for days sitting this week we have three cases this morning we'll see how it goes whether we go straight through or take a break at some stage oh most you're veterans of our process and one way police department swat team during the execution search this court has already concluded that genuine issues of material fact are made in dispute as to whether germane was having an asthmatic seizure or whether he was actually actively resisting arrest but this case presents a different but i think equally important question if the plaintiffs can prove that the officers actions were unconstitutionally excessive are the facts of this case sufficiently egregious for the city to be liable for failing t train its officers we respectfully submit that the answer is yes and for two reasons one the city's own evidence as well as the evidence that the plaintiff submitted in response to the city's motion for summary judgment squarely placed this case within the scope of the municipal liability for civil rights violations which is clearly contrary to supreme court precedent which went out of its way to create a cause of action for these offenses you ask you to refine a few points for me what is the knock entries knowledge of who's inside who's why does any training matter in this case then the training on the use of the taser i think that's the central issue in this case you because the standard in the way that the entered into the house and such but another way to look at this is that this is a taser case and the training or lack of it that led to the death concern tasers and not the bigger picture that you want us to focus on this certainly isn't the record substantial evidence maybe not under spewed in some genuine dispute made could be raised about its significance are the kinds of training these officers got and other of relevant law enforcement techniques so just tell me why and it's the way they entered the number of people entering why does that matter on training subdue an unruly attendee because this case arose out of a no knock warrant which the supreme court has acknowledge is an exception to the general rule and it's an exception to the general rule because of the danger that it places both the occupants of the property but also the officers themselves and they're not in trees are inherently dangerous and they are done by surprise and especially when the context of this particular case who really know the home is in a crime ridden community it's a lower income there's rumors that drugs are being sold there the officers can anticipate that there is going to be a dynamic response to people inside not just because they might be breaking the law but because they live in a crime ridden neighborhood more often than not the people that are entering their homes are police officers and the initial surprise reaction that one might have when someone barricades down your door the middle of a thursday afternoon might be for a nd to resist to say what are you doing here to to to push back but the problem is is that it's the resistance itself that gives the officer the ability to use deadly force so if you don't have an officer that's trained on how to intreat in dynamic situations like this you have an exception that essentially swallows the rule they'll be able to i guess let me ask you not pardon me if i'm if i'm rephrasing the same question that southwick asked i'd like to focus on what precisely since we're talking only about the city of fort worth here not the individual officers at the the purposes of this appeal what training do you believe is lacking you just mentioned dynamic entry an earlier thread southwick asked you about the training with regard to the use of the taser i looked at your rd amended complaint and my next question is can find where in the complaint do you a letter you alleging improper training for dynamic entry improper training for use of the taser improper training and providing medical care to individuals who have been the subject of the application of force i would think all of the above your honor contained within our failure to train in the amended complaint and not looking at it as we speak but one thing i can certainly say is that the fort worth police department is certainly aware two thousand and thirteen they had received some taser training but nothing else all of the swat team training that they received was after this incident so in other words the city of fort worth assembled a special unit to do these highly difficult dangerous activities and yet staffed it with people but hadn't received the training to do it at the very least i would submit that that shows that there's at least a fact issue as to whether such training was necessary and along the same lines because i have i have the same concerns that that have been raised in these other two questions you have the talks about this dynamic environment the swat team training and all of their where in his affidavit does he indicate what the training would look like or what the training should have been in other words he says they weren't trying but what i was looking for is what would you have them know well or what what should they have learned or what should they have been taught that wasn't taught just by virtue of being taught how to use  is the planning process is every dynamic entry should include target scouting developed of written detailed operations orders order briefings operations for her cells and premature inspections among others but all of th is what happened once they entered the print that we know from the other evidence in the summary judgment record is that this execution but the execution of the search warrant happened thirty five minutes after it was signed there is no evidence whatsoever that there's direct evidence that the officers state didn't even know who they were looking for their everything shaped like let me accept all it that they didn't do any of that what training would have been needed in order to prevent what happened once they got into said specifically what the train ought to be even assuming that is the case at all absolutely take your word for if it's in front of you i think the fact that there's an expert's opinion that says that training was not provided and was necessary is at least sufficient to create a fact before the jury and if the other side comes back and says what could have been done differently that's a credibility determination at the end of the day here the district court said well experts can create fact issues in these types of cases but if we look at the cases that have been decided by the other circu decide in our brief they've specifically stated that expert testimony is almost inherently necessary to prove one of these cases but it's up to the ultimate question the expert has to offer something more than well they should have been trained better or they should've been trained where they deliberately indifferent is the case to be tried but i think that the standard for deliberate indifference here is is the need for more different training so obvious that the failure to provide it is likely to result in a constitutional rights violation and i think respectfully the judge  in terms of the training though it isn't don't you have to make a case of what they should have done that would have been that would have been in compliance with training with the state provide certain standards for training of municipalities going to say well they receive some training which is sort of a it's more of a truism than an argument i mean in brown versus brian townie a big share of just deputized a bunch of civilians and let them run roughshod well so it's now the standard is in order to satisfy your liability under mono or to eliminate liability under mono all you have to do is make sure your officers go to the police academy i mean that's that's that's that's a bare minimum i think it expert testimony as here he says no more should have been done i think that again that that satisfies t standard these cases will ultimately be a battle of the experts but the district court opinion here sort of i think confused the standard for qualified immunity or expert can't just come in and opine that something is objectively reasonable or not with the standard the other courts who have appropriately and correctly stated expert testimony is necessary let me get a little bit more specific on something i asked you earlier one of the things i listed in seeking what you're at your allegation is that they were in sufficiently trained with regard to the provision of medical care to people against whom force had been used i understood from the district court's opinion that they had a t unit or an ambulance unit close by in the staging area before they conducted this entry what should they have done medically i mean obviously had they called thirty seconds sooner that might have made a difference or sixty seconds what should what other training should they have had in terms of the provision of medical care if you record say a moment that i've been there i believe that there is a factional dispute here as to whether the medstar unit was actually in place you know there's evidence in the summer  talking to others communication issues and as a result of them not having everything all set up they were not able to get the medical care for him it properly time again that is what chief there was saying in his report is all of this stuff needs to be staged rehearsed and done in advance so you essentially don't have a whole bunch of untrained officers breaking into someone's house and just you know saying whatever happens maybe even if even if they did gather some reconnaissance in advance there's another indicated they would have had someone inside the house fact the question that the jury will ultimately answer with regard to the officers liability is was he resisting arrest at the time if he was not resisting arrest and he was complying with their orders and they had no business tasing his taser is essentially deadly force and you can't use deadly and when you applied tasers and or not is a general proposition not limited to dynamic entries who if they negligently handled what they handle that's not training against the city your honor i think the broader picture here is that it's more than just did they properly use the taser or not but that was a point you were just making and i was trying to respond to that but what i'm arguing i think is is i think the question we want to put before the jury is if the city's officers were properly trained and the people  charge of making the decisions as to whether to authorize a no not warrant or to execute this warrant in the way that they did they had been properly trained this incident would not have happened let me ask you about the medical piece of for your time around she's where you're arguing as you did about not propping arrange for the medical assistance are you also argue that the officers should have recognized the orange distress and done something more rapidly than they did an organization and certainly an impact to the sit it sounds of the city of fort worth as a community and so we take this very seriously which is why the city has worked diligently and having policies in place and training in pla main argument seems to be on the city's training program and if that's the lights between whether the training on dynamic entries and no knock and announce and treats is appropriate as well as the training on use point out to you that the training on the no not in the dynamic entry is not the moving source behind the injuries alleged by appellant and therefore really are the focus should be the focus however that being the case since they have argued i would point out that the city engages in a tremendous amount of training on issues such as a rabs sort and seasonal st period of service the city's police academy says that there are certain things about whether or not a police officer should have known there was a pregnant person or should have known that there were children they did know that there were people who had sold drugs and that they were lookouts that they believed that people they occupants of the house that there were that there were police officers who were knocking on the door for instance which would allow them to dispose of drugs there is always the concern when there was a home that there is drugs and that there may be weapons present that could be used against police officers and so there is a need in these instances as the judge found in the officers argued and the affidavit from the search warrant that these things lead to the fact that this had to be a quick entry with no knocking the list of courses the officers took by name dates that they took him do we know anything else in this record about well the instruction was in those individual courses and we just have a list on their personnel records of what courses they took us are there are i don't know that there's anything specific in the record other than the officer's testimony in their depositions about the specifics of the of the  training they received there isn't the class for instance the class syllabus that out that's in the record but it is i would also point to the fact that there are general orders that are part of the record that does talk about specific things that officers are supposed to do and specific circumstances for instance and she talked about taser with opposing counsel there was some indicate there are specific general orders and those are in the record that tells officers things that they must do or that they should be considering at the time that they use a taser one of the things that the record shows and that our general orders do show is that a person who was an ambulance station nearby a call was made to get medical personnel there to check out mr dart and hard to any officer noticing that mr darden was in distress a nd call went out when the officers noticed that he was in distress because the ambulance had not arrived at the time so those are things that are in the general order additionally there are things in the general orders that require o fact about how they should have noticed that he was indiscreet in terms of what the indicators were that he was in distress he was not responsive after that this i don't believe that there is and i would further point out that plate appellant did not notice that he was in distress immediately they had already made the call to the m p lance to get there to at least check him out because he had been a taser had been just a matter of policy that if  publicly think that they have not been the mr garton head wasn't set up quick enough i think if you review the video which isn't a record you will see that soon after the officers were able to handcuff mr darden mr darden was set off and warrant the warrant that was applied for it did i understand correctly that this warrant was sought to explicitly make identity dynamic entry into the premises it was sought as that's not a regular search warrant knock on also more so to enter in that fashion yes sir ok so i want to point out that in the absence of that one of the requirements of the a palin has to show that  officials would have been on notice of an inadequacy in their training program to do that they must show that there is a pattern of unconstitutional conduct that would have put the city on notice and  could be considered an egregious act by the police officers but i don't think that record clearly shows that especially when you consider this substantial training that city police officers go through in the cases that situations that as long as the training is on recurring situations that police officers must deal with then the training kit be considered adequate and when you look at the city's training program the city provide strongest argument maybe not the only meaningful argument but their strongest argument is the lack of training and you need to confirm or deny that's true on this sort of dynamic entry now whether that's sufficient to support the case is another question but it does seem to me that that is a deficiency it's at least an omission in the training that either one of these two officers got before may two thousand and thirteen when this interview occurred do you agree with it that there was not training to these officers on entry you may be answering my question i have phrased it correctly i'm looking for a factual statement did they get training a look at all these courses swat training less than lethal use of force  or i don't know if swat training correlates to dynamic entry training but they didn't get any of that till after this event occurred to you at least agree that factually the evidence supports that he received no training prior to this incident on dynamic entry i would think your honor i would disagree that there is no evidence because i believe that the officers testified in their depositions and as to receiving training on how to  how to make a dynamic entry sadly if you look at the video the manner in which they did make the entry shows that there didn't seem to be any confusion and that it was along with the way that a dynamic  and my best recollection in connection with that deposition is though that that that focused on the perspective of the officer and who was going to go in st what they had to where it was seem to me that all of that was geared toward ensuring the safety of the officers involved and didn't have anything at all to do with the occupants of the of the of the resident who want to get right on i would say now because one of the part this is in making a dynamic entry and why you do have to be knowledgeable about the layout of the house and things of that which they receive both training and some briefing on is that it inherently officer safety ends up being a citizen safety for instance if there are weapons in the house and i'm not saying that in this case don't work but if there are weapons in the house to put the entry being able to clear the room quickly not only means officer safety but it also means a citizen safety because if there are weapons that puts  officers on heightened alert being able to clear the kitchen where drugs were present and there were several people there portly meant that no one there got hurt including the officers and the people that were present kitchen is it the city's position that the training in the use of the taser in general was sufficient that there was no need for any additional training specifically with regard to the use of the training in a variety of different issues so it's considered general training but the person who's surprised for instance and in any kind of situation poses a similar threat to the person who would be surprise at the time that there is a dynamic entry training is done on the taser and a variety of scenarios so that officers could know how to address that would it be specific to what occur in this situation not necessarily whether or not you could actually formulate an ai scenario such as this one where an officer walks and there is a person who appears to be resisting there is a struggle prior to the taser being used because at that point it's no longer the surprise they've been on the ground for seconds and that's when the decision to make the tape to use the taser was used and that isn't the general scope of when officers traditionally used the taser and for which there is training ruling was on a failure to plead some aspect of a claim based on medical training with the judge concluded in his summary judgment opinion that the allegations in the thirty minute complaint were not sufficient to put the city i notice of an absence of medical care and one of things in our previous opinion that we talk about titles ambassador prado wrote that judge crowder wrote at the time was the evidence not have suffered a heart attack died shatter if the officers had not taste them forced them honest nomic apply pressure had been set up on his backside or allowed to sit upright so the leash is a claim there that perhaps at least implicit in there is the perhaps the officers could have done more than they did how did you make any claim in your pleading that would have addressed that you're disagreeing with what judge  believe our pleadings are sufficient to put the city on notice that we were complaining about the fact that he was not properly cared for do the words failure to act on training that the officers should have been trained better to recognize the distress and how to deal with you saying that will have to look at you disagree that there's any deficiency there you know i do not believe there's a deficiency i will concede that there is not a bold faced headline that says cause of action colon failure to provide medical care but i think our description in our allegations against the city discussed it th the fact that the officers exercised this dynamic search warrant in the st place without the proper information and under circumstances that were plainly unnecessary and then after doing so still to appropriately care for mr darden such that he expired before he made it to the hospital all i think that's very different from most of the attempts by plaintiffs to try and have the single it's an exception apply when it is something when it when a citizen encounters a police officer in the course of my posing counsel noted daily activities this is a little general orders general orders by their nature are not specific they're the general principles that must apply that all officers must follow justin you know you may not use excessive force you must have probable cause for an arrest you should call it that's that's not it that's not a specific court and what the cases that i cited in our brief specifically from the st circuit of the th circuit have talked about every police department has general orders a general orders thing you have to obey the constitution is not specific enough to provide the training and guidance that an ops or i need under certain circumstances in the st case younger says providence the court said yes they received general orders on how to confront suspects but there was no training on the department's specific policy that officers were expected to respond to calls in their plainclothes such that police officers were routinely getting shot by friendly fire because they hadn't taught their officers how to deal with a particular difficult circumstance the same thing in allen v muskogee county essentially had a suicide suicidal suspect you know and they would provide this person of the team that was dispatched no training on how to confront an armed emotionally disturbed person such that additional persons were kill yes those department had general orders they all do and they all receive some training presumably they all went to a police academy but sometimes it's just not enough and i think the question that all three of you have to be one point in time about has chief miller provided anything i affidavit that talks about what could have been done differently what training would have been done i think the answer is what he discusses this is officer created jeopardy the training that would have received that they should have received would have cautioned them against doing this  dynamic entry in the st place by opposing counsel referenced lookouts if you look at chief always report he discusses the evidence that there is no evidence that there were any lookouts present so understanding if the officers had arrived on the scene and there are a whole bunch of people watching for the cops be reversed and this case should be allowed to be tried out so can i ask you you mentioned earlier that you will going to submit a twenty eight day letter i think in response to one of judge graves questions looking at in your rd amended complain there's a section right before a paragraph or alan ation forty eight is entitled failure trained by the city of fort worth count two and it provides the statutory citation paragraphs forty eight through fifty nine all of the allegations are related to the city of fort worth and i don't see in there and i my question is why upon what are you relying to make a claim for inadequate training with regard to medical care of the provision of medical care to a person against whom excessive force is used so if you want to go back and review that maybe make that part of your submission that might be helpful yes or let me say since this all the next case of the morning henry joke and you can correct my pronunciation versus