please the court mr washington had to prove that each individual the deputy division director of the division of adult institutions of the missouri department of corrections the current former warden in this corrections cost occasion elated his clearly established eighth amendment rights there's no response here are a liability under section one thousand nine hundred three each individual is only responsible for his or her own action therefore mr washington had to prove that each individual complaining that he does a gated area was within twenty five feet of an entryway and each of those were also were they aware that he was asked may have he told them in his grievances that he had asthma there's no evidence that they actually looked at as medical records to determine whether he did or not and at least one of the doctors in question that but he was treated for asthma and the record was that he he undisputed here that they knew about his condition each defendant they knew about his they knew about the policy regarding smoking in the cells and actual knowledge of that and deemed to have knowledge of how and versus mceveley which made it clearly established that this sort of that that this sort of condition being aggravated by second hand smoke raised constitutional implications that being case unless and just you want to argue some of those this is this is a fairly unusual qualified immunity situation because the problems are both both prongs known writerly you know it's they were aware of that there were aware of the serious medical condition they were aware was against it was against the policy as well as constitutional law not to do something about it  so for now so i'm not sure where you're going you are you you know you've made an articulate statement of qualified immunity and deliberate and different standards that we deal with every every week where does it where's that goal given the undisputed facts here qualified immunity can and can be denied in the twelve b six stage it can be nine at the summary judgment stage and it's still alive at trial but it's not self evident how it gets tried what the courts function is and what the juries function is and to the extent the jury has the function how it's instructed so i would say a defendant that doesn't carefully work those things out typically i would think in the instructions conference issue we've argued from the get go the first prong qualified immunity which is that there is no constitutional violation but how do you do it at trial did you did you say in the end of at the end of the of the pla presented there and he has not shown that these individuals violated his constitutional rights after the close of all evidence was it in fifty it would be fifty a and so will find the word qualified immunity in the in the no no constitutional violation because there was no deliberate indifference ok ok so on and with respect to each defendant that went to the jury yes and super including the supervisory person you're complaining about today and the jury found deliberate indifference yes breach defend them individually right without objection to the to the instruction yes and so now now so now we're talking we're talking insufficiency of the evidence we're not on the first prong of qualified immunity we're appealing the decisions on our judgment as a matter of law which is reviewed don't you know but it's in favor of the jury verdict but it's a this is a sufficiency of the evidence issue clearly established would not be that's a question of law right but it's clearly established under helling versus mckinley the but the but the first the first prong of the six decision for one thing well sure but i mean just the fact there was a policy in place here that bans i don't don't don't go off on a side track are we're talking are we let your you started with constitutional violation and i'm saying this is a sufficiency of the evidence argument post verdict isn't it essentially it is but it's under judgment as a matter of all we're asking the yeah but we get we get appeals from the a judgment of a mad my client wasn't negligent in the nasty district court denied my judgment as a matter of law one for all in refused to overturn the jury verdict and that's what we not so the jury the jury made it well this was not supervised reliability this was direct participation in the process reviewing the grievance the naing the grievance doing nothing about the grievances allowing the small to continue and so forth and you're saying the evidence was insufficient to find a name a helling being mckinley violation that's correct that the evidence was that they enforce the policy that i can i get i can read the trial transcript for that and i can do it for each defendant now what about clearly established which is a question of law where did the where did the words district court  that unless unless well now so on appeal now you can say the trial evidence should have caused the judge to change her son lee judgment ruling or you can say i'm i'm doing w we're not we did not appeal the denial of the summary judgment motion we're saying which you could have but you didn't have to right what we're what we're saying you're referring us back on clearly established to the summary judgment record we're talking about in saying the district court blew it as to qualified immunity not as to liability i mean i would agree with that more also saying you have meant that trial was insufficient to show that they were violating clearly established all even if you so you know you're you're making putting two heads on a one headed horse so to speak i wasn't trying to i know it but i mean this is not this is confusing stuff because most most qualified immunity appeals that we get aren't on a trial record so you have to stop and figure out what that means if the impact of having it tried in one one impact can be you can you can that the sense counsel can seek it the jury instruction stage to get some help from the jury on the first pro court michael foster for apple e the washington two arguments are raised on appeal fall in the district courts denial of the defendant to prison officials motion for judgment as a matter of law those two arguments the deliberate indifference standard in all if indeed if anything that's less harsh so it seems to me the lower courts that have done that have are our disregarding supreme court jurisprudence which is court would would do with this what they're the ones who grade our papers but no i understand your honor  punishment over and above provided by the compensatory or over i mean i read it but you you see he's on the callousness yes you don't want to you don't want to go to the evil intent prong why use intent is fine i'm i'm all the supreme court wouldn't have any problem saying that if you're if your deliberate indifference rose to evil intent court was would be a would have properly considered punitive we don't have that here versus brennan parse through recklessness and distinguish between civil and criminal recklessness and said the liberal indifference is criminally wrecked reckless and here we have our here we have our courts just saying well if it's reckless then it's callous and there's discretion to award punitive punitive the jury was asked if the defendant's conduct was reprehensible your honor and they were asked three they were they're asked you know and they were given a definition of that was written into liberty and different criminally reckless conduct is reprehensible conduct so that again your honor sorry i would say the supreme court has told us in farmer versus brennan the deliberate indifferen eighty three liability standard nasty reprehensible now the supreme court you you you agreed with me the supreme court has never addressed what being worse means when the liability standard is deliberate indifferen reprehensible conduct and not and the supreme court has instructed not every not every one nine hundred eighty three that every defendant who is liable under nine hundred eighty three that is liable d the judge to award punitive damages well if they find that conduct is reprehensible i think there's a difference in reprehensible and deliberately indifference full of billion dollars really indifferent to someone's well only if the jury doesn't understand what deliberate indifference is supposed to mean which is probably true but the jury was instructed what deliberately indifferent meant in this case pardon the jury was and seems to hold about criminal recklessness was in the instruction criminal rec mean i can consider recklessness as disregarding that risk by intentionally refusing or intentionally failing to take reason all measures to deal with the problem as wants nobody wants to believe farmer versus brennan that long that long discussion of deliberate indifference does not just gross negligence it's not just civil recklessness it's as close to evil intent as you can get they had knowledge such that it was the he or she was criminally reckless well and you're and this decision says if we have if we affirm the way it was decided every one of those defendants at the district courts discretion is zero six twenty nine six thirty nine i think it's on page one that that's that's significant and they did talk about what it meant to be reprehensible and only go to the jury instructions out with evil intent fine and then it says or i don't see or hear your honor you just read me and or physical or economic or both it and the or me or malice whether there was intentional intentional malice or reckless  award tonight is without a without finding malice or even an evil intent i don't think these i don't think these defendants were malicious think they were wrong it  that's got me what's the rest of the record side to what you're reading where do i find it in the appendix or whatever you can find it on six twenty nine to six thirty nine it was quoted in the one of what six twenty nine of what it was the counsel i believe you used all of your ribs all of your time did you have something that you heard in the response or repeat repeat the reply that you feel we absolutely have to hear or need to hear to consider your complete our hearing document for the day and for the week that being the case will be in recess until for the call