or consensual sexual activity between jailers and inmates do not necessarily violate date amendment even if it would violate state law in this case flours did plead guilty to violating a court of law or guarding sexual activity of any kind coercion he did not exhibit malice that the only possible form of corps that was providing cigarettes to brown and her pod mates after the fact based on those factual conclusions the district court held essentially that flowers gift after the fact could arguably constitute coersion and that such nonphysical coersion could violate grounds clearly establish right to quote not be raped by detention officer perry versus there are three reasons for why the district court was incorrect to deny flours assertion qualified immunity but the main issue here is that flower's conduct didn't violate clearly established law the qualified immunity analysis the district court sides cary grant and bay and a case out of the northern district of oklahoma called bates versus mesa county as clearly established law that would place officers on notice that after the fact gifts or posting counter gifts would violate the th amendment but none of those cases are sufficiently similar or particularized were tailored to the facts of this case each of those cases are about either after the fact gifts constitute a possible form of course d in that would violate an inmate's right to quote not be raped that right as framed by the district court and by brown sounds very general next you know someone and so forth we know that the right it is you must be to find with specificity that there must be a kick the must be an ongoing case somewhere in the neighborhood tells officers what the contours of constitutional conduct are you know in other words in must place the right issue beyond debate there must be something on point and because there was no case it does say that you know that there is no p logical interest in sex you know from sexual abuse graham also says that you know if there's overwhelming evidence of consent then there's no violation of gate  violation and if it if the reverse is true then it was not a violation so i said it breaks down a little bit in the sense that you know it's i would say that that is not necessarily clearly established violation type rule where if there's any kind of sexual contact between inmates and jailers that would automatically violate the th amendment and i don't think that that's what graham was trying to do because if you look at  but it was still found to be constitutional or that it wasn't it wasn't a violation of the th amendment so there are instances where we know from graham is that there are instances of sexual contact between inma is that graham in this case are very similar graham there you have you had an inmate and and a jailer who were flirting back and forth the jailer brought gifts in the form of candy bars to the to the end made before the sexual encounter and then there was a sexual encounter and those things that didn't necessarily undermine the whole thing which was that consensual sexual activity doesn't violate  so there i mean the really the only difference between graham in this case is that there was deposition testimony in graham where she said well i wanted to have sex with that jailer we don't have that here so even though the facts are pretty similar it would still it was still tend to suggest that there is a that there is a gray area between what we have in grand which was just admittedly consensual sexual activity and you know that the case like perry where he was physically forced malicious type rape so so turning to parry that was the there was another case that was cited by the district court as clearly established law that with the facts of this case in perry that that was a case that did have to do with sexual activity between and then made in jail or but the but that particular case was the appeal of the sheriff's denial of qualified immunity and from the supervisory liability claim so that doesn't that's so that so that case isn't doesn't necessarily govern or place an officer on notice about what he or she can or can't do so very it does have language in there saying that inmates in general have a right to quote not be raped but that case doesn't wouldn't if roger flowers to place could press pause and you know before you  sexual intercourse with miss brown and red perry it would necessarily tell him what he was about to do or not do was clearly unconstitutional or clearly cost to tional and that's the problem here is that we there is no case it's where it's passed to do with gifts or something some kind of nonphysical coersion or something that looks like that that is not physical and is not admittedly consensual so there needs to be a there needed to be a case and he says stripped down and she's crying and he says i don't i don't want to see you cry and she doesn't say a word he doesn't a quick point before i get to the hypothetical so my understanding of the plainly incompetent language is that it's the end of the analysis it's not necessarily the beginning of the  understanding is that that's more the end where if there was a constitutional violations and if they were plainly incompetent but then again i don't there's not a lot of case law that i've seen in researching this issue that clearly explains plainly in calm plain incompetence or what that could mean or or or or seen a case where it turns on that so so getting to your hypothetical i think that there are some pretty you know there's some pretty important distinctions between this case and back a fanatic so as is the case you're describing you do have you know i don't know i mean it sounds like it sounds like a threat to me but there is there's a pretty clear you know implicit threat of force in this case roger flowers buzzed out and said do you want to come  that i would have to go back and look at the pen dick's to be honest i'm pretty sure i think he said something to that effect that could be wrong but i think that she did say she thought he was joking or something but she went out there and  then according to what you know based on the district court's assessment of the record and you know we're not questioning that at all but that there was found to be no physical cord and so there was there's no testimony or anything to that effect then he said well you need to the gift of cigarettes after the fact to her in the pod mates so i think that there's a distinction made i think it's an interesting hypothetical because maybe that's you know you can see something like that where it's not  get this gets back to the big point which is that if there was if we could point to a case where we're talking about nonphysical coersion that is a constitutional violation that might look like your hypothetical and then we could she didn't want to see her cry which the that that part of my hypothetical right and that you know and i wasn't trying to represent as undisputed that you know what he said i mean i had to you know there were there weren't that many undisputed facts from the order but you know the judge looked at looked at the well i guess i just want to going back to the coercive nature i think the district court did recognize here in a discussion of the night circuit case and would in what they recognize which is that the coercive nature of the prison setting a given and it's difficult to characterize a sexual relationship in prison as the product of free choice regardless and i understand we sitting grand but i think you have to recognize that the district court also basically said it's inherently coercive and i don't and i don't hear you recognizing that and i also think that that sort of fits within our remarking graham that we made about we  we think it proper to treat sexual abuse of prisoners as a species of excessive force claim requirement least some form of coercion not necessarily physical why isn't that just that exactly what we have here as a species of an that i'm saying was incorrect on the side immunity so i'm asking why isn't that clearly established that some form of coercion it doesn't have to necessarily be physical can certainly sexual abuse as a species of excessive force that's what we call the great right seven green arm that's kind of a hypothetical statement where there was a couple hypothetical statements and a grand and said well you know know that there's many many certain course that recognize that there is this power dynamic issue but you know what you have in graham is the holding was it wasn't constitutional and so you know and then the reasoning they said well that the courting doesn't necessarily need to be doesn't necessarily need to be physical all right and so you have but you know clearly established law comes from  that that specific conduct violates and so we grant you have a situation where you have you look at those facts and it would say well that wasn't a violation and that along the way there's there's a citation that would there's there's commentary about well it may not necessarily be physical coercion but that doesn't necessarily clearly establish that you know the law that well here is the next time that there's something like this that will that will violate the constitution so i think you know kind of going back to my analogy of you know if mr flowers pressed pause in the was it is interesting case but you know i don't remember it well enough to go deeply into it i'm sorry we do have a qualified immunity issue that has been brought before the court but the jurisdiction to hear such an issue on an interlocutory appeal is limited and narrow and it's limited to the circumstances where the legal matter being brought before the court not regarding a decision on the factual weighing of the facts or rather summary judgment construction of the facts is probably a better way to say that by the district court here we have  district court who clearly disposed of this issue based upon a construction of the facts on the issue of consent that is not a matter that is subject to interlocutory appeal even though it involves the issue of qualified immunity this is not a matter that can be heard on interlocutory appeal now in the briefing the appellee has insisted that this is a legal matter and is within the narrow scope of what is immediately appealable through an interlocutory field on the denial of qualified immunity but counsel started off the argument today consistent with the briefing both the opening brief and the reply brief saying that the primary issue was whether the rates transpired in the control room the crime and the other matters that have been brought out so we do have conflicting facts in the matter was disposed of by means of a construction of the facts in the evidence by the trial court and that is not to appeal at this point the question of whether there was clearly established law on this particular matter is when you get to if you get to the issue of qualified immunity or the merits of the qualified immunity defense as it presents on appeal is not in question the that that standard has not changed the you know we look back to one thousand nine hundred and ninety eight when the barney vs pulse for case was decided and the court there said it said that specific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior it is not something that requires a high degree of specificity to that what one is doing when engaging in that type of conduct is improper never has been that standard has consistently been applied by the trial court here by the by the graham court for that specifically admits that brown obviously had a constitutional right to be free from sexual abuse while in state custody so counsel's argument that what mr flowers did or didn't feel and what he thought of in that moment is not relevant the qualified immunity standard is is looked at from the perspective of a reasonable jailer in this case were reasonable state actor and the reasonableness candor is what governs i mean if we were to look at the subjective intent as i think was pointed out in our brief our opening brief mr flowers admitted he knew what he was doing was illegal he knew that he was going to get fired for it he knew it was improper but we look at this from a reasonable jailor point of view and from a reasonable jailor point of view there clearly is a violation when you engage in sexual abuse of any in and the comment that there are the question that was asked earlier having to do with whether there's a legitimate pain a logical purpose for the action is what makes it improper there's clearly not a legitimate being a logical purpose there and there's characteristic here is that it is that in the graham decision for whatever reason the plaintiffs there miss graham chose not to assert lack of consent and so therefore presented to the court of appeals on a legal matter that being the absence of any evidence of consent legally that there was no lack of consent to assert so in this particular case the reason why the rape statutes in oklahoma do not require proof of that element is because of the improper balance of power every cry violates the constitution and so what we did out from gray at the base of what you just said is that the imbalance of power is not always well as a commission as this particular crime power between a guard and in the right well reading ram it says it's any slight evidence of coersion will suffice it says that they intimate that they might have ruled differently had there been any argument raised and even suggested some very mild ideas of what was in the record might have constituted evidence of coersion so i think i read graham to be a technical issue of  it is any sexual act similar to what the oklahoma statute says any sexual act by a jailer against an inmate would be actionable by the inmate would be something that lacked any legitimate seem you're correct that it it allows this action to go forward in the absence of the physical harm or or physical contact but i think the policy statement that isn't acted within and underlying that any jailer any reasonable jailer who sees that policy change and acted by statute would know that it's improper to have a sexual act with a and in may i cited yesterday in a notice of supplemental authority i don't know if  been brought to your attention yet the th circuit case that applies to graham case and the language of one thousand nine hundred and seventy that the revised language and finds that that is a very clear policy statement  that the clearest statement of what the federal standard on public policy is in that regard that's the scone years versus lockhart case again i don't know if you all have seen that yet it was just brought to my attention yesterday and it was a subject of a notice of supplemental authority that was submitted to the court yesterday but even with even without the change to one thousand nine hundred and seven which came i believe the year of  year after graham was decided we have evidence of coersion and the graham case doesn't change the standard doesn't make it that doesn't change the qualified immunity notice that coerce of sexual contact with and inmate is a violation of looking at that from there's nothing about graham and graham recites the same standard as was established in guy ron jailers or anyone who might be subject to the standard would not look at that and say that this is giving us a green light to to do to engage in any kind of coercive sexual conduct a gain that's the standard and coincidentally that that same standard and i think referencing the graham case has been applied in the perry case which came for so years after graham to the standard hasn't changed the guy around standard is is still the one that we're applying the pulcifer standard and any reasonable jailer would know they are not to be having sexual contact contact with inmates by virtue sexual abuse cases of our circuit and then really from all of the circuits and goes through a lot of cases involving the use of force are there any the two points that i would make is to directly answer your question graham itself says that de minimus you set this sort of linear equation for how much force it is being used getting into analyzing the evidence and the facts and questioning how the trial court construed the facts on coersion and that is precisely what i began my argument by saying is outside of the scope of what is subject to review at this time that's a question of fact and the question of the sufficiency of the evidence that is not the legal question of whether or not there's a clearly at scottish law ok thank you thank you very much judge  that matter will be submitted in