can be a defendant under the act is not liable for all the remedies set out and subsection b of twenty seven twenty four i don't think so how why's  that there are two first of all there's no cases at this appellate level that news is favorable to the plaintiff there are two cases out of different districts in the midwest your cover of your client's coverage right there's no dispute to the sheriff as an entity yeah it falls within the statute correct that is accurate that's right and then there's a very explicit provision among the remedies for punitive damages against someone who is a person liable under the act yes i don't think that the answer is all the questions i'd like for you to explain to me  specific for example it wasn't that specific and i do not think so whacked i think the statute should have said if punitive damage the potential the potential for punitive damages were to be available against  when congress writes in the statute expressly that a person included is a state agency that's enough they don't have to say oh and we mean to abrogate that is not the way we read the statute that's not the way i read it now that's just the way abrogation law works is what i'm explaining makes so  agree that when the statute excels expressly allows for damages that are more than compensatory and that's all we need from congress yes yes t think that what the district congress is obliged to do here is after saying that he municipal agency is a person within the meaning of the act and then after after providing specific for specific remedy set out in the statute for persons who are liable under the act that that congress needs to go a step further and say and we mean to include municipalities  congress when we made this argument i was relying on fact con concerts i think we read fact concerts to require that of punitive damages were going to be conceptually award a bill that damages will not be read as being available against the government that you have given all the court all the supreme court said and that is that congress may specifically provide it right to take knowledge that congress can't do it when i'm agencies a person within the meaning of the act and then it sets out for specific remedies for any person labile under the act why isn't that enough at this level there are no cases that have imposing that kind of possibility the district court cases that act itself seems to do it well but that seems to be pretty specific to me i i understand i accept your interpretation i do not agree with that under the cases that we have relied on and as there is no case to the contrary we felt that the issue to a certain extent has been resolved except not at this level and it is a case of first municipal immunity from punitive damage yes sure that's what you mean because i do thank you let me ask you a question before you sit down do you agree that the district court could in its discretion award liquidated damages of five thousand dollars twenty five hundred for each violation go on to john grey and i represent clayton thomas in this case and i do want the court has looked at the question of punitive damages or so it relates to the sheriff and i would like to address that a little further also if you look at the a language of defining what a person is they do talk about an individual or organization or entity but does not include a state or agency i would suggest to the court that the purpose of this is merely to assure that sovereign immunity still exist and this language is not enough to overcome the fact case or even the two district court which i think would be the issue because there is a offer of judgment that is dependent upon what the ruling is of this court ice so you're standing you think well we're satisfied with one hundred dollars that was assessed against our officer we have no problem with that and we have not appealed map to kill issue ok but i do well my time is up new she was clearly whether they were required and there was language in the opinion well they're not required and it seems like they're not bar use the word seen but the question of whether or not they permissible was not squarely presented in that case how can it be binding authority on the question in front of us well the language and now on the deals with permissive for the proposition that punitive damages can be awarded against sheriff that would be the ela decision of this court judge wilson wrote that decision and specifically stated in the case as one of the bases for the determination that the court has discretion to one relates to the jury instruction this jury came back at the end of the trial and asked a question of his honor and related to punitive damages and the judge answered the question with respect if you know the damages and added a of the united states has said there should be a correlation between punitive damages and compensatory damages and a number of circuits have determined that most recently the fourth circuit squarely addressing punitive damage point that the past there has to be this relationship but in terms of very small actual damage awards or statutory damages towards that reasonable relationship is actually more akin to an inverse one court constructed something that is a correct statement of law that is that there the supreme court the united states has said courts must ensure that the measure of punishment is both reasonable and proportionate to the our amount of harm to plaintiff and to the general damages recovered there's no request here to say something more than that act to say something along the lines of what you're saying the fourth circuit has said the question really is whether this instruction which i think correct statement of law it's hard for me to see how what if at a minimum your honor it has to be and on your own yes application of that law if it be correct to the factual context here that is that this jury actually came back with two questions and the first one was do we have to find actual damages we find liability and that was a message that everybody in that courtroom knew at that point this jury is probably not going to award actual damages and if they do it will be nominal and so as soon as the judge gave an instruction it said that punitive have to bear a reasonable relationship to what we already knew were going to be nominal damages it was a near certainty that this jury was going to award nominal punitive damages and what the fourth circuit recently did in daugherty said well that doesn't work that doesn't make sense they considered a six thousand dollars compensatory damages order to two and a half million dollars punitive award and determined that well the smaller the actual damage award if a single digit to five times six thousand thirty thousand that's not going to turn deter a mortgage servicer in this particular case one hundred dollars punitive damage verdict was entered against mr thomas and that it's absurd to think one hundred dollars is going to deter mr thomas from continuing to access data which is something he did forty two thousand times and the five thousand dollars unit of damage award to against the sheriff in marion county it's similarly absurd to think that a sheriff the sheriff's office of that magnitude is going to be deterred by a five thousand dollars punitive award in connection with something one of its officers did forty two thousand times and and so the idea is well if there were a number of cases cited daugherty actually surveys the land sites few such as statutory damage or to one thousand punitive of eighty thousand but that makes sense because if we only had a five thousand dollar punitive award and a one thousand dollars to tory ward well the perpetrators would have no reason to be deterred they don't suffer enough potential loss is your argument that it would always be improper this instruction or or it was only erroneous in this context because what you said about what the jury had already indicated regarding actual damages this might be an appropriate instruction in a case against microsoft or  dow thirty sort of company in that they're already going to perhaps suffer a large compensatory damages work and or be exposed to one in the situation that the court knew that was not going to happen here and  your honor i do know we objected to the inclusion of the sentence i'm not prepared to tell you at this moment what see i didn't see where you said anything of the kind that it may be that you objected to this purview to after that jury award came back to determine by remembered or whether the jury had gotten out of hand if you will and he could address this reasonable relationship himself after the jury work back with respect to the issue of denial of sort of occasion there's been a suggestion that mr dell has abandoned that we disagree i don't think you've you've got a tough part in there because you have to show do you not that the district court abused its discretion when it declined to sort of class a there pretrial or post wrong right yes or and the district court concluded that there were superiority all of which seem to me to be right i mean it's not at all clear whether there might have been some legitimate reasons for some of the searches or not which think it she went to individual specific determinations with respect to the individuals whose names were searched and then that's just not the sort of thing  that is amenable to class treatment how am i wrong about that your honor even if even if we propose that ok that the cited reasons for denying certification on its substance were accurate and i disagree with that notion but it was described within the judge's discretion to address that it brings to to the fore the idea of ok what happens next when he found those things there are a couple of different things the judge is empowered to do under rule twenty three one is to approve a subclass and he could certify a subclass rather than just rejecting certification go to you know take the individuals who is dames who would have been searched for a legitimate reason wouldn't be a subclass they wouldn't have had that this plaintive has claimed that's common typical for which class action treatment would be superior for for everyone else who was the subject of a search because it may be that many of these searches were in fact legitimate or some some or many as two aspects to that pretrial we suggested that it's not the evidence anyway he has he has said why he did these searches and it was not for that purpose but that was the trial testimony supposed trial the trial had already played out and the judge could address this and so we asked him to unemotional to remand to certify a class and at least retry punitive damages  of a class with respect to statutory damages so what the court could have done early on even if it had these concerns and they were legitimate regarding commonality the court is encouraged by rule twenty three to certify sub classes there could have been a notice only subclass and there could have been a statutory damages that are not also i do not understand that argument i mean i just i'm sorry i just don't follow it i don't i don't and it's not that it's i understand what the district court was saying the district court was not saying that there are lots of individuals all of whom have suffered harm in violation of the law but they've done it in different ways so they would be that would be the sort of thing that might be amenable to sub classes my understanding was what the district court was saying is there are a lot of people whose names were searched some of whom would have but like your client have a claim and others who don't they're not they wouldn't be in a subclass they would be not a plaintiff because they don't have a no the testimony in this trial in this in the sworn statement before trial was that i just like to see that is he was perusing pictures of ladies in their driver's license records and then at trial he has he  statement and best internal impairs investigation but that was not his testimony at trial at trial he testified sometimes if i want to check out some individuals maybe we got some suspicious cars out of the parking lot people walking around we would go out and check them out so that a legitimate isn't that an assertion of a legitimate purpose he says to make sure they're not wanted or that they have any criminal histories i'm not exactly sure why but that is a legitimate law enforcement it's clear that that is not a law enforcement purpose for a bailiff at the  there and that the transcript will show whatever it shows with respect to that certification denial is also made without prejudice there could have been a number of solutions offered by the amendment that would have cured any of the court's concerns as to that at the end of the day one commonality issue raised by the judge was that these ladies should not get notice there was the idea that we could have a notice only class is true as dell proposed to serve notice that in our view respectfully doesn't appear to be the judge's purview to decide that these ladies are better off not knowing ms truesdell came to this with the intention three minutes egregious punishing the government punishing the taxpayers does not serve that deterred public interest or that the policy argument seems to me to be wholly irrelevant as i understand it that  the law is that we've got to decide whether there's a clear expression by congress in the statute to dispense with ordinary municipal d i understand what the presumption is and you and you agree with me that congress has to provide a clear expression to overcome that presumption to get rid of that presumption right that's accurate so it really just is about what the statute says it's not about the policy no but i thought i'd throw that in because i liked it that was the sexy part of the on well ok sorry it's been a long  got a couple of quick points to make with you all obviously part of what we've been arguing all along is who cares about the punitive damages or award whether the jury instruction was right at least as a relates to the sheriff simply because we've never thought the punitive damages are conceptually awarded will several of your questions focused on how this matter was handled in terms of the class certification  my memory of the trial is that there war there was no focus on what thomas did as it relates to others it really wasn't explored and that's because we really it's really about mistreat mistreats do right and that's what we thought yes roger we did think that and that was the focus of the trial fact that was what the trial was about not what we are suggesting think there was some creepy stuff going on with this guy and i don't want to say point you absolutely must make them and i give you just what i want today ask you to do what you know that anyway thank you folks thank you mr johnnie mr green i'm not entirely sure what it is that you're going to tell us mr green and your team minutes but only that when we're talking about creepy clayton thomas that he was punished severely as a result of this even if the jury came back with only one hundred dollars in punitive damages he lost close to a quarter of a m jury was aware of yuri was well aware of it and the question that came back did not ask him is does he need to suffer and the question the jury ask was if we decide to award against the sheriff's office not improper actions on the part of an agency thank you mr green case will be in recess until tomorrow morning