know you're running that it's in a complaint there was an investigation by the fall river police the matter was turned over to the first county district attorney's office or rather the massachusetts twenty general's office and that was a decision not to prosecute the prior to that incident mr pridgen had been the subject of numerous disciplinary matters in ages and indeed as we've said what the second  the subject of ten separate disciplinary matters from two thousand and seven to two thousand and eleven but none were even close to what happened in this case that's correct or wrong in that why would that well there was no sexual assault on it in the district court focused on that is well you are right we did answer the question two reasons a police officer who has been disciplined for whatever reasons ten times in fourteen years i think it's some point becomes the people in charge in this case to be a fall river in the police chief have some reason to know this is a bad apple of this is a person who is not going to follow the rules the second answer and i think the most important answer is wrong is that on june sixteenth by a letter of june sixteenth and this is page two ninety three of the record appendix june sixteenth two thousand and eleven five years that was the same fire a firearm which was used in the assault on his cell vehicle we would argue when i think it's certainly reasonable argument this is not just conclusion y paragraphs in the complaint that all they had if they were negligent in issuing a police revolve the men had no license to carry as is required by massachusetts law relationship between not having licensed it and the notice that the police department would then be on with respect to the behavior of the officer if the police had known that he had not is this is a man who had been reprimanded and disciplined ten times in four years how do you the difficulty you have i think is this court's opinion in peyton cruz and when you line up the disciplinary record of the officer in payton cruz and that was found to be insufficient because you have to prove more than negligence right how do you distinguish this case it seems this guy had a few malarkey disciplinary events but on the whole a much less serious disciplinary record and the officer and peyton crews that's  on who can get a life to carry a gun that in that light on your brief but in that licensing process he would not have gotten a license because of some other disposition doesn't the speculative aspect of it go just the other way in terms of the cause a billion the allegation in other words if the complaint flushed out in some detail about how the licensing process would bear on the responsibility of the police department we would have to speculate about it but as the complaints now stated all we know is he didn't have a license and from that we have to  that and you certainly got enough to sue the officer the aware you're here today to try to show that you've got enough to meet the heightened burden of imposing vicarious liability on a municipality for section one thousand nine hundred three violation and i keep coming back you say well he they didn't they didn't know he didn't have a license i mean in taking cruise they knew that he'd actually taken a gun and threatened a woman with a gun and yet that wasn't enough to put the money noticed that he would to the state court you are but one of those pending jurisdiction a lot that would be a question for the district court in with that what the state claim gets renewed it back to the superior court is a different question but i do think that years and that is that the misconduct of a subordinate police official is sufficient to place a supervisor or to that extent the city when a when l theory on notice of qualit terms of the claims that are made against he the chief the record does contain eleven pieces of discipline for this support officer over the course of ten years none of them involve anything known only to do with sexual assault yes yes yes but the gun bothers me because massachusetts has a fairly robust set of requirements for one carry to carry of a gun if in permissible for a police officer in massachusetts to what is called carry on the badge it is not a crime for a police officer to have a weapon while i treat even without an active license to carry it may be a violation as it was in this instance of department policy not to have a license to carry and this hasn't been brief but essentially the standard for why does this why do i do this if you know that policy it's oftentimes recordkeeping purposes frankly doing some of the work disciplining police officers i can tell you it is a very good that's what i think that's sort of the concern is that in terms of the indifference are going to be just and there's a question how much of this is actually in the complaint so i think that point but just to understand the theory yes the town has a self professed idea that they're concerned about the soup believe officers carrying guns and yet doesn't check to see whether they're in fact suitable muslim how the gun for five years you can begin to see that sounds a little bit like deliberate indifference as to whether they are suitable to be carrying these gun to kutch of the essence of that one your honor i would suggest that the best way to analyze that issue would be keeping in mind  had not been an active license to carry that officer for at that point five years he would be looking at officer in may of two thousand and eleven with been disciplined for tardiness of use of sickly and at fault cruiser accident and various other relatively incidents it would be nothing in that record to suggest that this ever one is a person who was unsuitable area of life who's responsible is if you get license the officers so you'd also be looking at somebody over five years invited to get licensed which is consistent with the officers disciplinary history and attention to duty that's sort of thing but that doesn't quit that supervisor i notice i would suggest in may of two thousand and eleven that he hasn't had a license to carry for five years i believe he's going to use that firearm in sexual assault next it isn't in that way similar to a driver's license issued we know from the record that the police officer took a marked cruiser to the plate as if for instance it had not been his  that had been expired but a driver's license would we say reasonably that it would be sufficient to place a supervisor on notice that an individual an officer without an active driver's license would use a means of transportation to go and sexual assault someone on this record i was just that's not the case you know i go back and what bothered me in the complaint is a problem but it seems to me that if i were sheet of right and i submit a renewal application but the question really comes down to this l t c issue wouldn't that in and of itself put a chief of police i noticed that this person was going to sexually assault someone in the coming days indicates that the claim against the city is an action where is the official policy of the city would be responsible for the constitutional deprivation there was no policy in force the allegation plaintiffs is that because of the personal file of of the defendant pridgen that somehow the city of over should have had notice there's no question about it i think everybody would agree that the infractions are frankly to minimize tardiness so only being late anybody in the workforce has these exact well could have these exact type of  infractions you know you saying that's not enough the negligence no why not because you have to look at foreseeability you know would they didn't even enforce their own didn't even check to see if their own policy on department did not check this person's license to carry however it's not a bio it might be a violation because you have to go through a procedural gymnastics to make sure that you have the paperwork if that's true doesn't it seem plausible that this guy didn't just wake up that particular day and decide he was of that actor that probably plausibly could be lots of stuff he's done that they may well have found out   concept if you making too many inferences by conjecture that are not stated in the complaint you know i would suggest that the complaint is an iteration of cause of action as opposed to any specifics when one matter of that i would address with regard to this as well as far as far as the defense is whether he's even acting on the color of law  are though i would suggest as a final argument that it is still a far reach between the complaint as drafted with the light of the possibility with regard to  down the street you were driving down the street you operate a vehicle negligently in caused harm to me isn't that enough for you know i noticed please yes and then why isn't this he said this officer employee of the city came and beyond well be six and you had gotten depositions perhaps this gun issue might have left a different way and that's probably for me is that as i said for the chance to discover understood your honor i just have one last comment would be that i think you go back to the ball in the plausibility in that's too far of a stretch of what might happen