it is because officer miller testified that he mistook this the x box controller for this it was dark your honor it was it was subtle it was the day i was saw a person facing him advancing towards him holding something in his hand that he thought was a gun is exactly so you want it wasn't something in his hand that he thought it was a gun he said i looked and i saw i s i looked and i saw a small he describes it exquisitely a small silver gray thirty eight snub nose revolver which this is pretty much what that is this is a gun painted silver gray to look exactly what as he described it there is tried unsuccessfully on a few efforts on the first effort to bash down the door and now they have given notice to come to the persons in the apartment who they know to be armed and and dangerous because they know they know that there are occupants supposedly in there who are armed and that's why there was no you know not and then and the then the person he sees somebody standing facing him according to his testimony advancing towards him with an object in his hand and yours you're saying he should was he waited is that an x box controller or is it a gun i can only repeat that it's not enough to say it's welcome to spend your whole time repeating it it's not it's not enough to say that i s or was it was the verdict was against the weight of the evidence based on the testimony there's also there's also the fact that as i said before that the officer never claimed it was too dark to see he never said i shot him in a panic he never said that the stress of the situ caused me to think something that i didn't that otherwise was not the case he simply said i looked and i saw and i thought it was this when i was actually this and again it beggars belief to believe that as the as the defendants argued that the plaintiff had to have had this in his hand all night while why would he have this in his hand all night and then get up from the couch as the honest approach the officer while he's been told to get down holding his hands out because that's what office miller said he held his hands out for some unknown reason approaching him and not getting down is against the way the evidence is miscarriage of justice it's not as if we you have to conclude and we would like you tube it's not as if you have to conclude there was insufficient as a matter of look if you think that that's not the case we submit that the very least this should be a new trial and also point out that officer this they're not similar at all in the in the case there was no evidence there was no evidence put forth by the person who caused the harm to explain and why he let go why he lost control and well what i suggest in this case you have every in this case you have miller's testimony saying i saw a man standing coming towards me holding something in his hand i thought it was a just strikingly different he says he's seated on the couch with his arms outstretched nothing in his hands and arms outstretched signifying surrender so wouldn't doesn't that suggest that if the if the jury that the plan that was obviously truthful but that it was him you could not then go from we don't we don't believe plenty of cause they found ten percent of contributory negligence but we can't then jump to the conclusion that miller must be telling the truth came in with a gun like that and stack after the jordan breached and i shot that's what shot pinsky says that he heard he heard the shot immediately upon the breach and that's where all the other officers in the stack heard they heard the door being breached it took a long time if you if you break open the door and you come in and miller was the lead on the on the procession yes he was came in how long is he supposed to wait if he sees a person standing facing him mistaking it for a gun simply saying i mistook it for a gun and that's why i think this is a take a case simply saying i mistook you for a gun without saying why i mistook it for a gun he never says why he never tells hauling that's for sure in the report he never says i mistook it for a gun because they look like each other they don't he doesn't say that everyone all the officers testified they don't look like each other that's that's undisputed if he had said this this object which looks like look like a real gun then a different kind of gun it was this virus is this very specific thing and we submit that you simply cannot make that determination reasonably so that therefore i think you're on a roll to respect i think this is exactly like the tail case because there was no explanation in that case opposing counsel and the judge says i'm going to have to talk about excessive force intentional negligence and he said so i'm going to have to carefully distinguish between those two  situations and the same thing and the same thing with the still the city can be liable under respond here at superior because what the shooter did and this is the phrase i want to call their attention and it can be like go on it's own connection with what their relationship was with the swat team now but he never gave that second theory of the city's liability and it's far as i can tell you never objected to the absence of that  charge given allow the jury to find as they did unanimously find that the city of binghamton was negligent only under the theory of responding it's pure not that they had they might have been liable because what the swat team prepared for this incident now there were separate jury questions one of the some of the jury questions specifically related to miller and proximate cause some related specifically to the city of binghamton so the city of binghamton fire way did good except the police practice mirrors that would all be completely irrelevant if this were just on our respondents inferior theory so it so you're saying that if we when we look back at the record we'll find the jury was instructed on the theory that the city was libel and negligence that's my memory judge what of it but the verdict say only gave them the opportunity to fight the city under the theory of first monday at superior is that correct that's not my memory of the verdict sheet either i could look at it again as obviously the court can but my memory is that the verdict sheet allowed for the jury to find negligence independently for the city of binghamton which is what they did based on the multiple violations of good except the police practices i'm a little confused by this because  one theory of no good one theory of liability was that the city is responsible because of miller's misconduct in shooting the plaintive another theory of liability of the city was the city as is liable because of the the i'm not sure whether it should be called negligence but the fault of the team and and their supervisors whoever was involved in failing to plan the raid properly in failing to do sufficient advance cannot reconnoitering getting a layout and so zingo lighter rather than the heavier battering ram in either case the city's liability would be premised on responding out superior it would be the city's responsibility for the failure to act appropriately by the police officers whether it's miller making the shot under circumstances where he shouldn't have or whether it's miller and the rest of the group including their supervisors in failing  to plan the raid properly you're quite right and seven hundred twelve addresses your questions where it says clerk is a city of binghamton liable for negligence with respect to the incident on august twenty five twenty eleven under a response yet superior theory this is after they had already discussed miller and the jury says yes so yes it was the respondent superior for the other officers of the city of binghamton and the argument made by counsel was that the group doing the doing the the the  knock entry with the battering ram didn't plan it properly violated appropriate procedure used for years and so on and i don't understand why responding at superior isn't perfectly appropriate i mean that there could be another theory there could be kind of a theory that the city didn't train its police officers properly that the city didn't establish proper standards but that wasn't what was being argued correct being argued it was a vis instance of knocking down the door and making an entry wasn't properly planned should have had to have your battering ram should have been planned better etc etc correct there was no plan there were there was no judgment there was no plan and that's what the jury found and that was the charge on the verdict sheet said respond it's peer against it being tossed out but my further question is i fail to find evidence that supports that theory in the record as i've looked at the record as i  or the brief submitted to us does not contain any instances of reference to to to to evidence that would show violation of of accepted police procedures in what was done i mean there are questions like if you don't plan that would be bad right it could have have have bad consequences if you don't plan yes right that's true could have been better if you done more of this or more of that yes that's true but there was no evidence i mean under under new york's rules with respect to discretionary conduct you have an obligation to show that the conduct violated excepted pursuit police procedures and that was done here the chief of police himself admitted page one fifty eight fifty nine that there was a failure to provide sufficient proper intelligence including lead in advance and that was a violation of police standards there were multiple admissions by the police chief and other officers what you were let's have an exact what testimony are you looking to what page well i'm right now the chief of police nine fifty eight to fifty nine i'm fifty eight to fifty nine and i think i have looked at exactly that and fifty nine fifty nine and and you're talking about it line twenty one law and one twenty one is that right that's one of the places yes talks yes if a police department fails to provide support and proper intelligence to the police officer to safely perform their duties that's generally a violation of police rules of the road true yes and he didn't say he didn't say that this instance was a failure to provide sufficient and proper intelligence to safely perform the duties he didn't say that well your honor an abstract question about a proposition there was no evidence in the case that this was a failure to provide sufficient information to prepare to for the duties to be performed satisfactorily i disagree respectfully your honor you have anything else yes not only did he would violate on the very next page professional police standards of care there are multiple places in the record with the chief conceded there was no intelligence gathering there was no plan whatsoever there was no little building planned or land obtained there was no reconnaissance was no surveillance there when they failed to  were required to bring so we have multiple statements by the police chief as well as other officers that what the standards of care required and then we have the testimony that they failed to do so give me your your references to the  thirty three thirty two or three thirty three is why didn't you cite any of these things in your brain i believe we did cite them in the brief your honor it was cited in the brief as well as in the in the the lower court submissions when i made the motion talking i'm not as you want me to go looking at all everything you say no judge or no but it was in the briefing or fifty three thirty two three thirty three s ok that was with respect to having a plan then for example with intelligence nine fifty four you must obtain and use all available and reliable intelligence and then nine fifty eight and i'm sorry we would cover ninety eight and i fifty nine met through you to have that  you should always try to get the building plants i'm sorry nine sixty one and nine sixty eight talk about the layout and the building plan yeah reconnaissance critical to success page four fifty seven to surveillance you to put these in your brief if you rely on them i thought they were all in the brief you and that's where i got all my references when i was preparing for oral argument i looked through the brief surveillance proper preparation as part of a pre raid surveillance and that clearly and i could give the testimony where they say there was no surveillance failure to bring equipment we have the different categories supposed to bring all the equipment talking faster sorry here i'm sorry this what i want is page numbers nine seven seven nine seven eight and then four seventy four seventy one is about supposed to bring all equipment and then including specialty equipment is for five to to prepare for various contingencies back to four seven one and did the chief there was some proof of a failure to train that we did have an evidence there was a prior training episode where they did say you're not using the right equipment you're not communicate you know doing it properly my judgment is the trial lawyer was i did not feel that was strong enough i felt this was far stronger to get out of the mouths of adverse parties admitting what the standards of care war and that they felt to comply with saying that is that really responding at superior that is responding because the municipality is responsible for the negligence of its employees or its employees and miller not negligent that's the problem what they found they found miller not negligent for the shooting but with the jury unanimously found is that yes the reason miller shot is because of the heightened danger because they did everything wrong so they had no time it took almost a minute to get a wooden door open ten times with a battering ram miller said he was concerned with this miller said he was frightened they conceded heightened danger he shot the first and he saw because of all of this their negligence was a substantial factor in causing miller to shoot that's what the jury unanimously found and there was ample grounds for it in this record so even though they found miller not negligent not negligent and not guilty of battery correct they found the city of binghamton a separate theory negligent the theory is that that the shooting of the pl miller was the result of inadequate planning in the bringing of an inadequate battering ram so that instead of getting him a surprise entry with one blow banging on the doors down everybody's asleep but now w that they gave warning to everybody which made miller frightened that he was facing armed armed resistance what why did he agree with you that this theory carried the day what was his problem with  throwing out the verdict at trial the judge did agree with me in the post trial motion he excepted the defendant's argument that special duty was a plate but when i respect lee smith it is not a special duty is not a political when there is a violation of police practices and procedures by but we have a case certainly a few of them the lou becky case right off the bat in the rodriguez case both of which are cited in the record but lubeck is three zero for appellate division second specifically to thirty three to thirty four the rodrigues is one eighty nine eighty second specifically page one seventy eight i also know five cases they predate apple way they do predate apple white but even apple white and the let me just explain to me  why apple white doesn't abrogate them i'm sympathetic to your argument that it doesn't but i am not quite understanding it applewhite even in the concurring opinion by judge smith he discusses have the special duty does not apply in police shooting cases  new york ace for that proposition there's other court of appeals cases on this and similar issues by way of analogy when you have a negligent police hot pursuit case a police chase gets what's going on the police are chasing another vehicle that other vehicle now hits an concept that the municipality through its employees can be negligent they fail to comply with good except the practices that causes someone else to cost harm to the plaintiff which is what happened here my understanding of the special duty requirement is that it doesn't apply to a situation like the one where the city is sought to be held liable for wrongful infliction of the harm but it rather applies to a situation where the sought to be held liable for the failure to to come up after the initial infliction of the the harm and do something to mitigate it as we are e m t personnel show up to a person who has been everywhere protecting everybody from every kind of harm and and it and therefore the city's liability can only apply in circumstances where the city has a special duty to be there to help and to and to spot on  i agree the under percent there have been a couple of a couple of cases mclean and applewhite that have kind of muddied it yes a post mclean cases have clarified that the special duty doesn't have an application  where the harm is caused directly by the exactly and that's what the police case in a court of appeal says is well yeah i agree hundred percent if if what the claim here was that the other offices should have stopped miller from shooting that would be a special duty case that's not the claim here the claim here is the cost miller was a special factor in causing miller to do the shooting spot on but the the other issue is whether ordinary negligence apply is or whether with respect to discretionary acts the city is is somewhat protected city and the police officers are somewhat protected by a by a rule that requires something more than negligence that requires a violation of accepted procedures that simply showing negligence that would apply in a non municipal case isn't enough you've got to show ford for discretionary act you have to show either violation of the of the city's standards or violation of accepted standards of conduct i half agree with you judge part of the showing of negligence what makes the negligence that they failed to comply with good excepted practices and procedures that's why they were negligent and so for example in the rodriguez case where the plaintiff's expert says you violated the standards defense expert says no we didn't jury you sort it out here the defendants and my questioning can see what standards of care were what practices and procedures were and what we did not happen here ok that to a degree they recanted when their lawyer questioned them it's the same thing as if t witnesses contradicting one another which is credibility for a jury the jury found one hundred percent in our favor unanimously the jury found that there was his file ation the procedures they did not use any judgement at all this was not even discretion this was failure to perform charge gave the jury the wrong law he satisfied with the charge he doesn't identify a single evidentiary ruling that was made during the trial that he had a problem with the plaintiff got to call every single witness he wanted got to call upon any evidence that he wanted this is just one thing he doesn't like and that's the verdict he  likes the verdict the verdict was taken away by judge mcevoy he doesn't like the verdict against officer miller i don't think he has even objected to that i think he said jack to judge mcevoy did after the verdict came in well then and then i'm thrilled so then he acknowledges that the jury first of all he doesn't even challenge on this appeal at all the jury's finding that officer do well to to address that issue as to whether well there's several aspects to it but one of them is whether the plaintiff put before the jury sufficient evidence under the discretionary conduct rules of new york sufficient evidence to show that the police in their planning of in their exit q sion of the break in violated accepted police procedure because i tell you where i stand i would be prepared to affirm the court's setting aside of the ruling but only on the theory that the plaintiff failed to put in sufficient evidence of violation of accepted police procedures good counsel tells me that there is counsel has argued that there was plenty of evidence of that and i want to know what you have to say well i don't  agree there was no testimony that the use of a dynamic entry in a stack formation or a one man battering ram violated any establish standards of care in contrast what about the fact that the battering ram wasn't big enough to batter the door and they lost the element of surprise which made as just  suggested earlier officer miller more anxious about what he would find when he finally went through the door that that might be the case that the we know the battering ram didn't work initially and they had to have a number of strikes but there's no testimony and no evidence before the record that says that in that case the accepted practice the required practice is to abandon and just stop the rain in fact i don't have the cite for you but i recall that the really not not to abandon it the i mean one of the questions the the theory the plaintiffs theory had numerous  aspects but one of them was that if i understand correctly that the given reason for using the lighter than the heavier battering ram was the concern that they have read that the bigger one might not fit properly in the space that they might have been they might find it impossible difficult or impossible to use the bigger one in a confined space and the plaintiff's theory was one of the things was  reconnaissance to find out about space to see whether it is true that they have rere one which obviously would be better and better achieved surprise would work rather than just not bringing it not having it there and  and and giving up the element of surprise there was testimony in the trial i can't cite in the page that in the narrow space that the policeman well lined up in there wasn't room now i'm not saying that somebody made that decision but nonetheless it wouldn't have fit in that space and so now what does that mean that means they can't execute a no knock warrant ups perhaps that's what it needs your honor there's another problem the problem is that the plaintiff there's no testimony that connects what he says after the fact they should have done there's nothing that shows that the outcome here what has been any different no testimony the jury found miller not negligent and not guilty of battery because they felt he was doing what the city required him to do and yet they found the city negligent so we have to herself that the jury drew the very inference that we're talking about that miller was led into this raid by an unprepared team with or without the proper resources and that the  lies somewhere other than with mel or your honor this was a respond we had superior and dirty of that and that are quite a case on the theory that the four people lost their supervisors didn't prepare properly so that the door didn't get bashed down on the first effort they lost the element of surprise miller was in an untenable situation of going into an armed camp leading the way and and and and increasing the likelihood that he would shoot too so there was no testimony and no evidence in the case about who would you do well to address the instances in the record that counsel counsel claim my my thought was that you're right there wasn't this evidence but counsel pointed to a whole bunch of pages and what do you have to say i don't know i don't have i i made a mistake and didn't bring the entire trial record with very open ended questions it would be a good idea to do this it would be a good idea to do that but that doesn't mean that that is some kind of a failure of a standard am i correct that the that the standard that the plaintiff would have had to meet was that it was a violation of accepted police practice yes nearly merely negligence merely saying it was negligence in a way that would have or that would be with that would work with the private employer it would not work for me to supposedly has to go under the discretionary act rule it has to go further it has to be either a violation of established procedures of the city or of accepted accepted police practice is that correct i agree so there was no testimony that what the police actually did he violated any standards of acceptable practice there is there's no testimony or evidence that it was improper in this situation to use a one man battering ram there's no testimony or evidence that in this situation tasers being bag shotguns chemical agents that those are standard in a dynamic range of this type no testimony and no evidence that flash bangs pole cameras tactical mirrors that these are required and always use then should be used on this kind of a rai there's no testimony of that of course after the fact there was an unexpected situation but that doesn't i mean not that that's a risk of a no knock warrant and there's no evidence put aside acceptable practice where is the connection in the evidence anywhere from anybody or on any document says that if the police did what the plaintiff now after the facts as they should've done that that would have changed the outcome i think that if miller had the element of surprise which he walked in he had his gun and he saw someone he would have taken an extra few seconds to assess the situation rather than thinking my god all these people are up they hurt me they prepared for me and they're prepared to shoot me that's what he thought but your honor if as is very likely if as is very likely the plaintiff was lying down when the police officers approached the door if the first ban would have blown the door away and brought miller ahead of the column into the room the the plaintiff as in all likelihood would still have been lying down because there wouldn't have been even a second for him to get up from where he was earlier sleeping but having to do two or three bangs he was he was up he was he was up if he was up he was in any event by his own testimony sitting up as if the police weren't able to breach the door with the first ran and it didn't work if they abandoned their attempt to go in that created a different threat that could have put the police in jeopardy from the dangerous person they were given the no knock authority to go get number one number two saying they should've brought a two man battering ram and how does that change the whole geo we just told you that they lost the element of surprise which made miller much more anxious once he walked into this room and how were they supposed to know beforehand what's called planning that's what's called we kind of sense that's what's called measuring the door i'm not sure what kind of planning there would be if they say well go down to the building department and get the floor plans well did they come into court and show the floor plans and say well the floatplane show it had this kind of a door that couldn't be breached you know so what are they supposed to do what kind of reconnaissance knock on the door hello we're planning on a surprise raid what kind of door do you have to look at the house before they have time to they looked at the house before they did they didn't break it down the door started to crumble at it and they didn't and that didn't give they didn't make themselves obvious before the raid by trying to look at the front door to the living room of the person who they were about to raise them about saying they go and forward full uniform let's be let's be adults here they never did the kind of for connoisseurs that i would want a police department to do if they were going to issue a no knock warrant on any house to protect the police more than anything i understand you know after the fact a lot of things might have changed but about talking about before the fact no i understand not talk about after the fact nobody has established what they reasonably could have known about the situation beforehand reasonably could have known that would have changed the outcome true that the person who was general in charge of no knock warrants was on vacation the one they exercised for i know that the that the that the department head was away but there were people that did this but did it many times before these were experienced officers many of them miller was put in the front because he was one of the most experienced officers so this is an experience officer who was he said very tense because they lost the element of surprise he said that's all yes and i think it would be useful to to to have to be able to look very precisely at exactly what evidence was offered in support of the theory that what was done violated accepted police practice and a council gave me a bunch of page numbers when i was asking the question but i think it would be useful to have the plaintiff give a letter within a few days specifying all the page numbers specify all the page numbers with a brief with a brief maybe three maybe maximum a three page letter explaining why this evidence supported a violation of accepted police practice have followed by a week later the city giving us a a response as to pointing to your specific evidence  our or or the absence and with a brief letter as to why the plaintiff's evidence failed to create a triable issue of fact as to whether there was a violation of accepted police practice and i appreciate that opportunity but he does anybody disagree that that is the standard the standard is you both agree that standard is whether the plaintiff's evidence showed violation of accepted  practice as opposed to just ordinarily conceive negligence and well i would go one step further and say that's required but there also has to be evidence connecting if there is a violation connecting think what you would your point is if in fact after the fact the the space was in fact too small to use the larger battering ram then the failure to bring the larger battering ram didn't cause the problems i would that's just that's that's what you get over whatever else they did you know if the plaintiff says well they should have used that under the door mirror show that under the door mirror whatever reveal they could have shown an officer outside without compromising the element of surprise that that the plaintiff was where he was and they did a trial intentions that they should be used in und ok fine with you you will answer the plaintiff's so can we can we get it within a week for the plaintiff another week for the defendant yes i preach it that and unless the court has any questions i thank you ensure that police properly safeguard protect the public and do not unnecessarily expose members of the public to unnecessary harm as well some cells police must obtain and use all available and reliable intelligence true answer yes next page one five five i'm sorry said the police chief ok next page one five five line eleven and promptly performing you duties means means ensuring that all members of the force receive all necessary intelligence to the best of your ability in answer to form that their task with yes ok so you walk into that year i finally that even if miller wasn't near the city it was negligent yes and not doing this and that you were allowed to join the inference that i discussed previously yes and i would note that in response to what he's saying we should not be faced with an unexpected situation that is the whole point of planning and here in fact testimony page supposed to plan for fifty contingency backup plans three thirty two to three thirty three different plans for different contingencies for seventy three should be sufficient personnel nine seventy nine if you cannot do it safely do not do it for sixty four abort the mission for sixty eight no records of any meetings or briefing before the rail read no discussion of alternative or backup plans three thirty one of three thirty two no intelligence so there should not have been any unexpected  push to be professional police force this supposed to plan for including failure to breach the door that's in the record as well this should not have happened with proper planning they did no planning whatsoever and in fact not only could they have gotten tight for two man ram that's in page seven thirteen and they admit that they were not aware of the existence or size of the hallway or the door until after the botched entry some of the team to seven fourteen they had no idea because they had no plans they came in blind and sweep aside things that that might turn out to be irrelevant sees i want to know whether i have disagreement from either side my perception is that the judge has given the reasons for setting on the part of the city now my perception is as i think i i went over this with plaintiff's counsel but i don't think i did it with city's counsel you don't contend do you that the special duty rule applies to a circumstance where the city's liability is predicated on the misconduct that causes the injury by the city's employees and in lieu becky for example there was a verdict against the city based on the misconduct of the city's employees there was no special duty discussed you don't disagree with that you do you think that if a police officer goes and says and shoots somebody in circumstances where there's where there's absolutely no justification for doing so if the police officer hears a loud bang and turns around and shoot somebody who's completely innocent that the city that there's no liability in the city and this there was a special duty owed by the city to the person who was shot that's not what i'm saying there would be liability in that situation on the battery under forty two u s c nine hundred eighty three police officer can commit an intentional talking about state law i'm not i'm talking about state law to state tort a police officer in that situation would be liable for a battery what i'm talking about is police liability city the city the city would be like city or the police officer liability for negligence this is a negligence that you don't dispute so so you're so you're saying in that circumstance the the absence of special duty oh due to the person who got shot would not prevent the city from being my book there's no there's no the city doesn't have to have a special duty to somebody who gets wrongfully shot by a police officer to be libel okee about different towards so no you don't that there doesn't have to be a special duty to find the police officer liable for batteries but for the tort of negligence which is where the special duty rule comes in yes the police whether the police officer cause a harm or not this still has to be a special duty because negligence is breach of a duty well we have to look to see what the duty was the duty of of of of pulling performance by the police in accordance with accepted police standards of the police shoot somebody in violation of accepted raids the police department violated accepted police standards and the result of their doing so was that somebody got shot who who wouldn't have gotten shot if they had done it the proper way in accordance with selected with accepted police standards does the absence of a special duty to that person bar liability on the part of the officers the but there haven't been any cases since the court of appeals decision in our flight that that apply agree with you that it broadens the circumstances in which the special duty rule applies but i haven't found any case is decided by a state court that applied in the context of a police shooting of this sort have you i haven't but can i tell you why i don't think there are that many cases on this and that's something that we argued it was our point one in the brief you can't have a claim for negligence arising out of conduct that was intentional this was not an accident the officer testified that he intended to shoot the plaintiff he didn't accidentally fire is gun he didn't hold his gun the we're talking about miller but i'm talking not about miller's shooting i'm talking about i'm talking about the plaintiff's assertion that the team failed to prepare adequately failed to use the right equipment created a dangerous situation which resulted in miller's shooting the shooting they didn't think that the argument but again there i don't see any their evidence sustains that does the absence of a special duty to ferriera mean that the city is not libel and the officers are ok that's your that's your position but you also address the city's position as to the governmental immunity ground and yet well you can do it in three sentences here g r i think my colleague was asking whether you also agree that this was  proper basis for a decision by the district court no i believe that you're asking about the discretionary immunity i believe that there is this question every immunity where there is no showing that the police violated acceptable standards in what they did and it's our right but if they did then there is no there is no there's no immunity when there's a violation isaacs ok there are all the cases seem to say th in other words it's a it's a slightly different different concept of the of what causes liability it's not negligence that causes liability it's it's a violation of accepted standards negligence wouldn't necessarily do it on this negligence that violated the accepted police standards but i would say that the standards have to be specific standards not generally you know somebody could come and say well it's a good idea to make sure that nobody gets injured and well somebody's got injured that means there's a violation of a standard that's not what i'm talking about i'm talking about a patrol guide internal regulations you're supposed to do this this way not do this that way that's what i'm talking about all right i think that's a good way to end it thank you all very much very much but we services and we'll look forward to your submissions thank you