responsibility people in in our arizona communities want to be able to hear from their community leaders when matters of public importance things that they care about are currying within their community and when we look at this case it's stands out among all other cases that i've reviewed that deal with ratification post instant  ratification is that is that based on the district judge's ruling this case is limited to post incident ratification only so what does a county sheriff do what does a chief of police do if they want to make a public statement that praises what their law enforcement officers have done but run the risk that if they say something positive about what they've done that they are going to become individually constitutionally liable if at some point later some defect in an underlying decision or underlying aspect of an investigation is uncovered we train our sheriffs and our chiefs on how to deal with the media this case and its decision could have wide impact going forward on what we do and how we train them because if an innocent statement or a post incident statement is going to give rise to individual constitutional liability it's really going to result in a rule that if you don't have anything bad to say chief or sheriff don't say anything at all because the risks to you personally and individual e are just far too great so  never lead to individual liability that is my position and that and it's it's particularly bolstered after the two thousand and nine u s supreme court decision and ashcroft first as it ball a decision that has really a wide appl application to this case in terms of how facts are assessed in this in the sense of plausibility but also in the way that they countered it balls argument that acquiescence knowledge and acquiescence alone are enough to impose supervisory liability and they said no no it's not absent vicarious liability supervisors are only liable for their own misconduct and i think that term misconduct  there because it's going to implicate you know some type of wrongful act that decision i'm sorry your honor you know i'm just listening to follow up that don't go ahead you know and that decision is consistent with the ninth circuit language in cases like taylor versus liston maxwell where the court or this court also says that for a supervisor to have individual liable liability they have to have either participated in the unconstitutional action they would have to have ordered or or required be unconstitutional action to be taken or they know that a violation is occurring and they failed to prevent it what about if if in this case the sheriff sheriff clark knew about the deficiencies in the warrant he knew all about that but nevertheless made the statement that he made the one that's at issue here afterwards is that enough you know i love that question because there are you know there are some cases that deal with that but again you know i think post it ball it really isn't and i say to myself where's that where's the causation here because ever since section one thousand nine hundred three came back to life with monroe versus pate we've had u s supreme court cases like mono us supreme court cases like rizzo vs good tell us that causation cornerstone of the constitutional violation and that without it you don't have liability and again we are the ninth circuit has adopted that through jeffords versus gomez you got to have causation so where is the causation when you have a you have post incident ratification for an actor that is has been completed already yes let me answer that let me answer that question because that's a different case and that that may raise different theories of liable eddie like failure to intervene and that's why i think this case is so interesting because we have a district judge and the district judge order that literally went down the list of alternate theories there's no plausible claim of personal participation there's no possible claim of fostering a policy or custom there's no plausible claim of failure to train there's no plausible claim of intervention if you look in the record at dock forty seven each are seven through through nine you're going to see the judge go through those a litany of things you know we look at the laris case which is cited you know that includes all that all that stuff and so you know what we're dealing with here is a completely different animal but i thought it was your position at least in part of your reply now that query whether laris is still good law after it bomb i do i query whether that is still good law after a ball because again you're you're you're not dealing with personal participation you're not dealing with someone's misconduct and you're not dealing with something that could possibly have caused the constitutional violation that's at issue you're talking literally about a comment on an incident after the fact after it's occurred and after it's been completed in total but on the believe it was chief gates who and the allegations in evidence were a plea you know with condoning misconduct not properly investigating misconduct putting investigation of misconduct into the hands of the very people accused and that it had created a series of preexisting constitutional violations similar to the ones that were being dealt with in the laris case itself you have none of that here you have no allegations that sheriff clark is running a law enforcement agency in the way that it was described in the laris case with with chief gates you literally have no you know preexisting instances that the sheriff is aware of that are anywhere close to that or i mean frankly they're not anywhere at all so when you talk for a moment about ratification as forming the basis for municipal liability versus individual liability i mean you spent some time one that in your in in your brief and i just like to understand better you and also that also probably relates to the pending jurisdiction issue but for the moment just discussed for me if you would your point there well my point is that r n evolved from the saint louis case and the second name in that case i can never pronounce correctly starts with a p and it starts with that that case and there is you know literally almost an  comment about the ratification being a possible cornerstone for a municipal liability claim and it's an interesting concept because i'm not so sure ratification has has evolved on a linear path i think that ratification is sort of it has been a theoretical stew that to this day isn't very clear because what we find happening with ratification after st louis is that different courts are kind of you know mixing and matching different theories along with ratification is that failure to train is a is a custom and policy is the ratification evidence of a preexisting failure to train but has been fairly consistently as a basis of municipal municipal policy throughout the years there are what i would characterize as some one off cases where the courts adopt it as a basis of individual liability but they only seem to do that in conjunction with other preexisting recognized theories some of the ones that we've talked about before when ashcroft's it ball came along i don't see how you square individual liability into ratification with the language  ball and this case doesn't need to to to come to this conclusion necessarily but but at that point i don't think somebody and sheriff's clark's position could say that ratification is clear as a clear avenue of knowledge not being enough it talks about acquiescence not being enough but it also has that interesting language and i don't think that it's a mistake by the court to have this language that you're not only you're not only condoning and encouraging that specific unconstitutional behavior but you're doing it knowing what the basis is and i think there's some importance to that language because i think it requires much much more than what we see in this complaint of the quote from the one i think nail but in any one the authorized policy makers approve his subordinates decision and the basis for it you're saying that's not what we have here that's something different from ratification you know and even even and though it's i admit it's a district christie and july and meister all tell us that the speaker the ratify or needs to needs to know that there is a constitutional violation needs to know the basis of that constitutional violation and then needs to to express agreement with it in some way and meister you know concludes that post incident media statements didn't do that in this case and i think it's really important to look at the facts because the real facts are so limited here this case there are there are allegations that sheriff clark reviewed the employment investigation the district court comes to the conclusion that he also reviewed the criminal investigation but if you look closely at the allegations of the complaint it never says that so he looks at the employment investigation and then he makes these general comments about both investigations that facts are stubborn things and i stand by what my people do and i stand by what my criminal apprehension team does there's no comment there in that generality and that breath that can be brought back to the idea that  commenting on a judicially deceptive warrants or affidavit in support of the warrant there is literally no allegation in this complaint that he ever looked at the affidavit much less looked at that  affidavit and then went back to the criminal investigation and back to the employment investigation and did an analysis of things that were omitted that should have been in there false things that were in there that shouldn't have been and how that might have impacted under a frank's analysis the viability of the warrant without those facts there's no way that his basic general comments could ever fit the ratification definition in christie let me just and i'm running out of time i'm sorry could you want to say something else i  have no i did want to reserve my time but yes well i will take it away by this question but on the pendent jurisdiction and jumping off from what you were discussing about ratification etc finding the sheriff not individually liable doesn't preclude that the munis municipality may be liable through detective davis does it through detective davis and his and the sheriff's statements well yeah those are two separate issues so the answer to the question is that a finding that sheriff clark right that well let me let me couch it in the correct way the finding that the complaint is not plausibly a legit constitutional claim against sheriff clark it's to a dismissal of navajo county and the reason is and if you look at the judge's does district judges prior order his his sole claim for municipal liability on the county was the alleged ratification by share of clark the court's order makes clear both his first order on the first motion and on the second motion that that municipal liability liability as the county is not based on talking about them that say ratification of an act by someone in authority can lead to the municipality being liable so my question to you wince why would we have to requires conduct by a final policymaker of the county so it can be for example ratification by detective davis in this case so it really is limited to final policy maker action so i what i am saying is you don't have to disturb existing law on ratification as it relates to municipality but if in the context of your decision you make the decision that share of clark that no plausible constitutional violation exists on the face of this complaint as to share of clark because that's the only avenue of liability that remains as to navigate navajo county theoretically and logically navajo county would would be required to be dismissed as well ok and with your with your permission  sir could you just raise your voice a bit and maybe this will help as well the fundamental error in this appeal is that the allegation that this is only an allegation in the complaint of post incident ratification that's been peppered throughout the briefs and you heard it again this morning at oral argument that is not the case and that was not the district court's findings so even if you agree with polly's arguments today they are not subject to dismissal as they request  as an order from this court beyond that though the entire argument boils down to the claim that the district court or this court is not allowed to actually assess a supervisor's words for their meaning and that is a complete and run around what is plausibly alleged in the complaint and reasonable inference and so i really do want to hear that but i was intrigued by what you said at the very beginning  you could you tell us what else there is in the district court decision that the district court rely on other than the post incident statements certainly your honor i'm happy to so if you look at our page four zero zero four the district  second quarter it recites what we had alleged in the original complaint could be amended complaint which were for all fourth amendment violations so the district court says quote hon alleges that it's for the memory rights were and so that is where the court recites which it found earlier that we had alleged and we did that there were fourth amendment violations in the in the judicial deception in requesting the warrant comma the exclusion exculpatory information comma and the execution of the warrant itself so if you look at the district court's original order and that's our eighty eight and that's lines ten for twenty six that's where you will see that this report make a finding that hunts complaint includes a separate allegation under the say same single fourth moment claim that davis committed an additional violation in two before two different two different one before it's executed and then his statements after before it's executed or during the execution as we alleged the detective recited that sh clark viewed the warrant as creating a cold in case so what that recites the results of the results for a search could write ok but how does that tell us the chair of clark knew not just about the warrant that about the deficiencies and well again that's that's the whole point the point with what i'm saying without is he doesn't need to know the deficiencies in the warrant affidavit because the warrant itself as the district court found was facial case in july right for an alleged incident in january so the sheriff necessarily knows that there is no biological alleged biological evidence being collected from a public shower for six months so he doesn't need to read the warrant to know that that there is no probable cause supporting a collection of mr hunt's d n a his saliva or creating a d n a profile because there could not be any usable evidence collected after that passage of time so the district court additionally found that there was a big this report was finding that there was ratification so this is going back to  eight lines nine to ten that there was ratification in applying for which would be the judicial deception and executing the search warrant there has never been a challenge to the district courts finding that there was a plausible claim of executing a facially invalid warrant there still has never been one and with regard to the claim that we are only talking about post internet ratification that ignores entirely that detective davis is and again we're at the pleading stage show it's really just what's reasonably inferred what not what's proven and that's why i want to talk a little bit about the attempts to distinguish lara as in some of these other cases in a minute but detective davis is reciting some form of knowledge prior to executing that warrant some form of knowledge of the investigation by sheriff clark because you know i'm sorry sir i'm just i have read everything carefully but i'm  trouble filing following the facts you're giving us you're saying that this is all because of his statement that what comes from the warrant could be gold is that from that you're inferring that he had seen the wire and knew about it and knew well all right to me a bit about causal connection that that opposing counsel raised i mean do you can see that by the time share of clark's spoke the subject affidavit  that sometimes sometimes we do by the time clarke spoke is it correct that the subject affidavit had been created and submitted it and the worn up taynton executed well and that's why i want to be very clear with our statement the subject affidavit had been created submitted worn up paint and searched on right by the time by the time of those two latter statements that is correct your honor yes and wondered what other earlier statements are there other than those two latter state s there's the earlier statement of detective davis discussing that share of clarke has awareness of the investigation has awareness of the warrant because how else can the sheriff be making it is a statement that this will create a golden case if he if he is not following the investigation because the product of a warrant is meaningless unless you actually know the nature of the investigation and again we don't have to prove our kid case at this point this is just what's reasonably inferred to demonstrate liability ratification his words by themselves they can't they can't create causation but they can evidence causation and that is standard and established law in this circuit and frankly other circuits that demonstrate that there was a custom that they did they demonstrate that there was knowledge in that and that's what yuri's actually do every day so sure of clark can make whatever claims he wants and i apologize the sheriff he can make whatever claims he wants to about the beginning of those statements but what what they're ignoring here is that he didn't just generally praise an investigation and we absolutely have alleged that he reviewed the entire criminal investigation including the warrant and the affidavit when he made the statements because what you didn't hear from counsel this morning is he said everybody go get the public records and see for yourselves under arizona law public the public records the criminal investigation file the same file that we reviewed and that's where the allegations in the complaint come from so with regard to that he did review the criminal investigation file and he doesn't need to be alerted to a constitutional violation when if you look at the allegations in the complaint of that incredible litany of false serug and i have to pressure you on this that's why you're getting this from the fact that generally he reviewed the investigation you have not alleged that he looked at that affidavit before it was submitted to read before he gave his statement is there in your complaint there is not an allegation that he reviewed the affidavit prior to ok there is your there is an allegation that he had reviewed the substance of the warrant and the investigation because he said it at least what you were looking for because he said it could be gold yeah i understand that route let me ask it was there any allegation there's no allegation in your complaint is there and i have no read it carefully suggesting clarke's alleged public comments were directed at the warrant or the supporting affidavit or that he h a he was talking about it when he said the statements in the post incident statements that you're relying on that is our allegation and i would submit that to say that he needs to confess is asking too much when he is talking about the entire substance of that file because if if we hold somebody to the well and what i mean also is specifically this part of it then we are basically insulating supervisors from their responsibility to be critical and when they're reviewing an entire investigative file and when he says public records it is a reasonable inference that it is right higher investigative file which no but the thing is there is no requirement that it be challenge for the propriety because again a law enforcement i was just getting at the context of the statement that was right right but again when you look at the allegations in the complaint the same public records that demonstrate all of these falsities and all of these material misstatements and omissions and even the facial invincibility are the things that he's reviewing so there's a very serious problem if we say that well they should be allowed to praise when what they're praising includes such obvious unconstitutional conduct so i know you want to talk about larry and i took you off that track why don't you go back to that that seemed like a very different case from this one so want to talk about liars and how you think it right and so i don't i think that this is actually continuing a theme from what's happened in the district court and that's where as we pointed out in our responses we kept being challenged with a motion for summary judgment standard where is your evidence where your progress your proof we're not at this stage yet and so when you look at the reply brief in this case there keep talking about facts being night and day there's no requirement that we meet what sufficient to submit to substantiate a jury verdict support did you not i did and i got so i'm working asking how old support you sorry so sorry i just wanted to point out that we don't have to meet the same facts and especially not under a different standard of review but what it supports is that these statements after the fact can else if i'm remembering correctly i might be missing he made he made statements i think both made trial and after the fact and if my memory serves me correctly the panel in that case relied on both and referred to them as as post incident ratify it ation and in fact actually i do believe he made statements to the press after the trial you've been but again it's still post incident and it it can service evidence of what your custom is at the time court in this case rejected a finding of any policy or custom and in toto that's not what the district court did in this case the district court took our other alleged incidents related to mr hunt and said that this did not establish a stand alone public policy or custom the district court said nothing about well in ratification i'm not making enough finding i think in laris i was just looking at my notes that she had sent a letter there had been a search and then a complaint to the l a p d in the chief that sent a letter stating that none of the allegations of the people complaining were sustainable so that's probably what you're referring to about one piece of evidence among a lot there were expert witnesses and i should say this was a jury trial verdict that was up on appeal so the so that's what you were referring to and i know mid trial there were some statements and i think they admitted in into evidence with more of an evidentiary issue w f e and it was your summary judgment ruling and ruling on a couple of other matters where you were cited what is the stablished in this case which is is there is there anything showing that a supervisor is assertion could be found to have communicated a message of approval to the offense subordinate at the time and that's why i wanted to bring to your attention so much that did you file it killing my j record letter oh you know i pods i have the feeling that my colleagues  probably not interested in that star nor am i at this point it's very old probably pretty well actually well and thank you thank you says this to me plaintiff timothy hunt's amended complaint includes twelve pled not conclusory for facts possibly suggesting that sheriff kelly clark ratified the allegedly unconstitutional actions of detective asher davis and his argument seems to be arguing from facts that aren't even alleged in the complaint and that's a problem i'm not aware of any case law that suggests that qualified immunity even at the motion to dismiss state should be analyzed based on allegations that you could have made but didn't if if counsel had facts to suggest that sheriff clark had reviewed the affidavit and done the franks analysis of that  affidavit prior to making a statement he could have put those in the complaint and he did not do so and they cannot be argued at this stage of the game and the allegations of this complaint when you when you cut through the exaggeration and th paragraph paragraph shortly after that he was the recipient and reviewer of the employment investigation then it goes all the way to page forty doc forty page twenty two then he makes his public statements there is no review of the affidavit the affidavit there is no review of the criminal case it's not alleged in this complaint and thank you for my time thank you very much or thanks to both counsel for their argument in the case of them versus kark is submitted and we stand in recess until tomorrow at nine a