on the motion to a man to bring in the officers as doe defendants if this case were in state court now with the motion of being granted hadn't been denied i submit it would have been didn't rise or fall with the police department or the or with the county why are you so concerned about adding additional sure and it's here and i'm just going to get into that because i think you explaine what happened here what judge shop job area saw was game playing on my part did not plaintive did not sue the individual officers originally defense didn't appreciate that judge for some reason overlooked it because he bifurcated make a separate finding an individual officer liability early in the case at that november th two thousand and sixteen scheduling conference even though they're not in the case the reason  did not name them is because you read the reports you've got an audio recording of the break in these officers are following policy and it's if i understand your question correctly this is a case of the officers doing what their did what they were told and trying to do play have contents as a constitutional violation but if the officers are in the dog before the jury the fact that they follow policy follow training is a factor that cuts in their favor a jury hears that they think he acts reasonably i mean some may say well that's the following orders defense and yes that is but let's let's be real here we're not talking about nazis ok we're not talking about something that's so over the line that everyone agree that just because you're told to do it doesn't make it right well and so i'm not trying to cut you off there's a lot of issues in this case but as i understand it it was it's a tactical reason for you a trial is that that's all to move when it comes down to what your intitled to do i just wanted to understand from a liability perspective it didn't seem to matter to me but i couldn't see how it could matter but well yeah and i agree with you as i  st saw the case when i got the reports my objective is to secure compensation for my clients the most easiest most effective way i can having the officers as basically non parties made a lot of sense to me because i know they're going to say i'm following policy the jury will focus on is the policy that's the problem here and then make your decision that basis what happened is nine months down the road the defense about the time they i'm not saying that that's dirty play on their part it's not they're entitled to fend on any basis i didn't think there was a factual basis for it that would survive summary judgment turns out judge had a different view of it to file that civil to a complaint until after their summary judge emotions hurt because i did not want to give any credence to their argument that they were making that you have to have the defendants so you so you file sylva to judge  to the defendants who you are now seeking to add because they have been subject to discovery they were not defendants the might have given a slightly different answers had they been defendants and had they been represent what and this is abuse of discretion how do we reverse on an abuse of discretion standard when it comes distillate discoveries already closed you've been conducting discovery on the legal theory that we are not going after the officers and all of a sudden you want the officers if i can just correct some of the assumptions you're making about the record in your question at the time i filed silva two and served it they had notice trial was more than six months away notice of what they had noticed that they were being sued for the same constitutional violations that were asserted in this case civil one on the exact same factual theory when discovery was done under a silver one they were not yet named correct well before discovery was reopened correct they were not named discovery was reopened in civil one and that's when they got a notice in still that that they were being sued and still the to discover had been reopened so that's what you are correct that when they were deposed they were not parties i submit that whether a witness or a defendant your obligation is the same when you're in deposition or in trial to tell the truth they're being represented by the same same attorney they have exactly the same interest as the city had in this case which is their position we acted lawfully we acted constitutionally we did nothing wrong so as a form as a formal matter with the officers represented by an attorney when they were being deposed yes they were represented by mr black men an understanding attorney might have been in the room were they represented they mr blackman represent them at deposition gave instructions not to answer he also later on the most it was a given that means i guess it could have been instructions of who's just representing the police department you're saying they were personally represented by him personally represented by him and later on because the theory was there was no conflict between those individuals exactly i see exactly they had i mean the factual theory as to what happened here has always been the same never changed and even on the motion to a men nestor black men admitted that well yeah i'll be representing the officers in this case if they're brought in they're not going to have separate counsel can i ask a question about the official capacity if you go and read the complaint you clearly say official in individual capacity terms at the beginning and the end of our analysis i mean i think the problem is the course of proceeding seemed to depart from that slightly and there's a debate about how much but do in these official capacity individual capacity suits do we just go look at the complaint and if the case law as i read it says you know if you don't identify it in the complaint then we look to the course of proceedings my question is is there case law to say if you do say official in individual capacity can we look to the course of proceedings to see whether that you've departed from that well i think you pretty much start with the complaint him in the complaint therefore he's in the case and is individual capacity but just be the clear in the record in this case civil one the complaint as filed did not name any officer as a defendant whether official or illustrates the point her liability is not based on the fact that she's there telling the officers to do this and that she's not right it's all after the fact she's chief of police  strong case against rizal a center individual capacity but i think that's a different question from did you plead it and if you played it is that the end of it because once you start getting into the course of proceedings if we can consider that your case on individual capacity becomes weaker in my but i would disagree with you for this reason the point i just made about when you've got a chief of police in the dock based on the chief's ratification like in the evidence of mon el liability and the evidence against the chief in the individual capacity overlaps and laura specifically mentions this it happens to be because of their unique status as being a policy maker for the city so but how can explain to me how ratification applies here why is it more now liability if they ratify it after the fact i mean doesn't my ability rise and fall on whether there was a policy whether they were acting pursuant to the  st you had the general statement no now policy in practice or custom so and you're not acting you're not pleading policy or custom here it's all i risk is my practice or custom you're only pleading policy well right we're not we're not bringing in a bunch of other incidents if that's what you're referring to well right but does not preclude practice which ratification seems to me to go more to practice less to policy well i would agree with you that it does go more to practice but the point is and you see it in this case you have very general policies be reasonable do the right thing and who knows what that means that well you know you're running short on time so let me short circuit this by just a little bit judge job area in his ratification in the th circuit case law can mean one of two things it can mean after the fact approval it can be and on the other hand evidence of existing policy and know you hope you're listening for the city i did not see your argument as exclusively or even particularly arguing that i saw your argument as when rosario says this is consistent with policy and when the defendant expert i mean their own expert says on to findings this is policy i view this as evidence of policy rather than ratification which then tells us in the future that's going to be ok and cause well yes i mean it's ratification this case is like in in mission acceptance in mission by a policy maker that these officers did what we told and trained them to do and that makes it interesting  isn't admission ratification not while the activity is happening but sometimes after that it's basically an admission but that's not in any way contributing to the activities which are the subject matter of the lawsuit right is just saying this is what the this is what the policy means but it hasn't caused the officers to do anything that statement hasn't caused it well have they and don't you think there has to be some sort of causal connection by way of ratification to the activities of the officers which are the grab them in of the offense yes there always has to be causation but here's how it would work with ratification it's not just that the chief gave her chief but you have to establish what was the basis of her approval what was she relying on in is the chief approving the factual claims the basis that forms the constitutional violation i mean if you have an office you don't know in this case we know that the chief was ratifying the basis of the constitutional violation that plaintiff allege entry without exigent circumstances not giving knock notice  in the use of force but you know if you have some evidence about policy or costume you know then maybe the chief's comment about the policy would be relevant because it really is would substantiate this policy and custom but you don't have that that's not what you were lying upon in any particular way and it seems to me that with without having the policy in custom in a mono claim you're basically just relying relying upon the policy and is to accept that proposition is to encourage agencies to be as general nonspecific in their policies as possible because then plentiful never be able to point to a particular policy as being the cause of the injury but of course when subordinates are being reviewed to determine whether other acted within policy or not the chiefs will be making decisions like to do he like does here she knows the department she knows how it operates this is this is within policy or it's not within policy ok live normal or let's hear from the other side but we will give you a chance to respond please the court names no a black man on behalf of the defendants and the a pelleas the court should affirm the rulings by judge job ria let's start with the motion for leave to amend the answer to your honor's questions the complaint was filed initially off august of two thousand and sixteen and mr cook did not file his motion for leave until february of two thousand and eighteen so some fifteen to sixteen months later between those two points in time we had a multitude of depositions we had experts retained experts deposed we had motions for summary judgment filed essentially the case was fully litigated so that's point number one point number two clearly mr cooke on behalf of his clients made various litigation choices about which direction the case may go when we filed our motion for s the st one pointing out there was no individuals named he said essentially to the court that's because we intentionally are filing only a mono case so that reset the direction of the case and that's why the court opened up no no discovery and we went forward briefing on the nd motion so i mean i think you have pretty strong argument on the on the amended complaint the chief or solace can you address my question of do you just look at the complaint that's the beginning of the end because it was interesting is the concession you just made sort of suggests that the course of proceedings went against individual liability to resolve us but i'm wondering to what degree we can consider that if the complaint said individual or capacity yes the complaint did say individual an official capacity so during the individual phase of the case we did discovery towards that issue and and that's in the record we have specific in iraq the tories are you claiming judge rizal as is libel for an individual capacity in the answers were she's libel as part of the official policy maker for mon l purposes which was clear to judge chabria when we put that in the judge garber his answer i mean i'm not criticizing you that is judge jobbers answer he has a bifurcation order which just of like one sends in a minute or we then have this response and then we have a further clarification saying both sides seem to have misunderstood the nature of the bifurcation order for discovery i'm now going to clarify that if there is a question goes to both individual capacity and personal capacity because it goes to official capacity it should be answered so the answer given to the interim authority was before that was before the clarification and i have trouble in that circumstance reading that answer to dinner or good story and as an abandon g personal capacity suit against rizzo's i think that's i think that's right it was it was pretty clear to him actually there was a course of conduct throughout the litigation when mr cook continuously said this was a claims can i ask about the police department being independently sued or as a as a separate entity separate from the city as i read the case law it seems to be a state law question and there are some suggest there's prior case law that suggests that for purposes of california which i think would apply here that police departments are separately separate entities for purposes of a lawsuit now under that's under california law does that question automatically answer whether they are quote persons under section one thousand nine hundred and three or and is is is there any argument that example is not named so if you have a city and you have one of their apartments named in the same case the department now becomes a duplicative entity it's a it's a distinction without a difference because the city would be the one well i sort of agree with that position i'm not sure what it gets them to have the city and the police department and agree but the question is can they do it and it seems like perhaps they can and the less persons for section one thousand nine hundred and three liability is defined differently from from whether the you know they're separate entity for general lawsuit purposes under state law i think the cases that you see where it's allowed is when there's not an actual public entity named in the case you only have the sheriff's department for example which is effectively the county in that case so but i gree i don't think it matters in this instance the city was a party and that's why the police part was dismissed as a new look at it can i move to the which is to say that we that turns out that that's ok or it can mean and it has sometimes meant in our case law evidence of policy the preexisted the action in question judge expert report says this was consistent with policy why are those two things resolved statement on the actual report why are they not evidence of a preexisting policy to show evidence that an approval by the chief would be showing a preexisting policy i think you'd have to show which i think the court has recognized some prior instances to show why this in particular about what happened and i recite it so we know that we're not fighting over what the facts are and she says that is consistent with our policy why is that not evidence of what policy is the plaintiff has the burden to show the said we use that term ratification in two senses sometimes we use an instance of cause and sometimes we used in the sense of that is the policy that already existed so this is not a cause question this is evidence question i'm asking you why is that not evidence that that wasn't fact the policy the reason that judge couch that way to answer your honor's question is if you have something where there's ongoing other violations and then you have an after the fact approval by the supervisor it could relate back to those prior incidents those are the cases that's layer is when you have ongoing violations say was that consistent with departmental policy with respect to use a cane ised she says yes is that evidence of policy it's certainly evidence of policy but it's not evidence that the policy caused the constitutional violation well but it is evidence part of the inaction of the officers was consistent with the policy right but for ratification in this sense the requires knowledge that there was a i'm about to say that is the policy that officers do know what the policy is and the policy is you can send a dog into a bedroom and whatever the facts are that's consistent with quality what more do you need if that was the case your honor then plaintiffs could argue ratification in any case when any department had some policy that said anything about the actions of the officer will you as a part of it depend on how the question is answered if if she says it's consistent with the policy then judge fletcher's point seems to have some merit if she says it's not inconsistent with the policy doesn't address it or it's not inconsistent with policy the policy silent on that and that seems to be a different question and i'm more along the lines i'm focused a little bit more on the expert report which seems to hurt the city quite a bit here but i'm concerned about this because to do we just read the policy make a decision on our own as if we're reading the statute and look at the plain language how much can we rely on expert reports my concern is if we start relying on expert reports  then all of a sudden all the plaintiffs are going to go get an expert that's going to make a factual dispute about whether this was you know consistent or controlled by the policy or not and does that make a difference here what's different about this case than perhaps like the chu case for example just as an example the choo case had a policy that authorized the seizure of all concealed subjects resistant nonresistant armed or unarmed that type of thing our policy is more similar to the policy in the lowry case which allowed gives officers discretion to use force pursuant to the graham standards if it's reasonable that type of thing so you have an incident that occurs somebody is bit by a canine for example like in this case you want the chiefs to review whether the use of force was appropriate or not and make decisions so they review that like what happened here in the chief determine that the officers acted pursuant to the policy so this is not ratification in the sense that you're going to be able to hold i want to be clear what is the position of the of the city here that they that the officers that this was not addressed by the policy but she thought that what they it was ok or she said the policy protects the activity that happened here she was saying that the officers actions were personal and to their training practice and so so was it doesn't that mean that all the others which case that becomes evidence but that she can't be sued for that but essentially what is that issue here is that this becomes the grab them and of her offense that is ratification she describes the policy as the activities is consistent with the policy and therefore she helped create the policy and therefore she can be sued for the underlying incident is that is that what's being argue side i'm not certain actually what's being argued by the other side but on that issue but really a single occurrence and a post incident approval is not sufficient in the th circuit she is not merely an approval it's a statement that is consistent with the policy and then your very own expert says on two separate opinions on whether this is consistent with policy says this is consistent with slam dunk but i regard it as sufficient evidence to get to the jury why am i wrong the reason is your honor is because plaintiffs have the burden to show that the policy caused the violations all the policy does is give the officer some guidance on when to make decisions if the policy said that officers can always use their dog to bite suspects that are hidden then that may be a jury question because that may be an unconstitutional policy the plaintiffs have to sho significant deficiency with the policy that there's deliberate indifference in the of all this happened and for the moment we're assuming that the narrative is unquestioned i don't think there's actually a lot of fight about what it and the police chief and your expert says this is consistent with policy monella says if it's consistent with the policy of the of the county employer of the city employer the city is liable i don't see how you can say there is no evidence that this was what happened and that's why it happened because here's the policy the officers acted consistent with policy we may assume that the officer knew what the policy was now you can say but in fact it wasn't a policy you can argue you can make all kinds of arguments that this is the only instance of ever this have ever having happened i mean you can present a country evidence but i think this is evidence that this was the policy but to put the whole of the city or deficiency not if you read the policy your honour's policies are standard you know reduce of force type policies there's nothing unconstitutional about the policies well the policy as written the policies is to be reasonable very broad and so on but then we're told the actual implementation of the policy as interpreted by the police chief who is the boss of all these people says what they did is consistent with balancing right that has to do with the actions of the officers but the plaintiffs have to show for the city's liability to hold a city liable under mo now that there's a major deficiency in the policy that the policy is deliberately indifferent to his client's rights there's nothing in that it's an inappropriate policy so you're talking about the actions of officers i understand that but that relates not to monella but my point is i won't believe it further my point is that the police chief said i see those facts that is consistent with the policy of the she was talking about the actions of the officers were consistent with the the scope of the use of force policy i would see that would be relevant if you you had a real issue in the case about what's the climate you know what what happens generally but you don't have that in this particular case all you have is literally the policy and her comment upon this is consistent with the policy means nothing other than looking at the policy and judging the policy i think it would be different if if what really was an issue in this particular case was the climate was the general pattern of behavior i'm part of the officers and that in that with then make her comments really relevant but not so if you know the whole case depends upon what the policy says agree your honor and you said this earlier it's essentially an admission by the you know it's evidentiary in nature but it's not substitute of to reach the level of a claim against the city under ratification it's somewhat significant difference some courts understand some don't but your honour's right it's evidentiary in that sense but there's no evidence of prior instances like in the case when chief gates made a bunch of comments and then there was evidence in that trial that talked about use of force incidents other instances of problems and the chief was basically making comments that you know it was all appropriate well that then related back and showed that what happened to that plane if was a policy and a practice of impropriety so ok thank you very very much would you please put limits on  thank you there is one specific policy that is at issue here is being the cause of the excessive force and that's the find in by policy just like in two verses gates where the finding by policy was found to have caused a const where you see that in the policy here the find and bite and i know that you ukip kept going back to find and bite and how a agree just that was but i never saw anything about a policy meaning find and bite the t they don't use that they use find bite and so there's nothing within the policy what you're saying is that there's a training right follows the policy which focuses upon find and bite well the training is and bite there's just like in chew just like in lowry for that matter there's no policy statement on police department letterhead saying fine and by it's just the hammers come in the trainers come in to testify our dogs are trained in fine by as we know about because because what you seem to be saying which at fletcher just suggested is that it goes to the individual officers decision in the moment and and the policy doesn't seem to address that all the policy says is we're to say the dogs bite instead of bark and you're still is so anyway i don't want to belabor the i am not and i know i'm over time i'll just there's a discussion of this issue about reasonable conduct i'm not a policy make for the city but i am a policy maker why police department that's why i need the police department thanks for their time they will decide for their helpful arguments