please the court i'm here today representing the appellant mr josh brewington who was involved in an incident in two thousand and fourteen in which he was a passenger in a car he was that was pulled over he was seated on the ground and cooperating handcuffed several minutes after the stop an officer showed up kicked him directly in the face without provocation without him resisting arrest throughout the course of the  litigation at the end of a deposition session the officer in question who did the kicking been keener and went into detail the fact that he had been in a department that had been taught to up or dissuade people physically from running from the police he said this came from the top specifically from the sheriff steve jeffery i was then able to find two other individuals who had personally witnessed steve jeffrey himself personally rough suspect ultimately the trial court decided to grant a partial summary judgment and released both officer teener and sheriff jeffrey in their first official capacities we believe that this was an error for a variety cases involving summary judgment most importantly i would tell and be caught and why was it incorrect if sued in their official capacities in that event your central issue and the governmental entity and not the individuals it would have been spoke with the authority of that department and this is this can be found in some of our other cases that were that were cited by both sides including shroom where an executive action implicates substantive due process violation and now that would require that the that it shock the conscience but i would argue your honor that any directive from my county sheriff that says we're going to physically hurt you what about what about the statement by kenar which is in essence admission that he kicked brewington out of anger not that he was following some kind of policy judgment but that's what i understand the question now earlier in the deposition mr cain or did so i was angry  his attitude entire deposition was hostile towards the end and it was not even to my question i would have called the floodgates opened and he began to vent in what i believe was a much more sincere manner which would have been an issue for the for the jury to hear and decide who was to you know in which which did he do and the fact that he was angry doesn't necessarily negate the fact that he had been taught it was ok to rough these people up and that was how he was going to express his anger that day the video your honor is very powerful and with four fellow deputy sitting around watching him do this not a single independence county officer makes a move to stop it does he acknowledge what the official policy was which prohibit this kind of conduct the have he says he was taught differently  yes or he acknowledges that there's an excessive force policy in place and in a parent's county as would wait it is on a piece of paper but however when you've got your department head giving other direction that is specific to rushing these people  of reasons for the war and the hearsay exception of intent to there is a line of cases that demonstrate that if you're talking about police action or an act it does not qualify as hearsay an example might be an oral contract we accept those all the time it's the same it's the same type of statement here how else would we learn or house would he learn other than to be told by his superiors if i might continue along i would also argue that along with poland which were summary judgment because it failed to give reasonable inferences to the nonmoving party i would also cite this than that which came from the supreme court i would cite this court sept decision in which the court  credibility in this case we had statements from mr keener and then two corroborating officers who personally witnessed sheriff jeffrey do this we also had a video to made that alone and in and of itself provides enough of enough of a method that the jury should have been allowed to hear this as is also noted in the in at least jeff sam's affidavit the sheriff had a terrible temper which which was well known and there is no telling how he would have come across on the stand on how a jury might have decided a jury might have decided to believe are you lost whether you're arguing official or person individual capacity now your honor i think i can i think i'm still arguing both to be honest with you we've got we've got a department head who is who is promulgating this this this decision based on his own that we're going to punish people without due process by kicking them or somehow physically dissuading them at the same time he also is doing th don't see where your it would fit brown it would fit in that the moving force i would argue in this case was in fact his his all while it's of the officers to do with us what's your what's your best case and i'm on a for personal liability of the of the official not involved in the act in question but response but to you can attribute the failure to train or supervise i'm sorry you are well i most of the failure to train  f that issue because somehow he was at the at the top of the heap for training and supervising and i'm saying what's your best case for personal liability your honor i guess i guess then that i've missed argued i'm i'm mainly pointing out that the county as a department head of this of this sheriff's department the county should have more main labile he should remain law as has been his official capacity ok so you're not arguing individual as to the your argument that the sheriff or the county sheriff would be would be the official policy maker of the sheriff's department which is in that country of arkansas law that makes legislative entities like city councils policy makers and the share you know your honor i do not believe so we've got we've got arkansas code annotated fourteen fourteen thirteen zero one fourteen fifteen five zero one and twelve forty one five zero three which all which all put the sheriff as i policymaker keep going the qualified immunity portion also affected the summary judgment which again i would encourage your honour's to consider the fact that we we believe there was there was substantive evidence and enough evidence to get to a jury that that this sheriff jeffrey was in fact that this was almost a all but i written policy under his department that said if you get into the policy versus custom definitions as outlined in shroom to who was who was going to had been had been detained they already had him under can in custody sure shows up bates him up that would have also indicated directly that this sheriff how he treated someone who ran additionally you have the video itself which again i think speaks volumes your honor to the fact that there are four independence county sheriff's deputies standing around immediately around mr brenton when he is kicked while handcuffed state trooper from far off from the edge of the fringe comes into the middle grabs kaner pulls him out none of the sheriff's deputies made a move which indicates that on what was the time allows from the from the time he kicked your honor it probably would have been five to ten seconds before have been a matter of a few seconds your honor but i assure you if i citizen in this case in arkansas had been kicked seated by an individual for no reason and four officers were standing near him it would have a there his detainment the person who kicked that is would have been detained very quickly and all those officers would have been jumping over each other to grab him in this case none of them even appeared that surprised and that to me was his telling his anything in this which also went to my original point when i started this case that these officers had no at least at the very least improper training as as to how to handle an excessive force if it's happening right in front of you what do you do when a fellow officer begins to act excessively which is why i question sheriff jeffrey about the foreseeability that well his at one of his officers would act like this which is part of the record a believer in one thousand nine hundred that said when you look at the inadequate when you look at the history of this case law and the qualified immunity you see that you see that there's all kinds of analysis that come down that you know in we had taken in the light most favorable to the party starting injured you faction officers conduct violated constitutional rights yes was the right clearly established yes we can get into any one of these qualified immunity definitions custom burst policy although containing to some degree some sort of size guard in that if it's if the department head is doing this because there's never been a case it's difficult to say but they all basically say as long as it's not intentional if it's intentional i think that i think all bets are off and i think we had a case here that could evidence i department head who was asked who was out in forcing an unconstitutional unwritten policy by having the department head to that changes everything but even if not you still get into the fact that the there were you're on which requires an on sconce on a policy that that is responsible for unconstitutional acts by subordinates and you're saying well this case is different because this sheriff intentionally adopted an unconstitutional policy which was then and i gather you would say proximately caused what keener did yes or no what what what opponent pointed out a breach that he didn't have anything there was no there was nothing out there where a department had literally put in something so unconstitutional like this and i did not find one myself i mean in terms of the most the closest draw to my case or at least summary judgment that that is the biggest obstacle to continuing mr bruce justice here i would go back to tolling on in that you know we in that case there was there was some evidence that was contradicted our that was contradicted of what had been spoken and the evidence they're talking about was so much less serious than what we're told that they were talking about a dimly lit room and exact statements that mr to that that were made at the time this this individual's mother is maybe being assaulted by an officer here we have direct statements that this is what he told me and that these are this is why i saw in office all my our share of rough this guy all of that are issues of in tint motive this  deserves a chance to be heard by the trier of fact and when you look at the order in this case that evidence was not even considered it was found that the sheriff received notice of a patent did not receive most of a pattern of unconstitutional acts and or that he was deliberately counties and cities local governments inferior to state government war persons under section one thousand nine hundred three but in so holding said that they they had to be personally liable as a as a legal legally thinks fictitious person and couldn't be vicariously liable no response period or liability in the forty years since mon el exceptions have arisen to that but it's certainly our sort of single act policymaker argument i think that that attempt was best discussed in more county commissioners versus brown where the supreme court  said that it was really important not to blur the line of distinction between those single act policy maker cases and the normal custom cases where proof asked to show officers who testified of the sheriff's unofficial policy even contrary to the written policy why wouldn't it be possible to introduce that evidence to show that the and i'm sorry i'm not recalling the other name but these two officers said that on a single occasion years prior to this event they had pursued a suspect who crashes vehicle fled on foot they had to tackle him subdue him physically and that when the sheriff showed up on the scene he grabbed him by the collar that was the testimony grabbed him by the collar and said something to the effect of i'm going to skip you across the lake or something like that the importantly i think critically there was no evidence in the record that that event was made known to mr or mr keene or the deputy who of this suspects writes it couldn't possibly be because there's no evidence that he knew about it there's also the problem of the deliberate choice of conduct so the municipal liability  talk about deliberate choices that policies and customs have to be the result of a deliberative process and so in pim bauer and owen versus independents and newport fact concerts you've got legislative bodies making decisions that they vote on in newport fact concerts for example it was a decision to revoke a permit to hold a concert that tim bauer would would be the closest to this were a prosecutor or said well there you've got to prove custom and you've also got to prove this difficult what they call a rigorous causation singer it's rigorous indeed mono and his progeny have repeatedly referred to the causation requirement as it must be shown that it was the moving force not a motivating factor or a proximate cause but the moving force i would submit that is an impossible showing  where the offender has been convicted of battery and the reason for that is there's a mens right there there's a bad mental state that they the courts of the state of arkansas has said that he possessed and that's what animated his conduct not this court cannot do anything that would impugn the validity of that criminal conviction it also goes to show the criminal conviction not to mention the termination immediate termination from employment also goes to show that this wasn't the customer policy analysts of interpreted as covering our sins well except you're kind of in a darn if you do darned if you don't situation because if you don't then you're several reasons first of all this court has held that it's incredible as a matter of law in a series of cases where it said one cannot avoid summary judgment by contradicting one's own previous one testimony he was asked specifically did your conduct in this case violate policy he said yes when he was asked why did you do it in say some custom or policy or unwritten rule or platitude from on high he said i was angry  discussion here is the appellant is trying to achieve the result of holding a municipal into t liable on the basis of a sheriff allegedly grabbing somebody's scholar an identified person years ago nobody to cross examine anybody about any of that because of don't know who it was or when it happened or anything else that the evidence dictates was not made known to this assailant the written policy that was in effect was so if you read the testimony carefully he says that this statement was made to him before jeffrey was elected sheriff at the time of these statements were allegedly made he was achieved deputy was second in act of one of its employees would even supersede vicarious liability so municipalities aren't held liable for under respond out scary or simply simply based on the employment decision but even if they were they wouldn't  cases that says police departments don't have a duty to protect members of the public generally only in certain circumstances mostly custodial relationships and then it was in  it's because it's impossible there's no way to predict or prevent crime if if we impose duty on the police to stop every crime it would be an impossible duty and it's an impossible duty here crime of if there are five police officers the taining of theories here now most of the liberal indifference cases are you should have known different says the keener right that and more deliberate indifference as to the adoption of a policy well my understanding was they were making  deliberate indifference crime against the sheriff individually but he should've somehow thought this morning counsel said no that's not what we're talking about all right i don't know i don't know the record i was asking in innocence and i thought i got an answer there we don't have to worry about the individual liability of sheriff jeffrey well it's not as far as far as i'm concerned that was a binding concession or the any failure to train claim and i   and since the court said there's only so far you have to go and train it should be understood that sexually assaulting someone which is against the law is is  you're making an argument as though there wasn't a written policy but the county should be liable for that there was a written policy and said don't do this that's right that's right so that's not this you're arguing cases that this isn't that well that's that's their a the do with those cases where there's no policy and the question is whether there should have been one yes where there was a good written policy and it's alleged not to have been the in fact policy that's correct that's correct and  where it's not a generally out war rule it's a it's a discrete situation in the generally applicable rules those those rules that would apply to everyone all the time you must show discus must show so pervasive and well settled that had the effect of law you know the the appellant has without ever pleading they never sued in these other officers that were present at the scene never never playing kind of failure to intervene claim against those officers but what they repeatedly said it's really good evidence for them that these officers didn't intervene more quickly than they did and i think it was just moments if that had he didn't get the second kick or strike or anything else but equally telling if not more so is the fact you know these other officers did what mr keener did if that was the custom and it was so pervasive and well settled that he it had the that at some point between two thousand and two thousand and fourteen and then and then applied suspect had his handcuffs twisted a little that's a quotation from his testimony as they're walking back to the car after a high speed  vicarious liability and the court should respectfully reject the argument thank you mr owens thank you mr law believe you have a little less than a minute will give you the full minute to make your  as to the criminal deal is a smokescreen that had to do with a malicious prosecution and yes you would have had to have overturned the jail sentence i feel like in that in that here you can have a g he was told to follow i guess and that would be your argument to the jury that it would it would your honor and i'm not necessarily saying that he was told to do this in every instance and as to his point were they did not jump on this guy immediately when they pulled him over i believe that it wasn't every time instance and i believe it would have been on a very limited basis when they knew they could get away with it this was a situation where he simply was angry and went ahead took advantage of what he thought would be acceptable conduct which was accost