time will hear barrett versus the city of new please the court i believe there are three smike susman representing disparate the appellant i believe there are three propositions which control this appeal i just like to set them forth and then get into the arguments more deeply first of all under the fourteenth amendment under canton and open a case of this court fourteenth amendment would serve as a proper predicate for municipal liability claim that alleges a failure to train and discipline therefore we believe a dismissal of the  in providence and rony us that was in march of fourteen did you intend to file to pursue a fourteenth amendment claim from the beginning because all this back and forth about and completing your letter of august thirteenth said you made a mistake i meant to say the fourth amendment i agree so my question is well i'm pursuing their you pursuing a fourteenth amendment claim yes were or worth fourth amendment so and did you change your mind at some point i did change my mind when i looked at the multiplicity of events which we later included in the first amended complaint which were some twenty incidents over the seven year period or more and that this is the complaint first member complaint indicates those were examples of what we had been able to uncover about the practice in the city it came clear to me that under canton we could meet a fourteenth amendment analysis so we did maintain that as a fourteenth amendment claim to answer your question however so it's not excessive resolving this it's got its excessive force claims for the mclean so is that so you say it's a fourteenth amendment substantive due process but i'm saying two things just to be very clear with regard to now i'm saying you can have a fourteenth amendment claim as played under canton ok i'm also saying that that can complement the fourth amendment claim with regard to the police officers there are two claims in the case one against individuals the john doe's we'll get to that in a moment that's a fourth fourth amendment claim under com there's no question about that that's a fourth amendment pretrial the taney claim alleging excessive force knowingly using excessive force in light of the circumstances the question the technical question is can you have both of those claims can join sure what the individual officer did was violate fourth amendment rights how the pattern and practice of doing so becomes a fourteenth amendment claim help me out ok well the way it happens is that canton indicates the standard for municipal liability and under canton if you have a pattern and practice a custom which is another way of putting it on number of events which suggests that there has been a lack of training reasonable certainty your moral certainty this court has said you have a repetition of that if you didn't increase and improve significantly your training or your disciplining of miscreant officers you have a fourteenth amendment claim the underlying fact pattern each individual cases is judged rony pointed out under graham can be actionable under the fourth amendment but that i don't think we should get so for a breast on that because this is a simple way to cure that here as your case is pointed out once the district court determined that the only way i could plead the case was under the fourth amendment which the district court determined in march of two thousand and fourteen i had requested that he allow me then to plead the case on the fourth and that your case is say very to file a second amended complaint and that was when you represented that you were going to have to change your claim to a fourth amendment was the first amendment complaint you're on to respectfully that's the first amendment complaint and this court has already indicated you never than ever did it it's not that i never did it i didn't do it because and this is what was pointed out and morally in kresge i believe in good faith that there was a fourteenth amendment claim to as entitle to believe what this court said in those two cases is someone can once the district court makes it clear squarely within the time limitations you should be allowed then to repleat which the district court did not allow me to do that was what was civically denied after march in the march decision you letter you say i did inadvertently plead to fourteenth did do it i did do it again it's not that i didn't do it i maintain the fourteenth amendment i answered you earlier and i explained to you why i did that then the district court and through its decision and the import of kreskin morally is once the district court entered the opinion denying like fourteenth amendment saying you're wrong sussman that's wrong i should have under those precedents have the ability to then make a fourth amendment pleading that's my point and that's why the issue is being a lighted by so much focus on which is it let's assume it's just the fourth amendment which i still disagree with but let's assume it's true i still should have been given that if that ability the third point that we get to is new york state's relation back doctrine c p l march to ten twenty four and applying hogan versus fisher now here it seems to me clear that the district court also erred when it this allowed me from naming the police officers foster and burns to set forth in the december two thousand and fifteen complaint under fifteen  civil procedure you import ten twenty four and the analysis proceeds on the ten twenty four and with regard to that analysis there are two showings one is due diligence and the other is does your first pleading which mistake concerning the proper parties and dentity and oh good and which says that you know not knowing you know john doe situation is not a mistake of identity that's where the the brief which doesn't require a mistake it requires simply that you later come to understand that's the relation back argument you later come to know the names you haven't made a mistake you later come to the information you're outside the statute of limitations mirror that if you look at the j f k joint appendix one seventy one one ninety five you'll see repeated efforts during the limitations period both through request for production letters a subpoena to the city to get the names they would john doe it as well as the city mr poston then took the position since an appearance on behalf of the john doe's as well as the city the initial appearance as i understand the appearance was for all the defendants and he's always represented in these cases i know th poster my friend submitted an affidavit which says i didn't represent the the individuals i just represented the city but in every single case we have had and as i pointed out in the brief that we've represented seven of those twenty cases we were on the other side we named defendant city did not respond you never learned in the court to this until after the limitations ran and there is case law that suggests that that may be a problem for you so how do we find clear error in the instance we had the case proceeding the case was not finally dismissed as i mentioned earlier all you had was a male determination there was no district court rule sixteen status conference it may be that i should've insisted we have a status conference and proceed i'm not arguing that i probably should have done that but the question is once you look at what we did do in november of two thousand and sixteen we serve the rule twenty six a disk disclosures we then in more without a real sixteen scheduling waterbeach no never been entered in the case propounded our request for documents this is well within the statute of limitations period when they weren't responded to we sent several letters to them we sent a subpoena when mr posner indicated that he wouldn't s news and he had the district court's findings clear i'm looking at a new york second department case called temple versus new york community hospital in which the court recognized that the plaintiffs had served prior to the statute of limitations certain discovery demands but when the responses received were less than ad seek further discovery or to alert the district court to the omission and if it up helped the finding that that was a lack of due diligence we did new york it's a prepared to recognize that that kind of delay can equal lack of due diligence how do we say the district court's finding here was clear air act well i think that it depends on the exact facts in the case i've read the temple case and i don't think th  having a statute of limitations run and you're not getting discovery from your adversary you have some obligation to let the district court know before limitations i think the due diligence standard respectfully is what we did during within the context of the litigation which was pending other words the caption was the caption of litigation that was pending they would say so time or family fifteenth to proceed and they did not show up and at that point we waited to see whether we would get the information from them because often parties provide information they don't show up they didn't do that my client was if you contact the district we did not look we've got a two months to go in the statute and we need from the city we did not my client was working as i understood it and then later bear fruit to get the information from the city she eventually got the information in november which prompted our making the letter to the court in the proceedings from there so we did not contact this judge roger correctly points out the district court from the time that we were getting what i think was an abstinence from the city and a lack of cooperation we did not contact them until we got the information with them ready to proceed my time is long laughs thank you district court docket and did not appear for the john doe's until they're identified some time and served until two thousand and sixteen i appeared for the city of newburgh and only represented the city of newburgh in this case throughout all relevant proceedings  second to your honor judge reggie the proposition that okin and canton were fourteenth amendment based mon el claims due process claims the underlying claim against the police officers were fourteenth amendment claims one was a denial of medical care i believe in the police station so when the underlying to constitutional tort of the public official his fourth amendment the mon l claim lack of training against a municipality is premised on the fourth amendment if as an oaken and can't on the underlying grievance against the individual officer his fourteenth amendment then the mon l claim failure to train etc would be premised on the fourteenth amendment i think you're on to use the word they track each other or they there's a symbiotic relationship between the mo train which makes it also responsible for that underlying in this case fourth amendment claim how does applying the statue limitations in this case because of the statute of limitations after the city certainly knew and these police officers certainly knew that they were being sought in this case it really sounds as though the plaintive was strapped well and version and no response no not even and when you're a courtesy until the statue of limitations has run that's not accurate your honor first of all the police officer did not know about this case mr sussman has postulated in his legal briefing that he knows mr posner he would certainly be able to figure out from the time and date of this i don't know you know i misunderstood your question of the city would be able to know who the officers were the officers had no knowledge of this case that's what i thought that was your question the officers weren't sitting there going he think what they do nothing about this is going representing the city and the city the case had not been dismissed yet case he served formal discovery requests a very important point about you know diligence is for you all there is why didn't you say we are not a party i thought the case was still ongoing now the case was terminated against the city when judge the district  granted my motion to dismiss the only parties and that's a kind of a esoteric question is a john doe who's never been identified never been served this case said dormant on the district court docket for fifteen or sixteen months  city or whatever to identify the officers that never happened and that are usually the valance in order type of thing happens when you have a pro say plaintiff this was a counsel plaintiff who had every ability and every resource at his disposal or your your position is you would wait until mrs sussman called upon to busy the trial judge to ask you a question that mr susman had to really put to you and you declined to answer mr sussman it sounds like you're suggesting that what's required is to is to waste the time of the trial judge on a matter that usually would be handled as a matter of courtesy well i i disagree with that your honor and mr sussman does not point to any law or case law that suggests that a nonparty has to respond to discovery i would question perhaps if i responded to that when i had no obligation to do that mr vast burns could be a little upset that you know i am on necessarily i'm not jealous lee representing the city's interest and or their interests if this is what's happening i guess but i don't i have an obligation to to respond and to the world that you would and should give that information if you read the series and had asked for a conference with the court it would be appropriate for the court to direct you to until april i believe of two thousand and fifteen that a discovery demand comes to a nonparty it wasn't responded to and then also a letter was sent saying hey i don't have to response as my client is dismissed from this case we do not know what they did and under the due diligence the straight courts examine what did you do complaint of prior to the statue of limitations  affidavit what she tried to do all we have learned from these papers is sometime in mid november two thousand and fifteen they learn the names of these two officers but we don't know what effort they underwent to get that when they started those efforts might be missing something here but right my recollection is the police and federal search warrants than tori is given to the person who searched shortly after the search occurs me you know i do not know if there was an inventory if anything was even seized i do not know i know they searched pursuant to a war but they may not have seized anything for all i know and that's not part of this record we're going to copy to warn to my knowledge she did you know of the either of these two officers were listed as the off units and were i do not know the answer to that but i do know that city police records are available for the asking  certainly honor for oil and they could have made that request as early as october two thousand and twelve and this case was commenced i think in june two thousand and thirteen and no request is made no no discovery demands were made th of discovery we made our motion and the rest i guess is history the i think it is important  that the the lorillard case i just want to you know we have we have mr sussman is recognition pre motion that he made a mistake in pleading the fourteenth amendment which takes this case certainly out of war ally lorelei if i may read from one sentence from that that the criticism of the district court procedure was the sort of hobson's choice provided to the plaintiff's attorney when he's confronted with a letter request from the defendant and want to move to dismiss explaining their reasons ok would you have responded and given the names of the officers if asked before your client this before the them the police reports but there was nothing radio silence until march or april of two thousand and fifteen but lorelai's as in reference to you know allowing an amendment host district court ruling without the benefit of a rowing many a plaintiff will not see the necessity of amendment or be in a position to weigh the practicality and possible means of curing specific deficiencies that certainly doesn't apply here because these deficiencies were not only discussed pretty motion they were acknowledged pretty motion by a counsel plaintive lorelai was a complex commercial reality with a long multi pronged complain and the nuances of the sufficiency of the complaint may quote be borderline and then hence subject to reasonable dispute i suggest here your honor in light certainly in light of m council's concession in his letter there is no reasonable dispute and as i think it was mentioned earlier the fourth amendment applies to force cases there is no i hate to use were black letter principle  going back to granby connor when the police do a seizure of the only reasonable search and seizure clause of the fourth amendment is all that applies there is no complex issue here and this is not borderline the plaintiff knew and in writing told the court he knew that he had made a mistake now i guess so i don't think ray's know minds can disagree you know mr susman perhaps thought he was going towards wanted to make some kind of breakthrough in the law here i don't know but i think given the record and the correspondence with the court and the court conference where we discussed it in the permission given to do it if he changed his mind perhaps a follow up letter would have been appropriate to the district court with reasons of why by the way i said i would do this but now i no longer think i need to do this and then the minute complaining doesn't even go forth at fourteenth he just goes fourteen us point is i hear mr posner and i read the district court's decision there's no case there's no case that says mr poston said the law is there's no case that says you cannot marry the fourth amendment claim against the individual offices and fourteenth amendment substantive due process claim can't and doesn't say you can't do it there's no case the says you can't do that so when he says trying to break through the law when i understood doing the research that is that you can have a four claim against the officers and keep them playing against cities for failure to train them to do what they violated the fourth that there's no me sorry there's no case there's no case that's settled that there's no case that says either way that's my point so and at the mo now claim is a claim that you feel trained to prevent them to violate a particular constitutional right is the claim usually brought is a violation of that right yes but there's no requirement that that be done that's the point and the inhibiting and start use case law that says that the fourteenth amendment substantive due process claim should not be raised when there is a specific constitutional protection available but the point is the fourth amendment is not in and of itself apply anymore to a municipality if you will than the fourteenth amendment the fourteenth amendment brought protection of substantive due process can be invoked where and i believe that's the case here you have a longstanding ignorance of a number of instances of police misconduct that's what you get and those instances  misconduct here again it's not just excessive force remember the claim the claim is that this woman had an injury that injury was known to the police offices the police officers notwithstanding that engaged in the force i believe that is clearly a substantive due process claim as well as a fourth amendment claim it's a borderline claim it could be either under the deliberate indifference standard or the fourteenth amendment could be either let me just address briefly i note i'm sure you hit the due diligence issue i think it's important to put this in context in march twenty fourth when we did propound there and to rock it to reason request to production to mr poston there was absolutely no response mr posner he did not then say i don't represent the individual john those nobody represents the individual  doe's and we won't be responding we sent them as the record shows for additional communications between then and august there was no response by him until august twenty first the other point judge that been raised as what occurs with a motion to dismiss pending as i'm sure you know there's normally a rule sixteen conference at the rule sixteen conference a discovery schedule is set a rule sixteen conference was not held in this case what was held was a pre motion conference to address a motion to dismiss that also is typically done in the district courts at that time no discovery schedule is set and discovery is contra to mr posner says stayed until there's a resolution of the motion to dismiss they don't want concurrently which is what mr posner is telling you happens you  posner with our office has always employed is he appears for the individuals in this case there were no named individuals that were john doe's so ipso facto he was appearing no one else was for the john doe's no one else came forward and said i'm going to be here when the john i that in case it could mean that nobody picked for them it doesn't mean but only lawyer who appeared the one who appeared for the city was also appearing for the john doe you're judged by i'm not disagreeing conceptually i'm trying to explain to the co cobb case this occurred there can be instances in which there is a substantial conflict of interest between a city and misbehaving a police officer and then the very want their own counsel and deed nobody would want to represent both of them and in every single case like that he is represented most every single case that that's listed you go back to look at the docket once they're identified the point i don't understand in this case is that it's a case in which the claim pertains very much to a particular incident involving particular police officers i don't understand why a discovery demand wasn't made literally within weeks of filing a complaint because the first thing that happens in the piece of litigation is that the district court gets a letter from mr posner indicating he wants to move on the mill claim and that's what the district court attends to normally then what happens and prevent you filing yo i'm trying to explain that it does because what discovery when discovery carson the federal district courts in our district at least in white plains is when we have a rule sixteen conference and a schedule is then set for discovery parties to got jump that schedule and start making demands i know that happens in state court routinely it does not happen in the federal court in white plains and may happen somewhere else that's not how we practiced law and was deposed and knows that the she's been in case after case so what happens is we did not have and you know you made an interesting point judge jacobs the district court are busy and they convene rule sixteen conferences at their convenience if you will that the party doesn't jump up and down and say here me now we understand they're busy doing what they're doing so here i'm essentially waiting for judge romantic and you know rule sixteen conference and senate discovery schedules doesn't happen march comes and then within seven months before the statute limitations of six months i prepared my discovery demands to counsel for the city and as i understand it counsel for the police officers who are agents of the city by the way i understand they can be independent actors this is it in the course of their duty type case this isn't a case where we're suing them for something is all trivial raise with they getting their own counsel necessarily and the history is they never get their own counsel and that's it so we wait for him he does nothing and that's when we'll thank you and thank you both we'll reserve decision