i will hear the next case on the calendar crawford honor today in this second visit to this court for this case is whether as of the time of the conduct in march two thousand and eleven a reasonable corrections officer would have been on notice that what this defendant is alleged to have done was a violation of the eighth amendment and we respectfully submit to you that there is no question at all he would have been on notice because of a litany of published and tenth in d c circuit all of which made it clear to corrections officers that they're not allowed to for their own sexual gratification grow prisoners on their genitals and i just bring you back to a bo you know of course we know that going forward after crawford this is a different case i want us to to bring it to come back to to boating and so when you look at the actual holding of voting it's factual holding i should say it says that a small number of incidents in which the inmate allegedly was virtually harassed touched and pressed against without his consent were insufficient to state a claim so before our prior before our decision in crawford one  why wouldn't this factual holding help you know be a problem for you the the the main reason is that the conduct here is more severe than what happened in bodie and what bodhi really stands for is this so that sex abuse in a different category every push and shove isn't a violation the eighth amendment but every time you fondling grab someone's penis when you're their corrections officer is and that's what but that's what happened in bodie so why is this so obviously clearly foreshadowed by bodhi i would think that this is kind of within the range and it might be a little worse a little better not as bad i don't know but it's isn't it within the ballpark of bodie such that a reasonable officer would think the facts of this would result in the same decision i e dismissal of the court in both so there's just two reasons for that one is this conduct worse because we're alleging fondling and grabbing and you all in crawford describe how that was serious in that that was more serious in some ways than what happened in body and i think i mean i don't i don't think it said that directly but it is fondling and grabbing is more serious than the touching and bodhi there's another reason that's more subtle and that is that the officer in bodie was female and at the time according to the footnote ten in crawford twenty fifteen decision crawford it wasn't recognized that female on male sexual abuse caused the kinds of harm that male on male or male and female sexual abuse caused so that a corrections officer reading that decision in bodie would have known should have known that if a male does this because it is at the time that was seen as worse that that that the conduct here is much more forceful and threatening that is their decision suggesting that male on male was worse that would have been sort of the governing decision of the time of the conduct in two thousand and eleven there are many many many decisions in that time ranging gummi coming forward suggesting that all sexual abuse is worse in the circuit courts have found means are of a piece on that point let's go to the decisions in our circuit and the district decisions there are some twenty seven decisions cited to us and twenty six out of the twenty seven and correct me if i'm misunderstanding rejected inmate sexual abuse claims and if that's if that's so if lower courts understood bodi in one way then how can we  say that it was one reasonable for an officer to understand it in the same way i understand the principle and why that would give you pause i think you have to dissect those even a little more finely i counted twenty one but a i'm sure you're right on the discovery was taken to get the details of what happened in the officers motivations so that's eight of eight of them at least were on summary judgment eleven of them involve legitimates pat searches where there was here there's no allegation there's no counter to our allegation district court decisions the this court has always held you should look at this circuit and the supreme court other circuits and legislative enacts i have a long list of legislative announcements i'm out of time you know what they are there priya the new york  the new york penal law and their penal law is around the country which are again of a piece that this conduct is illegal objectionable and all of that happened in the ninety's in the two thousand well before two thousand and eleven when the officer is claiming that he thought enemy i don't disagree that the district courts don't establish the law in this area but if so many district courts interpret in the law interpreted one way that is similar to the way that the government is interpret it how how can we say that it was clearly established but again i think there's only that's that's the question i mean that's you know the question you know ok you'll have it please the court the conduct alleged in this case is deplorable but numerous district courts in this circuit found comparable or worse conduct not to violate the eighth amendment accordingly a reasonable corrections officer might not have thought it violated the eighth amendment either for that reason qualified immunity is appropriate and the district court decisions here are especially powerful evidence of i guess confusion in the lower courts for a couple reasons number one they kept being issued after all of the various evidence that my friend on the other side just referred to came out after the p r e a a after the state criminal bans had accumulated by two thousand and nine after all the out of circuit decisions had taken hold i think the latest one was two thousand and three out of the tenth circuit still decision after decision of the district courts in this circuit found comparable or worst conduct not to violate the eighth amendment and second point on the district court decisions is you know one of the equivalence standards that this court sometimes recites for qualified immunity is whether the unconstitutionality of certain conduct is beyond debate here there's a subset of those district court decisions that literally in gauges on debate on this very issue into what about in this in this case the up until you get to that factual finding you would think that this kind of behavior clearly should not be tolerated the factual finding in bodie raises the the question of what kind of particular conduct is allowable or not is this why isn't this a case of a qualitatively different kind of conduct well i think it's different in some ways qualitatively like my friend on the other side said it's maybe better maybe worse in some ways than the conduct in bodie but it's not so far removed from the conduct in bodie  to have been clearly established as unconstitutional at the time in both bodhi and here you've got the c e o using some measure of force and some measure of secrecy in bodi it stepping in and and doing something we think the conduct of the touch and then in bodie and then the genital on genital contact through clothing was fairly extreme  conduct here what is is again comparable in some ways in some ways not but again bodie after reciting the facts in that case came out with a holding of no eighth amendment violation so i don't think you could fairly say that a case that recites that level of sexual abuse and bodhi did indeed call it quote sexual abuse the district court in bodie actually called it sexual assault but when a decision of this court says no case didn't even acknowledge that sexual abuse sexual harassment of ceos on inmates could be cognize a bill bodie filled that void by saying yes it could and essentially leaving it to the district courts to fill in those gaps and the way the district courts interpreted bodi was again they found no eighth amendment violation in conduct that was for abusive conduct that was accompanied by scio's verbal humiliation violence threats of  violence involving the inmates uncovered genital area where the inmate was victimized on multiple occasions and even in certain situations where the inmate was caused physical injury or pain so from those district court decisions and those district court decisions are evidentiary of the fact that a reasonable c e o again is deplorable as this behavior was and certainly as not ok as it was perhaps contrary to the industry leading efforts of docs  in new york state prison system to stamp out this behavior nevertheless did not violate the constitution your honour's unless there are further questions i think th e proliferation of district court cases in this area is ample evidence that if a district court judge could not decide whether conduct at this level violated the eighth amendment  conduct or lack of conduct whatever you want to call it of brown is likewise entitled to qualified immunity because he didn't know that he was clearly aiding and abetting however the other side characterize it these eighth amendment violations you so first i want to make clear i think counsel misstated our position the conduct here in our in our view is is worse than the conduct in bodi and that could settle the question right there i mean you don't have to go beyond that with a with a with a broad decision the conduct here was force ul it was grabbing it was fondling and it was male on male with other males present to back up the person who did it who are also to unnamed defendants but defendants in the case john doe defendants in the case so number one it's worse than body number two bodie is crystallized as of two thousand and three in the prison rape elimination act that this is unacceptable behavior that was a congressional statute we don't have these anymore that was unanimously passed in congress that i submit is a far better indicator of contemporary social mores as of two thousand and three than these district court decisions finally i want to point out and i hate to say this but this is kind of why we don't consider district court decisions in developing the law in this area this is why it's appropriate to look at the considered judgment of appeals courts of legislatures and congressional  respectfully your honor when a district court blesses the intentional sexual abuse of an inmate without any without any piano logical justification the statements on this since bodhi have been flat statements from the courts feels that sexual abuse is not tolerated now you can debate till the cows come home what sexual abuse and what's not at the end of the day weren't titled to take discovery on that question see what printers pina logical justification for the groping was and they can make their summary judgment motion if they if it doesn't rise to the level of sexual abuse but these naked allegations are adequate and it's ridiculous for an employee of the state of new york as of twenty eleven to say well i didn't know it was illegal i wasn't on notice that it we're not allowed to grope our prisoners and here's how we know that we know that because a month after this conduct one of our defendants here brian fisher  gave testimony where he said that the department the department of corrections has made it clear to staff and offenders alike that it is a fundamental right a fundamental right of all incarcerated persons to be free from the threat of physical violence or abus type including sexual abuse when he's talking about fundamental rights he's not just telling the officers you can't do it don't molest our inmates they have a right a fundamental right and if we can't enforce it in these courts there's not any way to enforce it we depend on the federal courts and the appellate courts to make these rights a reality thank you thank you both for your arguments the court will reserve decision