essential questions for the court one will apply the plain terms of an immunity statute in acted by the arizona legislature and two will that recognize an officer ramirez is right to qualified immunity from claims arising from discrete alleged conduct related to pat down searches of the plaintiff something on the face of this just obviously the way that you define what happens within the scope of their legal duty yes the officer is at work but is an officer entitled to personal immunity as long as the officers duties place the officer in contact with him at the end may let me give an extreme hypothetical if if while i escorted and make back to a cell which would be part of the officers job and officer decides for no apparent reason to shoot and kill the end made while they would have a gun imprisoned they would whatever if they did kill the personal vendetta against him he'd planned the whole thing because it happened at work he gets immunity yes your honor under and if you rape someone because he's at work that happens during the workday he gets immunity yes your honor because the arizona legislature has decided and it is within the province of the arizona legislature according to the arizona supreme court to decide that the state is responsible for the tortious and or criminal conduct of employees of the arizona department of corrections that's why the way you frame the question your honor suggests that we are attempting to evade a situation where the plaintiffs can seek redress that is not arizona is part of this lawsuit but they're not a part of this appeal right that is correct so what it seems to me that the burden of your interpretation of the arizona statute will well fall on the state of arizona and have they offered any interpretation i'm it would have been nice to have a break from them saying how they interpret the statute the interpretation of the arizona statute must be performed by this court according to the manner in which the arizona courts dictate that a statute has to be interpreted and that's by its plain language but your honor again this is an arizona interpreted the statute it is not your honor which is why we suggested in footnote two to our reply that if the court believes that the plain language of the statute and the plain and categorical allegations of the complaint do not allow the court to determine that officer america's was acting within the scope of his legal duty during the torre course of within the course and scope within the scope of the legal duty it's not whether the tort is within the scope of the legal duty because that would render the statute analyse and arizona courts and this court is legion in rendering nobody if you were doing a law enforcement officer in your escorting someone and something happened and you were doing your job that's part of the duty but there are some things beyond the duties of your honor so longer something's beyond the duty the answer to your question is so long as the tortious or criminal conduct occurred while the officer was performing a legal duty while the officer was engaged in the legal duty then the answer is no there is scope you know meaning that the scope does have meaning your honor scope means that the tortious conduct occurred because the corrections officer comes into contact with  victim as a result of performing the operations of a corrections officer in fact in this nd amended complaint there are two counts of the nd amended complaint that expressly allege the existence of a duty that duty existed not because officer amir is had a duty as a reasonable man the nd amended complaint makes clear that that duty existed because officer ramirez was acting as a corrections officer during the course  for the state but are not an admission that officer maris was acting within the scope of his legal duties and isn't it true that the plaintiffs can allege in the alternative except that the answer to your question your honor is yes it is true that plaintiffs can make allegations in the alternative what is false your honor is that these allegations were made in the alternative or that the allegations were made to establish responding  at the top of the page a heading regarding a claim quote against defendant ramirez only not against the state under a fear of vicarious liability and in paragraph seventy his acts and omissions were conducted within the scope of his official duties so are you enjoying what you're talking about is the the allegation for state action to make and eighty three claim right so there's a lot of things in this complaint that the plaintiffs are dealing with so i'm just going to tell you bluntly i'm not very taken with your argument with respect to the allegations in the complaint if you want to talk about that more on the other judges have questions that's fine but i would like to ask you about some other things that i think are more significant in the resolution of the case my answer may answer your question though and before but no actually no when i say i'm not really interested in it i'm really not so  the statute uses the language within the scope of legal duty and the district court's order said within the scope of employment and i don't think that's something unique i think you see that mixing of language in various cases scope of employment scope of legal duty it seemed to me that the parties briefing recognizer something different in those two terms would you agree with that that those are two different legal standards yes from ok so what we have to look  is within the scope of legal duty and your definition appears to be that if it any time they are within their work hours essentially their on their then anything they do is within the scope of their legal duties correct toward a criminal conduct occurred while the corrections officer was employed as a corrections officer performing the duties as a corrections officer of and yes and what was at work basically during work hours he was he was employed and he was this is not an indemnity case like that arizona is not taking the same position that you're proffering i'm assuming in this litigation or you wouldn't be making these arguments right no your honor the that is not correct the there has been no concession there has been no arizona might interpret the statute to mean that anything that happens at work they're responsible for yes your honor the issue is does not render ms gone off without a remedy because the state is the appropriate party and as the court recognized the supreme court of arizona recognized intraparty the statute determines who may be sued other particular tortious conduct that may be pursued so what you what you are advocating would require us to to conclude that basically no matter what an employee does  during their work hours and in this case the allegation is that this employee use the guise of a pat down to sexually assault sexually abuse an inmate that that's ok you can sexually abuse co workers inmates anybody and you're within the scope of your legal duty i mean doesn't just the scope of legal duty basically mean what you were hired to do what you're authorized to do while you're at work and i mean i mean there could be negligent conduct that could be within what you're authorized to do but we're talking about out in out illegal conduct how could arizona possibly have hired people to commit crimes and say that's within the scope of your legal duty i'm going to well the arizona court has said that criminal or tortious conduct can fall within the scope of legal duty i'm going to unpack your question because it's obscene and several questions st your honor the way you constructed the question again seems to the question of whether conduct falls within the scope of a legal duty with whether the conduct falls within the course and scope of employment because your question assumed whether a master expected the conduct to occur and that gets into questions of agency and master servant relationship those are inquiries that are appropriate in determining whether a conduct occurred within the course and scope of employment here though the arizona legislature who is deemed to have been able to use the words course and scope of employment if it wished but instead used the phrase scope of legal duty did not make the expectations of the employer or the traditional notions of master servant relationship the appropriate questions in term and whether scope of legal duty or whether it conduct occurred within the scope of legal duty and the one thing that i would say your honor you said during your question the complaint alleges a great many number of things here and i would agree with you here is one thing that the complaint does not a leg though it allege more than half a dozen times that officer ramirez was fulfilling his official duties while these tortious acts are alleged to have occurred the complaint does not allege one single time that officer ramirez was acting outside of the scope of his legal duty that would be an alternative pleading and that is not the pleading that the court is faced with i'd like to turn briefly if i may to quote any time for rebuttal i would i would like to say one minute but i'd like to spend the next one minute and twenty five seconds talking about the qualified immunity argument and that gets to another question your honor asked which is the complaint in paragraph five thousand four hundred and sixty three does not does not a dollars that pat downs that included touching ms gough's breasts and other body parts were forcible sexual assaults well i do agree that animates right to be free from non consensual sexual assault i clearly established we've got verses auclair and verses hartford and so why wouldn't that extend to a transgender and made what they would your honor except in neither would nor book claire was the  of appeals was this court faced with whether a pat down search in which body parts were touched constituted a sexual assault sexual assault is actually defined by arizona law the case law we're talking about talks about sexual abuse it's broader than just sexual assault so you could violate a person's clearly stablish rights by sexual abuse you don't have to commit a sexual assault as defined under arizona criminal law in your brief is that that somehow meant that this wasn't a clearly established constitutional right and i'm just frankly not buying a distinction that's that fine when they when the th circuit case law says it's a clearly established constitutional violation to sexually abuse an inmate but there is no clearly established constitutional right your honor there is no case that says that a transgender inmate cannot be subjected to pat down searches and there is no but that's not the allegation the was sexual abuse during either during a pat down investigation which i'm not conceding is correct because they did use quotes around the word pat down it seemed that their allegation is this was in the guise of the pat down that officer ramirez was using the opportunity to qualified immunity only relates to the pat down searches are i mean you weren't arguing that he could force an inmate to perform oral sex and that was not a constitutional violation you can see that was a constitutional violation we're not we did not argue that we did not argue that below and we're not arguing that here and there's no suggestion that that's what we're arguing here we are arguing a very limited qualified immunity because there is no clearly established right halogen an all male prison facility ms goff is housed in an all male prison facility with male prison guards that are required by policy to conduct pat down searches to protect from contraband and violence to other inmates the pat down search protocol requires the touching of breasts buttocks growing it's required to do that pat down search there is no clearly established constitutional right i don't think there are you saying that there was a constitutional violation because she was subjected to pat down searches they're saying that these it had down became sexual abuse that it was more than just padding and touching it was groping you know all sorts of things that i don't really want to go into in great detail rubbing his body up against sorts of things that are not that they're alleging are not part of the patdown and so their claim is not there was a constitutional violation because she was a transgender individual who was in a male facility and was subjected to a pat down by ma officer that's not the claim at all we are not arguing that mr ramirez officer america's entitle to qualified immunity from the alleged rubbing up against ms goff we are very narrowly arguing that qualified immunity attaches to the allegation and that's not an allegation about groping your honor that the word grope is not used in paragraph fifty four dollars or elsewhere with respect to pageants the allegation and the only allegation with the with respect to pat downs is that officer emeritus quote i'm quoting from their nd american plate grabbed ms goff breast and other body parts during pat downs it is not clearly established grad so you want to grabbed one of them is ok and a pat down and or doesn't violate the constitution and the other does in fact your honor one of them is mandated by the policy promulgated by the department of corrections to prevent contraband and violence against other prisoners  morning your honor say please the court sarah mosts for respondent angel go off with the court's permission i'd like to jump directly into the statutory immunity argument there is no question here whether mr ramirez forced mackoff to perform oral sex on him he has already pled guilty he's been convicted on two felony counts the question here is merely whether some blanket immunity exists and a plain reading of the statute makes it clear that there is no such blanket immunity any unfortunately arizona start telling us how they interpret their statute well that's not entirely true you have the howland case which granted does not rule in subsection f but does state in no uncertain terms that in in maine they sue a corrections officer in his or her individual capacity when the officer acts outside the scope of his or her legal duties and i think there's a helpful framework in which to view some of the cases that have interpreted subsection f because taking a step back what must a statute like this apply to what type of conduct and to your point that you made previously it can applied to instances in which a corrections officer executes the duties that he or she is employed to perform flawlessly because in that instance liability negligence performance of a duty or maybe even grossly negligent performance could be covered by the statute negligence yes what maybe even presley well one of the claims here is for arizona take on the mantle of liability when the actions of the corrections officer in no way further the state's aims and so as your honor mentioned the question here is was the officer engaged in conduct that he or she was hired to perform and so if you look at the cases on the one hand you have the petit case which is the case that the district court relied on you also have the district court's order in the mery case also involving mr ramirez  both of those cases the courts found that the corrections officer was engaging in conduct that he or she was not employed to perform in pedi that was sleeping through an inmate attack the state of arizona does not hire corrections officers to sleep through their job in moree the district court found that mr ramirez a sexual assault of another transgender and made fell outside the scope of his legal duties on the other hand you have the brinkmann case the  but fails to provide the inmate with his inhaler and the inmate has an asthma attack the court holds that everything the officer did occurred in furtherance of her duty to manage and transport inmates similarly in golic you have a corrections officer who forcefully walks an inmate out of a dining hall and slams them into a door the court again held that transporting inmates is within the scope of the corrections officers legal duties isn't the pat down different than the i mean it's they do have to be you know people do have to be patted down and present and big surprise people actually have weapons and present they have drugs and present and all sorts of things so the they are going to have to be pat downs saying that just because you're transgender and eventual that you don't have to have a pat down i don't think that's ever going to go anywhere and that is in no way miss coughs claim here if this case involved actual downs that in some minor way when iraq then yes perhaps the statute subsection f would apply but miss goff alleges that these were not pat downs at all these were sham pac downs that were masquerading as these were sexual assaults there were grab there was grabbing mackoff breasts groping her rubbing himself against her for his own sexual gratification that is not a pat down it was merely an excuse to sexually assault mackoff so what i was trying to think of an analogy so  the state has the obligation to provide medical care to the inmates and in fact if they don't they can be liable for that so they have medical professionals on staff and it would be within the doctor's duties to examine possibly getting out of that the question again here is when is the state of arizona willing to accept liability on behalf of the corrections officer and in that sense this is a qualified immunity type of statute it's when is there  corrections officer making a reasonable mistake within the scope of the duties that he or she was hired to perform well your your argument raises sort of an interesting strategic point that may not be dispositive but i am curious so if the state of the arizona is your defendant that's a big well right they are not judgment proof where as a former corrections officer who is now incarcerated or has already served time for felonies may be judgment proof that i think this goes back to the scope of employment vs scope of legal duty issue and ultimately i don't want to get too bogged down on that question because i think it's easy to get lost in it and on a motion to dismiss it actually doesn't matter because the scope of employment as the cases that mr ramirez cites is actually a question of fact for the jury and that is what the case clearly holds but misc off the submit that it is not inconsistent to allege acted outside the scope of his legal duties and sexually assaulting and rate but also within the scope of his employment for purposes of vicarious liability against the state and in that way one is a statutory interpretation question under subsection f and one is an arizona state common law interpretation of agency law now admittedly the inquiries might be overlap in some respects but we have to assume that the arizona legislature would used the phrasing scope of employment if it meant scope of employment it meant something different and so we must rely on the cases that are interpreted subsection f and those cases make clear there are two buckets of cases the cases in which a corrections officer is executing imperfectly duties that he or she was hired to perform in cases in which a corrections officer is executing duties that he was in no way hired to perform and acting outside the scope of his legal duties like a good your opposing counsel suggested in a footnote and then again reiterated the argument that we should certify a question to the supreme court which is your position there's absolutely no reason to certify this question because this is not a close case this is not a hard decision the question that would be certified to the arizona supreme court would be is raping an inmate within the corrections officers legal duties and the question to that is obviously no it must be no and if that isn't enough all you have to turn to is the plain language of the statute which includes the language within the scope of the eagle duties and of course we must interpret all parts of a statute to have meaning superfluous you have the holland case which is a published arizona court of appeals opinion which states that there is a right for an inmate to bring a personal cause of action against a corrections officer who acts outside the scope of his liability and you have a great weight of persuasive evidence that all comes out on the same to the same conclusion about whether or not these are duties that a corrections officer was hired to perform and of course mr ramirez was in no way hired to perform the duty of sexually assaulting an inmate and forcing her to perform oral sex like to hit briefly on a couple of questions a couple of issues that mr claus brought up the st being this question of qualified immunity and whether or not the pat down searches the sham pat down searches can be viewed in isolation of the rape allegations and miss cough would contend that the allegations cannot be parsed in this way misc off alleges that mr ramirez engaged in a single continuous and escalating pattern of sexual abuse that started with flirting progressed to the assaultive pat down searches that were not indeed pat down searches at all and culminated in rape these allegations must be viewed as part of a larger pattern they cannot be viewed in isolation in the way that mr ramirez's argument requires but secondly even if the pat down searches could somehow be viewed in isolation ramirez i think the court hit on during the previous argument miss characterizes the constitutional rights issue for the nd time before this court at s c r ten that mr ramirez characterizes the right at issue as there is no clearly established right for a person to be free from contact incidental to routine pat down searches but as the district court correctly noted miss golf is not alleging routine pat down searches to use alleging sham pat down searches that were in fact sexual assaults on appeal mr ramirez has picked a new constitutional right now he equate he labels the constitutional right as there being no clearly established right for a transgender inmate housed in an all male prisoner facility to be free from contact with all part of a prisoner's body during a pat down but of course that is not the constitutional right either the constitutional right shows up clearly complaint at sixty five dollars paragraph seventy five dollars where she alleges defendant or mere as actions and use of force as described here in namely a series of coerced and non consensual sexual battery is were objectively on reasonable and violated plaintiff's right and that is the same constitutional right that the district court identified here and it's the same constitutional right that this court found to be sufficiently particular this court said that sexual harassment of an inmate constitute a violation of the th amendment and finally just briefly on this question of sexual assault under the statutory definition now in her complaint that mr ramirez grabbed her breasts and rubbed himself against her for his own sexual gratification the district court presumably in short hand stated th plain of specific specific factual allegations possibly support the conclusion that ramirez engaged in forcible sexual assault in violation of plaintiff's th and th amendment rights now the district court did not hold that mr ramirez engaged in sexual assault under any particular statute let alone a r s thirteen dash one thousand four hundred and six dollars nor does the holding rely on any particular statutory definition of sexual assault rather the district court held that taking the allegations as true as it must on a motion to dismiss misc off here had plausibly allege that the sham pat down searches were sexually assault or sexual abuse if you want to call it that identifies a sexual misconduct from a guard as any completed attempted threatened or requested touching of the genitals anus growing breast inner thigh pubic area or buttocks with the intent to arouse or gratify sexual desire so in considering the correct statute if you need to consider a statute at all which i don't believe that you do mr ramirez's conduct squarely qualifies as unlawful sexual conduct on the part of a corrections honor my colleague just quoted from s e r ten suggesting that we raised an argument for the st time on appeal but did not read the remainder of s c r ten namely lines five through six where we argued under  below quote there is no clearly established right for a transgender inmate to be free from pat down searches and a quote that was responded to on s c r twenty five by ms goff and we argued in rejoinder that no cases established male to female transgender inmates have a constitutional right to be free from a correctional officer touching their chest and other body parts during the course of pat downs i want to focus the remainder of my time on the qualified immunity issue the complaint does not allege sham pat downs the complaint does not allege that officer ramirez acted outside the scope of his legal duty with respect to any of the conduct certified to the supreme court and it's not is raping a prisoner within the scope of a legal duty the question is because no court including callen has answered the question what does scope of legal duty this the students walk clerks will meet with you briefly we're going to go conference on our cases and then the three judges will come back out and talk we'll speak with you and court as to legal matters is in recess until tomorrow