focus the court's attention on precisely where the district court's analysis went wrong and you can find on proxima page ten of the slip opinion page seventy six of the record where the court basically imports the holdings from the turner versus rock from the thomas versus roberts case of the eleventh circuit now that the has do you realize very heavily on that case and the court cited throughout its opinion but the crucial distinction here is that thomas know what sort of a minute a mental exercise can go to thomas remove the phrase demonstrate or prove or proven or sufficiency of the evidence and instead go to the case give us more time yes we can distinguish thomas very easily act actually if you start reading through thomas they cite to one particular aspect of kata that one sentence of tonic where it says ordinarily you have to have a pattern of abuse but then connick goes on for five six pages explaining the exception to that it's almost as if the thomas court started reading conic got to that sentence and just turned the page and just raised the book so we conflated the two required single to require a pattern which makes no sense but yes required single and we also have the exceptions set forth in conical where it's an obvious result it's an obvious predictable result what's happens for you not going to have training civically if you look at the person who can do it who is in charge of the search miss higgins who was assistant principal who was in charge of student discipline had no training at all and how to conduct searches you would have to say that it is a predictable very predictable outcome that if the person at the administrator in charge at the school in charge of student discipline and therefore student searches does not know how to perform a constitutional search  predictable that there will be unconstitutional searches and here it's pretty clear i mean i can rely on thomas that the the searches here were unconstitutional that the standard provided by the independent school district talk about what was required for search including reasonable suspicion that you mean how much how much training of the not training how many hours were they supposed to give well that's another interesting question gunner were not allowed to if there was inadequate training were saying that there was no training at all and there's no indication that the they were ever briefed on it where there was or explained to them it was it's almost ironic that they object to our claim for injunctive relief by saying it's just an obey the law injunction we were seeking when the instructions that are given in the h s t manual are just obey the law don't be unconstitutional they don't define the terms they don't do anything there's one specific portion where the talks about obtaining consent but it doesn't say anything about what constitutes reasonable search when you're searching for contraband when you're searching for money anything like that those guidelines are not written and it's not part of any training and we specifically allege in the petition that there was no training and that lack of training led to this impermissible search i mean just the fact that they that the written the written policies state that you only have a search if there is one if there is contraband contraband to find his weapon or drugs that sort of thing nowhere is it permissible to have a search for missing money obviously biz higgins was not trained in that otherwise she would not have had the search so the failure to train the absolute failure to train is not an adequate training i understand if we were alleging inadequate training we would have to say we might have to allege pacifically why the training was inadequate we have to have videotapes instead of just instead of spoken word instructions but we're not alleging inadequate training we don't have to go into that detail because there was no training at all but why wouldn't stolen money be contraband and or anybody's reasonable understanding the h o a s d does not define stolen money  contraband and this goes into the analysis when you start going to the t l o and safford independent school district who goes into the reasonable this of searches resumes or strip searches well are you saying that no no stolen property would constitute contraband amount of things looking for stolen jewelry or stolen cellphones or anything else of of value none none of that in your view can reasonably fit within the word contraband but it's not necessarily my view i think it's a view of the us supreme court in south africa and t l o when the reason most of the search is must be adjudged in relation to the threat posed to other students so it's ok to have a full strip search if you're looking for a knife but not necessarily if you're looking for ibuprofen or stolen money the store money does not pose a threat so the reason is of the search the scope of the search is determined in part by what you're searching for safford hence it's not really clear what the harm they're talking about but i agree with you it doesn't seem to be just own property it implies as to be a harmful instrument or maybe marijuana would be harmful it's a little bit what was the you know what the breakdown of the supreme court decision was in safford not of the top of my head but there was there was or not there was a split on that but the but sort of this contraband point is i don't really see that relevant here i don't i don't i don't think it's relevant here then you've been confused about what contraband is or isn't but we're not talking about the object of the search that would make the search legitimate maybe arguably if it were harmful we're talking about the method here but the reason i discuss contraband really and i raise that is that there is no training on what contraband it is and even if it were relevant in their mind there's no train so how does the h s t employee know what's a reasonable search to conduct if they don't even know what contraband and if they did you know and obviously they didn't know that h s t prohibit searches for missing money and not for not for weapons and it's just an example how the training for the not the training failed that absolute lack of training led to violations of constitutional rights you reminded us a property that this is on a motion to dismiss so is there if this were remanded would there be discovery that you would be seeking or so what would be the fact issues well there was some discovery conductors or two tracks going there is the motion tracking and there was a paper discovery that was going on one of the key things we want to do is take depositions to figure out were there actually what was there a pattern and practice of strip searches among others who they didn't e mail to various h i steve this is example of the the transgressor of having been in charge of keeping his own records you know they asked each id principles have you done any i just because i'm interested in the question he asked what would be a relevant fact if the only available theory were single incident city of canton theory what would be the relevant facts you would discover other than practice two hundred thousand kids over what number of years well it would be the extent the training was given and whether training we have found no evidence of any training that we would want to nail that down and i will point you specifically to what we would want to flesh out and that is a on the clearly focusing on training how much training was given when to start and still instructing them the answer in its entirety is the district is still research and determined when it first adopted a search policy which had a policy regarding student searches for at least the last fifteen years nothing regarding training nothing garden instruction we would want to flesh that out and if we could flesh that out we would probably get past a separate judgment we could you know we would have sworn testimony from the defendant about their absolute lack of training a record page ninety six but there are sworn response to our question about training was to say we had a policy and we're still searching for it so to at me that's just one example of what we'd want to look at in depositions and perhaps  get a fuller answer to that so yes fuller discovery would help us get past a summary judgment we would not be going up on the exact on the side i don't need to bind you to every detail we just cover generally the categories of things that you well for instance we would like to do some world discovery do some depositions some further inquiry into whether or not the other strip searches are improper unconstitutional searches occurred at other schools and has to sell we have as reporting response to an violative part was the no reasonable suspicion as to how many girls were there twenty there's no reasonable suspicion what we were talking about earlier in the safford issue or you know was a something you can really do strip search for a violation of the fourth amendment rights to have that type of search for missing money so that constituted the un constant and that has not been a need that was not really contested so on cost clearly unconstitutional search as to twenty roughly twelve year old girls because there's property that's missing they have this is the scenario of an agrees to from money's missing school says ok all twenty girls were going to strip search and they say that's unconstitutional the issue is whether or not the school district's liable because it didn't train them yet it authorized that type of strip search but essentially the situation i mean i would reframe the question is and they're and they're not right for some for disposal and twelve b six clearly we have the allegations to support to get past the twelve the six motion and we need to gather the evidence and get before the jury and we  specifically what evidence we can gather that with the city of comic there haven't been too many single incident really failure to train cases what's the one from any circuit the things the most insightful in analysis there  of all allegations do you have in your first in the complaint that this constitute deliberate indifference well we have the very plain statement that act they acted with deliberate indifference the fact that they're given absolutely no training at all apparently has been going on for fifteen years further this court is out to make reasonable inferences of its practices and take inferences from the complaint that if this practice has been going on so long that it must be intentional on their part to not have any training i mean their policy is literally just an obey the law it's a summary of the t l o opinion that you have half the syllabus of the hypothetical if if the school district and i'm not arguing and i'm not addressing the root will be thick on this trying to understand your position i don't know if i would disagree with you to the extent that the school district mean this is a large urban school district and its largest in the state of texas and it  hype magination to think that the school district did not think that there would be the possibility of searches at high schools and that and middle schools and even elementary schools and that the that they could get away with not having training protocols so that the the you know the very administrators there in charge of student discipline don't know how to discipline the students constitutionally  responding out superior back into municipal liability but before i get into the particulars of municipal liability i'd like to highlight three factors that are extremely important in this case and first of all this is an appeal of a rule twelve b six that dismissal wasn't granted until after the opponents had been offered one opportunity to replayed to address some of the issues and our first mission to dismiss also wasn't great until after the discovery deadline had passed and there were no motions filed requesting an extension of that deadline it was granted after the opponents had conducted written discovery and after filing an amended complaint which they attached for exhibits obtained through discovery and i think that while thomas p roberts has all of the same facts in this case except for the amount of money that went missing it was decided on a mission for summary judgment but to distinguish it on those grounds i think it's a little misleading based on the stage at which our lawsuit was decided were there any requests in the record so far for the opposition there were discussions about that and we offered to extend the deadline for depositions to be conducted  there seem to be three or four different policies that the school district was operating on they were like label legal regulation some school guide it's not true chatter and one of your policy said searches could be conducted of clothing in pockets and in another one though said searches could be conducted with students so you got one specific policy and then you got one general policy and and you're conceding that this sort violated your your policy so i assume you're saying some searches of students of this type are not permitted correctly are we are stating that well they can go beyond so they c beyond searching pockets or clothing under certain certain circumstances but the but the policies in the this case were clear and unambiguous the policies address the searches of students to only be permissible if there is evidence of contraband present and contraband or specifically defined to include things like drugs weapons alcohol things that have some kind of element of danger or threat to the students and do not include the fifty dollars that that was that issue and those who they just added that the doesn't define some element of danger that that's the common element that runs throughout your interpretation it's my interpretation and property under texas law would be contraband danger all of this might make sense then it would be unconstitutional but the policy would have told the teachers it's got to have some danger element if if what you just said was in the policy were in the policy the school district would have less exposure but you don't tell them that well that may be the case but there's there's also a higher standard that's applicable to school districts in this case and that that's the standard that set forth and know now but as far as the discussion that's allowed under board policy that the penn bar b study of cincinnati the supreme court of the united states role that the fact that official has discretion in the exercise of particular functions does not automatically give rise to municipal liability based on the exercise of that discretion i mean i originally view of very curious about the question you were just asked by judge bork still it would seem to me the specific would modify the general and you would come to us and say our school teachers cannot take a class this is a choir class a choir class of school girls that are preety and stripped them all because someone can't find something i would think you'd be saying we have a specific provision that tells teachers clothing property outer garments with reasonable cause and that implies you can't strip search without even reasonable cause but you're telling us your position to us in briefing in an oral argument is that in fact they can strip search when property missing well if it's contraband if that's your position if it's contraband our position would be that as stated in court policy which yes we do have in the state of texas we have our legal policies and our local policies legal policies  the language of the law my question i think is pretty simple is it your interpretation these policies that teachers can strip even twelve year olds when property goes missing that's incorrect because of the limitation limitation is there must be and suspicion which was not present here you have to have reasonable suspicion as to each student and that was absent here so again if you have reasonable suspicion that a kid has stolen some money the school policies you can strip search can you do a body cavity search and i don't know but where does it tell them they can't do a body count i think bret that would be an incorrect interpretation of the word contraband so you're resting it on contraband yes your honor and you don't tell  that stolen property is different than a gun or than drugs well that contraband a specifically defined as is reasonable suspicion and the basic norms of human conduct would dictate that if search of this nature would be improper under the circumstance and a municipal a governmental entity like a tasty is entitled to rely in some sense on that on those basic norms of human conduct the reason i would think that it is very obvious you'll get exactly this type of violation if you don't tell teachers at all how far they can go is that it would be pretty clear you would say if there's probable cause of it weapon and even then it's got to be a different gender person doing the search and they've got to have privacy you've got to call parents first they're about seven pretty simple training but as far as i understand your your position now is that if quote contraband goes missing a twelve year old choir girl can be strip searched bodied body cavity even by a male teacher because the guideline doesn't say anything about women is that your position that is not our position i would a male teacher read these guidelines with no training and know that he couldn't do it even if it were marijuana or contraband there's there's no concession here that there was no training at this in this case that there were there don't you know that's a whole point that we don't know that were clear policies that were provided to school administrators for their review in this case that specifically defined the situations in which a search would be and what policy says that a male teacher can strip search a girl where does it say anything about that it would but it would be in the policies attached to the amended complaint and would be clearly defined and those and those policies but i think that that goes outside the issues because i think i know now we have to we have to we have to show that government a liability that there was only and there was there were some kind of custom policy practice of behind the school district that was a moving force of this violation and they tried to do that here the district court correctly determined that municipal liability does not attach to the in this case and the mere fact that the search here exceeded the permissible scope of school searches does not automatically give rise to liability in this case i think their single incident theory is the hypothetical given in city of canton you can't give police guns and not tell them anything about how to use their guns here they're saying you can't tell teachers they can strip search boys and girls without telling them anything about when who where parents privacy anything that's their theory and they're saying if you don't tell them anything it's obvious and likely you'll get violations like the one your client is conceding happened here well and i would say that the city of also says that the mere fact that you have an employee who makes a mistake and interprets your policies incorrectly doesn't give rise to liability and they specifically say that a particular officer may be and satisfactory to plant trained will not suffice liability on the suits on the city neither will it suffice to prove that an entry or accident could have been avoided if an officer had better or more training sufficient to equip him to avoid that particular injury causing conduct such a claim could be made about almost any and and of course there were a lot of a lot of things in this case that could have been done differently but that doesn't give rise to municipal liability on the part of a typist in this case the second factor that i wanted to highlight for the court i to conducted any other class wider group strip searches a quirk occurring prior to the one it issue they do cite to one other search they contend was improper but this other search what occurred after the instant search that the board w not aware of that on the on the day of the search at issue and it was also factually dissimilar to the instant case that was a search of one student where an i pad went missing so individualized suspicion was not an issue and that search was also only discovered as part of the survey conducted by us when we sent an e mail to the principals of all the schools that was conducted in connection with this lawsuit and the third i want to point out is that context is is an issue in this case there's case law from the circuit and peterson v city of fort worth and ponied of the city of houston that state very clearly that in cases such as this where governmental liability is  issue that context that being the size of houston and the number of incidents that have occurred are are relevant and here we're talking about two factually dissimilar searches and a five year time span in the largest school district in texas and i would point to peterson the city of fort worth and let this court know that in there there were twenty seven complaints of excessive force filed between two thousand and two one two thousand five and that they highlighted that any kind of pattern of prior incidents requires similarity and specificity prior incidents cannot be for any and all bad or unwise acts but rather must point to the specific violation at issue so did this to the extent that they are that they would like to conduct additional discovery it's unclear what they expect to learn more about this case since we have already  what they could have done as an investigation on their own which is akin to the discovery we sent out to all the principals and we've we've given them every all the information that we have and they've stated that they don't trust our responses won't go into that a little bit more detail quote what happened what happened here and i'll try to get some more detail from mr mr kelly on a rebuttal specifically if we were to remain in this case it would be presumably among other things to tell the district court to permit some discovery but so mirage force what discovery was requested and or permitted already in this case because i'm having a hard time understanding the answer to that dismissal was granted and the discovery deadline had passed we had a conversation about extending that deadline and we talked about allowing them to depose some of the some of the principals and that deadline pa that they are wanting to conduct additional discovery in this case when they had a full opportunity at the lower level again summarizing what i hear you saying correct me from wrong as i'm trying to get them straight is that all of this in your view all discovery had been completed dismissal yes yes so so i think the critical issue that needs to be remembered here is that the appellant's must be able to show under their failure to train liability theory which is extremely narrow that the need for more different training was so obvious to the district board of trustees who it's understated is the policy maker in this in this case that they were deliberately indifferent to the need for more or different training facts to support their conclusion and and the facts pled simply don't cross the line from conceivable to plausible and and for those reasons too we believe that  their their request for a lead to a man was also properly denied they state that they want to do these discovery about other searches not just strip searches but that's problematic for some of the reasons that i've already  stated and also because they'd simply cannot show a pattern of unconstitutional behavior merely by stating that the school administration have searched other students because there's other searches such as the one in two thousand or securing consent why doesn't that policy explicitly tell these teachers they couldn't go beyond clothing especially if they didn't have even reasonable cause well and fortunately and in this day and age there needs to be some discretion by school administrators that would allow those types of searches to maintain the safety and you may say that's important but why would mono liability attach here if the policy the teachers are reading tells them that's all you can do well but first that's only one portion of the policy because you've got to be more specific and the only other ones just say you can search with reasonable cause but you have to read it in conjunction with the definition of reasonable supplied by the board policy as well as the definition of contraband ok so again it is just you've already said this i just want to clear up your position today is that and let's assume it's contraband if there's reasonable suspicion that you know a small amount of marijuana goes missing in a choir classroom like this one your position is they can strip search all the twelve year olds no your honor because there is no individualized suspicion present and that situation that would that would exceed the scope of the search and so i think it's important to remember that this search the search at issue in this case was improper under board policy and not because of board policy ok and so i think you know in this case we do have to show that there was some awareness by the board that there was there was a need and this case it just it was not obvious to the what interests me she tells them where they have to stop if it's just individualized suspicion as to one girl can they do a body cavity there is there is some discretion that's allowed in that that's ok that's on purpose discretion for males to do body cavity searches of individual i suspicioned i again i think that goes back to the basic norms of a human human contact that that would be outside the scope of a reasonable search you have to have reasonable suspicion that a and if it will girl has it in possession of contraband and in that case that would be a reasonable a reasonable search in violation of the fourth your thing to clear up on the discovery issue what was just talked about in terms and for what has been done and what remains to be done i would be straying outside the record the record on appeal to answer some of those questions by will point out that the parties did agree to a continuous postpone trial to both represent to the court that there were ongoing settlement discussions the parties both agreed they were pertinent depositions that needed to be taken and they had not been taken as of the time that the twelve  motion was responded to and ultimately ruled on but there is disco obviously the parties did agreed that there are these that were agreed language pertinent depositions to be taken so there is discovery that can be done if it goes back down then the clock will refining gross negligence negligent ignorance can be a finding of negligence you can't turn a blind eye and they it's clearly would hit done as has done here the fact that they do not keep records of this they don't even ask is a matter of course of the principals don't have to fill out a report at the end of you have you done any searches or had have you had you you know look at students for contraband were missing money or it or something the simple fact they are willfully ignorant they did not keep the records they had to go out and manufacture well they asked the principals again you're you're contained or cabin within your first amended complaint you elected to attention as in iran two answers to your first amended complaint i suppose because the first admitted that they do not keep records of these things they had to go out and ask people by email is that would be an ongoing willful ignorance of whether or not these searches are current and that constitutes a deliberate i mean indifferences you don't care if it's happening you're not asking if it's happening you give us some other examples of where you think the schools matters of such importance schools ought to keep records i know there's a world in this universe of what schools ought to keep records on which can you think of something comparable perhaps fights at the school or serious illnesses or playing around injuries you know did you have to get rid of monkey bars to be kids and breaking their arms aren't you have too many fights you have to increase security there are lots of different things that schools should be keeping records of so they can maintain order and discipline and safety within their schools and i find it i mean it struck me as rather odd that they his t was not keeping didn't make sense that they're not keeping records because they've told the teachers it's got to stop at clothing and garments and property the point i keep bringing up admittedly not one embrace by them wouldn't it all make sense if they didn't want young preteens being strip searched without probable cause refer to the criminal system and so the policy tells teachers don't hear the teachers did and school district isn't liable because their policy was clear that it stops at the edge what's but if the next sentence says and don't ever go beyond property and clothing with reasonable cause i would have inferred that to mean the school districts telling them if you have no individualized suspicion you certainly can't strip them down and if that policy is in writing then they wouldn't be liable if these teachers went beyond i would disagree with you to the extent that merely having it in writing is insufficient you can have a i mean if there is a written policy and then there is the policy and the conduct the ongoing you know the the the lack of training that taken together you know it's saying it and doing it are two different things to me just say it as does that's not enough you have to do it you have to train you have to enact you have to execute the policy you have to teach your administrator so you don't get a safe harbor by saying this is what t l o says so you can't sue us