the court whether it's larry bagsby on here on behalf of the class victims in this case which comprised of seventy eight victims i'd first like to address the matter which the district court disposed of the plaintiff's claims on sheer happenstance the same events that arise in this case happened in lincoln county in judge logan's opinion in the case of which judge will lawyer participated in  judge looking referred to it as a no supervision case in quotes no supervision but what he did more carefully was point out that the standard of liability on these municipal entity claims is and a very objectively one and that was consistent with another decision of this court in walton in calendar year two thousand and fourteen which also let you do twenty fourteen cases but before you lose leave s c m the opinion you're quite correct is very well written on page five eighty eight it implies that the jury got the wrong jury instruction what judge logan pointed out  there regarding the jury instruction issue is on be happy counsel on behalf of the entity the county had not objected to i believe the third element of the crime and judgment loken i think to use this language  that arguably the failure to object failed to address how stringent the standard is but then did not go on to clarify because the are the issue right which is because there is no objection that she's not before us so as a matter of law that kind of undercuts the s and m authority right i would still disagree because you would just simply go back to walt and ok or how much i will let you get to walk one of the thing on  m there there was prior evidence the employee was engaging in misconduct right only to the subordinates known to the supervisor who was the named or the sheriff of lincoln county that's why jim that's point out in emphasize the judge is located in the us and decision called that in no supervision case and that's exactly what it was the supervisor had no actual notice no actual knowledge which is what the defendant all sued in their official capacity in this case are trying to claim now ok now right now you go back to your twenty fourteen case ok in walton that was a the legal claim that was before the court was against the individual and the court was very careful in analyzing what standards and how they're going to apply whether it's an individual defended where you have issues of qualified immunity or you have entity liability and walton made it very clear that when you are going down for an individual the standard of liability imposes a subjective actual notice awareness of the risk and it also made clear from the supreme court decisions in canton and connick that when it comes to the entities liability is going to be an object of no actual notice requirement it is a standard again in the context of entity liability of whether or not the policy makers had avoided or failed to appreciate a known risk actual not a notice is not required and that's exactly what was held in the us out of what you believe that this standard really deliberate indifference after week after all said and deliberate indifference applies in both contacts individual warheads or so it is still the standard deliberate indifference it is a deliberate indifference how it is interpret off into the language that is used in a subjective analysis language like malice or evil motive shocks the conscience those are the that language is what you see when you start reading the individual liability cases for deliberate indifference you do not see that language in an object of analysis under that has been clearly analyzed from the supreme court  entity liability you do not see that in walton what it talks about and entities liability you do not see that in judge locums opinion what about the supreme court decisions not the supreme court  stablished any i'm basically quoting the supreme court any substandard due process violation by needs must show that the behavior of the government official was so outrageous that it may fairly be said to shock the applied when it comes to entity liability you certainly don't see it applied in the controlling cases of the circuit which are walton and s out now have essentially gotten even if argument here the district court said that the district had no notice given what the evidence was was presented and i think what was fatal error in that an two pieces of evidence the actions of the defendant hanson in this case occur inclusively between the years of two thousand and seven and two thousand and eleven one piece of evidence that we had it and have in the record is a us department of education study that was published nationwide on the dio we website that dealt with sexual predators specifically in the context of schools and educators that study found that between grades kindergarten and the twelfth grade four point five million students have been the victims four point five million judgment posture the district defendants denial that any of them were aware of the study that is not obviously how the structures of rule fifty six work that evidence should have been construed most favorably to us and not merely accepting the defendant's denial if the defendants want to try to argue the interpretation of those statistics that's totally fair game but again the structures of rule fifty six in the summary judgment states that evidence is true that evidence is overwhelming i don't care if they want to if each of these individual defendants want to say they were unaware of it i suppose you could wish that you could say that but the role of a district court judge is to accept the evidence is true the other decision very important fact that the district court a very short shrift so was the way this district had set up this camp and the manner in which they had people in different positions who they believe are going to act to supervisors this camp that operated beginning in one thousand nine hundred eighty the current superintendent of the school district has been there thirty five years and i quote him in an exchange i had with him in the reply brief and i asked him what explain this to me how you believe security was set up inside the barracks itself at night and we go back and forth in that exchange that's contained in the reply brief of me asking you had a one adult one per one adult per ca seventeen years old were assigned to the barracks and the reason this becomes important is because that is what the superintendent head man the chief has set this up where he believes that these teenage sixteen year olds are going to act with the same quality and maturity of a nother true adult inside the barracks to report if anything goes wrong and the reason i lay that foundation is be cause again what hanson does is between two thousand and seven two thousand and eleven and in county or two thousand and six one of those camp counselors who was assigned to the barracks other evidence that if i have to go down that path but anyway he this student david rating walks into the cabin sees hanson on the top bunk bed of all with the fifth grade students and they're the only ones in the barracks he has and jumps out of the top and says are just starts acting startled that was our reason i emphasise this so strongly as that was the very security system i'm going to be held to some kind of actual notice standard for the entity's liability the very security system they set up failed they were was going to be fair to say that they also had had a policy rate and criminal background checks and they had certain standards that they wanted the counselors and the adults to abide by right correct they have to so that the is it is it an accurate assessment to say that having a plus student was the security system you were saying that was that that was the way they was guard your hames to the human element if there was a human element in the security system to report any misbehavior out of the camp inside those barracks what they built and what they relied on were these a plus students so my point is even if i get held to an actual notice standard they had actual notice a full year before had some stress committing as i said i thought that that young person didn't say anything until after all of this had been filed he did know he did not report it until two thousand and twelve so is that actual notice if that's the system they set up i mean if i don't mean this in a as a demeaning example but if you're setting up the eyes and ears over the security system with blind people and deaf people who are not going to have the maturity or the ability to observe and report that's the system you set up if you're going to treat sixteen year olds like adults and stick them in those barracks and expect them to be reporting with the same maturity of an adult that is your fault that's my point they are a it goes back yes well i mean at the end of the day it you have not pointed to what i would call any red flags that they should have noticed something was going was happening which is which is more the sam case but the based upon your argument in the brief as i understand it and you're arguing about an objective standard is you're saying that as a matter of law putting one adult teacher in a overnight cam is going to be a liability is that what your argument is i mean because i can i can't figure out anything else of your argument very frankly will have that it's it's a matter as a matter of law they should have known that this was a high risk and therefore don't do it i would they know nudity is going to happen they know what nudity these kids are going to have to shower i mean this is not a modern day facility where you have the ability to have privacy when you're showering these cabins were built in one nine hundred thirty three during the at the our administration they look like it that's how there's that's how they built that's how they're built that's how they function it's a very spartan existence office toilets and one room for the concert that's it but my other point additional facts that i bring it up is they violated their own district policy by allowing the video recording the equipment to come into the barracks in violation of their own policy because they knew that was going to be  they knew it was going to be something that would have violated their own policy but they were just oblivious to it and it goes back to the issue of how can you say that you're going to allow the cameras to be brought in you know that nudity is going to exist you set up this security system with these teenagers and you also are just going to simply deny your unaware of a department of education report his order he actually referenced the implied notice that sometimes might be sufficient to establish the liberal indifference across the apparently this erroneous standard argument would be somehow that judge r only looked at actual notice that's completely incorrect judge ross didn't look at soley actual notice he looked at both of those issues and the real problem and is that the simply was not and is not there is no evidence of either actual notice or implied notice that this incident was going to occur that a constitutional violation mind was going to occur what hasn't been stated yet is that of course this camp has been in existence for over thirty years you're talking about thousands of students hundreds of teachers you didn't introduce any evidence or summary judgment right yes or you didn't counter with any real evidence of what happened then the other thirty years i can't believe you had evidence like that right we put in that this was the first time the city ever had yeah but you can't really prove a negative counsel personally i agree or are that is challenging to prove obvious and i would add that it has to be so obvious and that goes into the question that comes back to this thirty years if it was so obvious that this was going to happen and why hadn't happened before and i think that in particular the one thing to remember here too is that we are talking about an educational institution and we're talking about teachers there's a myriad of examples where teachers are going to be necessarily alone with students from time to time if there's nothing unique about this that would make it so obvious that a constitutional violation would occur that distinguish it from any other time when you have teachers alone with  different than being alone in a classroom in a school this is a cabinet i suppose in the woods somewhere it is it is different than just any other time you're alone it is a twenty four hour a day showering changing clothes painting doing all the things that that you need to do that's fair it's more in depth what i would suggest for example in elementary school you have teachers go into a bathroom and help a student alone in a bath or you'll happy coaches that have to be alone sometimes with students so i do agree that it is more in depth but i raise that issue because it holding that this would be so obvious would have really strong that there has to be more to it that it's a rigorous standard not merely that if somebody has violated the law or some of its constitutional rights that there's always liability and so i don't agree that this is so obvious and i don't think that there was evidence to support that with respect to the notice issue of counsel brought up two points one the incident with david ray the camp counselor who the evidence in this case showed he came in and  startled there was no evidence that anything improper was going on that somebody was in a state of undress or that there was inappropriate communications or that there was any big deal equipment in hindsight yes it may look suspicious but at the time it's just equally true to say that it simply looked up but most importantly as this court point out mr ring didn't tell anybody he didn't tell his mom he didn't tell anybody it came out after mr hanssen was arrested and it hit the new cycle and there was a criminal investigation he then said well maybe i ought to tell my mom his mom called the school district the school district passed an informational with respect to this department of education study i think that posen council statement that there's point five million students over the contect over the course of k through twelve how many millions of students went through that same time period in our entire country that had no and you put that in the record what's that did you put that in the record i did raise in the argument before the trial court that there was no expert testimony to explain this to testing which by itself doesn't tell us anything much from a government report so they kind of get it in and then you can kind of get in there you know how many students were around that pornography i said that i didn't see anything in the report that specifically dealt with the incident of child pornography as opposed to generic sexual misconduct which could which include could include and did include sexual harassment all these other types of conduct that's not this and it simply didn't exist so the bottom line is that there were there simply isn't notice sufficient to establish the deliberate indifference and i think it's important remember that the liberty difference means that you have to be deliberately indifferent to something it's just not by itself what are they being deliberately indifferent to this was the first incident of child pornography at this camp in thirty years they're not being deliberately indifferent to any type of prior constitutional violations they're not being deliberately indifferent to any notice of inadequacies in their policies that's just simply there's no evidence of that we did not talk about point two in opposing coun respect to the issue of default judgment opposing counsel point it has raised on appeal a request that this court reversed judge ross's denial of an entry of default judgment against a school district with respect to count one this was a multi county petition but a lot of the counsel to me were disposed of some of them were dismissed voluntarily  what's been appealed in point one or counts three five and seven judge ross however rule on all the remaining counts in this case including on and count two count  judgment and inner judgment in our favor importantly that has not been appealed they did not raise any point of error which on count one so before this court is a substantive ruling in favor of the school district yet according to point two they would have this court reversed a substantive ruling in favor of the district in favor of a procedural technicality and that goes against the very grain of the essence of a strong judicial preference against the fall judges because they do not allow a ruling on the merits of the court's favor ruling rulings on the merits rather than procedural technicalities and as judge ross pointed out the district filed an answer every step of the way the very first complaint in this case their own we two defendants those in council had named the school district explicitly relief against defend that hanson notwithstanding that fact the district not only found the answer to its the counts directed towards debt it also fully responded to all the predicate facts that would have been incorporated by reference into count one and then further responded to count one saying that to the extent that this can be construed to be against the school district we're also denying liability that stayed the same when opponents amended their complaint the first time complaint answered by the school district and it stayed the same with respect to the second amended complaint although by the time we get to the second in the complaint something unusual is happening opposing counsel has dropped words or what school districts as a defendant that's actually listed as a defendant and replace the defendant with seven different ministre to of the school district in both their individual official capacity i'm not sure exactly the reason to do that when you already have the into t but i find it interesting that when the district answer this last many get blank absolutely the district answered is the district so it's proxy answer right that's exactly right your honor and again same pattern they also address count one so on this issue was brought up with where judge ross judge ross said no i'm not going to grant a default judgment against the district council puts a lot of discussion in their brief about the banks the sleigh cas and of course the distinguishing factor there is in the banks case which was against a border police commissioner's the board sat by and watched it unfold not only did they not enter an answer in that case but even after i think maybe if you thought i was judge webber but after he set a hearing to decide whether or not to enter a default judgment based they sent a lawyer and but nobody said anything on behalf of the board and that was sufficient for the being that there certainly would be a lot of troubling issues on damages which would generally preclude a class or patient however there was some logic in making sure that the liability issue which seemed to have a lot of common questions and common the answers could be resolved and in hindsight it turned out to be an effective way of disposing this matter because now the district is not facing a myriad going back to the fair to supervise claim counsel for the school district just characterize what the fundamental flaw was of the argument they made to the district court was and how the district court adopted it answer what that is you have to ignore the risk you do not have to be where and have actual knowledge of the risks but if you are ignoring an risk that is the standard and i go with where it your greed has to be kind of really obvious right i'm sorry you great an amusing a country phrase it has to be really obvious the supreme court he says so obvious of the risk yes so obvious they say so obvious many times if you know what i'm trying to say so that's be really obvious not just a little bit obvious what do you think you think that's wrong or right of the risk of the risk i would agree but you can't phrase and pose and posture the question is you've got to be aware of something it's a if it's simple a risk so if you're going to run a school district with fifty no mentary schools running three camps a week for five weeks for thirty five years of a row and you're going to stick one adult in there with the students when you know they're going to be nudity and you allow the teacher to take the cameras in there how can you not put two and two together what the risk is how can you say that at least of the summary judgment posture of this that you're unaware of the department of education study in judgment lloyd you pointed out by asking john does the study address child pornography and i go back to what i was saying earlier they're free to interpret those statistics in any matter they want an argue to a jury however they want it the issue is the existence of pedophiles in schools what type of pedophiles is a side issue it don't don't you have to have some if if somebody under oath says i have a rather department of education study don't you have to have some evidence i mean is it is a valid obvious that they read every single report this issued by the department of education there may be thousands of them i don't know we have a federal judicial center that comes out with a study every week i don't read them in most cases why is it so obvious that they're everywhere this deal wouldn't it be a matter of degree if a student if if a study comes out for your profession and says you've got four point five million pedophiles in your profession you need to start taking steps and be aware of it isn't that different than the normal missouri lawyers weekly or the supreme court case summaries i mean that's a rather attention getter just the sheer number four point five million  hiles are in our schools all throughout the country and if you want to parse what type of file go ahead but the problem is you need to acknowledge that pedophiles are there thank you for your argument