here that a training exercise can never cries it to active duty certainly there could be a number of scenarios with the come up with unfortunately that's not what we have here we don't have a situation where the  training was not required by any state law it was not required by the rules and regulations of police department there was no ordinance nothing that's all there was it was not require a fireman to be a police officer was not a requirement to be a surly a bicycle officer plaintiff police officer is not required to complete to be a bicycle officer as a condition of employment or found at the tactical maneuver secondly the training was not required by the rules and regulations or the ordinances of the crimean police department and finally the third element that was not present was it was not an act in which the plaintiff police officer was acting for the direct purpose of saving the life or property of another person that's the statute that's what the what the statute in the cases interpret in the statute wire have to have this special risk unique duty and you have to have this duty being performed by state law or the rules regulations or ordinances of least apartment or it's an act or form that by the police officer becomes disabled having for the direct purpose of saving a life or property of another person we didn't have that i think that second is off the table what the board found is that there was other civilian occupations there were other civilian activities writing bytes so there was no uniqueness no the plane or who is training to be a bicycle officer i have no sir i don't believe it does appear at night well first of all i can think of a lot of examples perhaps the answer your question it would constitute rest firearms training swat high risk felony tactic something of let nature that could be ordered by the police chief to be training that would probably be special rest in other words ordinary citizens don't have to do that so it's not just i'm ordered to do it i'm required to do it there's really two prongs that have to be satisfied any police officer under the case law on the statute that are eligible for the benefit you have to have the special risk and then it has to be required either by state statute required by ordinance or police regulation you need ball or you need that final one which i don't think is present here so the best example i could give you  the legislature across the street has come up with all sorts of mandatory training it's actually by statute what might meet the first requirement there's diversity training there's  there's actually scenario based shooting scenarios so those are mandated by statute now and that the shooting one may in fact meet that special risk because ordinary citizens don't do it but training classes legal updates things that might be mandated by statute aren't necessarily they don't need to retry a criteria of having that special rest but going back to what justice five minutes just statement as to whether or not you disagree  the training incident should be considered an active duty and i think you indicated that under certain circumstances it could be such as weapons training or swat training something along those lines is that after that that is fair that's correct that then leads me to question how you distinguish all  then it would seem that the arms or face in the jones case would support the plaintiffs of position here i would respectfully disagree with that for the following reasons first of all  yes almost an officer riding a bicycle officer on was an troll actually all the cases that are talked about in this horse decision don't jones was also a line troll so i  circumstances is a line of duty that really blurs the line now i think renders the legislature's use of a line of duty and that duty disability pension really meaningless because there is a line of cases very thoroughly throughout the the state that being on duty and in uniform alone is not enough there has to be something more that's not enough you have probably the closest case that you'll find it we think it's the most persuasive is a case that mr mulcair i were involved in which is a training case which was the swoboda case of the second district that was one where actually mr multiethnic made the same argument that the officer was required to do a bench press he became injured while performing the we'll call it mandatory bus bench press and the court said that does not involve special  court specifically rejected that argument saying that ordinary citizens perform weight lifting activities in have a risk of incurring weight lifting his activities well you mentioned firearm court the same question and i agree there are there could be ordinary citizens that do firearms training but i think the difference is is there a special risk and this is the other element that bicycle as she was going up on to occur i don't recall that in the new over but i think the cases tell us that it's not the it's the capacity which the officer is engaged in at the time of the injury now at the precise that that procedure i forgot but they know it was something which would be pretty it's not exclusive pretty much limited to a technique used  enforcement officers climbing or curb on a bicycle i believe the evidence before the board by the person conducting the test was that that her job was the same type of her jump that was taught in other civilian on some of the court's questions the way you distinguish this case from the alm in the jones case is based on this unique factual record that was generated in this case if you look at the factual record the testimony from the trainer in this case he testified that this is not unique to police officers this particular technique that he was teaching he testified to was purely defensive or safety related in nature it was a intended to avoid getting out of hazards in the roadway or avoiding vehicles it was not in any way intended primarily to involve or allow the person to engage in felony pursuit as there was some suggestion we would encourage the court if you haven't done so already there is a video of thirty seven second video snippet of the actual training exercise not with the applicant but a mock that the trainer actually showed to his trainees thirty seven second set will show  the nine nature of this particular maneuver what you will see if you have watched it or you will watch it is that it involves someone on a bicycle slowing down next to a curb parallel sticking their foot out onto the curb or onto the sidewalk lifting not jumping lifting the front wheel onto the sidewalk and then pushing with the pedal to get the rest of the bike onto the sidewalk we would submit that it's there that you can take judicial notice if you watch this video and is the pension board concluded this is not an inherently dangerous maneuver and based on the back to record that you are limited to in the pension board was limited to we would submit that it was not clearly erroneous and  certainly was not a man a violation of the manifest weight of the evidence standard for the pension board to conclude that this is not police centric this was not police unique in a sense if there's even a word there are parse there are civilian equivalence this type of maneuver and this person testified in off road biking and his training classes this was taught all the time so that would be how i would well to the extent if you noticed in the response or the apple e's briefs they had re certain facts that were never ever found or actually included as a statement of fact in the pension board's decision for example i believe they had cited some record evidence about this technique being inherently difficult that was never an actual factual finding so to the extent that the apple e is trying to introduce facts they have a penchant for never recognized that would be i think where the manifest w the different facts that were not focused on and were not actually found by the pension board so for example there is this question of whether or not she was engaging in felony pursuit the record evidence we believe is very clear that at that discrete moment in time when she was committing gaging in this maneuver she was not engaging in felony pursuit but she admitted as well as the trainer admitted that this was not a felony pursuit scenario this was simply a group of individuals getting around in a circle practicing driving up to the curb looking in their front wheel and getting onto the sidewalk so that's one example of the fact that seems to be somewhat ambiguous they claim they point to a factual finding that it was felony pursuit the record evidence clearly shows that it wasn't if you were pursuit or not it would change what she would have well i think i think that goes to the crux of the supreme court's test word says that you have to look at the crux and the capacity in which you were acting at that  looking for and what are the facts of this feud on the circuit before us well i think with all due respect i believe that will make a difference whether or not it's characterized as felony felony pursuit whatever that means i'm not quite sure because the record is not clear right to climb the curb for defensive emergency to avoid emergency obstacles in the roadway there's a different way to climb the curb if it's not possibly is there any evidence in the market there's no evidence there's no use rightly so this is the way difficulty of the technique there is clear evidence in the record saying that there is that this was not difficult they have cited to a statement taking it out of context just saying that this was a difficult there was some test there was some sure i believe is the loss of the facts and the facts of the law i don't necessarily think clearly wrong is depends on an actual dispute in fact i believe there's a lot of cases in the labor board context where the fact of the to factual record is undisputed and yet the courts still have appl would submit it very least there is a dispute between the parties between the factual record as found by the pension board and additional facts if the pension board did not explicitly find additional  point to in its in the record and i believe there you have this mix ambiguity that is starting to form about what the factual record says and i see my time is almost up by the day that is what i would say to go back and look at the believe so i believes clearly erroneous should apply and it regardless of whether or not there is a disputed issue a fact in the record i believe the case law and i could be wrong i will readily admit it but i believe the case law suggests that when you're applying  statute to a body of facts and you're trying to figure out whether they have properly applied those facts and interpret the law is applied to the facts whether the facts are disputed or not i believe clearly erroneous applies but i wasn't certainly wrong the supreme court in the believe the facts it has found by the pension board and i believe what you should be limited to in terms of the factual record we believe that those undisputed facts if you even if you do apply to noble standards just those facts we believe that assignment i want to point out that the second prong without even discussed by the board they didn't find against officer killian on the second prong this is really a special risk analysis let's take a look at what the board found and i am happy to accept the eighty two numbered paragraphs of factual findings by the order and say based on that then it is of the novo standard to review to determine the active duty question would you sit in your court did look at the record and did a very good job of examining the record and cited some additional facts that weren't cited by the the board and maybe to that extent it is proper to use the clearly erroneous standard but let's take a look at the the undisputed findings of the board now one of the first ones is paragraph eight the apple can't hit britain bicycle's all her life and i'm going to jump forward now to page eleven of the board's decision and they say in fact apple can testify she'd been writing bicycles for most of her life and then report says this fact alone were clues applicant from meeting her burden of demonstrating she's entitled to a line of duty disability pension so i guess i should have gone home as soon as my client suppose all my life but of course that's not what our supreme court has said in the johnson case where officer johnson is merely walking across the street we assume he's been walking across streets as entire life and yet he was entitled to a line of think you look at the case law there's a spectrum out there so if someone is doing something very ordinary such as officer johnson walking here cross the street but he's on patrol and responding to a citizen serving and protecting we're going to call that in the line of duty and maybe on the other end of the spectrum as the case i lost to mr rimmer in the second district which is times for where he's out of uniform i think there are actually a gym somewhere and he's given a bench press has nothing to do with serving and protecting anyone at the the analysis how would that come into play when a training exercise steps aloof if the board was correct that the fact that my client knows how to ride a bike alone is the end of my case then you would think the city of pontiac would say officer gilliam you want to be a bike patrol officer if you're in a bike all your life yes i have here's the bike go out on patrol but they don't do that in open the record is clear in order to on bike patrol you have to afford a course and they had course consists of a course of study that is developed not by bike experts but by police experts the purpose of that of course is to teach officers to be able to write bikes in holes on patrol for their own safety and to be able to ride bicycles on patrol effectively and the maneuver in question is clearly not just a defensive maneuver the evidence on that when he says i think this is my question i mean the bike but troll isn't going to chase a car they're going to typically chase another guy in a biker on foot answer we can take both actions and that was in reference to what would you use this particular procedure for so it's both often so and defensive it has to be to the issue of is this particular technique  unique the police or is it some average citizens do and again this is a specific finding by the board and this is finding number seventy four regarding whether the parallel unique to police bicycle patrol officer summers testified i wouldn't necessarily say it's unique i'm not a civilian instructor i don't teach like civilians on road bikes hills and i'm not associated with any of those techniques if you will i only teach the police part of it so there is clearly a police component unique the police of this parallel purpose and i asked sergeant summers when i was a kid riding a bike and i would try to go up the curb i would go that route pickler to it ninety degrees and he explained well that's not the the hazards that police officers face where they have to either get out of the way quickly or hop over her in order to chase someone so the facts is found by the board and that eighty two number paragraphs clearly indicate and the spectrum of they were not on patrol were in training but is this kind of training absolutely correct go ahead then how the officer felt and again that the city raises some issues on this but the findings of the board was yet and this is paragraph nineteen applicant testified when she fell my arm was actually on the was between the butt of my duty weapon in the concrete and my arm was underneath was underneath the rest of my bottom line is the same question i asked of the consul three rivers or so that is once one of the start how are we as a court supposed to deal with these other factual matters testimony what's the board of the dress well i think there's two ways obviously the parties have briefed the facts and they set out their you to look at the eighty two findings by the board why did no post entered and overturn the horses so to the extent that they are not that's fine of the matters cited specifically by the board what should this court do with that i think to the extent that the court doesn't believe the eighty two binding are sufficient i think the court can and certainly should look at the record and see if there are other facts which are genuinely not in dispute and if the court binds their relevant material i think the court can certainly look at those and consider that this has been changed the nature of to be here but you're kind of giving an advisory opinion that the end of the day isn't really going to be important for the appellate court well that's good advice but what should what is your advice for us and ignored i think the safest thing for what you know is to take the eighty two bindings effect by the board look at those that make a decision as a matter a lot of you know of standards so anything beyond those  find things as far as finding for screws or we should this rigor i think you can disregard them and i think i'd try asked should we is that what you think our rules should be have to go through this four day training and if you don't do what your instructor says you can discipline so it in my mind that creates a special assignment situation at the office or he has to do those four days but again that going to be in the line duty when the supreme court says certainly line of duty is not limited to being on patrol is the will of the pension act for making this determination of line of duty for police officers similar to the act as it applies to firefighters i think there's a couple of twists and turns and there i don't represent firefighters but they're not directly analogous i think that  quotes the johnson decision quote the crux is the capacity in which the police officer is acting when the police from his fall upon to respond to a citizen he must have his attention and energies directed towards being prepared to deal with any on patrol right and i think and use it if we follow that to its logical conclusion then it would be that there could be no line of duty pension benefits ever or officer in ga potentially a line if you're injured doing the power lift for your annual exam you've got a pile of case law that says that's not so where does shawna gilliam come and that specter well of course followed johnson you know the crux of the paperwork issues i don't know there's certainly a lot of training police officers do out of a lot of their paperwork properly that may not that take into account that the special risks of a police officer here that we've got training like swat training that directly relates to the police force and you know she's in uniform on the streets does that mean she's automatically in the line of duty now but i think those are factors i think if you look at all of the factors that t special risk requirement i don't think you can compare apples and apples here firefighters are different but the analysis is the duty is what there be  myself i don't want to give the impression that i'm somehow anti police firefighters have a lower bar they have the requirement that they they become disabled while resulting in act designed to perform the life  me i should have slid wrong the other line stand in the firefighter way so if i don't think you compare him i can tell you the our supreme court has decided cases involving the c but benefits i think you may had a couple of public safety employee benefits act and they were training cases they were active duty this is the most litigated area under article three of the pension code what is and what isn't an active duty it is their of reported decision involving a firefighter climbing a ladder simulating that who got a line of duty disability and i'm sorry i wasn't clear on certain terms of of of one of police officers  an officer who's had duty in uniform in fact he made the same argument mr mufti makes here he says i'm delivering supplies i could be disciplined if i don't deliver the supplies if i don't do what i'm supposed to do he became disabled while delivering supplies in full duty on uniform following the borders of his boss and the courts said no that is not unique that is not special risk and just because an officer is an duty performing orders duties assigned by the orders of the supervisor would render meaningless the difference between article the line of duty and the nine duty disability pension and that that to me is the fear i think there's a slippery slope here i am as i said at the outset i am certainly not saying that a police officer and never ever get a line of duty disability for training and i think i gave you some examples haven't seen a case yet i hope you don't have it because it's very hard to establish of a bright line test i think though that you don't have it here because according to all the cases that have been turbaned deception you have to have those three elements and i think she did not meet and he had three elements i would be happy to answer any other question you have i don't want to wear out my walk soon questions