a sheriff's deputy who was working as a drug court to track her for the drug court portion of this case has already been before this court on a qualified immunity claim when the supreme court decided when nelle when the supreme court  to impose liability on the municipality or local government in order to avoid the moon nell claims devolving into what would essentially be you know this whole liability for the were failure train cases require what i think are three things either there has to be some sort of pattern of misconduct so that changes where there is an incident and the policy makers  situation where there still has to be some obvious need because that's the standard i believe deliberate indifference to an obviously need obvious need to supervise or  train and that deliberate indifference has to be because there is a likelihood a high predictable likelihood that there's going to be a constitutional violation so i think there has to be more under canton under the cases that follow then this idea that if there's an injury then this city is already automatically liable whether or not there was any knowledge by the policy maker if there has to be a pattern what would constitute a pier one employee one on the super  possibility so here we have we have four planes one o pair of no one knew about the pattern and and there still has to be some some knowledge something obvious it wasn't as though these sexual assaults occurred and then someone found out about it and then nothing was done that's where i think the pattern issue comes in and what about this allegation that because nobody supervised them and everybody agrees he had no supervision that had he just even been required to submit reports as to where he is to the people that he checked in on because he was a checker that was typed in the traffic tracker that the people that he checked in are several the people said everybody in the program knew that if you are a man in the arena for three years it may be give isn't it twice and if you're a woman to clean attractive woman he'd be at your house four times a month i mean that's is that turning a blind eye to something that's obvious to anybody who would have looked there was no blind eye deter because and i apparently did a very poor job of it distinguishing this to the jury that was handled separately and outside of the the sheriff's department this was the drug court this panel of people the tracker was part of that drug court team i think and no one ever told the sheriff i think that ship has sailed i mean you know i know you argued that the sheriff should have been the ones who provides him his own deputy but  policymaker is charged with this exceptional task of knowing that there was a need for supervision or for training in the supervision and training  treated similarly there's just very few supervision cases and and so when they're at least for analysis of purpose they're treated similarly but if you look at this from a practical standpoint it's easy to look at failure to train because there was medical the can case involved a lack of medical training someone was injured or not treated that's a problem but the court still said well look just because there was inadequate training or you think there was inadequate training that doesn't necessarily mean that resulted in the injury you know people make mistakes jailers make mistakes and if you look at all these failure trains the brady the conic case where the prosecutors were not trained in brady these are all training and or supervision because i think they're linked together i think we and i i use the example and i think this can case talked about this not about tasers but if you have and you give the tasers to some people some police officers coming out of school and you don't train them and you don't supervise them and by supervision and that's i think where there's a breakdown and again i'm not sure how this argument goes here but is supervision mean that he's going to be followed around twenty four hours a day to make sure he doesn't do anything to these drug court participants when the drug cartel drug court sending this guy out in the first place this might be the ship that sailed again but the sheriff's department wasn't guiding this person to these women's houses he was going on thanksgiving it was going on his day off the sheriff's department was in charge of tracking the tracker the drug  commissioner the drug court was so but back to my taser example if you're going to supervise that means that someone with experience with this taser is going to supervise the person who's learning how to use th taser it's part of the training it just makes sense is sure that's true in some cases but there are some there are some missed he should need train all that that's this court's analysis of sexual assault which was parish versus wall and andrews versus fowler and the recent case of dover says hey where there there was a court found that there is no presumption no obvious need to supervise law enforcement officer who knows the law i'm supposed to follow the law to make sure that that person isn't sexually assaulting another a person who he stopped or who he's tracking so those those cases but each of those cases talk about whether  a pattern or not whether there was yet knowledge by the policymaker about prior incidents infected over such a case which is very interesting very recent really the court said we don't care about what happened previously but that still went to the training effect that was less about training and supervision and more about a pattern of misconduct but im challenge the jury instruction i didn't object to that particular jury instruction looking at this that there was no evidence whatsoever that this policymaker that there was an obvious risks that there was something that he knew about that would have cost him to impose some sort of supervision and the other reality is let's say he knew there was a risk let's say one of the plaintiffs came forward and said the sheriff being sexually assaulted well he's going to do presumably exactly what he did i case it's not going to be ok well you did this we're going to place more supervision on you now that that's not the remedy and i think that's what the courts have consistently said is you have to specify what it is that you want if it's in adequate training you have to say what what is the lack of training what with the lack of training in the brady case well but but supervision can not only be an after the fact remedied but what i think the argument here is that had he been supervised and noticed and knew somebody was looking over his shoulder whether it was having a second person accompany him on these home visits to female offenders whether it was spot checks or sometimes that that maybe he wouldn't  as aggressive in assaulting these women had he known somebody was actually looking at the reports that sad he was visiting women's homes five times a month and he's facing male offenders once a year but had he known that had he known that was being done maybe he wouldn't maybe he wouldn't assault of them in the first place but isn't that just the speculation that we want to avoid that isn't that good when a jury decides on the jury you got you asked for a jury instruction on that and you gave a jury instruction of that issue and the jury found against you i mean that's so i guess the i mean really comes out to is it should have never gone to during the first place this year and that's my argument and in my contention still is that even though it's an objective standard there has to be some notification some reason that it's a high standard that the policy maker would have had to know that there was a high predictability a high probability of this person sexually assaulting these women in the fact is that the drug court that was supervising the tracker again that's the other argument was actually placing the tracker had some notice that there were some problems and had nothing wasn't associated with the county sheriff's department or the county so again that argument fell on deaf ears with the jury but and the other part is this has to be the motivating factor i think that that's the other connection that's the other part of this difficult standard is there when there's a sexual assault and if you look at each of those sexual assault cases though again they're not supervision cases but there has to be some connection between this person who is a sexual predator and the fact that he's not trained or supervised and i don't think there is a causal link here he was going to do this some way or another  because he was be he met had meetings it seems to me they are clearly officials but it seems to me the argument comes down to if you assume the sheriff should have been the one supervising him and and did were were there enough red flags out there that had he been exercising his supervisory responsibility that he could have come back to the balance some people the drug court do some things people in the jail knew that he was taking female friend years outside for small breaks and things that were clearly violating jail regulations there are a lot of different things a lot of different people knew not of which the sheriff admitted but had he been supervising that mass could have connect he required to do that i don't believe i think when the drug court knew that cigarette breaks at think that that unless he was doing something that would have indicated to someone in a again to judge a drug court team a psychologist probation they all knew that there was some goofy things that he was doing but they weren't sexual assault it wasn't a violent crime he wasn't in have a propensity for violence or being predatory so in my opinion the holding the county responsible for this sexual predator doesn't fit in with the previous cases was  that he was not right not only that but that he had nothing to do with making sure he had any knowledge of the heat this guy was going to these houses late at night or on thanksgiving or any of those so but i just guess when i asked when i use them the phrase first element of the jury instructions it says first the lincoln county sheriff as a policymaker for lincoln county was responsible for supervising scott edwards as drug court tracker so that was the very first element said nothing except that the need for supervision was obvious so that would get in to the next element that did not say that there was there were others responsible and they want to remain i addressed the question you asked my opponent first which is what is the requirement i think the three ones you described were a pattern of other employees a pattern of one employee and no pattern at all i address the canton case which does have language in it of specific events over time so it talks about the plural therefore i believe that there does have to be a series of events in order to get liabilities one of em is no good as it was my point i think correctly said the parish case is just one of vent but i'd like to do is talk just for a moment about the events that were before the jury that can provide that information and i think the but they're off last decision maker and so i think there's two ways to look at that that the word obvious step is that there should be constructive notice if he did know it then we would have kept mr craig bob in personally as it was read bomb was out because we can't prove he knew anything  but i would like to suggest to the court that in the facts there are things that he did do or knew that and i say he i'm talking about scott edwards and there are things that the sheriff didn't do but let me address the four things that edwards did do that we proved that creek that got us to the constructive notice of obvious and we've talked about most of them already obviously the giving of all the time to the ladies he actually was a man he described himself as the golden boy of drug court he was the guy who actually got well and got better followed all the rules and he said everybody knew now he was in rehab  was correct can i just address this sort of interesting logical issue your question comes to judgment oil which is how do we get a constructive well that really the way the issue of obvious is structured logically if it's obvious but the person doesn't know and there can be liability then what the plaintiff must show is sort of a circle of facts known by lots of people and so if the sheriff had looked he would have known in other words i think the case law rejects the bury your head in the sand defense for the government entity it works for the individual liability and that's why we lost up in this court a year ago two years ago but when there is this if we're going to have the obvious in this standard which is well established in the law then sort of by definition you bring in facts that were taking place and and you say hey these factional come out so if i can just look at four of them we've talked about the smoke breaks i note that mr creagh bomb the sheriff said that his white shirts knew and they should have told him so that's important his his senior people knew this is a minute in the record discussed and they knew they didn't do anything about the smoke breaks and he said i guess rightly that that's pretty serious when somebody sentenced to jail and they're taken outside to jail for smoke and smoke and for mcdonald's that that is a serious matter i mean it being in jail being in jail another one though is that mr ed ards the perpetrator of all this put ask him in a hotel without any authority and did one of the drug court judges commissioner then solomon said he sort of shook his head on the stand and this is right the rarity says i mean i just i don't know how possibly edwards could have done that he had no authority to do that that's that's a terrible thing he took he took s m out of her mother's home and put her in this hotel i don't wish to use offensive language but mr edwards said to employees now this is different than the sort of everybody knew which came from a participant mr griffin this is this is in what they called staffing so they'd have meetings before court and say how so and so doing how so in so doing and edwards stated this drug this is drug court staff before they actually get into court they would have a private meeting out there correct correct absolutely if pre buy been there i think we would have kept him in in the first round but he used these offensive statements a stiff penis would help her the the hot dog in the mannish jar now i can tell you as a practicing attorney as a regular commonsense human being that there is a line in a professional environment i mean somebody might say that in a fraternity house twenty thirty words forty one of my briefs are right do you agree there's a risk when law enforcement are alone with females yes sir do you think it's an obvious risk i would think so yes do you agree a person who has tremendous power over other people needs to be supervised yes and there is this it at the trial we develop this power power disparity analysis in the thirty years you spent in law enforcement you observe that sometimes commit misconduct make we're missing a person officers who commit misconduct well yes i did and also sexual misconduct is that right now yes sir so he admitted on the stand and i think i can answer that area it's because he agreed to do it well his predecessor agreed to do it binding is agency the family you heard yesterday which he didn't know ok so that's interesting that we we agree with that it was it was startling at the deposition when we showed it to him and he said uh oh first time i've seen then but this goes to the bury your head in the sand defense the bury your head in the sand defense is rejected for the government of for the government the creba can get out of that personally by saying gee i paid no attention but if he had a duty to do that under a signed document didn't he have a the job at the beginning of his term to say i have here i've been elected i'm taking over this position now i have to find out what i have to do he has to do that he has to know what his job is and if he doesn't it does fall but that is to find right in the jury instruction at the bottom so we told the jury what the test was and of course to many cases where other cases that say we assume the jury can do its job juries a generality well and of course the farmer farmer versus brennan case talks about a kind of a continuum you have negligence of willful conduct and somewhere in the middle is just deliberate difference i keep coming back to the fact that to not make an inquiry about what one's job is as a government official that is deliberate indifference to jimmy it meets the standards what we argued and i think the jury found it sure but it doesn't it that there is supposed to be some kind of a nexus between the kind of constitutional violation and the circumstances of the case and that's where i come back to the facts i mentioned earlier the obscenities he mention the fact that everybody knew that he was paying all the attention to the ladies the smoke breaks that these factors so there's a word sometimes used in the criminal law called grooming which is when a perpetrator of a crime some long to it it was in front of the chief of police in paris versus baller andrews versus ballard even when there were incidents of prior sexual misconduct just not as severe a court still rule that there must be some obvious need to train or begin using them interchangeably even though there's nothing that says they're interchangeable the need to supervise and those cases in fact there was one case and i think that was fowler where the court gave us summary judgment to the municipality and then held the chief in and said you know the chief responsibly because he knew about these prior incidents and in this case these over drug court participants who were treated slightly different they were in jail but they were still part of the drug corps he was the tractor he knew one what indication is there to anyone the sheriff the other white shirts that the drug court team the drug court commissioners that he was going to sexually assault or was maybe then sexually assaulting these women that there has to be more than just i believe or this and this grooming is soaps i think that far away from what's going on i think this guy was a sexual predator and he would take advantage of his position whether he had a clock in or out or had an answer he was answering to the drug court the drug court administrator heather graham testified that he turned in pieces of paper indicating what he had found in that he was doing the drug for fracking and none of that was shared with the share