good morning please the court counsel slow so you're on is the issue here is the grant of summary judgment for the city and former chief stuart thomas s to all of plaintiffs more now claims her supervisory liability claims and her failure to train claim where the district court misquoted controlling case well articulated by this court in the matter of rogers vs city of little rock that's of no moment the didn't didn't misapply the kid the decision well it station from a quotation from a quotation that it's of it's of no moment well i think judge that  it's not merely of the misquoting of the case but the interpretation of the case through that misquoting really turns of them you can argue the misinterpretation but forget the misquoted or not judge fair enough i was just trying to give the court an idea of what we were discussing a failure to properly interpret the rogers case the best case in a litany of other cases having to do with mono liability and we also believe that the court neglected to adhere to the  requirements of coal in the cotton i want to get into the facts and we have given a multitude of facts and evidence in this case but i wonder if the court would indulge me for just a moment to make a larger point i'm an avid watcher of u s history documentaries judgment motion is akin to the atrocities that took place in milan back in sixty eight but i do think that there is a very fitting comparison to be made between the investigation of them eli massacre and the want of investigation that we complain about in in panel to get to the root cause of that massacre it came to a couple of very important conclusions the first conclusion was that there was a failure of leadership to what what's the failure in little rock the failure in little rock judge is is a failure of leadership from the very top echelon all the way down and what we mean by this and what we think that we've articulated and demonstrated in arm very gloomy this pleadings is that regardless of the facts when officers in little rock kill harm or threaten or engage in other types of serious police misconduct they tend to be exonerated regardless of the facts that wasn't what happened in this case that is exactly what happened in this case judge described what happened in full in this case while it is true that problem officer josh hastings was terminated i think that we proved through our pleadings very employee that there were  and they say that that is proof that the system works well on the surface perhaps that is a an argument to make but when you really look at the facts which i have done in this case you realize that a lot of things happened which actually very very guilty person from going to jail and what i mean by that is the ignoring of material witnesses who i've witnesses who saw things in this case that would bring serious doubt to josh easting story i located two separate eye witnesses both of whom were known by the police at the time of the investigation both of whom saw very incriminating behavior out of mr hastings at or around the time of the shooting as well as that of other officers and neither  that was consistent with coverup and planting concealing upness they had him reaching inside the car with another expert not only did they describe activities and conduct that is incriminating on that space but the fact that josh hastings say why do you do in house and why don't you ship it out to the arkansas state police they say because we're the best we're the best but what they're not understanding judge is that they are biased naturally biased to protect their own and it's natural i would be biased if i was asked to protect my honor to investigate my best friend in some matter i couldn't assure you that i would be as objective as i should be but that's what they do in little rock i set these detectives down and they had absolutely no answer for why certain witnesses they wanted to have and so when they talk about their rigor with which they do investigations it does not apply to their own so there was blood test blood was not collected or tested that was literally  the very mechanism allegedly held by bobby when he was shot and killed they did not again talk to witnesses eyewitnesses i'm not talking about character witnesses down the block i mean people who looked out their bedroom window at five o'clock in the morning and saw some crazy stuff and the police had contact with them how do i find these people and get their incriminating statements i called the phone numbers that were in the police file that's all i did i picked up the phone and i value the number and they said hey i got a story to tell you why the little rock police department detectives didn't do this is anyone's guess but i would submit it was to protect the son of a high ranking official you know we started with rogers and rogers turned on causation when are we going to any repercussion at all that is moving force causation the type of which that we need to prove true that in spain so what you're telling me is that every and every investigation that's been conducted for for the statute of limitations period is subject in one nine hundred eighty in aren't discipline isn't properly meted out that unscrupulous officers will act out it's a concept that's been known by social scientists as long as there's been organized one force meant when there is a deficient system of discipline unscrupulous officers will take advantage of it we've got problems for it it's called when the cat's away the mice will play you don't have the fox guarding the henhouse again we think we've proved causation in spades but it really is a commonsense of casualties you might not know the particular hamlet or the date that it could have occurred but it was predictable and that's what we argue here we argue that there was a failure of leadership which predictably caused a loss of life and josh hastings exemplifies in typifies that failure of leadership stuart thomas directly through his friendship with his father terry hastings kept a watchful eye out for this man as he committed misconduct for misconduct misconduct in a mere five years until he culminated killing bobby moore we should forget about the k k k meeting that was over looked all of these indicators are signs of predictability of what's the coming and we think that we have testimony however which is included in the record she admitted that no i didn't i didn't see a uniform i just assume that it was an officer based on the voice i only point that out to point out one that we did talk to miss mckeown to it wasn't the recitation the facts the judge miller point out are always entirely accurate now what about for the witness eubanks she didn't see the shooting out here and we talk to her too it's on the record i don't have the quote   i think that the theory is that the investigation is indicative of a pattern over a period of time that created that mindset of the officer at the time of the shooting jerk but again if that's the case take that head on bobby moore did not did not cover up a violent pattern or violent behavior josh hastings as you point out the beginning we fired him we had him charged criminally so we did not cover anything up the fact that we had an investigation and the fact that th they were they were actively resisting using their cars in this manner to escape that's not the case with bobby moore he as we determined tried to get away yes and when he saw officer hastings he tried to back up and then he was shot we didn't cover that up again and we point out the review the files i asked him why and he said well i didn't think the files had enough in them to make that determination yet the appellant now gives this court a newspaper article regarding one of them as some evidence and newspaper articles of course are rank hearsay evidence as to what happened in that shooting give no facts about what happened and judge miller to the extent that he could find in the record based on what the appellate pointed out said again all those shootings involve cars being used as weapons and that's fundamentally different than the bobby moore shooting more more importantly none of those previous his previous use of deadly force were found to be unconstitutional there's no finding that they were unconstitutional and forty six hastings was not exactly an exemplary employee he was not taken should have been fired long before this i don't i don't want to speak to personnel matters and i know at least in employment context that the court is because i want to sit as a super personnel what is misconduct was not serious enough to put the people in jeopardy so we're just nobody's been killed up to that night in that nobody's been killed i mean i mean that's the the basest level the safety of the people of little rock or their well being in other words they should not be subjected to the hastings of the world perhaps he wasn't a great officer but like the supreme court he said i'm bored versus brown county versus brown just because he brown brown county says that the city has to be on notice that this officer is going to commit this particular violation and because you determine his dash cam few times does not mean he's going to going to shoot a fifteen year old bobby moore there's just no causal connection between those two things now again back to the evidence to somewhere there has to be a similar pattern of misconduct point out to that point when mettler when i talk about met when the court deals with in rogers and in fact it's about complaints that are being made and whether the city is that they're all cities didn't investigate the complaints in each of these previous the previous car shootings nobody complained about the misconduct and each of the shooting somebody survived that was in that car there was no complaint made no lawsuit brought and so the idea that we could and that we didn't investigate a complaint is a nonstarter because there wasn't a complaint but we still investigated we investigated internal level criminal level the prosecutor sees it and then we have a deadly force review board which which which looks at it again so the idea that we were deliberate were deliberate and did well the fire idea that there was any similar issue that's not really what we're doing what we're saying is that whether was a finding by judge who looked at the evidence that found no pattern but more than that it's a showing that the city was not on notice of anything if it's better a judge looked at it and said there's no pattern here there's no way for the city to be on notice of any such pattern and so that's the point of the of the ellison finding a report about deliberate indifference to rogers quote it wasn't wrong application of law judge miller corrected that on his order on reconsideration again the shootings were all investigated criminally internally the prosecutor had a chance to look at it or did look at it the d s r that deadly force review board  looked at it and and i go point to roger clark again i asked roger clark about the sixty odd investigations which he never said the word facade in his report first of all i asked him can you give me an example of when this city just flat ignored a complaint and he says no i can point to no instance in which the city got a complaint and did absolutely nothing about it and it's so the idea that roger clark said anything beyond the bare bones of what he thought he needed to say judge miller point out he offers nothing well as far as yes reports even though judge josh hastings was found not to have violated violated i guess just in case another report they found that again no violation but again they subjected him to by weekly meetings with the sergeant to make sure that he knows you know what he what he needs to do and make sure he's doing everything right so the idea that we just sat idly by and did nothing in light of not even the plants just our own internal understanding of what was going on is just not supported by the record and  upon a point city is accused of covering up things it's the largest department in the state and the fact that that the appellant and anybody else who wants access to it has the information to to bring this or any other lawsuit shows that we'll cover things up anything up and that's what makes us what you would would you acknowledge the statement that having an investigation is by itself not proof that the investigation was sufficient and  we committed unconstitutional misconduct and it's not as if again going back to the shooting as the cars there's no there's no witness that was there that was in the cart or the person that was actually shot who said this was wrong in the city said we don't care there's not dozens of witnesses coming forward in the city saying we don't care that's not what's happening here and i see that my time is out so i thank you for your time rebuttal just a few follow ups here the city is using the conclusions of the investigations that we claim are corrupt to prove there's no corruption in the investigations i think judge smith you hit it squarely on the he problem with the court's order is that it sets up a false choice investigations or no investigations it neglects to understand the nuanced ways that friends of friends can cut breaks to their buddies when they are accused of serious true that they did contact the two witnesses but they didn't take a formal statement i never said they didn't talk to them i said they didn't take a formal statement and these were types of witnesses that should have had formal statements taken they even admit to this in deposition the deposition of charles ray i was ran through all the information that we got out of her deposition why did you not take this the statement i don't know should have been taken yes it should have period so they admit this in terms said that when he allowed misconduct to occur he creates precedent that can be used by other officers later there is your moving force causation now any problems that mr wilkerson has with robert roger clark the deposition that  to was not in existence when the court issued its opinion so it therefore could not be part of the constellation of materials that were relied upon and to the extent that mr clarke's bases are lacking in any way shape or form that is the proper province of cross examination at trial and how does this how does this deposition get on the record on appeal because because mr wilkerson cited it in a response to my motion to reconsider and then the judge latched onto that and used the deposition transcript as a basis to legitimize or to justify his summary judgment decision even though he could not have read it at the time he he made the jump like a thousand like a careful approach to the motion to reconsider to many well i don't understand with all due respect judge i don't know how you can use material that was not part of the decision to justify the decision it wasn't in existence at the time that that's that that sounded good but that was a writ that was assertion what i'm saying is this if someone comes in a motion to reconsider with new evidence or a part or a part of the existing evidence that wasn't in the initial summary judgment record and the court then takes that into account in in deciding the motion to reconsider and you're saying that there's some procedural impropriety and that i say that's good that's that's good judging well even if that and i'll agree with your honor but it shouldn't then displace what has already submitted it then is combined with what plaintiff has submitted and that creates material issues of fact in terms of the of the opinion of the of the judge of the expert so we go to trial on that so the problem is not just that he brought it in out of left field but he supplant judge done this a few times and i know when i'm nowhere near home base and i know when i crossed all the bases we submitted form books of evidence all of it legitimate and from the mouth of babes so to speak from their very people there's no reason we can't think we shouldn't look at this case in front of a jury we did the hard work we rolled the parsley's we took twenty depositions we didn't cut any corners we did the hard work how this does not get in front of a jury is is is baffling to me with all due respect to judge miller