of qualified immunity by the district court of the western district wheezy ana the basis of the ruling was that due to shreveport police officer corporal gibson claiming his fifth amendment privilege the district court applied an adverse presumption concerning chief shows knowledge of a possible rumor concerning detective green's reputation as a truthful police department the alleged rumor was that of grain had a reputation at the frequent police department that he was fresh with and women accepting this is true the district court found that chief shell failed to provide additional training and discipline to detective green to prevent him from allegedly raping mistress on while on duty in his office it is the chief chief shows position that the district court erred in not that's the that's a believe that's the extent of the depositions taken englishman there was no deposition taken of chief show that is correct there was no depositions taken of any training officers nobody trip or police academy none at all right so there's a summary judgment record have documents or whatever relative to training of either officers or detectives i mean here's a man you know is there  anything in the summary judgment concerning you know training or any of that i do not believe anything attached to the summary judgment motions concerning the training aspect establish a law suit chief show is in a supervisory capacity for detective green to establish supervisory lab military it must be shown that chief show acted with with deliberate indifference to the alleged violation of the adverse presumption applied by the district court was the chief show i was aware of detective grange reputation for what the district court caused inappropriate sexual behavior but the question which gibson was asked and he refused to answer was there a reputation of detective green that he was being fresh with and women not having inappropriate sexual behavior does dismiss characters ation by the district court have any significance concerning the alleged as alleged by the district court don't know the answer to that question i want do you mean i circumstance was in any introduction of testimony from the criminal trial of the show how gibson may have been asked questions along these lines of the criminal trial that was doing to my recollection there was no adduction in this motion for summary judgment in his deposition that corporal gibson had initially he was asked about his testimony at the criminal trial and he addressed those issues so he did he testified i mean did he state that he testified as to questions like this of the reputation of this particular officer green another one he was not i do not believe he was specifically ask judgment well the argument is that that qualified immunity is more of a legal approach than a factual approach the district court had denied the summary judgment based upon the adverse inference but but qualified immunity we would submit to the court is a step above a a general motion for summary judgment  it falls on the same category obviously but it has a little higher standard and of this court in previous decisions even where there are specific acts situation and we've cited those in the brief court so but so the argument is that that qualified immunity standard is a step above the general motion for summary judgment standard if that's the appropriate way to put  it's a colloquial term that's probably been around for a very long time but was anyone in this case particularly mr gibson asked to define what he meant by saying fresh with women i mean that's not a legal term it's not a term that has elements that we can test as to whether or not they're present presumably it's a term that he's for milieu with and could range anywhere from unwanted flirtatious behavior or aggressive social behavior all the way up through criminal act it was the types of things that happened in this case so do we know in this case what he's talking about i think it's kind of important if we're going to start an adverse inference that someone else is aware of it we need to find out what it is exactly he's talking about it's absolutely correct your honor at the time he was asked that specific question he was taking the fifth and he did not answer and i did not provide any definition to that  recollection is in his conversation with mr sun when he brought that up he said he had in the detective green had a reputation for being fresh with women but that was not to my recollection explained over the sign right and also i was going to ask you to his testimony that he testified in the related to the underlying criminal case is that correct i'm sorry he did testify in the underlying criminal prosecution is that correct in his initial deposition not believe he did answer those questions right and was that part of the summary judgment record in this case offered as rule fifty six support or contravention i do not believe and i was going to say what there's an issue that the court just brought up of what fresh with women mange there could run the whole gamut of of a flirtatious comment as opposed to to an actual sexual conduct of some kind and her the jailer previously had an incident where he made an advance and made inappropriate advances to to a female student in a school district there was no disclosure of that in his particular jail and would not be of would not be required in the important quote in that case as is that it would have been this was quote it would have required any normal sleep to connect improper advances to a female student to the right that happened some years later that was the quote in the case and that's exactly what we have in this particular case we would submit to the court that it would be an enormous leap to evidence of a prior incident in this case the improper advances to a female student not a rumor or or presumption as we have in this case qualified immunity was rivera to the court which again is very similar to this case there are a jailer right demand mate just six months before there had been a prior sexual abuse incident involving the jailer inmates and the same analysis would apply here in this particular case to chief shaw that the allege rumor of tech to green being fresh with women no further training was needed or should not be needed based upon the analysis of that case to prevent green from from raping someone in the future allegedly murdering someone in the future  officers serving search warrants late in the evening or early morning hours and excessive force was used we have cited some some excessive force cases one of one particular robert first seizure report that we think are more motion relying exclusively on one single adverse inference to the question which was posed to officer steven gibson about whether or not he had previously stated is that the only summary judgment evidence you've offered the district court to defeat the motion no your honor is it is it only the gibson testimony on the  fact the first page of her opinion judge put the first to the trial testimony of officer steven gibson and being who was romantically who at the time of the ledge right was romantically involved with hassan as being an important  witness at the trial so where i would start is this d c d right over the crime of i'm sorry just put preside over the criminal trial no sir she did not the trial took place in cattle parish distrust basis did you find out it was filed into the record in support of our motion sure i know that there were we have also filed a comes across a motion for summary judgment as well on this on behalf of nisus on which was the and i ask you opposing counsel this same question was a transcript of the testimony from the criminal trial placed into the summer judging record i mean i've been phrased exactly that way and perhaps he didn't understand but he said no you saying yes i guess we'll have to look at the record and find out but you are saying your recollection standing there is that we'll find a transcript of what this corporal i think it is gibson said in the criminal trial in the summary judgment record at least so your are i believe that i believe that based on my record but what is in there that matter that gets to whether willy shaw would have known that greene would not just be fresh would do something comparable i mean what do you think the legal standard is thank you for that let me take you right back to to your question judge stuart the context there arises in this context first there was more than one indication given misleading testimony at the trial of officer green whether he had previously stated that there would be efforts by the shreveport police department to concoct something to sweep this under the r her deposition testimony that mr gibson gave in which he invoked his fifth amendment out of which the adverse inference arose then she also had your asserting she also had a transcript or a portion of a transcript of what mr gibson said in the state court prosecution ok before we before i go through these statements here if you have anything else from you to defeat the summary judgment under rule fifty six which she had  here for purposes of this motion is shaw and shaw is there's a deliberate indifference argument that you've made and a failure to properly train is that correct that's correct ok now let's go back to gibson's testimony that the district judge cited to and let's talk about the adverse inference as i understood it the first question that was asked was unrelated to the audio that i just played do you believe that the shreveport police department is crooked  when to take all of them let's move on next question would there ever have been a reason for you to say that the shreveport police department was going to try to cover this up because they were crooked so the adverse inference is that the shreveport do you remember how do you remember telling his son that none of this your fault that's his assets the department's ass so the adverse inference in this case would be either be why i don't i assume it's not that it was her fault the adverse inference is that the department is in trouble and and mr green is in big trouble isn't that correct all right now the next question is there any reason you would have told malaya haasan that the police department was trying to concoct some sh the adverse inference is that he did tell her that the shreveport police department was trying to concoct is that correct and we read that as yet now next do you remember telling milly hasan that they do so much stir dirty stuff around there and then you got to scrape the bottom of the barrel to try to find officers and get anybody in here with the adverse inference on that is that in fact they do i assume when he means stuff he means obviously dirty or improper stuff and that the officers are bottom of the barrel as the question was phrased in the negative  themselves are criminals the adverse inference is that he believes that there are half of the people at the shreveport police department of criminals ok i'm still looking for you know where i'm going with this i'm still looking for saw all right let's keep going because you only have a couple more three four more you remember telling the liaison that james green had a reputation for getting fresh with women the adverse inference is that he did remember telling her that or let's go even further that jane that james greene in fact did have a reputation of quote getting fresh with women correct all right have you said to anybody that mr green had a reputation for getting fresh with women at the police department it adverse inference is that in fact he had he did say to someone that says anybody he did say to someone that mr green had a reputation for getting fresh with women at the police department right and i'm going to assume that the police department means both fellow employees at the police department and other people while he was at the police department which is the facts of this case than the last question that the last one but when you're asserting your fifth amendment privilege is it then have you ever lied under oath while the adverse inference is that he has lied under oath without specifying when have you ever given false testimony adverse inferences that he has given false testimony have you ever given misleading testimony that he has in fact given misleading testimony and did you lie under oath during your testimony at james greene's trial the adverse inference is that he did lie under oath that james greene's trial so i'm trying to get from and that's what the district judge relied on i'm trying to and i need you to help me find out why i'm well you're taking a very indirect route and i want to know how does this implicate knowledge or and deliberate indifference or failure to train such that there should be qualified immunity should not be granted up go back to the context this judge who is pointing out that this arose gin during the course of the interview he has interviewed but he does not say anything about the fact he does he says is misleading about his own romantic involvement in reputation with mysa song then he appears at the trial officer green does not take the stand at the trial the defendant self as it is right instead he presents the defense presents officer gi didn't provides testimony which is misleading and untruthful and specifically the reputation what the judge said is that the reputation piece of that coupled with everything else is enough had so she's made the adverse inferences you talk about still don't get you to show off but they did but they do rise in the context of the other universe of facts here which involve the trial testimony and when to involve gibson's actions inactions and his abused his position to to obtain consensual sex with mississauga which she denied vehemently that it was ever consensual under any conditions so it arises in that context what judge put says later on i believe that hades seven and eight that opinion is that all these things together are sufficient to conclude we know what we know is she say it seem to be distancing yourself from that you produce this in order to show something so the earlier question asked of you did you put this scene and if you put it in what is it you intended to show by because that's not been different that's what we're not here it demonstrates a culture existed in that department that this chief was different to that he should have been aware of that officers were  not properly trained as judge foote points out in his own affidavit doesn't say that he was specifically trained he being specifically trained about really doesn't need to be trained not to rate people in his office while he's on duty does he or any point in time only hope that he would not need that while the supreme court is even sad for instance in the in the in the instance of the district attorney's there harry connick cases the supreme court has said that even an assistant district attorney doesn't need to be told that he or she must comply with the brady i would think in this instance if you're hired as a police officer you pretty much know that you shouldn't commit a criminal act on the job or off the job it's not i mean we're talking about training you have to train employees that they they can't lick the walls instance here in terms of shaw we're talking about the first instance the day she comes in to file the complaint and he purportedly touches her that's correct ok so we're not talking about the rape he's not deliberately indifferent to that because he fired but that s she pointed out sexual misconduct exists on a continuum there was a nothing here from the inferences that can be drawn to establish a culture of the difference to sexual misconduct by officers on the department such that they were it was not dealt with not disciplined not properly trained that is the conclusion that she reached now those are inferences that have to can be drawn negatively from the testimony of the depositions context as you pointed out judge stuart you can't simply piecemeal one simple question and say well that's it there's nothing else to add that's why i went through all of them and i still am looking for the question that links shot to deliberate indifference or a policy or procedure that he perpetuated that allowed this to happen that's why i went through each and every one of the questions that the district judge cited to assert i and that's appropriate but we have to consider  will record and so i want you to articulate from a different steam point first of all what is your articulation of the basis of that in our qualified immunity to achieve sharp and they don't want you to articulate what is the deliberate indifference that you're able to establish you know that's a tough standard women to ring through the testimony of one witness whose own trial for misuse of office or whatever the choice was he's made or he was not on trial the witness that the witness whose testimony they were relying on is gibson who was testifying in support understanding but i'm still saying i'm still asking how do you make the connection in terms of  culture within a department of so one hundred officers through the embers inference and drawn from the testimony of one witness that's what i mean the key witness who was inside that apartment who would use well situated to know the culture and and had made statements about that culture to miss on various some very specific statements that the department knew about green's reputation that the department would move to cock something to cover this up that and in referring to the department he's clearly referring to the supervisor kirsan l within this department for which well it's just chief shah would be would be responsible for knowing what's going on in his own department achieve he wasn't one of however many assistant chiefs there are and then you got all at par aki of against the uniformed people so i guess he would have been a non uniform detective right or something i believe he would he would be he would i believe you would be that's correct he would not be a patrol at the patrolling level a patrol in first class level he would be somewhat of a supervisory position tribble to him will give him knowledge of this culture within the whole department i'm not trying to state special that i'm not going to have this determine what you put in the summary judgment record to allow he's using it in a global sense and reputation is something commonly shared among members of that community within that department which would include the supervisors and the supervisor hierarchy as well as the line officers articulate for us the deliberate indifference you are opining from this what what is the i mean we found out the record shows the far right so articulate on the bus what is the deliberate indifference i think that you're you're urging and take it to which of our delivered in different cases you say best supports the proposition i think that the the your question question based on me i'm i'm only asking you as you go to your seat to articulate for us what the legal argument is you're making of sheaf shows deliberate indifference in this case that's what asking i'm asking you to state which at least for me hasn't come clear to debriefing articulate the deliberate indifference that we would find if we found it in this case based on you know what's in the what is  case dealing with deliberate indifference supports i think in the law first i think you can live in the cases that we should cite in fact the cases cited by the city hard on for one is quite different because it involves the failure to investigate which would have led to some knowledge here the inference is knowledge existed and that the chief had it did not act on it so the legal standard there that he was indifferent to that knowledge and took no action that first on the based of the the argument of counsel the believe have nothing else in the bottle to say other than that i do respectfully disagree that the the the trial transcript of the criminal trial for protective green was part of the summary judgment package but was it i just don't recall that it may be but i don't recall that  entire is it the transcript of the entire trial or just the transcript of gibson's test that was part of the summary judgment and i believe just  a part they that highlighted parts of of corporal gibson's testimony concerning concerning the various issues i might add to the court that that corporal gibson had some when he was refused to show up for a deposition the second time a continuation of is that there were there were actions taken to to force him to show up and to testify and the transcript might have been part of that record that would have been in the official record but but again i'm not certain that it was part of the motion for seven route fifty six motion for summary judgment record he said it it might have been attached to the deposition transcript is that is that what you're saying i don't think it was attached to the deposition transcript