proceed you're in the may please the court i'm chris curley i represent the olympia school district and four of its supervisors jennifer pretty frederick stanley williams lehmann and barbara greer i were here today on appeal from the trial court's denial of qualified immunity for the four individual supervisors in order to defeat a claim of qualified immunity from the plaintiff has to point to a case that articulate succumbs to touche a rule that specific enough to alert an individual defendant that he or she is going to buy a lead in the constitution if they don't follow the rule and so what we have to do here right out of the gate is examine what the legal landscape looked like in two thousand and nine for the child against that abuse is it clearly established law that the employee who is in a position to protect against the abuse that he knows is going on is that clearly is there yes i would so the question in this case is what's the degree of along which were a violation of policy why isn't that sufficient notice well first of all your honor we have to be very careful i think about the idea that there were multiple multiple complaints while how many were many were there well there was there was one complaint from an individual a robber mcguigan in the fall of two thousand and seven he's the fellow who claims he called the bus barn and said my daughter lily she excuse me  the one to call the bus morgan said that he would have been reported to my son that times this bus driver who didn't name would stop the bus play hide and seek and tickle the children so that was one complaint from mr mcguigan in the fall of two thousand and seven why wouldn't that be adequate even without the name being mentioned because the school districts certainly can determine what driver was or drivers because having that kid because i don't think that that rises to the level of the test articulated indo which was there has to be notice of facts or a pattern of inappropriate sexual behavior pointing flaying lead to the conclusion that  subordinate was sexually abusing the student and what's important about doe is not only the test articulated but also how subsequent courts dealt with though when applied the test about a year later in a case called plum overseas yamhill the oregon and oregon district court not only adopted the doe test they even went to little bit further and examined what courts arguably more specific than those with which we are dealing here weren't sufficient to survive summary judgment and the doe a case actually involve the school bus driver and there were reports in that case that the school bus driver was stopping the bus on the route that he was kissing children and there was even a complaint that to one of the supervisors that the that this bus driver had put his hands down a kid's pants and that he would touch kids on the crotch so as late as one nine hundred ninety five you know we have a we have a court in this in the circuit applying the doe test and saying about the daughter ward so that's a pretty clear succession of reports well let me talk about those separately the gearhart report happened in october of two thousand and nine but he's the parent who said that his daughter got off the bus one day didn't seem to be her chipper self didn't want to ride the bus anymore and he also said the bus was also thirty three minutes late that day and he he actually contacted barbara greer you know that's the one situation we have in the record where there was an actual report made to a specific supervisor defendant marburger we know that because of the have a child in an abusive situation who tells you that something is not right that is a red flag over the schoolhouse and then there's other circumstances and there had been these other events prior to that so you know i don't know how many years you have to go therefore you don't get qualified liability maybe there's jury issues about timing but you're right if you take it  light most favorable to the plaintiff you've got some pretty significant reporting here but but but we're but but that's not the test for qualified immunity the issue isn't you know taking facts in the light most favorable full to the pla qualified immunity isn't it i mean i think our supreme court even the ninth circuit recently has been very clear about the specificity that's required in the case law and before somebody loses qualified immunity now usually can't just say that it was clearly established that a child has a right to be free from sexual abuse and if you are playing for qualified immunity what you need is it is a case that has a specific rule and you know that somebody uses something a moment ago than you may or may not have intended to say or may perhaps i misheard it but i thought i heard you say that for purposes of qualified immunity i'm summary judgment we don't take the facts most favorable to leah to the plaint whether it were five reisman so i'm sorry about that but in order for the specificity requirement to be met you know my position is that not only did he need something in the case law that articulate specific rule he you need you need cases that apply that rule in such a way that would put a reasonable supervisor on notice that their behavior in this specific situation is violence of the constitution and if you look at  of this man doing right along to an extraordinary degree the policy of the school district is not to permit them except in special circumstances which don't apply here so not only are we going to reports about him we're finding what looks its face to be quite odd and maybe says this is suspicious behavior so i think i want to put that into the mix in terms of what they should what should have put them on notice i'm not sure about that your honor if you if you look at what the courts were saying about the circumstances under which you know this is not what courts are saying let me just read to sort of a factual question i'm a supervisor position here's what i know i've been getting these reports and this man loved  along on other busses who why you know i just don't think that's enough and but i want to put it into the mix as one of the things that is relevant to the consideration fair enough but i think i guess i mean i think it's enough but i guess what would be enough i mean you've got these circumstances pointing to abuse by the bus by a bus driver without a specific follow up in many situations so school can turn a blind eye for how long i mean that's the question well and again your honor i i find myself self being pulled over into a discussion of tort law with respect to forsee ability and reasonable listen and do to personally ability its intervention you know i mean that's what it you have here it's not well when we do it again let's wait and see no it's a question of intervention investigation notification i keep coming back to what the supervisor would regard as being the legal landscape in two thousand and nine right when when might i be liable under the constitution and if you look at in the cases that followed dope particularly the plug in the cases that were cited things like tickling a bus driver stopping the bus in routes even even kissing a kid   as a lot of these courts have said these are things that when we look at them in hindsight maybe they were indicators that something was going on and maybe that establishes liability under tort law but not a violation of the fourth amendment the constitution and so and you know understand the other thing i wanted to mention is that i think the tailor the dover says taylor test is the appropriate test and it's what a supervisor back in two thousand and nine would have thought the test was and it's consistent with a case that came out late two thousand and nine from the united states room court county of lewis versus sixteen a county of sacramento versus lewis where the court emphasized that in the fourteenth amendment deprivation of subset of due process case mental state is important and the behavior of the individual defendant who is alleged to have violated somebodies fourth amendment rights has to be it shocks the conscience and let's take the don't test number one defendant learned of a factor pattern of inappropriate sexual behavior did that occur yes you think it doesn't take well isn't it then a factual question about whether these are indicators of sexual behavior that's the first the second one is deliberate indifference by not taking any action to prevent or stop and then of course the third one is all i can say or owners of is if you look at the facts that the courts were faced with in the situation to situations where they applied the dough test and concluded that it wasn't enough that the behavior that was reported to the supervisor was not notice of my name is kevin he stings and it's my privilege to be here today to represent the plaintiff police in this case we trust our drivers that was the  bus part of the olympia school district under the direction of mr frederick stanley and is second in command barbara greer other than that mr mr stanley the evidence shows that he did he failed to adhere to his own policies and prohibition of letting drivers right along on buses beginning right away in two thousand and five when gary schaefer was twenty six years old and and came as a bus driver he started riding on buses and riding along on any bus that he could get his hands on targeting the kindergarten buses the pre k buses and the special needs routes and he testified later that he targeted those because those were the individuals that he knew were the least likely to disclose that he was sexually assaulting them on these routes where we know he's a bad guy but he's not here it's that it's what the school district knew or the nature of the potential abuse you know whether it put him on notice and that's really the heart of his argument that he had don't think is denying that this is a terrible situation that abuse occurred but the individual pieces of evidence in the school district of you don't get you to the conclusion that you would like so would you address that certainly or honor so it seems to me that the conversation so far has been more as to whether we have issues of fact as to whether there was a constitutional violation that occurred as opposed to whether the law was clearly established it seems to me that the law is clear that children have had for a very long time a recognized interest in their body security and so so on that question i think  would argue that that's true but that that's not narrow enough you need constitutional right with certain kind of facts that would put you on notice that now you might legal jeopardy and and i i would respectfully disagree with that position i think that the cases all of the cases that are discussing in applying that rule it's clear that that rule applies in these cases and in alice is shifted at least in the  blished cases that we we see and read about as to whether there was deliberate indifference whether for example the taylor test i think is is driving toward whether we can understand whether there was deliberate indifference there not so much on the on the clear but the law was clear i think that everyone recognized that our most precious cargo and on school buses have their constitutional right to their body integrity and  also there's also the point of law from the hanssen versus black case which is talking about supervisory liability specifically and that that can exist even without overt participation in the offensive act if the supervising officials implement the policy so deficient that the policy itself is a reputation of constitutional rights and is the moving force of the constitutional violation and i think that taking everything into consideration  have a policy here where bus drivers are supposed to be on a bus for a purpose they're supposed to be there they're supposed to be paid for their time and they're supposed to be there for an educational purpose here we had a situation where that was the rule for stanley knew that was the rule barbara knew that was the rule and yet they allowed gary schaefer to ride on whatever bus he wanted with can a garden girls and sit in the same seats and tell knock knock jokes and show them pictures on his phone and engage in other peer to peer behavior some of which made it in fact to the district and when they received those complaints absolutely nothing was done and  ultimately they're the top policymakers and their role in this case is is is unique because as the evidence shows once very sheaffer admitted in two thousand and eleven to abusing scores of young female girls on on buses identified some by names as a in this case has a very unique name and there was no effort made by miss pretty  lamont at the time to identify and it but that's a different question from preventing abuse the abuse that already taken place mr xi who had already been apprehended there was no danger at that point of further abuse by him so we're not talking about protecting them from abuse we're talking about obstructing or at least not cooperating with an investigation but that's a that's a very different clam and i don't know that's the claim front of us right and that is absolutely correct your honor and i think though that it is important to at least consider it because i think that it it fits in with this pattern in practice from the very beginning of  a disregard for the rights of the of the children who are riding on these buses so that may be what their behavior in your view may be evidence of sort of a casual approach to all this but that doesn't necessarily make them liable a further obligation to tell the families and report about it is that the argument i mean what is their constitutional obligation are you trying to link to those individuals withholding of this information delayed the disclosure of it delayed the parents abilities to mitigate or damage isn't different constitutional right there which is basically i mean it comes up when you think about the catholic church cases for example you know was there was there some obligation of course at the church situation but you're saying that there's an obligation a constitutional obligation now notify the parents now that they've done  reporting statute both thought mr lamont and ms pretty are mandatory reporters and haven't admitted as much in their deposition testimonies and i think that the violation of that i think that there is a law supporting that a violation of a statute like that is consistent with and show in evidence of a constitutional violation you just told me that they're violating state law and then you told me they violating the federal constitution because they're violating state law i'm not sure i'm understanding you right and i don't have the say here in front of me your honor but the the the case that i'm thinking of in my in my in my head i discuss is that the the violation of state law or a a law can go toward consideration as to whether there's been a constitutional violation in  here that the purpose of the mandatory reporting statute is to prevent an curtail further abuse as well as to mitigate any effects of it so we can help our children and i think that that violating that is evidence of a constitutional violation but bringing it back because i realize that we have this this causation issue with regard to the reporting  that they were allowing this these right alongst to occur on their watch and that that that they're in the same position as  opponents who didn't act promptly enough but then to find victims are telling parents after the horse was already in the sense of the barn when the guy had been arrested this is their attitude is that relevant to whether there was deliberate indifference by the by grant and and consider that when they assess whether the school district was sleeping at the switch and you know not taking action to protect kids absolutely your honor i think that that the that the failure to make reasonable efforts to identify children who have been admitted to being molested by this child was abused the parent just coming to me or i could go to the parent and tell him or her that his or her child was abused but i'm not going to do it thereby increasing the harm is the right and and i would say that that they were i think that if if we look at the evidence as a whole i think that they were part in parcel with the moving force of the policies that were at play here with with regard to under the the the rule articulated in the black versus hansen case hansen versus black wanted without any sort of monitoring or systems in place to ensure that he wasn't harming children thank you thank you an days i'm not entirely clear where the concept of supervisor or municipal liability for a subordinate's sexual abuse of a student is in light of dover says taylor more specifically can there be a custom or a policy that's implemented by a supervisor that creates the risk of sex abuse  responsible well you're right and the reason i'm bringing this up is because you might you might argue in this case and i think your honour's questions suggest that you're thinking along these lines will you know they  rejection of her adoption of the same rule from municipal liability as for supervising liability and plum zero and the supervisor liability in the individual sounds is quite different from county policy or a cost on but with respect to the individual in the individual supervisor it may be that violation of the policy would tell us something about whether or not they're qualified immunity but posen custom need not be established