nobody's really fighting about who the judgment eventually gets it's not an individual capacity but it's a it's a now claim against the county this is an official capacity crime when we change sheriffs we change captions ok so this is believe claiming it's a county and it's based on a longstanding customer practice only the trial testimony showed there is no official policy or procedure governing how pima county sheriff's deputies respond to calls like the ones th got i read the testimony and it seems to me there was a substantial amount of testimony that we have this calling containment procedure and it was a procedure except the procedure department and we use it for what is the harm level one liability if in fact that procedure gave rise to the constitutional violation right if you can make that cause causal time right when the practice itself and the constitutional deprivation of civility and i understand your argument that you didn't have this practice but the question in this case is whether there was enough evidence to go to the jury on it and what was never enough evidence to go to the jury there were in addition to these two incidents there was other evidence about the practice  to corroborate that why was not enough to get this to the jury i think what could have gone to the jury was that there was sufficient evidence to show that there was a practice of calling containment in general and it's i think it's important to note that that's not challenged as itself a constitutional right but the question is whether or not the practice involved an independent determination of probable cause before entering someone's homes and you seem to be a lot of testimony that once we get one of these cost that's the primary testimony that both the district court and the larsons have relied on chief testimony is about specific hypothetical scenarios that he's presented with so one of them is this what we call scenario six which is a training scenario that the deputies use when they're in the academy which has a specific set of facts which differ in some significant maybe significant respects from the facts that the deputies encountered on may twenty third twenty thirteen and there's discussion of a call regarding you know guns threats gunshot those sorts of things and it's important to note i think also that chief quietly was precluded by the district court from testifying about the specific events his opinion about specific events of may twenty third twenty third and if you don't you don't do not raise an appeal we're not raising that on appeal ok so what he didn't get to say doesn't help us well except that he puts in context what he did say i know but either have to appeal the exclusion of their testimony or not or not or not  what he would have said you know you do it both ways and i'm sorry i'm not trying to tell you what he would have said what i'm telling you what he didn't say because what the district court said in the rule fifty order is he was talking about what he would expect deputies to do on the night of may twenty third tw and in light of the testimony that he wasn't allowed to offer an opinion on that and instead he was talking about search and seizure scenario six and he's talking about a general hypothetical that's not necessarily the same set of facts as may twenty third twenty thirteen you can't read his testimony as saying this is what we would expect to deputies to do in response to the call that they got to make sure but my dear i'm still at the same difficulty if is testimony on its face would support the customer practice and you didn't appeal the exclusion of his opinion a general practice like calling containment is constitutional or unconstitutional in a particular set of facts you're talking about a specific factual scenario that you change one fact you change a few facts and the result might change and his testimony i think is talking about specific factual scenarios and not just we go out any time there's a d v call and we you know employ call and one thing i've read is tell you played in the same way i'm going to testimony saying something a little bit  cause that would would rule out a magistrate issue a warrant to enter someone's house here's what we do that's our practice and and if that's true the name of a customer practice of entering houses without considering whether there's probable cause now among but the emergency exception only for entering the house only allows you to enter a house if you have probable cause to believe a crime was committed being committed there in it doesn't do away with the probable cause requirement the fourth amendment it only does away with the warrant requirement right i respectfully disagree when it's when you're talking about so you think you can enter a house when you when you think if you have some information if there's an emergency even in the absence of probable cause that a crime is being committed inside you that's correct your honor there's one case the cite for that i could have just a moment here i have with you me i don't listen just to the emergency exception to be one of the existing sees that excuses the warrant requirement of the fourth amendment but not the probable cause requirement of the fourth amendment for and or for is entering the court describes to the court has described two different exceptions or the exigent circumstances exception which i think does require  and then there is the emergency exception which deals with the community caretaking function that the deputies perform and it's described in hopkins versus bob the scene oh and some other i think united states versus snipers another case and these are cited in the br that talk about when officers are responding to an emergency call and they have a reasonable belief that there's an immediate need for for their for their response in terms of you know protecting people from emergency and that sort of thing i don't think there's a probable cause requirement in in that context so in this case they were responding to a call from someone it's not a crime we speak right well he's saying that there's an argument that there are guns that there are threats that going back and forth and that there's potentially a gunshot certainly isn't constitute an ongoing emergency i i think that that would fall to the to do so you really put the exit you see in the emergency exemption together depends on it depends on the facts of the case i think when the court looks at these cases it looks at some time or in some cases it analyzes both the emergency exception and the exigent circumstances exception so so i guess that gets to your honor's question with respect probably because our position is that probably cause was not required in this incident ok and i'm sorry i forgot you know that thank you thank you streit so your position is that we didn't really even if we had a practice of entering houses without probable cause that was ok as long as the practice was based on emergency i think the point is that the practice has to be evaluated in light of particular facts and that's what you know these testimony was talking about particular factual scenarios it was not talking about blanket in every case we get a d v call or we get an emergency call we're going to we're going to enter the house we're go cotton containment in response to the specific facts of the case and the deputies in particular i think deputy mcmurray and deputy ray also testified to the effect that when they get there they evaluate the scenario they use their senses to determine what's going  on and i'm sorry chief quietly also testified to the effect that he expects deputies when they get there to make the best decision based on the unfolding scenario that's going on before them so i don't think it's a fair reading and i don't think the district court's reading of chief quite nice testimony is a fair reading in the sense to the extent it says that this is just applied across the board in an unconstitutional manner and because there is no challenge to cotton contain and i think the the larsons have conceded this in their brief there's no challenge t containment itself there's no question that calling containment can be employed in a constitutional manner then you're into deliberate indifference and i think that's what this court's cases support once you're once you're past that point of is there a policy o practice that is itself a constitutional you're into deliberate indifference and the larsons waved deliberate indifference twice they waved it in the district court when jury instructions were being settled and i think it was because of that waiver that the jury wasn't instructed on deliberate indifference and they waited again in their brief on appeal they made no effort to show deliberate indifference and that's probably because there's no evidence that they're caught in containment was employed unconstitutionally except at most on two occasions had a custom in practice and deliber indifference mash i've always you normally see deliberate indifference not in the customer practice case but in a case involving need to be one particular officer in your argument about qualified immunity if you really need if you have a customer practice that is the cause of the constitutional violation do you have to show that the cause because you have to show deliberate indifference also if the customer practice is not facially unconstitutional because if it because you have because in order to evaluate whether it's being employed in an unconstitutional manner you have to look at applications to particular sets of facts is that right or what if i have a customer practice that can be constitutional under some facts and not constitutional under others and i don't train my officers sufficiently to recognize the difference between the two i'm not sure that's deliberate indifference as much use having a customer practice that gives rise to the constitutional violation well first i'll say this was unfair to train client but second when you're i think you do have to look at deliberate indifference when you're because the question is is the municipality responsible for this particular violation and in order to show that you either need to show that the municipality itself promulgated or or engaged in a practice that was itself unconstitutional or that there were facts from which the municipality could be aware that there was a constitutional problem and then fail to remedy that's what the deliberate indifference standard is about because otherwise you don't know whether the municipality is responsible for the particular violation or whether this was just the individual officers on a particular occasion let me ask the question slightly differently and i think this is a fair formulation of the facts in this case it's clear that the testimony of the of the superior was that when confronted with a phone call like this one whenever facts the person called in our practice is to go to the house go inside arrest the people pull out the practice he did say that in the admissions said that as well so given that i mean just given that if that establishes the customer practice when confronted with a telephone call like this one here's what we do if that customer practice gives rise to a constitutional violation why isn't that enough to get to that because in any any first of all there's there's a difference between what you've got me testified to and in the hypothetical and this so that's a difference right there but it's not enough to just come in and say we have a generic we have a general practice of calling containment and we think that the officers apply even if you assume that what we could have been testifying about this case which i don't think you could have that we had a practice of or that it was employed in this case in a constitutional manner because it depends on the application to particular sets of facts and so on if you have a policy or practice that is itself not unconstitutional you can't you can't look at individual  applications or are you have to look at individual applications to determine whether there's a constitutional violation you're into deliberate indifference territory i think that's what all of this court's cases on one else suggest and if i can i'd like to reserve the rest of my time for yours and him full of nights ago the sanctity of children rob larson's home was violated not by a great gang of criminal thugs your honour's but by officers sworn to protect and defend them and not just the larson but the jacksons immediately after my name is michael garth moore it was my privilege to represent the larsons in the trial below it's my privilege to represent them here now if i might let me dispense with one issue your honor that was a discussion between you and my opponent and that had to do with whether or not probable cause was required to enter these homes that night this home that night to seize my client's in fact what hopkins encino states that this court rigorously guards against the expansion of the narrow emergency exception to protect the sanctity of the home the question of the constitutional violation of the larsons rights on the night of may twenty three two thousand and thirteen was not appealed that is not before this court whether the standard was probable cause or as my opponent says it is hot can suggest objective was your honor however if we look at the assignments on appeal it is not an assignment on appeal the assignments well we're not and we have the briefs but he does argue on people that they were privileged to if you will under the caretaker doctor under the emergency exception truly correct about what you say but he doesn't argue on appeal that they were that they had probable cause to believe a crime that he hasn't the challenge the underlying constitutional violation his appeal is directed to the fact that the sheriff is not responsible whatever that while a she may be however if indeed if indeed the court considers that that's an issue on appeal then the fact of the matter is this and we had this  had this discussion with my mike colleague here if this court will read the defense experts excerpts of record pages to eighteen through to twenty six to eighteen through to twenty six in which the superior quote me is being questioned by counsel for the defendant on direct examination the last page of that as your honor mentioned the last page of that float  me says in response to a hypothetical that in fact is the exact facts of this night walton he says i would expect them to go in there seize the occupants search the home no matter what and it's not just nice testimony iran it's the testimony of mcmurdo it's the testimony of serrano it's the testimony of ray all of whom testified we have to believe the caller's one hundred percent how does that establish a custom practice as opposed to a gum reaction in this case because in responding to questions by myself and by the colleagues on the other side what he said is what they did that night is our expectation that's what i'm asking he said i just when i expect them to do i expect question is it is an expectation a custom a practice but your honor if i might in harper versus city of los angeles a case that's been cited by me this court said that a policy or custom may be inferred if after constitutional violations occurred officials took no steps to reprimand or discharge their subordinates or if they otherwise failed to admit the subordinates conduct was in error in this case not only one family but two families were raided on that night and repeatedly repeatedly those in charge walt me testifying for the sheriff reaffirmed that that conduct was appropriate under their standard i maybe the the the court held that it's not always necessary to establish a pattern of conduct it's necessary in gantt cited by our opponents here it's necessary and get either to establish a pattern of conduct or evidence that the practice is likely to lead to future violations and here we have over and over and over while need testifying this is what we do so even if your pony and says and i think quite correctly this is not facially unconstitutional practice in the sense that on many occasions it would be absolutely correct in wholeheartedly i'm reading from harper again and the court in harper said and this applies directly to this case the task force policy of reading cases for the filing of charges as quickly as possible with or without probable cause had the payton lee foreseeable consequence of causing the officers arrest without probable cause the unconstitutional policy at issue and the particular injury alleged are not only closely or closely related citing city of  city of canton versus harris supreme court decision they are cause and effect and here the policy was this the practice of this we go in and we do this no matter what the facts are on the ground so if there is reasonable suspicion or probable cause then it's not caught and then it's not unconstitutional what we do but if there is no reason is reasonable suspicion or no probable cause we do it anyway and that's what judge burry described as a cookie cutter approach this was a constitutional time bomb waiting for the convergence of the correct events and the only way the only way that the defendant can challenge the correctness of the verdict and the judgment here is to ask this court to overturn twenty five years of this court's jurisprudence on the issue of menow my colleague has said repeatedly in order to prove in order to prove that  policy or custom causes an unconstitutional violation it by its own terms must be unconstitutional that would render harper render cat castro versus the city of los angeles render the gant case render all this court's jurisprudence which address the issue as you said your honor in discussing this initially this court's jurisprudence says that if you have a standard operating procedure that is the moving force of the actions of the not so moving force but so not so force but moving force then that's among male violation for which that the city or the municipality can be held liable now if you accept that that's not really that that the appropriate elements to charge a jury if you accept that in fact the policy must be unconstitutional on its face and must compel a violation then you've gone beyond moving force to intent from now on if that's the charge that the jury gets then it would have to be proved that the sheriff intended to violate the citizen's constitutional right to know who your opponent says you would be required to show that the policy was to was enacted with liberty in deference to your to venice to show rights and whether there was deliberate indifference was not an issue here because deliberate indifference is a customer practice that death is the causal link it's a red herring in this case because the the the on appeal what the sheriff is saying is the policy has to be unconstitutional by its own terms not on its face by its own terms by its own terms now we have here standard operating procedure how can a standard operating procedure be unconstitutional by its own terms the point of the matter is this turns this  head and no longer do we have the test of a standard operating procedure being a moving force which results in a in a constitutional violation in fact there is such mandatory precedent in the us your honor that even if you are inclined to agree with them i don't think this panel has the ability to overturn stari decisis in these cases more importantly though more importantly that the the position of the  here the position of the appellant essentially would deprive any plaintiff in almost any minute case from here on out of establishing monella liability this court in castro said that the the court the jury can take abrogated prac procedures different entities in that case the los angeles sheriff's department and los angeles county it can take ag aggregate those and put those into a policy or a custom by aggregating those different policies or procedures if the policy has to be unconstitutional on its face than the castro decision is wrong decided no longer is even though in on buck decision it no longer is appropriate so i think i ask the court and i implore the court to look at exactly what is simon severe here were larsons fail to produce sufficient evidence of an official municipal policy that was itself one constitutional that was the that's the assignment of error before this court not that there was no policy but that it was itself unconstitutional and then after i responded in my brief and said well wait a minute we weren't even at that issue then suddenly on the reply brief and now here suddenly the issue is oh there was no policy at all but when case when it came to this court on this one the notice of appeal and on the assignments of air they didn't argue there was no policy or practice or a standard operating procedure your position is that you present is sufficient evidence that you're a policy in practice in any in any event in any event what i'm saying is that there was over if you look at the cases in which this circuit the supreme court of united states and every other circuit has found that there is a manilla liability there is overwhelming evidence in this case of a standard operating procedure that lead moving force led to this constitutional violation the deputies the sergeants and gwaltney all set it out by out we do this this is the way we do it and if some day they go to a house and indeed there is someone remember in this case bill wharf had an even a den of five a single individual because he said i can't look out the window i'm too afraid they came to the home they came to this area and it was tranquil and it was quiet and my clients were asleep in their beds and the next moment they were pulled out and handcuffed and even when they said we haven't heard anything we haven't seen anything we've been asleep they were still marched out to the road and held there while other sergeants searched their home until mr worf walks up and says well maybe it wasn't that home maybe it was that way and then what did they do instead of stopping and i refer to the last case that was argued instead of stopping and saying well gosh maybe maybe this other information we have about war  maybe suggests that maybe we ought to do something or think about something before we go to the next house and assault these folks but that's what they did this is not an isolated incident this is what they do we don't know how many other families this is happened to we don't know but we know all holds that when the officers arrive at a place and what they find when they arrive on a nine one one call is a condition that could be either innocent or could be consistent with some kind of criminal activity they can't do anything until they do further investigation this night there was no evidence whatsoever when they arrived that there had been any kind a violent disturbance in that area had to the area but remember as opposed to the other cases in which this court has found this yes it was in front of the deputy to want to go into the house to see if someone's dead inside the deputy cannot go into the house in absence of the emergency exception which means death and he can't go into the house the possibility the possibility that someone might be bleeding to death is not enough c b versus city of sonora anything is possible is not a sufficient basis for invoking the emergency exception and going into the home you need more but i take it you and your initial point i want to make sure i understand it is that because there are only arguing on appeal was that a customer practice was not established yet we did that we assume as the as the lower court found the jury found there was a constitutional violation here well there yes your honor and there was overwhelming of a solo whether or not there was an emergency or not an emergency was resolved below that's not in front of us all that's in front of us is whether a customer or a practice led to the concert i'm i'm responding your honor to the appeal assignments of errors that were brought up by naacp and i want to understand because amendment by lation but whether it was caused by cost to reprice that's correct however in the brief as we said judge day there has been an overwhelming number of cases in which it has been found and in fact the tenement case which i cited out of the tenth circuit which is held that in every case in which the emergency exception has been valid lee brought into play the officers arrived to find a violent ongoing disturbance or have arrived to find evidence of violence having happened no other nor the court other than the no circumstances has said yes that was appropriate for the for these deputies to do this to encounter response mr morris last point encounter a scenario that's maybe different than expected it's going to depend on what that particular scenario is as to whether their responses is constitutional or not so in the case i would suggest that the court take a look at is united states versus black we cited that case you know the deputies get to a d v call and there are scenarios other than what they expected the court still held that the protective sweep of the apartment was allowed under the emergency exception based wasn't sufficient evidence of a customer practice is your brief contend that what was done here was constitutional we're not challenging the jury's determinate ok so we have we have to start with the assumption that there was an unconstitutional