the trend of the out of circuit cases our view of the history of these out of circuit cases or that haynes was kind of the high water mark for the notion that there's an absolute ban that there's a line you can't cross this is your your failure to train appropriately well that's purpose that's an aspect of it is also failure to adopt a policy to to view the policies required by the raids under the day to make accommodations for dealing with mentally disturbed individuals person already have to be tied to an actual violation of a da me you can't have a free floating failure to train claim it has to be tied to some allege was that multiple officers from multiple other departments appeared on the sea and did the reasonable suggest that the reason a course of action which was to call in the trunk professionals of the pennsylvania state police me understand i read your materials and i'm having a little trouble understanding what bad has to do with anything that you can point to that they they assertion about the seed of all that was bad here the tragic circumstances is that troxel did attempt to communicate he knocked on the door and said police and that's what prompted mr nixon to take his own whether it's you know a trade negotiator a police officer who was trained with all of the regulations that you would hope for would at some point be either a knock or a phone call an identification of other go should or anyone else as being with law enforcement there would be an attempt to communicate by someone trained in communications under these kind of situations with a mentally physically attempting to enter the apartment i thought they were attempting to establish communications by telephone or some other method how how are we supposed to know on the basis of what you've provided us that  of i mean it feels like we've entered the realm of pure speculation here but how is it it's not just purely speculative that knocking in announcing is somehow contrary to that would merely way you establish communication if you're a trained person or you're not trained person if you've got a suicidal person or not suicidal person you're just you're there is a man in an apartment that is not his own and he probably has a gun and what's what's a police officer to do what we require i mean at that point to say oh no but guess what i better not secure th situation where there's a gun they want a gun it might be different but there's a gun and he's in a place that's not his own that creates in the mind of the police at least arguably in need to secure the scene why should we not follow that trend this is an armed person in an apartment with other people that's a dangerous thing and that's and and the fourth circuit seems to be saying you know this is a very interesting debate this baby apply or not apply but we don't have to answer that question because we know this whether it applies or not even if it did apply it would not be reasonable to say it would be reasonable accommodation to put the police to the task of figuring out what circuit cases are or some judge who is she's really got a full developed factual record what would be different i'm assuming what is it that we're not assuming you know i know you've taken issue with some of the things that the district court said but what is it different that we beneath the national recognized standards for law enforcement agencies and discovery we intended to present expert testimony in that regard which we believe we're going through our decision about reasonable because the only thing you keep saying is there should have been training but not in your briefing and not here today have you given us any indication right sure it was shouldn't have been different what specifically can you point to say that was wrong let me free we ever get to the training you need to have the regulation to train the officer on and that's where we consistently sure say the violation ok so your your argument really is the shore argument it's the argument that a failure to train regardless of whether you can point to anything that you could say that was wrong the failure to train itself that you know can lead to split second decisions bad choices you know hate isn't it as as well here he is in your apartment nobody knows you know the circumstances nobody knows hostages anything right and you know nobody's trying to break down that they were on but he's bringing it was just one person at the door on if if if there's nothing other than the fact that there are no regulations in place that's the entirety of your claim right it's not right sure it's the actions on it's really just the fact that there is no regulation well but it's more than just knocking on the door and this is parties are about to have a district court read the complaint it is rejecting the standard law enforcement procedures under a situation such as was presented here when you say it's rejecting so now you feel you're going back in time right temporally we were at the door with judge greenways question but you go back in time and say the rejecting of national standards you're saying the brewer failed to train the broomfield who thought the brutal failed to do these things in advance that's why i'm pushing on it because i want to make sure i understand you still have not said that he did anything incorrect without waiting through and saying it's he should have had national standards in mind and understood the train that's the seat of your complaint right it except for the price of the other law enforcement officials there ok what should have been some right move we got it i think i have it your argument is the regulations on place that's the violation is there anything that that scales or at least three reasons first it's questionable if not highly doubtful whether mr nixon's own arrest would constitute the type of service program or activity there was from the officers perspective keeping in mind that when this happened we contacted the police she did not contact the mental health service she scene but then you know its ability we have other requirements and we know which we know better which one trumps the other and what what he should have done in this situation i should we not go to that let it go to discovery and complaint we were supposed to be in twelve b six a lawyer and draw all reasonable inferences in favor of mr walsh is quite in favor of yours and i ask the source of the allegation is there would have been different training that would have produced a different outcome that's what you've got to face if you want to go back and say hey you know what we confess that this request made a or send it back we'll prove all this stuff about the training that they actually had etc i guess we could wrap this up right now plaintiff's assertion that that had beer been training things would have unfolded differently therefore the failure to train concerts in a violation take that argument on if you would absolutely  are there was no causation between any lack of training in this case under the d d a specific to providing benefits afforded under title two of the a t f and what happened in this case because it never got to   training one gets in this area on what specific training should be done etc and as a result of that the officers or whomever was testifying said greenwich question might be an arrest warrant is something that they did doesn't apply to some course of taking that position and that's different than securing somebody to take them to a mental health facility  but that's only if you buy the notion that they did it doesn't apply to an arrest because they did apply to a restaurant not and does it matter in this case because maybe we end up right where you are which is good then other than haynes well what do you what do you have because you've heard mr welsh argue that the trend is clearly away from that that the arguments five first fourth sixth and eighth circuits that are consistent with saints and that being the general rule of law that the police officers must first secure the scene before accommodating a disability under the there's a person with a gun in the apartment please believe one person is sent through the door well what's required to secure the city he want every rest will have a moment when the scene become officers cannot it officers making discretionary split second decisions cannot accommodate a well many we get expert testimony that in summary judgment as to what what supposed to happen when well really is not necessary ought to be sort of what you will before he knocks on the door that you have somebody who's mentally disturbed inside so judgment there is question is you know it would be bad law if we looked only had officers knowledge that a person had a mental problem it would be no surprise that most people committing crimes have mental problems most people you know  and sounds like what you're saying is it doesn't matter who's in there if there's a gun that's that's that there's no there's no training that would assist you in making sure that you safe we secured the scene you just you do what you're go you're right that is the question when you say it should be no different they're saying it should be different the legislative history of a tells us there should be circumstances and can be circumstances where training would make a difference  that act itself speaks in broad language so when you say there's no difference you know kind of kind of looking for something that you can hang your five thirty nine every third five twenty six at five thirty fo recollection he was looking at my notes is that i don't believe you can in the first circuit case involve police one of the single i just haven't moved here and frankly i'm drawing a blank on exactly what the fact pattern covered by the eighty eight and my family would be that if you read the most recent circuit case decision one of the which last year was going to be the vehicle for the supreme court to decide this issue but then that didn't happen case out of the ninth circuit she didn't specifically says that today we join the majority of circuits and hold that he applies to arrests that's that's