date on an underlying civil rights claim and toward of outrage claim made against the seattle police department and in particular i focus this appeal on a july twenty first two thousand and fourteen order from the coors dismissing the two remaining claims roughly a month before trial tell me where in the record there's any evidence of a pattern or practice of malicious prosecution by the city of seattle your honor i know you're going to jump on me for mentioning the department of justice report well that's when you can mention it but i and i've read it but it doesn't it doesn't speak at all of malicious prosecution i think it gives you some support for your excessive force claim but well that's why i separated the claims tell me where either net report itself sure you're making a claim that the city of seattle is liable for the malicious prosecution and you're on to right so tell me when you tell me where there's any evidence other than your case may well have been not appropriate to file but tell me where there's evidence of a pattern or practice of malicious prosecution ok there one is the codefendant to mr rango he was officer depay you know regarding excessive use of force well now but it's i mean i'm not asking about excessive use of force i'm asking about malicious prosecution well that's why i want you to separate the two because you have you correctly said you have two claims one is excessive use of force any other one is bush's prosecution i'm trying to figure out where the evidence of malicious prosecution is other than the fact that your client's case was thrown out i take it mostly on procedural grounds but tell me where the evidence of interest of justice because of misconduct by the police that's why it was thrown out as i read the judge's order the misconduct was in terms of investigation and documentation as opposed to his conduct in charging and covering up ok but again i still listen let me to tell you what my premise is my premise is you don't have any evidence of a pattern or practice of a malicious prosecution you may have evidence of a pattern a practice of excessive force and so i know you like to second conclusion as to the first one tell me why i'm wrong ok i believe you're wrong your r and b and again this is reflected in my kids as it is in the d o j report that you keep about the covering up of mishandling people when they're being arrested yes no it's i can i can arrest somebody righteously if i then use excessive force i violated civil rights but it doesn't mean the prosecution of that individual is malicious  well your honor i believe that the pension and the holding of the person is part of the process and part of the prosecution now the court might disagree with that i'd like to ask you to would dress the other claim in addition and to the extent they fit the d o j we believe did did the district judge reach that issue is i read to district yeah just as well wait and as i read the district  says you've got some evidence of excessive force because your client sent so and i assume that you know he doesn't hold that the d o j report establishes a pattern or practice he says but even if it does there's no causation well he's saying by itself no let me just actually this isn't hostile questions at all fight me on it he says there's no causation here isn't that that's the judge's ruling right  the judge says that you can't show causation because the report by itself isn't sufficient to establish causation it's true well he's that's what he says but haven't you establish causation by complaining about precisely this kind of conduct the report documents the report says that there's a pattern of practice of handcuffing people and then using excessive force on them right that's precisely what your client complains of is that right now that's what confusing about this is you have prior motions here which the city goes into it says well originally made a motion to dismiss and that was denied and the court there says specifically then on the one we tried to imagine on a motion to a man in january of two thousand and fourteen this is roughly five six months before the july ruling he specifically puts in the prosecuted how to bellow out of jail and prosecutor for an hour or so you have these things that are going on and i understand that but the judge is the one who ruled in january of two thousand and fourteen on the second amended motion correctly pled things that that are going forward are the nineteen eighty three claim in the outreach point of some if nothing changes in terms of the record from january to july two thousand and fourteen when all of a sudden the month before trial we get this reversal that's all i have a question about like to post to both sides and that is whether this is the type of i well i'm not sure i think it would be helpful but i always though i might be a sunny optimist as i appear to the court here i'm sure but i think their position was basically jump in the way we didn't do anything wrong i don't recall doing any mediation when neither smither son actually seems to have covered itself in glory i mean if it's true i  i'm not disagreeing with that your honor yes we'd be happy to do mediation we minimally we wanted our game trial and we thought we had that which was a surprise a month of sixty to seventy five that was never produced during his criminal prosecution for over a year was never produced by the city in this litigation in only came to us through persistent requests for public disclosure and it was very painstakingly over the course of months and on the fourth one we  shows the pina getting around and getting into the car which he admits later in deposition so i haven't certainly there disputed facts here where the court should not have so let's see if we can make it clear and let's just focus on the excessive force claim thank god i read judge zoe's decision and he seems to say well you presented some evidence of excessive force you have a declaration that you were choked and there is this d o j report he doesn't say it's not sufficient to show a pattern or practice but he said you haven't shown causation is that a fair summary of what judge zoe said yesterday so address that causation  if if the pattern or practice alleged in the d o j report and there's a very specific section of it that says there's a pattern or practice of restraining handcuffing detainees and thereafter using excessive force on them especially if they was hasn't shown sufficient causation so help me with that if you will for clarification your honor the force complaint by mr wrangle is with regard to allegedly being choked in the back of the police vehicle and the d o j report identifies a series of alleged patterns that they saw in it but isn't one of those and he was not only in the back of the vehicle he was handcuffed was you know that's correct your honor however the force claimed here and that his primary complaints isn't about being coughed in a particular manner you know what i'm saying d o j report i read it again has a very specific section that says there's a pattern of restraint first restraining detainees and thereafter using excessive force on them if as judge graber says if they talk back and that's what he alleges here and so i'm having difficulty with the causation problem it may well be that if this case goes back to judge zilly he might find it did you know your report isn't sufficient to establish a pattern or practice but that's not what he said he said it's you know i get to sit i get to the second step but i can't find causation and that's why that's why that's why i'm having difficulty so tell me why his injuries weren't caused by the precise pattern or practice that the d o j report talks about your honor the the d o j report can be read broadly in that respect and i would submit that that your honors interpretation of that is a broad reading one good example of a situation where the d o j report was not only identified but also where the causal link was made at least for the purposes of summary judgment is a district court opinion here in the western district of washington called washington versus city of seattle and in that case there were allegations that multiple officers piled up on and one individual arrestee which is very specifically one of the things that this well this was very specific to because if you talk back you're going to have excessive force used against you and there's another pattern or practice here too which is that this individual officer had a history of complaints made against him personally for excessive force which permits an inference certainly doesn't require refining but it seems to me permits an inference that the city's otherwise robust custom and practice and policy of permitting excessive force specifically allowed this one officer to continue in who is toward what why isn't that also a permissible causation influence that your honor goes to the basis for mr wrangle claim mr rangle very specifically as as he identified even at the outset of this argument identified on page ten of  accused many times and the record your honor the this document that mr bangs counsel is referencing is an e mail from the public disclosure individual from the city of seattle or the seattle police department saying we've located fifteen i a s is which is a formal complaint with regard to officer to piano there is no indication of what these actually constituted whether they were sustained whether they were investigated whether they were unfounded so to just to make that leap is a pretty broad leap by counsel those fifteen aside for a second i'm still stuck with you know you're not arguing that the report was insufficient to establish a pattern or practice at least that's not what the judge held and so i'm still tell me i'm still stuck on causation he's he's arguing that he was injured by the very pattern or practice indeed a very specific one described in the report you will be restrained and then if you talk back you will be subject to excessive force so where is the causation link missing here and i looked at the other case just silly sites now is very different because at the end of the day the plaintiff wasn't complaining about what was in the report he was complaining about something different but this is exactly what's in the report as you are in every single arrest situation there is a police in the department but is that enough standing alone opposing counsel said it wasn't you your honor we would agree with opposing counsel and there is significant basis for that  throughout various district courts throughout the country in particular there's a district of columbia case called bird vs d c and the bird court very specifically identifies that reliance on such a report is inherently unreliable and under plaintiff's approach i mean use apology would be ill advised to evaluate its operational practices or institute reforms less its efforts be labelled a policy wasn't and it specifically found that there was a pattern or practice on the part of the seattle police department this was something sort of internal investigation one should encourage this was some extra arnel investigation that presumably no city wants to have but i don't understand why in theory or under the applicable precedence the report it isn't evidence of a pattern or practice w finding of the report your honor it's not the city's position that it may not be evidence of a pattern or practice it's that in itself why you cannot establish a custom so for i wonder what more do they have to prove  the there are that's a yes or no question is it evidence of a pattern or practice the finding of the justice department if there was such a pattern or practice i cannot answer that without an evidentiary hearing your honor on the content years of reports interview callis other people are using unless the underlying raw data and evidence is put into evidence that the report would not be sufficient in itself that's correct your honor that you make that argument below well not in this particular in this brief in this brief no your honor the the washington case where there was ultimately the causal connection made through a series of connections by the court not what the judge did here the judge here said good evidence of excessive force i'll treat the d o j report is establishing a pattern or practice but you haven't shown causation you might well be able to persuade the district judge i think you'd be wrong but that's a separate issue that the report isn't any evidence of a pattern or practice but that's not what he said what he said was there's no question and it's that ruling i'm focusing on you may you may well be able to make evidentiary objections to the report it may well be that he shouldn't have considered it but that's not what happened here and so if we're focusing on what happened here i've asked the same question several times but i'm so much sure why if the report is evidence of a pattern or practice that was reported in the report and there's a number of reports out there your argument is that a person would then be able to get to trial overcome a summary judgment in every case is that what you're if if there is a pattern or practice of excessive force in a particular police department in a particular community say to what's wrong with the idea that a person who has suffered the very kind of is a disagreement by the city of seattle about the contents and fine but nobody's contending that you would minute to a pattern or practice and i'm even putting aside the question of whether a judge would later find it this report was insufficient to establish a pattern or practice i'm dubious on that proposition but that's not what happened here is it the judge didn't say this doesn't establish a pattern or practice and the the court's question right the court  as far as evaluating i guess the hypothetical is incomplete in some ways because it depends on what the expert evaluated what the expert looked at and the court would have to evaluate the expert's opinion and one of the experts said i've looked had was i was choked there is no policy or pattern or practice of this is what you're saying is if everybody else was from the exact same circumstance where they were harassed handcuffed placed in the back of a car or truck and talked back that by simply varying the means of excessive force the city can avoid having any pattern or practice or any cars sufficient to go to a jury last time we checked the guy was time let's hit him upside the head so we don't have to go to court no your honor it's it's not it's not so simple in that the d o j in this case had instances for example where they identified the use of items such as baton and they put allege excessive use of those they identified multiple officers piling on to an individual and what is and like the court mentioned the manner in which they they handcuffed people these allegations and this pattern w the opening argument your honor thank you the plaintiff's only objections to the city summary judgment motions were procedural or even even if even if that's true doesn't the judge has to have to find in the did right there to the judge that you should win as a matter of law and and the court as this court is well aware does not have an obligation to comb through the record to find some reason to deny summary judgment and in this circumstance where there is more to pull and phatic repeat allegations of choking by mr rango against one officer and then another because of an identification issue that's what the focus is is whether there is a pattern or practice of officers within the city choking well ok i'm not going to go back to that question but i do want to ask you a question that i asked opposing counsel at the outset that i said i want to both of you to address and that is whether the city would be willing to engage in mediation in this case your honor i