please according to morning i'm david sales for the appellants daniel hoffman of my office is here with me and mr lewis is seated in the front row right behind him he was a trial counsel from the city denny firm in west palm beach i'd like to if i may honour's focus on two related errors of the district court with respect to its order granting partial summary judgment on the mo nel claim against the share the first of those errors is taking the position without citation to authority in the very particular circumstances of a case like this that the sheriff's custom of exonerating deputy sheriffs involved in a shooting before conducting any reasonable investigation  could not support imposition of liability under my own now unless the plaintive had established that there were prior unconstitutional shootings as a result of that same custom and then the second er after this court disposed of the interlocutory appeal on deputy lynn's contention that he was entitle to qualified immunity on summary judgment refusing to allow the plaintiff after the year long delay that was necessitated by the interlocutory peel to supply the court with the very type of information that the court had previously said was lacking now on the question the first question as to whether or not there was a custom i would like to point out to the court that the sheriff does not really take issue as to whether or not we provided sufficient record evidence of a custom of this particular sheriff coming to the scene either directly or occasionally through his principal surrogate in that regard as barbara and declaring the actions of a shooting by a deputy to have been dust justified usually at the scene and there often and thereafter offered often frequently followed up immediately by press releases the such same day press releases the same day interviews on television and as the court knows from the record as well sometimes in statements that appeared in the newspaper many of those statements in the newspaper they take issue with but i would merely point out to the court that in the samples case it cited footnote eleven eight forty six southern second at thirteen thirty three this court actually took notice of a newspaper account on the issue of whether or not there could be notice the sheriff as i mentioned does not actually take issue as to whether or not this policy was in place and in fact the district court actually articulated it just as we did in our in our moving papers in our complaint and this is in our appendix three one one two or custom or policy permitting excessive force can be established through newspaper hearsay like newspaper reports and media reports well i we're not relying on that because as i mentioned a few moments ago your honor they take issue with that and the district court did as well as to whether or not those could be as what's we know that on any case it is important in any case correct i agree with that the question that we are suggesting that the district court overlook is whether or not an existing custom of exonerating the deputy before an investigation can take place now that question that the problem is whether or not at the end of the day deputies know regardless of what the sheriff may say during the investigation or immediately there will be disciplined president that that's the question of so your your argument has to be that the end of the day there is no discipline basically which sends a message that you could use executive force i i could agree with your honor to this extent certainly was our position and our expert gave an affidavit saying so that when you routinely show up to the shooting and tell the deputy based on his or her account alone that their actions have been exonerated by the sheriff who sits atop that the disciplinary chain and to whom the record evidence in this case indicates internal affairs reports directly not only at the scene but there after that their actions have been vindicated before you could possibly conduct any reasonable investigation that's the message that was sent and the  position at argument that is our position are basically that is our position that is our position that that was the custom the district court took the position that at which we did supply evidence of an hour later submission after the  court took the position that unless you show me that there have been prior unconstitutional shootings as a result of the custom then you cannot make that claim or what's in there an investigation regardless of what he said on the scene did an investigation take place and did you did you question the results of those investigations absolutely and we took the position based on some of the authorities that are cited in our brief that that was corroborative actually of the very facts which were asserting that that is the custom of the department and that the investigation is in fact window dressing and to answer your question more directly as the court was probably aware i think it's eighty seven and a in the docket there was a videotaped evidence of this particular outer which directly challenge the version of the events that was told to the sheriff which was the basis of his public statement the basis of the same today press release which directly contradicts the evidence excuse me the statements that the sheriff relieved from deputy lynn and the people that were in the department that were responsible for investigating those matters confessed at the very first time the deputy lynn statements were actually not accurate when they were deposed in the civil lawsuit in this case up to that point in time they one hundred percent took the view that he had expressed and stated that they had previously simply not seen the things in the videotape which if this court watches it can see them very clearly that the man from the time he is first encountered is being trailed by the deputy lynne to the time that he is shot four times without cause that is holding a cell phone in his hand the entire time and the account that was given by deputy lindh was simply false and whether he the jury found one of the unusual things about this particular circumstances we had a trial with respect to the reasonable miss of deputy lynn's perceptions thereafter and those perceptions were according to the jury at least not objectively reasonable i'd like to move very quickly to the second point because i do want to save some time knowing that there's a cross appeal the second point is that the district court was correct that you cannot win a case based on a theory that there is a custom of exonerating without without doing an investigation that there has to ben has to been a prior deprivation of constitutional rights in the form of a shooting that was unjustified and when we came back after this court the denial of summary judgment on qualified immunity different evidence relating to other incidents some of the incidents about which we had knowledge but certainly no no discovery no expert opinions had been developed in those cases and we supplied those to the district court in what i would suggest is actually a rule sixty motion asked the court to take note of that additional evidence and vacate the summary judgment order to supply the court with the evidence that the court had indicated was lacking the district court actually said that it wished it had had that evidence prior to the time that it had entered summary judgment previously but it excepted the sheriff's view that under what i would suggest was really a rule fifty nine argument relating to final judgments and of course there had been  final judgment that it could not consider evidence that was developed even though it had been developed the evidence had been developed after the summary judgment hearing because the events themselves had been developed had actually taken place prior to the time of the summ judgment hearing a but did they take place those developments after the shooting in this case from from memory i believe your honor that certainly at least one of them from memory took place prior to the shooting in a copy of the be a custom that event well i agree that under this court's decision in salvado you cannot have an after occurring event that proves causation but they would have been corroborative of the existence of the policy i think that the if i understand your honour's question correctly at least one of those events as i recall had actually taken place prior to the stevens shooting and therefore would have been not only corroborative of the policy corroborative of the reaction by the sheriff's office but also of the element of causation and finally on that road in that regard before i do sit down and reserve the rest of my time we do take the position as well in the district court did not really seem to have addressed this causation was a stablished at least under this court's fairly liberal rules in terms of inferences that should be drawn in favor of the nonmoving party and knowing that circumstantial evidence can support an inference of causation in this very setting that deputy lynn had testified that he was aware of the of the sheriff's policy and in fact we know also from the record that a thirty one year veteran of the sheriff's department took the position that this policy was also known what we're calling because the sheriff who hat has the final word has already decided that the matter at the scene that is our position that that in their position is that also that it effectively is a policy of window dressing because how can people be expected in what is military chain of command effectively when they report directly to the sheriff how can they be expected to reason and we were entitle to this inference to reasonably contradict the man who is not only come to the scene and exonerated the actions of the deputy but issued a press release to that behalf of the police sheriff and deputy lynn as well as the cross appellant deputy lynn i've been told by the court this morning that this is my one and only time to address the panel in regard to both appeal so i will do my best in that regard and i'm certain your honour's will have no problem interrupting me if you have any questions in regard to the the initial appeal your honour's it's obviously the at pelleas position that the trial court did not air in granting summary judgment to the sheriff on the moon l claim as i'm sure your honour's are well aware of the joe brown case from the united states supreme court one thousand nine hundred ninety seven and subsequent case law that makes it clear that unknown l claim against an agency such as the sheriff's office has a very a very high standard of proof very rigorous requirements of both culpability and causation otherwise what happens standpoint it would be a scary world indeed if every time there was a shooting all the plaintiff's lawyers had to do was file media reports about an incident that suddenly there would be trials against agencies on every one of these shootings i don't think that's what the case loss adjuster honors and i think the trial court probably got that in the order for summary judgment granting the mono claim in favor change in training after the sixteen excessive force claims well your honor i guess the question would be specifically as to what type of training i know that was one issue regarding settlements and plaintiffs or app helen's position is that because there were settlements that that should be evidence that a jury could conclude there was a a customer policy or was there any change in training that's reflected in this record or any prior discipline at all and you're just to clarify your are you referring just to the cases that there were settlements in or at all at any time any well your honor jackson versus mine to see no that was mentioned that was a case where there was a shooting one of the palm beach sheriff's deputies shot an individual in the head the gentleman survived that shooting and that was a situation where the deputy's probationary status was was  in the academy and once they are part of the force they they get at least annual training if not regular tray you know regular depending on when the classes are conducted so a lot of the the training jackets will show you know consistent training throughout the year just the putting on when the classes are actually offered but certainly at least an annual basis they're trained on use of force and other things that they're confronted with the training does change depending on things that are going on in out in society so it's different classes are offered at different times but certainly as to the use of force it's at least on an annual basis just with question instruction to include the judge ultimately gave which says whether a specific use of force is excessive or reasonable depends on factors i'm not asking you about the subject was that objected to it did you agree to that it was absolutely objected to what was referred to in the verb brief that was filed on behalf of the sheriff and deputy lynn your honor was that what happened during the trial court proceeding is trial counsel repeatedly objected to the instruction that was given it a charge conference you objected to this instruction at the trial at a charge conference after the charge conference before the jury was read the instruction but then what happened your honor is you know as officers of the court but your requests which i have he was made an objectively reasonable mistake you really asked a jury to make it legal determination of whether the officer was intitled to  qualified immunity isn't that something for the court to determine you didn't ask the jury to make any factual findings while your honor and i know you're from from a different circuit i know the eleventh circuit fairly recently came down with the opinion in the montero case where a very similar situation happened it would be our position and the eleven circuits opinion in that montero case where a special interest tory was given to a jury in a officer involved shooting case and the jury concluded that the the shooting of that particular gentleman mr montero was excessive but in that case the excessive force or a qualified immunity mistake we are asking the jury to make a decision in regard to up to the facts underlying the qualified immunity defense and if the trial court would have permitted us to do that as the trial court allowed us to do in the montero case then the trial i'm sorry the jury would have been given the opportunity to then look at it look at that special iraq dettori if they were to answer in the affirmative  trial court would have been given the opportunity to enter judgment as a matter of law in favor of the deputy on the defense of qualified immunity finding as a matter of law he would be entitled to that what facts where we're in in in this particular case and there you wanted the jury to make a determination off while the defense always your honor was in this case the deputy lynn mistook a cell phone for a gun and so it was the defendant's position that it was a mistake on his part there was another instruction that was given and according to their the brief when an officer door you can't determine from a general verdict whether the jury filed the fact that's a side to trigger qualified immunity the rights of the fifth circuit is replete with cases mistake was a was an objective lead a reasonable one and that was frankly the entire case for the defense for deputy lynn and it's our position as set forth in that appeal that by the denying the special interest to tory question and changing the language of the jury instruction as judge wilson referenced that that actually was an inaccurate statement of the loss of such that deputy lynn's ability excessive force yes your honor and in terms of the instruction that was given to this jury they're being told essentially ladies and gentleman shooting mr stevens who only had a cell phone could be found to be reasonable even without the mistake part of it and it would be our position that it would it would be unconstitutional to shoot someone just because they have a cellphone but if the deputies perception was that the cell phone w gun and that was an object of lee reasonable belief then notwithstanding the constitutional violation the deputy would be entitled to qualified immunity would wouldn't that be if if those were the facts then the jury wouldn't find force because on the the circumstances the force that was used would have been reasonable well your honor i know there is some case law from the eleventh circuit that frankly is a little confusing when you're when you read it talking about if the e was a mistake a reasonable mistake then it's not a violation of the constitution such as the quills case and i frankly i am having difficulty fitting those together but i it seems to me when you just kind of merge it all together as was done here you're denying the deputy the ability to find out the instruction of coach traverses caldwell you know this is that the essence of his defense and to not permit that issue the factual issue anyway to go to a jury it is essentially denying the deputy national you're maybe i'm having the same trouble that you're having is if if the facts are if you as as you stated then there would be no excessive force if the facts are that there was excessive force how would you frame the question that even though the force was excessive i e was not reasonable  deputy would have been entitle to qualify them unity well it's difficult your honor as the courts have said or not this particular court the eleventh circuit has said you're not supposed to mention qualified immunity in a jury instruction so you can't do that so what we were really said more than that he said he's up to the court to the determine whether or not this entitle man what immunity or the jury would decide the facts the underlying rags is there in question and in this case it was our position that the dispute in the fact per what the trial court judge said is whether or not deputy lynn's mistaken belief that it was a gun whether that was reasonable or not or objective results of that the point of the matter is whether it was mistaken or not  you couldn't decide qualified to be correct your honor there's no there's no way there's no way for that to happen i don't know if your honour's want to hear further on the mono appeal i know we set forth our position at length in the briefs as judge for brando said a moment ago when the other side was up here certainly things that happened after dontrelle stevens was shot on september thirteenth of two thousand and thirteen could not have caused the shooting and that's a basic premise in this case and frankly why much of what the plaintiff below put forth on the record does not pass happened later was a sham were fraud is was there is are in the record some development of what happened after the share of support that absolved the shooter and the investigations were carried out all in the record your honor there's reference to the state attorney's memorandums where investigations were conducted aside from what the sheriff may or may not have said on the scene and if there did then the investigations result in  a finding contrary to what the sheriff said on the scene not ultimately your honor no me saying what the sheriff said on the scene just so we're clear he would be saying things based on what he was advised of the time and there weren't any stairs honeys office investigations that came up with it was an unjustified shooting or criminal charges were brought in any of those shootings so they confirm what the share of head initially s in essence yes in essence as well as there being evidence in the record that this not only did the state attorney's office do its own investigation so did the sheriff's office so it looks like i'm out of time unless your honour's have any further stand on the briefs thank you very much children just to respond first to the issue that you just raised the answer to your question is yes the adams case which is one of those matters that we tried to bring to the court's attention after we came back from the inter this court subsequently affirmed the denial of a motion for summary judgment on qualified immunity and that was one of the matters that we sought to bring to the attention of the district court after the district court made it clear that it wanted some evidence of a lack of justification and i would just say in we discussed this extensively in our brief it's our position that something that the state attorney does in this case for example four months after the events not necessarily based on the same circumstances that we are saying is the is the identity of the of the sheriff's custom that that is not proof as to whether or not there is a custom number one and that is not proof number two as to whether or not it was causally related to the shooting i do want to take a few minutes before i go back to the manila issue if i have time to talk about this issue of the jury instruction because i think it's important for the court to remember that even if the court concludes and we disagree with this we disagree do agree with the district court on this but even if the court concludes that the defendant was entitle to a separate jury question on the issue of qualified immunity as an special iraq atory especially when iraq is here on the question of qualified immunity  immunity defense is not relevant to the fourth amendment excessive force claim if there has been an excessive force violation it doesn't matter whether or not the officers of title the qualified immunity if the plan of still prevails because it was an excessive force claim the factual underpinnings of qualified immunity don't have anything to do with whether there was a constitutional violation or if i may your honor in this particular careful player with a raft of fifth circuit case i take it i am unfamiliar generally with the honors reference of the fifth circuit cases and the issue of a special iraq but the need to send it to the jury right and i do want to address that but i would like to just also if i may because there is a point that we make in our brief and it was a point to believe that was taken up by the district court because it was the obligation if your honor if your honor if that is the rule of this court if that's going to be the rule that a special iraq or to a verdict was required it was required to be proposed by the defense and it was required to be proposed in a form that was legally correct and one of the reasons that it was a rejected based on the arguments of my co counsel in the district court was the question that they asked for was this that deputy lindsey whether deputy lin's made an objective lee reasonable mistake when he perceived that done troll stevens threatened adams lin with a far and so forth one of the things that concerned the district court was that that assumed the proper question that they asked for defense and the one that was proposed included in ingredient that resolved a factual issue against us and that was one of the reasons it was objected to if i could move quickly to respond to some of the questions that were raised and i would just urge your honor in considering this issue as to arbitrary was required to consider and it's a page thirty of our brief the additional language that was included by the district court to see if it does in fact is the district quote that i put my position as if without the not to the fourth amendment claim i understand the court's i understand the court's position on that i just to respond if i can i'm made to take a second over to to judge wilson's your question with respect if there have been discipline before if you take a look it's at page twenty three impeach twenty four of our briefs people involved in this investigation a corporal a captain and a detective a combined seventy two years of law enforcement experience with this department testified and i don't remember which of them that it was that there had been no change and sheriff's office policies practices or training or anything that was learned during the investigation of an officer involved shooting council asked the court to take note of the amount to see you know case please take a look if you would please at footnote one page four of our reply brief because it is clear from that point forward that that actually was not in the record and was not something that the district or could have mentioned and then finally i would like to quote brown with respect to the mono claim since it was referenced by counsel a plaintiff must this is supreme court five twenty us at four twelve a plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitution or statutory right will follow the decision the decision in this case being the custom we submit that that was a jury question and your honor the court drawn as the court should reverse the relief that we request as expressly stated in the