borders was employed by st charles debilitation center as a kitchen worker on the day in question border had sexual relations with leave when this event occurred boarders had no authority overly nor was boarder in gay shit any of his job related practically eight months lee had minor physical injuries no lost wages and no medical expenses the jury subsequently awarded lee a one million dollar verdict in compensatory damages and a three million dollars verdict punitive damages our first issue as i stated earlier your honour's is the color of law issue it's our position that the facts in this case did not provide a color of law did not establish that border's acted under color of law when he was in the problem with the event occurred and he was on duty credit yes your honor he was on duty however if you look at the case in the lambert versus dilemma which is six thirty all seven that defendant was also on duty when the event occurred so what in this particular situation i understand he he worked in the kitchen yes around so i'm guessing his responsibilities are food preparation food distribution those sorts of things his responsibilities were to restock the shelves to assist the cook and to deliver food and when this incident happened he had just completed restocking the shelves so he was done with  that morning he was still in duty but he was actually in the process of going to the back of the kitchen where he was going to sit until the lunch and his lunch duties started so during the process in which he engaged miss lee he was not in the process of doing anything related to his job responsibilities that he had bested in him by the state what would be enough for someone with those kinds of responsibilities to be acting understand color of  according to context according to the to the law you're on a plane the defendant would had to have been in the process of doing one of his job duties so for example in this particular situation what what in your mind would be enough to say or anything until she agreed to succumb to his pressure to to have sex with him that in my mind which are based on the law would have been him acting under color of title under color of law because then he would have been asserting his authority over him over her and he would have been in the p would have done been doing that in the process of what he was authorized to do and because this event did not  ur wow mr borders was in the process of exercising his responsibilities under state law and there was no nexus there is no nexus between borders performance  his conduct and explain the his duties or his station gave him the actors yes your honor but once again simply because he had access to the plaintiff that in and of itself does not thirty seven fifty one they had access but the simple fact that that the defendant was an employee and had access to each other did not establish that they were acting that the defendant in that case was acting under color o in order for borders in order to find the borders acting under colors they lie as i stated earlier his conduct would have had to relate to the performance of his duties as a kitchen worker in this situation it did not nor  there was no evidence in this case the borders used his position to exert any influence or authority over or control over mislead there was no evidence that lee reached out to borders for anything related to the job b s when she came into the kitchen area she didn't come into the kitchen area for anything related to japanese chic in anything related to borders job she came into the kitchen area simply looking for her friend she happened to ask boarders if this friend was there and boarder in the borders indicated that she was not and then he went on to the back of the kitchen at which time she followed him in the the event occurred and what's the evidence for why she followed him and you are there was no evidence as to why she says she specifically followed him so there is no evidence in the record that she was following him for him to supply her with anything that he had access to within the kitchen or anything like that and no your honor there wasn't the there was evidence that mr boarders at one point asked her if she needed anything and  he specifically said that he did not would have been would would that have been within his role his job description if someone came into the kitchen asking for a snack or some something in the kitchen supply there was no evidence that evidence that that specifically would have fallen under his job duties when he testified what his job beauties were he testified that they they were those three things because the activities the board pursue with lee was it was within his own personal pursuit his acts can not fall under color of law and therefore the plaintiff failed to prove that twenty seven the court held that negligent conduct by a state official cannot support a claim for due process in this case manifest means capable of being readily an answer in readily and instantly perceived instructions that are in conflict with him in with that are in conflict with each other because they are allowing the jury to come to the conclusion that he negligently battered ms lee or and of that he negligently violated her due process only needs to be sustained by one of them but is our position that it's it's confusing and because it was confusing it was prejudicial to the defendant in this situation i'd structure and we're not arguing that that was an improper instruction where that was a proper instruction however if you look at that in conjunction with the consent instruction it's very confusing because the considered instruction the five consent as to whether he whether the her mental capacity was manifest two to borders which means which goes which is more consistent with the negligent theory of of knowing are should have known but should have known now are you attacking the alec there were allegations of rape in those particular cases the jury verdicts were much less then the verdict in this case if you look at roger's versus city of little rock arkansas mathis versus fries and amador versus galbreath those jury verdicts that compensatory jury verdicts ranged between one hundred thousand and two hundred fifty thousand dollars and in this case it was one million dollars and we take the position that that was excessive in addition to the punitive damages if you consider the the the recovery and the lack of medical expenses and the lack of lost wages and you attribute that to the can the p may please the court counsel i'm going to shove my oratory in answer your questions judge kelly specifically concerning the issue of the color of law there are many things i would like to say but i think important to say is what is in the record as opposed to what is in the statement of facts of the appellate important to know what i'm about to reduce the portions of the transcript and what you must keep in mind is additionally border's was trained in the use of force force over patients customers such as angela leave this is the and then i wish to give you specific stipulations and admissions of borders where he has admitted to each and every element of a prime aphasia case for a constitutional injury of a violation of the bodily integrity eventually the first is eugene riddle the state investigator for the department of mental health we're referring to exhibit nineteen which is the pledge of commitment by all department metro health employees including borders question and here where a volume two page forty five line thirteen i want to talk to you about this section here it says i understand that all forms of restrictions punishment rough handling or anything physical emotional sexual or financial abuse are strictly prohibited by law is that your understanding as an investigator an employee of the state answer yes volume two page forty six and that's part of the training so there is times when people can use appropriate force to restrict the person's movements is that correct answer twenty one that's correct is there any time that a person could use intercourse as a form of restricting a consumer's movements no what type of force would that be i mean excessive inappropriate it's not appropriate just not appropriate there what rights cakes i will refer the court to the testimony of rice cakes which was the official duties even under the appellant analysis of his official duty rice cakes as a food supplement that he utilized and lurd angele a person who could not ever consent under the law on the day on the day in question volume three page ninety four and i'll get specifically to rice cakes question to albert border's volume three page ninety four on nov twentieth two thousand a scan in two thousand and seven again you were on duty when this all happened with angela lead is accurate answer yes you were again in the care custody and control of the kitchen area of the dietary area with this assault took place isn't that correct ye angela asking for some supplements isn't that correct answer line six her rice cakes her rice cakes is that correct right line twenty two right you talked about these supplements and rice cakes were the rice cakes and supplements in the dietary area in which you were hand in which you were heading towards where you had a seat and sort of line twenty five correct volume one page one forty but then you had a conversation about the supplements correct that was all i was in the kitchen area right but it was after the talk of supplements that she came back in the dietary area with you isn't that correct answer correct i need to say that again line three right but it was right after the talk of the supplements that she came back into the dietary area with you isn't that correct the answer is correct in this case albert borders at mit's that he was on the job within the scope of his authority and under the case law purported to act in the performance of his a bishop duties he had the care custody and control of that area and in terms of his training as you force over angela lee a person who was completely mentally incapacitated paige this is albert lee's testimony this is i'm only going to refer to the record and this is one volume one page one forty nine now again i had already brought some testimony here about eugene riddle to talk about the use of force training that is in the record for all employees including our borders page value one page one forty one line fifteen are you trained in the top it o know judge i said i apologize i said volume one page one forty nine line fifteen are you trained on the topics if somebody is mentally incapacitated or a patient whether or not they can give consent or not for you for sexual relations answer we had something in training question line nineteen in any part of your training or on the job training answer it's just the topics that we had we had was not to have sexual interactions with consumers on the job as far as you know basically just go ahead do your job that's what you were hired for question and you were on the job answer yes and was she a consumer yes or now he at all times knew that this individual unlikely that nothing about that is use of force in terms of the use of force his object of the use of force against her was not reasonable there was testimony in the record what was the use of force other there was testimony in the record that he grabbed her by the arm in the back  told her after the incident which this jury this jury had sufficient if not overwhelming evidence knowing that this interaction had taken place question three page ninety five and you indicated as you testified on direct that you testified in these various statements because you had a motive to try to keep your job isn't that correct answer yes and in fact you lied throughout these various statements to protect your own interests as and that correct yes in terms of his motivation he stated on volume one page one seventy four jet then you also indicate so i let my other head take control i mean what is that ahead what is consistent with luke's testified how consistent it was despite some statement in the statement of facts that it was not and so i wish to pose this question here this is a person who is in a state facility this is an employee on duty who has jobs just not feeding her but in this case that was the case he was feeding here and this is a person who is very vulnerable and mentally incapacitated in the vulnerable position and he knew that she was in a vulnerable position he knew that she should not have any sexual contact whatsoever at all with throat and in the record value in one page one thirty one against or you knew that angelica was a consumer a patient someone who was a ward of the state and was institutionalized in st charles ability on november twentieth two thousand and seven isn't that correct answer yes sir brown versus valley in terms of no official objectively face with the same or similar circumstances would ever have taken the action he did without the benefit of hindsight he had care custody and control over her  kitchen area while on duty she was a vulnerable person clearly the actions of the regis sexual contact far beyond that i would contend of rogers this is a mentally incapacitated person a person a state official even when they misuse their powers to answer your question judge under philips the johnson case westby atkins case even when you over your authority when you're acting or purporting to act as he did with rice cakes with supplements to get her word back there that's what this reasonable jury deliberated and determined you act under the color of  of say the city of raymore all stand for the process prospect that you can deprive someone of their substantive due process rights by invading their bodily integrity and that is the case law of this circuit it makes complete incoherent sense what does not make complete coherent sense is dangerous notion of consent now in relating to the jury instructions on this issue of consent to these other issues here there was no confusion over jury instructions in fact i'll cite the record volume three line thirteen in this is opposing counsel in terms of their objection with respect to the definition of consent i'm sorry that was that had to do with consent this was the professional testimony of a doctor the question is eighteen to twenty one this is dr weinstein so is there any shadow of doubt to a reasonable degree of certainty that she lacked the ability to consent to sexual contact answered no that's what the jury heard as well there was no objection of the definition of under the color of official law volume three page ninety nine no objection by counsel what is your what your understanding of the word manifest obvious manifest is the manifest it's here it's present so you there is no i disagree with opposing counsel on the idea that it somehow suggests the negligent standard let me tell you what counsel said counsel said by him three line one hundred we don't know we don't know that consent merits definition it's clear in and of itself but what the jury instruction that they offered was number ten let me tell you what number ten says by going three page one zero two your verdict must be for de borders of plates of sleaze battery claim against defendant borders if you believe that plaintiff lead by words or conduct consented to the acts of the defendant and the reasonable consequences thereof this case had overwhelming evidence far beyond sufficient to demonstrate that lee's bodily integrity was violated by borders closed under his authority of the state he disrobing intially but he cannot remove the clothing under the official acts of law this is nothing like row something done soley in the personal and bits this is a person who knew that she could not consent lured her under the guise of his position told her not to tell her about anybody about it i suggest that's course of there's no suggestion that this jury was not deliberative nor that the judge in any way abused his discretion and i thank you so much let's he for dollars three million was punitive damages trouble double trouble in quadrupole have all been held to be not consciously excessive that this measure of pain and suffering is best left to the sound discretion of the jury where these injuries are not usually calculated in light of the record that was before this court and the  injuries which were even compound their counsel i mean we know the law little over a minute no thank you your honor i'd like to just direct direct my attention to a few things that opposing counsel mention nowhere in the evidence does it indicate that m was lured back into the kitchen with the proposition of having rice cakes that is absolutely nowhere in the record there is absolutely nowhere in the record where mr borders had care and control over least mislead counsel indicate that several times in his brief and was standing here once again that is nowhere in the record is nothing in the record to indicate that mr borders knew that lee could not consent to the interaction and those are just a few things that plaintiff has that counsel has stated in his record and before the court today that in the record that is not in the record at all basically your art color of the argument boils down to whether the defendant actor or purported to act in the performance of his official duties when the incident occurred it is our position that he did not he was not in the process of doing anything work