he died shortly after being restrained by four dallas county sheriff's deputies in the lobby of the dallas county jail and the medical examiner's report concluded that is death was a homicide caused by physiologic stress associated with struggl we identified the fact that the only information that we had about the events were a video provided by the county of the occurrence and information that we received through a for a request that we did on our own before we even commenced a geisha and in the documents that we received the witness statements from the officers of the people that were present county employees that were present at the time the names and contact information of all of the eyewitnesses that were not county employees were redacted and because the video has no sound which we identified in our motion we contend that we were not able to sufficiently respond to the motion for summary judgment because as this court held in darden vs city of fort worth and frankly even more recently in joseph versus bartlett summary judgment is not appropriate on a qualified immunity to sense if there is a is there is a question of fact as to what actually happened so specifically again what discovery did you request we requested  provided to the county and finally we said in the event that it becomes germane could we possibly take the deposition of these witnesses again to find out what actually happened if such information was not  the courtroom that these requests were not narrowly tailored to the qualified immunity analysis and not have discovered so the only information that the district court was able to consider when ruling on the summary judgment provided by the movement as opposed to the nonmoving having an opportunity to at least raise a genuine issue of material fact as to whether their description of what happened was actually correct and we believe that was error because these exactly as this court held in bullets versus wilson which is one of the cases on which both the i believe these and the district court rely in this court noted that discovery was permissible and one of the reasons it was permissible was because the information that was being sought involves private citizens and eye witnesses and wouldn't burden government employees at all all we were asking for was not redacted versions of the reports and the identification of the people that actually saw what happened and we really believe that sorry judgement what what is there about what happened that would be revealed by audio or by other witness statements and it is revealed by having a fact finder look at the video car accident and the defense submitted a video as part of a summary judgment evidence showing that the deceit and was driving absolutely recklessly speeds of over one hundred miles an hour threatening what we see on the video is mr hutchison entering the lobby sitting down on a bench getting up in approaching an officer sitting down on a bench a nd time not bothering anybody it was clear that he was on  amount of time now that's that's very different from scott versus harris because unlike someone who is fleeing the scene in a high speed car chase and presenting you know it's obvious that they're presenting a danger to themselves or others whether and why hasn't that plainly shown by the video that's already in the record whether he resisted or did not resist but your honor i think that even if there was evidence in the video that he was resisting being  hogtied or restrained in the manner that he was you know there's a dispute over whether he was our entire not this court's recently said in joseph versus bartlet that some degree of resistance can be expected when officers  as to what actually happened summary judgment is not appropriate so if when mr hutchinson let's talk about the officers and immediately started screaming for example i can't breathe i can't breathe i can't breathe i'm not resisting that i think that would be a fact that the jury could consider as to whether the force is excess moreover when mr hudson was walking through the jail lobby the things that he was sane to the people that were on the benches or the people that he approached in the lobby if you walked in the pub locked in there and said i'm going to kill all of you ok that's one effective i could say perhaps the opposite his reaction was appropriate if he was saying i need help can you help me and was simply not placing a threat to anyone was unarmed was not trying to flee was not doing any of the things that this court has held repeatedly constitute the use of excessive force and that's a fact question for the jury but denying us the opportunity to even asked other eyewitnesses what actually happened is extraordinarily prejudicial because we simply couldn't rebut that maybe we could meet our burden because we didn't have any evidence whatsoever all we had was the statements of the officers which you know i'm certainly not going to impugn their credibility at all but that's their evidence we don't have anything and we the court this court and the supreme court has held that we're entitled to limited discovery and again that comes out of the line both tests and it's a three part explained i think meet that as well and then the rd is is the ordinarily d tell you to only uncover fact necessary to rule on the immunity defense and i think that is definitely the case here because our only claim f officers properly it can provide background information as to what happened but the usual course of these proceedings is that the qualified immunity claims are dealt with st limited discovery is allowed the mono claim sits on the side and under the supreme court's opinion in los angeles versus heller once the qualified immunity issue is resolved then we turn to see whether there's a possible mono claim because for obvious reasons if the court or the jury concludes that the officers didn't commit a constitutional violation it doesn't really matter whether the municipality that you know gave that unconstitutional conduct if not no one cuts to social conduct was committed by its employees book here the district court clerk concluded that we had failed to state a claim on which relief could be granted they actually address the merits of the mono claim based solely on our pleas and i'll concede this court i don't believe in the past th years has affirmed a jury verdict or overruled a summary judgment on a single incident exception failure to train claims but that doesn't mean the claim doesn't exist and i think if you look at the allegations in  procedures that the county used has it had been reasonable the incident would not have happened now granted it's speculative at this point but of course it's speculative at this point because we haven't had the opportunity for any municipalities doesn't don't have that defense and we pointed out judge ellison's opinion down in the southern district of texas in which he outlined all of the reasons why discovery questioning why the pleadings standard should be reviewed much more liberally in favor of the plaintiff when they're pursuing claims against a municipality because obviously until there's at a time to conduct some discovery and figure out what actually happened you mean that the average lay person doesn't know or doesn't have access to the policy or internal documents a conversation simply making the allegation is enough and the policy reason behind that is judge ellison very keenly pointed out is that there is no risk when making these allegations against  of pulling officers off the force or taking people that you know should be serving the public and pulling them out of their jobs and putting them in conferences in courtrooms so at the pleading stage anyway we al sought rd the district court heard in resolving the county claims before the individual defended claims and for that the district court heard by determining that the balance failed to state a viable claim against the county i will address those arguments and slightly different order st that there is no error to resolve the county claims before the individual claims nd that the will claims against analyst conny were not facially plausible that the surveillance video was sufficient to show that there is no genuine error to resolve the no claims before the claims against individuals the argument relies on an entirely misplaced reading of the city of los angeles st however heller and its progeny hold that there is no governmental liability if there is no underlying the district court dismissed the claims against the county because the parents did not pleads fission allegations on a customer policy of a failure to train the dismissal had nothing to do whatsoever with the determination that there is no constitutional harm or that there was a constitutional harm but that the individual defendants were entitled qualified immunity which is the subject matter of the heller in the district court terminations it was based entirely upon the facial frankly i guess i in my twenty years of practice frequently see as i'm sure the court has district courts dismiss on twelve b six grounds claims against governmental entities leaving claims against the facts support the inference of the training was so in adequate as to amount to no training at all that's anderson versus marsh county the single instant exception usually requires a complete that if you allege that there was no training whatsoever then you have a favorable basically plausible claim so why was the district court correct that the opponents failed to meet their pleading burden well the appellant did not provided training that quote amounted to no training at all as the court said in march with vs anderson county instead they propose hypotheticals what ifs as to whether the officers with additional or different training however this court held and would tell that an allegation that more or different training would have prevented the harm alleged is insufficient as a matter of law to plead a viable claim and that is precisely what has happened here the appellant's pleaded in their complaint that there was training and that the incident would not have happened if there was more different training and as a matter of law and this court's precedents that had to plead in order to plead insufficient claim for these reason and i would also am that a party cannot remedy a deficient complaint just by conditionally asking for leave to amend in response to a motion to this court recently said a good faith assertion of qualified immunity alters the usual summary judgment burden of proof shifting it to the plaintiff joe that the defense is not available now pelleas did state what the basis of their qualified immunity fence was to send to argue otherwise is willful nonsense the individual defendants motion to dismiss which was later converted to a summary judgment by the district attached to the complaint the surveillance recording which was admitted into the record without opposition now if the motion to dismiss had originally been filed as a qualified immunity summary judgment  would have had the burden of proof to disprove the entitlement qualified immunity the appeals also say that the district court granted the summary judgment the converted summary judgment for grounds not stated in the summary judgment but the court in fact granted the summary judgment motion for the exact grounds stated in the motion that the force used was objective really reasonable now the defense proffered darden vs city of fort worth as the control g law in this case as to whether the officers the individuals used excessive force but count was supreme court th circuit decisions warned about the common error of defining controlling law conflicting testimony which is not true here the video was intermittent she and her actions were not recorded a shirt was ripped off guards back there were attempts by darden to comply with verbal commands darden choked he was punched and kicked in the face he was teased i think twice a chokehold was applied and there is extended pressing of his face and body into the ground and then an obvious to niall of medical care in other words the force used in guard was strikingly different from the force used in this case now the absence of sound in the video does not create a general which excuse me a material issue of the genuine fact dispute the appellant's fail to identify any material fact dispute about what happened that occurred in the audio that audio could confirm or refute again depends who are attempting to flip the proof bird stating that quote the silent video fails to conclusively establish that the individual believes use of force and joseph was constitutionally permitted then the coach speculation as a genuine dispute about material facts but numerous facts are they say are absolutely disputed because the video has no sound well it's disingenuous they're not disputing what took place they are saying we don't know what took place and that's not the same as a genuine fact dispute it is noteworthy that the supreme court case that made the video so central to summary judgment practice got the harris was a silent dash cam video taken by a police vehicle and in that connection as this court observed and one versus st student in a district court must quote result factual controversies a very of the moving party but only where there is an actual controversy that is when both parties have submitted evidence of contradictory facts the opponents here are really failed to cross that threshold as was their burden those the district court did not urge in finding that individual defendants acted reasonably which could be observed by watching the video i would also take note of the fact that the video does show something very interesting and that is that when joseph walks into that lobby just for wherever he goes causes people to scatter this is not someone who just calmly walked in and everything was ok you could tell anyone can tell by looking at that video that mr joseph was creating such a it his presence his demeanor his actions were so disturbing that the common citizens in that lobby tried to get away from him very definitely were trying to get away from last issue i will cover is that were i think the court began just one of the district court must be st narrowly tailored to uncover only facts needed for the district court to resolve the immunity issue and secondly the community issue turns at least personally on a fact issue and the did district court is unable to rule on the new defense without further factual clarity as with this court held in the ambulance the district court correctly apprehended that the improper and open ended nature of the appellate discovery did not not present an actual fact dispute in their complaint the appeals to not present an actual fact dispute in their motion for discovery instead of hellas discovery motion asserts that quote a general in dispute as to the material and are prepared in this case exists and vote but they don't identify that dispute it was as the district court apprehended a fishing expedition in fact  parents admit that the purpose of the request to discovery was not to flesh out a material fact dispute but instead so that quote parents understand counsel can provide guidance excuse me appropriate guidance to their clients after learning whether defense or contradicted well discovery and a qualified bermuda immunity setting to provide guidance to your clients is not nearly tailored discovery that will assist the district court in resolving a specific act dispute is the furthest thing from it is the antithesis of the proper purpose of discovering the call had immediate context further it is clear from the palace requests that they were attempting to uncover as the district court noted any facts as opposed to specific facts that might help support their speculations i repeat speculations about what occurred further still this court has held that a district court must quote identify any questions of fact it needs to resolve before it would be able to determine whether the defendants are entitled to qualified immunity that's an opinion offered by a judge dentists a pata versus nelson  that the discovery can be tuned that is merely tailored to uncover the facts that the district court decides that it needs to have resolved before the rule i don't mean to attend a judge qualified immunity and secondly the court did not identify a specific clapp dispute that qualified immunity discovery would assist the court in resolving for these reasons the district court did not abuse its discretion by design propel its motion for this coverage and for all of these reasons parents asked the court to affirm the district court's judgment in all respects i have a little time left and i have nothing further unless the court has a question of me this year so it was not my briefing this was an idea but an important piece from that opinion and if you don't mind if i read it verbatim just judge will approach darden announced no new rule it reaffirmed already  despite the fact that darden said it was clearly established in two thousand and thirteen which flowed precedent and or rule of orderly orderly as these events took place in two thousand and fifteen so the rule as announced two weeks ago in the circuit is if that just a touch of sin was not resisting arrest you cannot physically strike in the video clearly shows that he was physically stricken so the idea that somehow this video is dispositive that no by aleisha it's a place or that the officers were justified in doing so respectfully disagree with my learned opposing counsel the other thing that i would like to point out is that he relied him be on a couple of cases in which the pleading standards for failure to train claims  exactly what we're asking for here are allowing us to at least develop these cases if we can get by qualified immunity against the individual defendants allow us to pursue discovery you know mr sugar it's use our allegations of being speculative or not asking this court to assume we're not saying we're entitled to a presumption we're simply saying that we pleaded a cause of action that exists he also referred to your opinion judge smith in the pena case and in that case it was it will be six motion that was sustained on appeal but in that case the that case complained about taser use and for whatever reason the plaintiffs in that case admittedly that the officers had received taser training and in our case we've made no such admission now every officer receives some training you can't be an officer without going to the police academy so to make that the threshold standard would simply and what the dallas county requires of its officers and also alleged the existence of an authoritative source for what kind of training needs to be provided and then in our allegations on failure to train alleged that if these policies weren't followed it could be because of a failure to train now again this isn't a summary judgment response that we're filing here this is that the basis of our allegations which again  might be might be wiped out on summary judgment if we're not able to prove that but to say that a failure to train claim doesn't exist even under the single incident exception i mean that that's just not correct and if our allegations were not specific enough for us to show why the b actions in this case were so abridges i believe we'd be entitled to an opportunity to be plead that you know if the standard is have you alleged your best case no clearly we have supreme court to circuit case law that acknowledges this is a cause of action if there's simply a factual detail that could have been included and remember just like they tell us and said our knowledge of the factual details inherently limited simply that it nature that we don't have the internal information before hand and i see my time is almost up but in this particular case the only witness that we could have that could support our argument unfortunately is deceased and that's mr hutchison and it we would be we are completely hamstrung on both claims because we can't get the information about who the witnesses were and obviously we can't get any information about the county and so we survive summary judgment against the against the officers i see my time is up if you have any additional questions to be glad to answer them otherwise i rest on my dreams thank you mr king your case is under submission