argument now in frederick livingston versus allegheny county mr grimm yes may please a court good morning my name is robert grimm and i represent the hauen frederick livingston who is the plaintiff in the underlying case i reserve three minutes for rebuttal chris i'm happy mr livingston we filed a complaint in the united states district court here against allegheny county several of the child new service workers and three of their detectives the allegheny county police department as well as superintendent moffitt alleging civil rights violations pertaining to an arrest and a prosecution of mr livingston for false criminal charges mr livingston had been accused of sexually assaulting his oldest daughter we feel we have found appeal before this court following a summary judgment that was entered in favor of the defendants it's our contention that there are certain and several issues genuine issues of material fact the should allow this case to go back to the trial court for further proceedings and primarily for a jury trial   fortunate enough to go through some of the facts of this matter to get where i want to it's our contention that there were violations of mr livingston's fourteenth and his fourth amendment rights and i believe that the evidence that we've produce before the trial court shocks should shock the conscience of this court and certainly that should have shock the conscience of the trial court so efficiently enough to allow the case to go to a jury mr livingston is that is and was a police officer for the he has two daughters to a woman named harm in waiting rooms from one thousand nine hundred five to two thousand mr livingston lived with miss williams and her two daughters as well as with his mother beginning in two thousand he moved in with miss williams and the two daughters i believe live in penn hill section of pittsburgh but one of the reasons we moved in is because the youngest daughter who is becoming a concern she was having problems at school being disrespectful and generally was becoming a problem for her mother mr livingston being more of a disciplinarian in two thousand and two mr livingston was the subject of a c y s investigation when the youngest daughter had made an allegation to his school nurse that her father had abused her c y s conducted an investigation and they determined that there wasn't any basis for the allegations and they have two thousand and two mr livingston filed a dependency petition in allegheny county seeking help from c y s because of the problems that he was he and the mother were experiencing with the youngest daughter problems persisted where she would run away from home to and from school and one occasion she actually  used a razor blade and poor up his police uniform c y s again invest in that on the i don't see petition and one of the things they found that there was no evidence of abuse because the youngest daughter had again made allegations or  father had abused her but rather see the way i suppose mr livingston that it's very common for children who are not happy with their parents to make up such allegations the dependency petitions that are actually total three the first to filed and that as a result of that one july two thousand and four judge kristine ward of allegheny county determined that the youngest daughter was dependent the daughter youngest daughter again continued to be a problem at the same time the oldest daughter was also becoming a problem she was spending more time with a her boyfriend who i believe was about five years older than she was she was a minor he was in his early twenties she also attempted suicide she was put in western psychiatric institute for about a week this is obviously a parent's worst nightmare how things are are developing but many of them now the youngest daughter has again run away from home she was eventually picked up and she was placed in a shelter while this is going going mr livingston had expressed numerous complaints to see why i asked if they were not being responsive to the issues and not helping him or his family at one point see why i asked and decided to have a meeting with all involved and to develop a plan the plan was eventually accepted was that what was proposed was that the youngest daughter would then move in with the father when the youngest daughter heard this she of immediately wanted to be interviewed by a child psychologist what she was at this point she now makes an allegation that her father had sexually abused her older sister many years before  well that if you put aside protocol then your point is that the failure to investigate to the extent that you believe it should have occurred in an up itself amounts to constitutional violation that's correct right right ok so if you look at the cases cited some other cases does it shock the conscience and the key players  forensic interview with dr nathan for the victim to undergo she testified that she thought the only thing that she had to do was arrange for a forensic interview interview with the perpetrator and that was it that's the only thing that she said that she thought she had a bit common sense would tell us that there's a lot more here based upon the facts that i described earlier the two detectives only did a little bit further but it only glossed over dr though i mean isn't that a problem for you you have a medical professional making a factual finding that she scored on nine of the ten factors how do you deal with that well correct there's no doubt and that's clearly what what the defendants are appleby's rely on is that we have dr nathan that should be sufficient but clearly that wasn't they didn't even follow what dr nathan had suggested dr nathan had suggested at a friend's a good of you to be conducted of the younger daughter because she was really the reporter of the abuse they didn't do them neither c y s or or the detectives even did that the detectives did talk to the younger daughter on one occasion but they said they didn't think that she that worthy of being a witness that that was sufficient for them to talk about and because of that particular conclusion by them they should be faulted so this amounts because usually i think clearly not just that alone because had or check calls her up it leaves a voicemail on with her and says to the extent before you don't go down there until you talk to us to talk to me or sergeant and even stays on for it don't even think about going down there well w think that is important is the fact that the county was the prosecuting agent here the two detectives this wasn't another police department i can understand the county having one to know one of its police officers is going to testify in a criminal case that's fine but this was their own prosecuting police officers who filed the affidavit in support of the of the criminal charges and never last they tried to keep it witness from testifying in fact would tenach or check told her get out of it that's always said no benchley she did not testify but nevertheless if they had such a case a strong case which is what they thought and instantly their case was only based upon the forensic interview and the statements of the victim who in turn had serious credibility problems but that's endemic to anything he said she said cases out it's amazing isn't your argument that was really shocking the conscience here is that two daughters would falsely accuse their father of the worst thing the father could ever be accused of isn't that what shocks the conscience at bat in the fact that the the defendants did nothing to determine whether or not those allegations were in fact true other than the forensic interview that was at least have the expert you know i mean but you know we're not alleging some sort of conspiracy that dr nathan is particularly quick or susceptible to to find blame but i didn't see that it was there was no no facts and so when you when the so called expert child psychologist with the degrees on the wall does what she does and she comes back with this very damning report made the police are entitled to rely i don't suggest that they can't rely on it but there were other things that they should have done and their own particle dictates what they should have done but then when they get really they could always do more but that is correct that's every criminal prosecution they could always do ward well i think it at the very least they have to follow their own protocol which is in fact they did not they clearly did the only thing they did was a forensic interview had they done more then at least they could determine whether or not there was grounds to pursue the case further and i'm not suggesting that we will win the case if it goes to trial this activity shocks the what you're i think this is just a fact specific case i cannot tell you the case of smith versus jones that is right on point that allows it and i think that the marco case which was cited even by judge lena han gives some it the facts are somewhat similar but vulnerable so there are merkel speaks to the probable cause issue though that is correct that's that's one of the issues well i'm on this issue on the shocks the conscience issue i allegations that were initially disclosed by her younger sister during a therapy set she admitted to see why a caseworkers that her dad had sexually abused her for many many years at it's is sad truth that in these types of cases in sexual abuse cases of children there are almost never are witnesses this is a crime that's committed in the privacy of their homes as it was alleged in this case so there were no witnesses in this case it was just don't know why they have these protocols and the fact  county radicals are they binding on the investigators your honor the protocol that the appellant is relying upon was not a checklist for caseworkers to follow it was merely it was simply to coordinate investigative activities between the law enforcement agencies and the human services agencies when both are in all in the investigation of a child abuse case for example in child by subjecting her to multiple interviews that was the purpose of the protocol the protocol was not a check was what had to be that but what has to be that if it had been followed they would have reviewed the c y f case worker would have reviewed the entire file and would have been made aware of the fact that the younger sister had made allegations against the father earlier well what would that have of proven first of all your honor it would of put into question maybe the credibility of the younger sister  that she was in a state that she was a good student that she said a good example for the older students there were never any allegations of misbehavior on the part of the older daughter until after these allegations abuse came to light and when mr graham talks about the previous allegations of abuse that the younger daughter had raised those for physical abuse she was al or it was never a sexual abuse allegation that was the first time that it was raised and when she raised she went to the school nurse the younger daughter and she alleged that her that physical abuse is not severe enough to meet the requirements of the law so what happens in most of these cases is if the child says my father struck me that investigate it and they conclude that the child had problems that she was declared dependent so those facts she was aware of the other allegations that's made is that if the report had been the protocol had been abuse the friend was merely someone to whom she claims she disclosed the abuse at the same time that she disclosed that to her sister and her mother so that would not have changed anything she also if if you're correct if you're correct let's move back to your school bit on that one because even had they falter and not followed the protocols that were may not have been fine circle of this case because they did the only thing that can be done in a situation where you have he said she said they took the child to a specialist they to a specialist that focuses on these specific issues they submitted her to an interview they observed the interview they also had her undertake a specific test to see if she was in had every opportunity to bring to their attention any potential witnesses any evidence of any kind that they should have looked at that they could have lost that and there's nothing in this record there's nothing that they will be able to the first of all but what difference would that if made but secondly if you look at the record there is absolutely no evidence of that none mr livingston claims he had a bill thousand dollars from children's hospital for pregnancy related procedures this is a very very meticulous man who kept every scrap of paper c y f sent him yet during the course of this litigation he never produced that bill so your honor even if you find that that was the protocol that they were somehow required to follow everything that there is not any information that they would have the stalberg that would have led to a differen they once before we get a make a jury and what a male as opposed to a female because they were concerned mr livingston in their minds was overbearing towards women in regards to the protocol in specific questions in our discovery we asked them please provide copies of any all policies procedures o c y f employees or the allegheny county police refer to or follow or supposed to refer to or follow when conducting investigations into child abuse allegations in particular child sexual abuse allegations and i want to say while the policy really doesn't apply wouldn't we it's just a guideline well the why have the policy that they in fact said that's the policy there people are referred to and clearly i think it was not referred to again the only thing it was done was the forensic interview in fact its net bitch who was a c y s worker said in her mind that's the only thing she's required to do the policy or the guy nine protocol does not say these are disguised lines use a measure you must they are in fact there for the purpose of preventing what should have occur preventing what ultimately should not have occurred here and that was the following of  charges but doesn't the protocol require the gathering of physical evidence correct it's one of the things and i hold in the physic weapon there was no physical evidence that this happened a long time ago so correct and that i think are you saying you know they have to follow everything  the protocol even if it's not factually opposite to the particular at the very least one thing is going to sign very maybe you know i don't basic anything take a photograph of where the allegations of the sexual abuse occurred a photograph of the bedroom any making description of it nothing and that is again i realize that there isn't any physical evidence because it had occurred many years earlier which again even goes more so that they should have conducted a more thorough investigation  had told this friend about what had occurred miss nefesh never tried to call her the two detectives try to car once or twice they did get her to testify i am a trial at the time of trial she didn't confirm that the oldest daughter had told her the only thing she said that the oldest daughter told her was that my father came in the room when the door was unlocked that was it again one of those certainly a key witness that they should have at least interviewed to determine and had they interviewed follow the protocol one of things that they may not have done was file these charges but obviously we don't know that that certainly i get something i think that would wouldn't should go to