at our final argument this morning or two minutes from about this case is framed by the district court is about qualified immunity whether individual officers and the county are entitled to qualif even the traditional tests for qualified immunity for individual defendants has only two hearts the plaintiff must show constitutional violation and the show that the constitutional violation was clearly established to hold a governmental entity liable for a constitutional violation of plaintiff must also show that a constitutional violation occurred but not the law it was clearly established is that term is used generally in qualified immunity an s when the district court in this case ruled that for deliberate indifference cases against a governmental entity the plaintiff most show that the county was deliberately indifferent to clearly establish law the district court despite its statement to the contrary afforded the county qualified immunity the united states supreme court own versus independence explicitly rejected extending the protections of  address to the notice it is necessary to hold the county responsible and did not require deliberately difference to clearly established law instead according to observe that it county could have notice of the risk of constitutional harm if there was a pattern of tortious conduct or if a constitutional violation with a highly predictable result of failure to train the aides insist six circuits have fill that complete failure to train in these cases there is conflicting evidence on why their officers are trained to lock the control panel that controls the cell doors there is active testimony that the county does where it leads th a policy regarding whether to lock the panel and that there is a dispute about whether any of the officers had ever trained been trained to a lot of the planet under these circumstances or generally under any circumstances  it seems like you're kind of going up the constitutional violation in a backward fashion rather than rather than focusing on the conduct of the of the three individual defendants you know maybe i missed something misunderstand your argument but you have to show that the office the three officers were deliberately indifferent to your client's rights and there's an objective and subjective component to that taking the latter first what that what's your best evidence as to the officers knowledge that they were i guess subjective knowledge of risk doesn't require that specificity of knowledge officer both knew subjectively they didn't need to draw the inference because they actually knew that a l had been threatened by three individuals the day before they both knew that the individual who was out of it and they the threateners was loose in the area and they both knew the panel was on locked they both subjectively knew that the panel was unlocked sergeant luna had the same information about the threat and he had the same information that the threat nor was roaming he also had information that there had been prior incidents related to accessing the control panel and he had more specific information at least the record shows us that he had more specific information that herrera himself was violent and dangerous what was the what was the prior incident involving the control pill there were four two of them resulted in injuries and two of them were contacts whether the county had notice the notice necessary to pose like the lady in the county and i think the gap in timing is interesting in that respect the district court said that the gap in time between february twenty intervening time between when these incidents happened and when that incident and issues happened there's an indication there was no training even though these prior events had happened your honor reference the constitutional establish it that is necessary for both claims for both the claims against the individual officers and against the county in order to establish that constitutional violation plaintiff has to prove that they were he was incarcerated failed to take reasonable steps and really the your your argument is that based on the prior incidents that they they knew where they were reckless and not knowing that the control panel should be distinguishable from the prior incidents because you have three officers in the common room where the control panel was there was just the one  that level the others there were no other individuals nearby and they were able to get to the cell within twenty seconds after the cell block was indifference turns on the knowledge of the substantial risk and reasonable steps taken before and not the key the fact that they were able to get up the stairs and get into stuff to be afraid doesn't really inform whether they've acted with deliberate indifference in allowing mr he let's assume you have a constitutional violation the more recent supreme court jurisprudence requires you to work to prove that it's clearly established to have a have a case that is factually very council let me jump in here while i'm thinking about this are there any cases where you have a jail or pill institution a prison or anything like that that guards in that institution and for example here where we have the guard that is just not common sense that you keep doors locked both for the protection of the inmates and the protection of the guards that are in penal institution like that for that in other words does it have to be a case in the tenth circuit or in the supreme court when the very substance of what's involved a prison i z which i call this i mean you've got to keep the door locked up and i would i would agree that it makes sense that you would keep that door locked in a prison but if we all that but here you've got the media showing exactly what was going on that that they just knew and it's just not negligence i mean they leave that locked or least i shouldn't say that would be my opinion that it is just not it's more than negligence number one because of the location of where this is occurring number two the knowledge they had about the potential beating that they were  instances not locking the door would be enough there are cases out of other circuits not not within the tenth circuit for instance i believe it was the erickson case out of the eighth circuit where there was  a detention officer who left a gate on walk that separated two portions of the maximum security and six it and then that officer actually had time instructed to lock the doors in the general of where the adults were camped but not in the juvenile facility which doesn't really make sense because at the time  from everybody in the park and only one individual could come out at a time and at the time that they removed it at all the doors were locked there were three other prisoners who were tasked to watch it  now i would concede that they probably didn't watch in close enough and it went to access the kiosk that would allow him to get stuff from the commissary and then he moved toward the  going to try to assault a l while unlocking the door and there's nothing in the record that the that we could infer that these what about the four prior incidents before those weren't incidents where there was an active conspiracy going on and then again to infer the act of conspiracy from the threats that these three young man including the one that punched the button made against the victim when they first came i think of course and that's a great question i think i think you can confront the act of conspiracy and i think the officers and the county did what they were supposed to do by separating them but you have to take it  another step there's another step in this conspiracy these officers have to infer that the conspiracy is going to involve accessing a panel what what if instead of a panel these cells were operat keys and one of the officers had just left their keys out on a table where this kid could grab them that that that's an interesting question because we talked about that it's like to call that the ma a jail cell and the officers had some information that they could infer that somebody was going to try to get those keys well let's take let's take this case you have someone out who's threatened to harm the young man the keys are sitting on the table the officers are watching t v and not paying attention to the pod and the young man they knew had threatened the victim grabs the keys opens the door and beats him up that is that is that an obvious case under under judge paul docs line of questioning earlier i don't know if it would be an obvious case as long as the officers were close enough to you know sometimes you just sit your keys on the table it would be no different than an officer having a key ring on him on his person on his hip and they and detain me swiping those to have the keys in a place where the he could swipe home and get inside the cell before the officers could get up there and stopped right i think happened to are enough away where that could happen george bush i think to make the hypothetical one where deliberate indifference mike mike mike might occur is you leave the keys on the table and there's no officers in the p separating individuals who are working with the government against their pope and spears and and there was warnings to the jail the to see didn't in that case warn the jail that he felt he thought of his safety for safety and so did his his spouse and the jail had absolutely no policy it was a municipal building case that would address keeping him separated and as a result already being explored and repeat and beat up by again led by an individual named ghost and they moved him to another prison and it p p p members of that gang were still in that prison and howard advised his counsellor and many people within the prison that he that he was afraid for his safety and that they and with those are fishers told them is crime doesn't pay and you get a good get used to not being safe in here that's clearly officers have been information that bit this individual's at a substantial risk of harm and choosing to do absolutely nothing about it that's not the facts and in this case those cases are close enough because in this case we recognized that there was issues w exempt them from even having to go to trial if it's granted to them and here i believe what we have the court granted qualified immunity to the defendants in this case what we have a unfortunately i was on that panel also but that's the question that comes up is there an inference here that the jury could reach on that basis that the conduct was sold bad given the the way i would i would answer that question just boiled up is this way before we even get to that issue of whether there is a fact for the jury to infer plaintive has the burden what we would all agree that at some point jails are in charge of individual safety but plaintiffs would first have to show that first prong of the constitutional violation that was clearly established and i don't think that that the obvious cases refers back to the general constitutional principles obvious cases in this case take us back to the farm where we know what the standard is we know what the broad constitution standard is and we control panel by itself and it seems to me it's there may be a broader issue floating around out here and that is that that counties in the in the institutions effort to segregate the victim in general so what they should have had a policy for and what they should have done was was basically to keep him safe to say take steps to keep him safe and it's undisputed that they did that to some degree but they fell down on the job  when it came to locking this panel up and i just i hear your argument you want to talk about what happened with respect to the panel only then throw out the other steps they took may answer your under these circumstances leaving the control panel unlocked whether or the the segregation was not but counsel your time's expired we appreciate the arguments as well argued and i also want to thank the audience for your attention and diligence and sticking through with us today good luck when you talk about it when you get back to school court will be adjourned until further notice