which we don't gauge and here we try to look at as you point out the constitutional impact so you go ahead i'm just looking at this is it it's a strange anomaly we're you know maybe it's one of those cliches we're just trying to help you well he doesn't think so so well it certainly didn't help mr alston in the end he round up back in jail i don't know i don't know the editor does if you would otherwise been back in prison then maybe it helped him but i don't if you're saying it is less offensive than some of the others who are on the program so what is certainly and but even if the goal is beneficial it is still subject to strict scrutiny they still have to come forward with a compelling interest and show that their program is narrowly tailored to meet that compelling interest is no good deed goes unpunished or well perhaps but that's what the supreme court has said you cannot have a race based program and without surviving strict scrutiny gang activity in a certain geographic part of this the city let's it but let's say madison any decision is made to as they say flood the zone with a disproportionate amount of now but it creates a police presence in the likelihood of all the police presence has we would you say that that in and of itself would be the kind of abuse that used they exist here absolutely not that would be some sort of disparate impact claim which of course does not exist under the equal protection clause but to tweak your eye prophetical a big it would be it we're going to target this area so that we can get more minorities off the street and when you look at  those who are targeted they're identified by racial proxies and targeted based on those racial proxies and you have the disparate effect well i mean i'm just i'm just trying to create the possibility that that again activity by a not where you would say the last ten years of where you spread the force existed would would create the same kind of ill effect that you see here well it might create the same impact at the end of the day but i don't think they would have a liability under that program because they don't have the intent to target people based on their race their intent is to target those areas that have high crime and that high crime happens to be associated with gangs of a particular race but the racial proxies in this case i would point out come at the very end of the selection process and at no point did defendants make a claim that the gang affiliation was a reason people were chosen for the program it was never criterion for being selected for the program and they have still not offered an explanation for why gang affiliation was important to them in the selection process and you say there were ten that ended up on this if you use all the screening and everything else young member that's not the case apparently no that's certainly not the case every can tell from the first round so there were eighteen up for consideration ten were selected five people in the eighteen were in gangs for worse or s with black gangs one with a white gang of the ten that were selected the four and lacking were selected so we know six individuals in the initial ten that were selected were not in gangs or at least not known to being a get in only one of them was morning may please the court my name is katherine here all i represent the defendants a pelleas the city of badasses and former chief of police noble gray captain corey nelson lieutenant tom i'm mr alston has made some pretty harsh accusations in this case that none of my clients take lightly specifically he has alleged that the city defendants implemented the focus deterrence program in order to target blacks and to make examples out of in essence he's accusing the individual officers of feeling racist if he's going to make these accusations that he better back them up by facts and supporting law and he has done either he glosses over completely ignores the applicable law and the few pieces of evidence he relies on do nothing to support his claims in addition he has miscast the nature of this program i undisputed that the primary goal and purpose of this program is to target repeat violent offenders in an effort to deter criminal activity and re offending it is designed to end cycles of violence there is no dispute that a small group of offenders in the madison community use up a majority of the departments police departments resources and victimized many people yes a huge texas didn't just throw together this program they spent a considerable amount of time researching and developing it to address these problems and one way they went about doing that was offering a number of programs in the areas of job skills education housing mental health treatment in order to end the cycle of violence if these client if the city defense were truly motivated by racist reasons it makes little sense to offer these community real or could be bi racial reasons not that's true that's true your honor i want to address a few of the arguments attorney bents raised he even pili states that the call the program was to do decrease disproportionate minority confinement  that's not the primary goal of the program mr alston himself has conceded and is admitted in proposed specs that the primary goal was to stop repeat violent offenders that one consequence of the program may be a positive impact on disproportionate minority confinement does not mean that that's a discriminatory purpose or intent in the case law and that is quite clear and i think  sort of screws up the analysis to through respect to how to apply strict scrutiny to that if it's strict scrutiny applies and in two instances you have a racial classification that's that's one time you can apply it in a race of racial classification cases you need not only the identity by protected class but you also need to instruct some action or inaction or a benefit or a detriment based upon that class so for example in this issue of the crime you say based on the what you need i guess would have been like as i you detect is telling the selection committee you need to give more weight to those members of the gangster disciples or or you need to choose people if they're gay members are resources medicine is concerned is there a neighborhood that is substantially and has a lot of crime i'd based on my own experience i don't know how there are to look at what they're doing in medicine yeah i think there are several neighborhoods that are probably substantially black and have a high rate of crime although this program is not targeting the potential participants by neighborhood where there two sides to that one of there are a lot of people who live there who need protection right there's crime going on and they have to live there people with young children etc and the know gets in and out of those games and do some one of them compete with each other unfortunately but if that's what they do they're trying to do is to reduce that and maybe identifying certain people that participate maybe there are these ga that they're trying to i guess reduce the crime but that is a just a targeting thing for certain people it's also protecting a lot of other people that's where the brothers me about this whole  program of what is what they're trying to do with in tennis and and i guess to address your question about i mean a lot of defendants here right police officers and other people that seem to be sort of ignored in the process you're right and i agree and frankly i'm mr olson hasn't pointed to any contact by any of the individual officers that would subject him to any constitutional violations i think one of the one of the arguments tony batts just made was that the city at the same depends has still not offered an explanation for why we included gang affiliation well there's a reason for that that's because the gang affiliation argument was not raised until the second round of seventh circuit briefs this was not an issue before the district court therefore i didn't get declarations of the life from my clients explaining it because it wasn't an issue and i don't want to get into the whole forfeiture versus waiver issue that's part of this case however i do wish to point out that mr alston it's not just raising a new legal argument he's he's bringing in new facts into the record at appellate stage and that is improper he's more or less asking this court to take just will notice that the gangster disciples is a black being based on a few articles he submitted and it's problematic for a couple reasons one he didn't do they didn't resist below and the only record evidence we have regarding the racial composition of madison gangs is that the king's disciples has white members too so i think that sort of strips apart h his racial proxy argument if the court would like me to i can give a brief explanation of why i believe king affiliation wasn't clear it and i think your honor you were alluding to it there are a few gangs in madison that are responsible for a lot of violent crime including a majority of the shootings that occurred in madison because the focus deterrence program focuses in on individuals who commit violent crimes that's relevant information to each other right right and that's what the shooting violence is in manson's gang versus gaming and there's also this issue i mean one of the things the selection committee might consider least that our detectives thought they would consider is the propensity to commit violence in the future and if somebody is a gang member and especially a particularly gains that will indicate perhaps a propensity to commit future crimes because crimes are expected to maintain membership in the ga forms getting back to the strict scrutiny standard of review i was briefly spoke about i did touch on the racial there's sort of two tests you can use there's the racial classification and then there's the three prong test and i've explained  racial classification doesn't work and that's because there's no dispute that these detectives instructed the selection committee to take any action are in action based on making affiliation the other time you could have strict scrutiny by is when you have a neutral policy that has a discriminatory effect and as discriminatory purpose and so if we look at this plan as neutral start and then we look at discriminatory fact that brings us into the statistics mr alston's using and they're flawed as the current court noted you cannot compare the percentage of black individuals in this program to the percentage of blacks in them as a community the reason being that black people in the mass of community are not repeat violent offenders so it is inappropriate to compare them both and that sort of  apart his entire and else is there and with us produce a so that that strips away his entire analysis and uses statistics because he's not comparing the appropriate groups he has to tailor better to come up with some sort of statistical argument that makes any sense and yes i'm done that i see that my time is up but i want to make sure to leave time for michael crowley thank you for her the skill patrick thank your honour's and maria please the court my name is stephen kilpatrick i'm an assistant attorney general with the wisconsin department of justice and i represent a pollie brian reynolds mr reynolds is a pro agent of the wisconsin department of corrections and he is the only state of wisconsin employee who is a defendant in this case mr alston's claim against mr reynolds is that there was a violation of his fourth amendment rights but no dispute  material facts exists as a matter of law agent reynolds had reasonable suspicion the key term that alston violated the terms of his probation the district court's order should be affirmed that ultimate cannot prove it fourth amendment violation against mr reynolds it is undisputed that mr olson was seized on december sixth two thousand and eleven when he turned himself in to city of madison police also wants this court to focus on the november twenty third apprehension request that mr reynolds issued and an alleged disputed fact with regard to a meeting on november sixteenth but what is important in a fourth amendment seizure case is that reynolds had a reasonable suspicion that alston violated the terms of his probation at the time of the seizure and december sixth this is there is of the terms of his probation and that provides reasonable suspicion certainly for fourth amendment purposes there can be no violation of the fourth amendment because at the time he was seized he had met the meeting which was a term of eight of his probation that he was required to be there more over and december second it is undisputed again that mr reynolds was informed by madison police that mr olsen was a suspect in a battery allegedly punching a woman i believe his former victim in the face and dragging her own and is undisputed that mr reynolds was called by madison police and told that they checked mr olson's residence and was told he did not live there this is enough to look for reasonable suspicion going back further in time on november twenty fifth reynolds told awesome by telephone to report to him that day the phone went dead this is undisputed it's also undisputed that also and did not report to mr reynolds that day again more evidence undisputed that reasonable suspicion exists that this happened after  reynolds issued the after attention request on the twenty third is not important in other words that reynolds did not know about these facts when he issued the effort to ensure a quest does not mean that alston's mr olsen seizure was without reasonable suspicion or that he had to reissue the apprehension request after december second or after november twenty fifth in fact plaintiffs don't argue this at all and i point to page five of the district court decision is simply means that even if mr reynolds did not have reasonable suspicion before issuing the apprehension request he certainly did afterwards after november sixteenth and that apprehension request was still in effect on december second when he missed his meet his meeting and on december sixth when else on the seat of these are enough these facts are enough to affirm the district court but not with standing these undisputed facts and this leads to also has claimed that there is a material fact in dispute regarding the nov sixteenth meeting which led to the issuance of the effort mentioned request but there are no underspin are no disputed facts in response to mr reynolds propose findings mr also admitted that he missed the home visit he says a place of alston recalls rescheduling the office visit just minutes after missing the nov sixteenth home visit alston admits is in his opening brief here on page forty one that he realized he was supposed to be at the meeting and alston called reynolds and reached him at his office it's undisputed that he call defended reynolds and told him that he would come to his office after or they could reschedule and when it's undisputed that when reynolds visited mr alston's home that morning he spoke with all sins roommate and mr rep alston was not there so it is undisputed that he missed a meeting he was not simply late as he's trying to characterize that right now my friend on the other side just greeted with i judge caney that racial reasons could explain the program and the fact that we're having this debate here shows that a jury could conclude that it's more likely than not that race was a motivating factor for including mr alston in the program and that's all that mr olson has to show here he only has to show that a jury considering the facts that the goal of the program was racial that the statistics are so stark and that individual's  fight by racial proxy in the racial proxies mattered that a jury could conclude drawing reasonable inferences from that evidence that race was a motivating factor and those facts also support mr alston's claim and nothing that my friend on the other side has said undermines those lacked the argument is that in this case race may have been a factor which they conceded but it's a positive factor in a sense if they want to reduce the number of incarcerate bugs it may be of a beneficial purpose but that does not matter under the equal protection clause whether it is affirmative action or whether it is a negative action against a group of people if you are targeting people on the basis of their race strict applies and therefore they would have to come forward with a compelling interest and show that their program is narrowly tailored to that compelling interest but we're not at that point yet all we're here to say is that a jury could find that race was a motivating factor for this program to find that race was a motivating factor because that would conflates does impacts cases with disparate treatment cases and the supreme court has been very clear that disparate impact is not a viable claim under the equal protection clause will it don't just looking at it from would you say you want to put it to a jury a jury may look at that and say well i hope it worked the hope there who is less crime who the people in the neighborhood are safer i hope the gains you fight each other will back off or something i don't in the pursuit of this program but the evidence would also allow a jury to conclude that a purpose of the program was to target people on the basis of their race and when you do that you have to satisfy strict scrutiny thank you  if the program is to address people on probation who have a violent history is that then the population we should the percentage we should look at the out that in footnote five of the opening brief we do look at the arrested population the other group we have in this case and their record evidence and their blacks account for thirty seven percent so from somewhere between the thirty seven percent and the eighty six percent in the program something happened a jury certainly could conclude that there's something that happened was during the program the selection of individuals for the program and that is why so many blacks were included in the the statistics i think a jury looking at those statistics accompanied with the goal of the program and the fact that racial proxies were used could conclude that race was a motivating factor i don't think statistics carries the day for sure but statistics is