dash twenty one seventy eight eighteen dash twenty one seventy seven we're going to begin with maintained policies and trained its employees that sexual contact with the inmates of any crime was forbidden by the county policy it was against wisconsin law all officers including mr christian all christians and also receive evidence in the record regarding the regularity contact and participants in the so called tear talk what's the most specific evidence you can think of in the record there was some testimony that captain arduous was once heard mr christiansen make a comment about a coworkers or some other females rear end and there was testimony that m was once told that christers that had made a comment about an inmate's breast not specific as to when in the ten years or so that he worked there and there the rest of it was very nonspecific in fact the definition of pure talk is not necessarily flattering commentary or sexual commentary among actually the word sexual is even there among coworkers so no relationship to inmates necessarily but the important point about the tear talk is there's no evidence that the policy makers at the county were aware of it except as claimed the captain argus who we believe was not actually should not have been found to be a policy maker was aware participated in some of it but how would that have on by far captain are just admitted that quote on occasion unquote he participated in it that's correct the other point about that your honor is what the plaintiffs are trying to suggest is that there was this atmosphere of sexual innuendo throughout the jail that suggested that perhaps the jailers like christianson might be inclined to think that their actions would be tolerated if they went out and sexually assault those two reasons why that should be rejected first of all the facts prove that that's not true christianson was under no illusions that he was going to get away with this in fact he told the plaintiffs in the plaintiff's admitted that they shouldn't tell anybody because if they told someone he would be trouble he would lose his job he would lose his family he understood that this was going to get swept under the rug regardless of whether he was allowed even if he was allowed to make comments of that sort secondly this court the seventh circuit has reviewed cases under similar facts the  johnson versus cook county case in which the plate it was sexually assaulted and claimed that the county looked the other way when there were claims of improper supervision and so on and that that and the court said we're not going to accept that that there is no sufficient causal link between that alleged policy and the actual and the actual sexual assault it's also important to remember that we are in the world of a very narrow exception to a general rule that was established and chanting deliberate indifference that the players have to prove in this case requires proving notice on the part of county policymakers and the s supreme court of the seventh circuit have long held the proof of notice is ordinarily required or nerd merely requires evidence of a pattern of prior unconstitutional similar unconstitutional activity or violations but standard what it was saying is that in the example that it gave if you send out your police officers with guns and you know that they're going to be in situations where they're going to be confronted with a choice of whether they should use that gun or not out of and of themselves and you provide them no training whatsoever you're you're essentially as culpable as if there had already been those same violations having occurred a pattern of them because you know it's going to happen in other words it's not some lower the obligation of the planes to prove causation that is a direct causal link between the deficient policy and what the sexual assault that occurred in this case and here they can't do that under any of the kinds of we have to do we have to ask the question at that level of specificity in other words the exact harm and conduct that christians are engaged in in this case or can we ask it in a slightly higher level of generality that the alleged deficiencies with the claim against the county is very strictly enforced and said this in particularly in a case like this where you have a constitutional situation there isn't an unconstitutional policy here so in the situations of training supervision deficiencies and i are in the court of said that the causation element has to be applied with special rigor now if we're not talking about sexual assault we're talking about other kinds caused what three plus years of conduct the christianson engaged in well the fact that there were three plus years is really somewhat irrelevant because that the play fester proved knowledge and part of a notice on the part of the policymakers and they had no notice of that so really what we're talking about is one incident this is a single incident liability case of one of them that is going to defer to by the seventh circuit in those terms in other words the fact that it occurred many times by christmas and is irrelevant the fact is they had no notice of any prior sexual assaults in the jail and they had no not impart knowledge of christiansen's assault and that this court has never allowed any case of single incident liability in a sexual assault case in fact the seventh circuit has only recognized two cases and allowed them to proceed on a single incident theory and that's the woodward case in two thousand four and the gilson case in two thousand and seventeen those are the only two neither both of them very very distinguishable and neither of them involve a sexual assault of this conduct with what the plaintiffs are attempting to show here four different pieces of evidence that are pointing towards one of them is the allegation of you know training with regard to such was the county's position that well the county provided all kinds of training there was training at the state level of course  to become certified and then recertify the state also perving the county provided its own in house training both in the in the form of field training by officers who have been certified by the county to provide training they provide daily really with respect to important policies and other information and they provide another nine mandatory training throughout the year including even this pre training that's been discussed but remember that sexual assault is a little bit different it's been treated differently by courts these officers are expected to know the law not only that they've been trained that the law makes it illegal to have any improper sexual contact with in courts around the country have held and this this language from the floor is case in that circuit is indicative that if the threat of prison time is insufficient to deter sexual assault it is not plausible to assume that specific instruction will provide such deterrents telling christianson and some other way that sexual assault is bad you know has no impact your ear already knew everything you needed to know secondly courts including the seventh circuit in the top you case in that's especially true given what i just said about sexual assault but in the pompous case that the court rejected the very theory the plaintiffs have here of more specialized training related to preorder what have you and in that case police officers were confronted with a lot of basically psychotic person and after trying to subdue him they ended up shooting him and killing him and the state claim that that the county while they get provided basic training for recruits should have provided more specialized training in how to deal with abnormally behaving individuals and the court said the state's argument boils down to no special training equals different training and we cannot accept this equation finding th general recruit training was sufficient you also have to look at what the specific claims are that the plaintiff made with respect to what they should have done they said that they should have provided posters on the wall they should have shown a video to incoming inmates that mcveigh the allegations that the county should have provided training on prevention and detection of sexual assault they provide no specifics about what that they didn't propose any new policy or tell us what language was missing or should have been added to the county's policy the only thing that eyes or their expert ever said with regard to that was that the county should give training and to officers to look for signs of abnormal behavior by your mates that might suggest that perhaps they've got something going on with the county or that they had a policy that required officers to observe and record what was going on with  to look for changes in hygiene etc what they're proposing is not only specialized specialized type of training but they're talking about is simply a wish that the county would have done it better but there are ways they could have done it better there are other policies other training he could have had that the players expert would have liked more in other words they think their practices could have been better and the court for its have consistently rejected the best  said that that county is not required to have the best practices available provided that they they give some training there's no dispute there was training and there were polic provided in this case plaintiffs just think they should have done more  the other thing that they've talked about that i want to address is this issue of lock the lock box for complaints the plaintiffs in their briefs in response of centrally concede that none of the changes that they propose posters  videos or whatever would have stopped christianson from doing what he did because he knew it was wrong and he did it anyway so what they suggest is that maybe some of this could have been prevented if you'd given them given inmates an ability to make their complaint through a lockbox rather than through the normal grievance procedure can you go back to one of the points you made earlier what's the best authority you can point us to that the proper way to think about  single incident given the longevity of the christianson conduct because the question seems very i don't know where you get that from because the question is notice there was no notice any other similar violation and that's the question the question isn't how many times it occurred or over what period of time it occurred the question is notice because the issue for the counties liability is whether it maintain of that you have to or talk that's that's occurring throughout the period and you had at least one incident to be sure very different factually jorgensen engaged in or allegedly engaged in  occur throughout the period and so if that evidence is no relevant because it's occurring across the period i don't know why it's fair to call it a single incident well because again the issue was notice but that goes back to the question or the point that i made before that what we're talking about here is that exception to the normal rule of a pattern where you need to show that it was obvious that this sort of thing was going to occur it's not supposed to be some step down in culpability  very reason the jorgensen evidence shouldn't have come into evidence because essentially the court said on the one hand this isn't a prior similar incident sufficient to show a pattern of prior constitutional violations but we're going to let it run any way as proof of notice which essentially says to the jury and to the plaintiff they can to first decide that the risk was obvious based on what has been found as a matter of law to not have been prior similar but notice doesn't have by removing an entire element necessary to prove deliberate indifference against mr christensen this provision of the pattern of instruction was highly prejudicial in fact of the jury's finding of liability to the burden to the defendants and the finding or consideration on causation and the trial court actually did not just fail to instructors on the element of causation it actually instructed and warn jurors that they were not to consider ca and that is referencing the paragraph above it with regard to the use of the terms rather than a wholesale exclusion of the concept you're talking you believe that the definition was in sufficient or inaccurate correct reference causation in passing is not to give causation the importance that it needs to be as an and central element of the claim that is just as relegated to an explanatory phrase because the jersey to understand that it itself it is equally important is not secondary in nature to any other element of the claim and i think the effect instruction it told jurors verbatim you are not to concern yourselves with causation what had happened was the trial court began reading the instructions and must have mistakenly had an earlier version that consider causation it is not material to what you're being asked to decide so the jurors ultimately were instructed in such a way that they didn't understand that they needed to consider the plaintiffs distinct individuals who had different experiences and different reactions they alternately found liability without ever finding causation but then they also worded compensation that was based on this misunderstanding of a link of causation their  and also because the trial court had initially included that in its instructions and early on when to try to modify the language that instruction to add language that would essentially read in such a way that it was christianson that the contact was on wanted because this goes to consent and whether caused the contracting seem to cause harm after the parties rested on before the case was given to the jury there was another instructions conference  that point decided to move the elements to the damages over and objections so not only did this improperly state the law but it allowed us in the jury's going to look as if we had just spent three days questioning the plaintiffs about concepts that were wholly irrelevant and in fact the judge did tell the jury causation is not something you need to think about so it follows that once the jury outlining of liability it was already flaw in the sense that they've never been asked to find causation and it also infected the damages faced by setting up a situation where jurors assumed that harm had occurred and establish the elements of their claim and cause in particular is very individualized very fact specific it's a nuanced inquiry and this wasn't an evidentiary question where we took a gamble on it and thought it could be eliminated at some instructed and our examination only led to a basic prejudice which as i noted ultimately in fact a jury awards that don't actually have a connection a possible relationship between the testimony of the plaintiffs and their experiences their expert testimony and the amounts of warded being identical what is the language in the damages instruction sure some of what you're arguing th the burden to have to disprove that there is any causal connection to disprove that harm actually occurred and it also infects the jury generally speaking in this case the not only the element all of this together looking forward we have no way to know how they were able to adequately correctly parse out all of the evidence that they were hearing once we got to the damages phase because they were are you operating under this assumption that causation did not matter and they should not consider it and so at that point i think we really had no way to cure the issue other than to essentially try to disprove a negative something we don't have the burden to prove anyway it also allowed him unfortunately in closing arguments opposing counsel to point out that he had questioned these questions that the jury was told were not relevant and made us look as if we were blaming the victims trying to point the finger at them and say they somehow wealth invest or somehow created a situation where we didn't not to concern yourself with causation as stated by counsel that's not the complete sentence the complete sentence includes the words at this time that's the proper to by counsel he understood that we made a record of it was that it was a clean record what ended up happening is miss mills made the objection and all reference to documents to sixty four page one twenty three all indicate that on our transcript it starts on line seven that was her first objection judge connelly at that time  could make this finding as a matter of law that no reasonable jury could find that these women were not harmed in any fashion in any fashion the lowest center of harm is all that needed to be provided these two individuals had been sexually assaulted up to seventy times per person over a three year period and he said no reasonable jury could make that finding but he didn't make the finding as a matter of law because he didn't want that to be appealed wh he did say is that i believe the harlem that is more appropriately suited in the damages face he made it perfectly clear that we wouldn't the jury would be considering the harm element of causation in the so what he ended up doing he read he gave the actual law he told mr miller had no objection to the law in fact that the as presented she agreed with the fact that consent was part of the harman struction she agreed with that and i believe that's and document two fifty nine page ages eight through town she agreed with the instruction and written she objected to the placement in the harm face or damages face before this was submitted to the jury at the end of all of the testimony and evidence and to fifty five twelve i'm going to allow defendants to make arguments as part of the damage call the attention to the transcript or to sixty five to sixty five page ten lines twenty nine to twenty one asks directly to both counsel prior to the the damages arguments in this case the court does and that brings me to my second concern in that honor the court then advisor's counsel all right so i'm not going to give the harmon struction it just seems pointless and i appreciate the fence counsel candor by virtue of their verdict it's clear that bond harm even though that was not expressly asked of the constitutional claim against mr christensen which brings me to the two structures that is clear waiver they acquiesced affirmed it it's removeable and that's waiver and that's what judge connelly found which makes me to my second point about waiver judge connally's finding the post trial motions was waiver clear waiver he that's all he responded with that you waived it clearly referencing the record this was never briefed in their initial brief the element of waiver and whether or not they waived it it's only in the reply brief where we to position to have to answer to that so i don't know if the court actually has to get to the jury instruction based upon based upon the procedural flaws in their argument of not addressing the issues of waiver by  by judge connally and not addressing them before this court in their original pleadings now that's a good way outside of where i was going to start let me at this point ask this court  in they were all weighed by that jury and those elements were dismissed i'm going back to the theory here of what is the controlling law in this circuit and i point to two cases woodward percent of all three major social assault in prison this is a normal risk if we want to keep up with that we look and say what's the testimony in this case captain are just the jail administrator who makes the training policies and makes the for that's the one you must train for the likelihood here to a high risk situation is in what where it was it was suicide prevention in the woodward case that was a high risk situation obvious risk kept an artist himself in his testimony likens this to decide prevention which requires policies and training let's go to the training element to this the question before this court and with the finding testimony today that that there was adequate training there was training they trained on everything they trained on everything except sexual assault are our expert witness talked about the industry standard which is known as pre a prison rape lumination act which is all over this transcript because that's the national standard that's the industry standard in fact at one point in a reference by mr atherton their own expert he says that's what people were training apply it's not mandatory to this jail so when i say an industry standard it's mandatory that in two thousand and twelve all federal prisons and any prison accepting federal funding so most state prisons receive some sort of federal funding they are required to apply pretty as the standard if you look at the jury instructions the jury instructions very clear you know there are numerous times in this record that we said it is not mandatory on this you know to and he had given captain arduous at the polk county jail abundant information and said here it is here's the standards this is what the industry standard is and it kept an artist went to conferences adopted it as a policy i'd like to go back to training i got a little off base and like to go back to to finish my training argument the argument for counseling and the response creature full of trainings that they did it what you lack it's not adequate training as a relates to the known risk the known risk a sexual assault they never trained on sexual assault they had zero training on sexual assault until two thousand and fourteen when they said we have priya training frank your question on this mr warner how  think about training how do we think about training in light of christiansen's conduct here knowing deliberate purposeful you know sexual assaults he took it seems like he took measures to keep them hidden from others are we thinking about training generally as the unit of correctional officers are we thinking about training as it may have impacted christians know that there was any way to help him in train him out of it what the record with regard to training in august let me explain it this way let's talk about the policy wasn't adequate policy the policy was so bad there was no sexual assault policy in place in polk county jail until they added some language known as priya which gives us information that they had knowledge that that was the standard but he cherry picked it and he took bits and pieces of it and create itself in order to understand pria it you have to understand it's three three fact phases one is your zero tolerance that's prevention detection and response and they were very good with response our witness our expert told us that they responded very well in the industry has responded for the last hundred years very well but prevention requires a zero tolerance no it was in in the reply briefs or some mention of the magic words of zero tolerance that's not a word it's a culture the culture of zero tolerance is one that a jail is to develop that's the general basic principle of the prius standard saying inmates need to understand and and understand they should be free from sexual assault they don't know it surprisingly they liability you know may have may have caused the harm that we see here i fear i bore you with this next comment and the answer it may be a little bit rankly the policy itself develops culture of zero tolerance and it means that you inform the inmates you educate the inmates and that's what they should have trained on how to do that they should have a policy and trained on it how to do it and then clued in so so there's there's posters there are videos that inmates should see and intake to say you should be free from sexual assault i want you to they want people to be safe in their jails and in their prisons you should be free from sexual assault  with that information they should understand then what's the next step the next step is a safe reporting period that is the so you have prevention detection and response the prevention piece is is building that zero says we all know what jorgenson does jorgensen's just being jorgensen when that other staff would say that's not allow so based upon that that response then i i trust you would agree or you would disagree with your adversary that the length of time here the longevity of christians conduct is legally irrelevant that that's the point that was made by your adversary i do i do disagree with that because the safety mechanism the second phase of this play of policy  detection and that's finding some safe method to report to the outside world that says i'm being sexually assaulted i need help as mr eyes are testifies to in the record he says you can't tell your perpetrator or the person standing next to them you can't which sexual assault allegations can be transmitted to supervisors under what was extant at the time that these occurrences were happening not not that not that not in the safe method serve my clients both testified that they did not believe it was safe to report they didn't know who else was involved in it they didn't know if you think of it they didn't know if j k j it was and it was spoke with an investigator welch who identified the situation and said she first made me show a badge for she thought i was with darryl because if we talk about to talk to or talk in general it is a sexualized talk or communication there are several happens this talk happens and it's it's demoralizing intimate and and embarrassing to the inmates and if you look at mr eyes are certainly the and he says that what that ends up doing is they start these predators like mr christian comfort or the possibilities for your client because obviously when the world of potential liability that would not be based just on what they thought of but whether or not there was a methodology all other that the best practices we bring up a and i think this that aspires to the dissent in that as well that this is an obvious risk there's an inadequate policy there's there's a no one solution policy which will which would be a more appropriate policy that mr hans has has provided mr mr eyes are testified to and mr not just researched and there is a rejection of that policy and that eventually the harm eventually happened here in the harm that happened was the same harmed or the the risk eventually don't mean there's absolutely harm here griffith harm but in terms of causation what harm are we asking about are we asking about harm in the form of sexual assaults on female inmates pineal guards are we asking about the conduct that christianson engaged in in the harm that he inflicted upon or on that eventually took place so the policy and training are to stop that harm it doesn't have to be specified to mr inmates through posters or videos as we had indicated they would have known that they could be free from sexual assault it was only after my class released from polk county jail that they found out one of them looked at a previous poster zero tolerance free  poster that said you should be free from sexual assault j k j said that's a first time she knew it well sir you look at that and you can take that into consideration say they work that is a better policy in have there better better policy this policy it was sexually assaulted in two thousand and eleven september january two thousand and twelve the jorgensen incident occurs which was sexual assault admittedly sexual assault kept in are just as it and sort of share johnson in july of two thousand and twelve captain nervous puts in a section to see to it to culture works for prevention how the different methodology is available this is the best practice this is this is a policy case this is right i'm not in line with police it was completely real was rejected by captain presented to you by paul carney is that the record says that there was training in the jail certification classes about sexual assault there was no training there's no testimony no evidence in the record and no one to say that they ever received training on sexual assault there or what it was they said they came out of that jail sort of occasion knowing that it was a crime that's it there's no training they've never had training on sexual assault if you take the record in the light most favorable to my client they've never had training on sexual assault at the polk county jail ever they've been training every year on suicide prevention which is another high risk low frequency situation which is right in line with with what this court's decision  woodward was it's an obvious risk as a sexual assault but they had zero training not is that adequate to address an obvious risk neutral just there's no training with what they trained on is there's this idea that they have this generalized training in that you should take this generalized training as being specific to sexual assault it's not it just isn't there was no sexual assault training period the record is devoid of any evidence of that if you look at this policy argument that they had it they had a policy and they had this these policies what they're pointing to in the record is they're pointing to saying what there's a general jail operation policy about recognising differences you know and inmates hygiene practices while they're in jail because that may be an indication that that something's happening to them that that is a sign of sexual assault now they were trained to look for hygiene in the hygiene requirements the hygiene requirements they say is every every inmate in that prison needs to at least have some level of hi to do none of the training none of the policies that they call a framework of anything to do with this this concept of sexual assault there's just there's not that and i gleason and i think it also satisfies the dissent opinion you know mark decision in gleason that this is an obvious risk and this is this harm that occurred was the harm that there should have been protected against thank the first thing i want to address is the fallacy that knowing that sexual assaults can occur that it's even obvious that sexual assaults may occur in a jail is sufficient to meet the can't agree firemen and a policy  known to the county that would obviously result in sexual assault that's the standard they have to point to a particular policy that the county was aware of that made it obvious that sexual assaults were going create no standard whatsoever one essential result strict liability any time a sexual assault occurred there would be obvious because it's obvious sexual assaults could occur and i understand that's the one end of the spectrum but that's what the courts struggling with and what we're and glisten is trying to set up that lie where that where that happens first of all these are those cases sexual assault cases where there where the individual knows that what he's doing is illegal and he does it anyway but secondly both of those cases are very distinguished woodward involved a situation where the individual had no training whatsoever and no experience on setting a suicide precautions and hasn't and it was known and that is an ongoing for years that count that the the policy makers not only knew that they were not following two simple questions but they encouraged it and that led directly to the suicide that ha precautions suicide occurs that can't be said about any of the alleged policies that are identified here in gleason as well there was no policy related to the coordination of care which was ultimately led led directly to the individuals injured here and i want to address finally the point that you made about this having gone on for a long time the reason that's so important is because we're talking about a higher standard here we're not talking about negligence or even gross negligence this is deliberate indifference in order to be deliberately indifferent the policy makers at the county have the old where of the risk and have to consciously disregard and if they're not aware of any sexual assault in any prior history or any of that sort of thing how can they consciously