good morning your honour's may please the court counsel my name is tom holden i'm here on behalf of bay county sheriff tommy ford we ask that the court reverse the judgment in this case and do want two things either with instructions that judgment should be entered in favor of forward as a matter of law or for a new trial handling those issues in order to bases for the argument that the court should reverse for judgment in favor of the sheriff or that assuming warden anglin who ran the jail was the final policy maker for the sheriff the evidence was insufficient to demonstrate that he had been placed on notice of a subjective risk of serious harm by a corrections deliberate indifference a really sort of jurisprudence generally the question of whether someone is a policymaker is fundamentally an issue of state law look through this so i read the briefs on both sides i can't find a single state law citation brief so i mean i'm left totally at sea trying to figure out whether this guy's a policymaker everybody's sort of making commonsense arguments about why it is or isn't but i haven't seen a lick of state law explaining to me why or is well i'm not sure that there is anything that gets specifically into the issue of whether or not a warden of a jail that is run by the sheriff is necessarily the final policy maker for the sheriff and in fact well there might not be a statute that says by the way the warden of the jail that run by the sheriff is a policy maker or he isn't but i mean don't we always in these cases look through to some and you know indicator of state from state law i'm not aware of any human you're or you're not aware that we have ever done that earlier not aware of any indication in state law that would help us i'm not aware of any indications state law one way or the other on that we just kind of i think it's a matter of practice when you look at the cases of the court discussing who is the final policy maker you get into whether that person had reviewable authority and specifically in the area which is being attacked which doesn't always come from a prior case or a prior statute it comes from the actual operation of the facility i mean in florida the jails are not necessarily run by the sheriffs that the counties have the authority to have the sheriff do that that's so that would be like a source of state law number one that's that's a principle like a you know here's how florida law works sometimes yes sometimes no but that would make the sheriff the final policy maker and i don't think anybody would argue differently that the sheriff would be a final policymaker the question is whether the warden of the jail is also a final policymaker and then we have the issue in the case as to whether or not there was evidence at using that practice approach but in any event when that i mean you conceded the issue that trial  conceded it before the judge on summary judgment in fact i'm reading from the judge's order he says i asked at oral argument on the sheriff's summary judgment motion whether the warden is a person who's a if that were the only back and forth on the issue i would agree with you but it wasn't there were three points after that where the district court said the issue still remained including in the written order on summary judgment the district court said whether he is the final policy where we said this court will not reveal their true trial than a motion for summary judgment after a full trial judgment on the merits that that helps i think the defense because there is no evidence at the trial establishing that warden anglin is the final policy maker the evidence is to the contrary at at best what we have here is a very confused situation i and judge also said in his order that because the case proceeded on the assumption that he was the final policy maker the plaintiff didn't put any evidence on so you have two choices if you agree that there is a question here choice one would be to find that the evidence a trial did not establish that he was the final policy maker that's an issue of law that the court could decide two is to decide that if the plaintiff was by virtue of the sequence of events didn't apple didn't appreciate that they needed to put on evidence of that to have a new trial at least on the issue of whether he's the final policymaker we couldn't we couldn't oh you are entitled to a motion for new trial without a finding that there was an abuse of discretion the right that would be the standard and yes but again if that statement were standing by itself position be much weaker but there are three other points at which and including in writing about a week and a half week week and a half after that hearing where the court said that was still an issue all right i guess the concern that i have is you can't you know keep this the court doesn't have to really resolve that issue here because of the fact that in our position is that the evidence coming from bailey is insufficient to meet the high threshold to show deliberate indifference they have to show that angle and assum on a policymaker had subjective knowledge of the risk of serious harm just regard that risk by more than gross negligence and if you read bailey's testimony he is entirely inconsistent about exactly what he said at the end he says i don't know what in france he says he's asked you know what the warden took away from that he says no i can't they have to show that the warden if he's the final policy maker actually drew the inference that there was a risk of harm to the pla and in that respect i want to emphasize one of our arguments on the trial and she is that the defense was not allowed to point out that mr bailey who was the only source of the only  report was a then client of his counsel when did you find i don't know exactly when that was found out it is discussed pretrial so it one point in time you wanted the judge to prohibit the plaintiffs from calling him as a witness because he had not been disclosed i think improved in the disclosures required by the rules but i'm trying to say when did you find that out your honor i don't know when exactly that was found out but if you look at the transcript it is discussed pretrial because the judge says you're not allowed to talk about the fact thirty days before the sixty days it has to balance within that because the plaintiffs if you would you know will let you take his deposition you took his deposition i spoke defense counsel did yes yeah and did you ask the question when i say you i'm talking about your client did you ask the question about representation by the i don't know i don't know i do know that plaintiff's counsel talked about it in one of the pretrial hearings that he was a client of counsels in fact that's how it came up that he was a then existing client and  case if if you were permitted to ask the question from the jury doesn't place counsel represent you or represented you in a criminal proceeding well and a civil civil and criminal just think about this at the end of the day if the entire case for notice comes down to what bailey says i told anglin and anyone says that's not what he told me and that's what you say right now it's credibility contest between those two men that's that's where the entire one million dollars judgment you know that's the form of it right we are not allowed to support out bias potential bias anyway on the part of bailey that he would have an incentive you were allowed to point out that bailey assisted players counsel in g witnesses and things like that i think the only testament yes but i think that the it was interesting the way that was spun he said that he had contacted raw and said it would be a good idea to contact his counsel because he hadn't answered presumably or just to be prepared for trial what have you but the point is that i mean when you're at the end of the day when where weighing you know a jury is weighing their their testimony i don't think that anybody could say  that it wouldn't affect the rights of the defendant to point out that the witness for the play the witness for the plaintiff on this is also kind of councils i could not find a case directly on that issue i mean there are you know there are many that talk about bias always being something that can be considered but i could not find one specifically on that on that issue also in the new trial issue i wanted to just point out several things st of all there was repeated criticism of the quality of the post incident investigation the jenks investigation planners council even though the district court said it's irrelevant criticized the agency for having an internal person come in and investigate what happened which of course it matters because admitted it was fired immediately but they were allowed to say weren't you worried about the optics of having the agency send in its own investigators or jackson to it was sustained the district court between day one and day to remind them the quality investigation is not at issue but even on the nd day they continued to hammer home it twenty questions roughly janks investigator janks the nd day where they emphasized the lack of quality the investigation and the determination of whether it was consensual or forced and just this this you know wave of criticism of the agency for its post incident best occasion which the judge had ruled was irrelevant and there was objection to that there was also a lot of evidence in the case about speculation about what other people knew the witness the plaintiffs themselves testified that other guards must have known it because they must have seen us walking back and forth on video and say you know what you've got is the case is supposed to be about what warden and wouldn't do and instead we're talking about what other identified corrections deputies might have known about other deputies sometimes and you're telling us there were junctions to all those questions and not to that specific set of questions no then why would it be fair to hold that ruling against a district judge that was never confronted with the opportunity to rule on well actually i mean i think that the judge said many times what the case was supposed to be about the lack of objection though you get to the to whether or not it was plain error and if you look through that transcript it's only a day and a half trial it's just over and over again and especially when you combine that with the fact that we're talking about these ancillary issues about the post incident investigations appellant in this case has stated repeatedly in this oral argument here today that the only witness was sergeant bailey sargent bailey was an employee of the sheriff's office but in addition to his testimony there was testimony from the admitted rapist mr reyes that the warden warden angle and had several months prior to the rapes of our clients had told mr ray s that he was aware of sexual misconduct by reyes so it's it the case is not entirely dependent just on mr bailey the district court did the proper thing in allowing mr bailey to testify that was the opportunity to further deposition and they could have asked them any question they wanted about bias so counsel the person who admittedly had sexual relations with an individual that was within his custody and control testified in from the jury could the jury you think maybe not believe that but that's a question for the jury it is a question for the jury wouldn't it also be a question for the jury as to whether or not mr bailey was telling the truth and was not acting strictly on his i guess good feelings towards claims counsel of course and that's what our argument is is this case properly with the jury judge hankel decided to move on but the jury had no idea did they did mr bailey was represented by plans counsel in a criminal proceeding well may be working for mr webster and mr bad teased or biased they didn't provide any evidence they did and they made no proffer of any fact that he was i know him pretty trial discussions the court did the court not make it clear with you with the plaintiffs urging that the defense could not go into the fact that mr bailey was represented in a criminal matter respectfully i would say no because after the defense counsel said that bailey may be working for the poor you're talking about a trial that rock that this isn't prior to trial and then the response by judge is don't bring up the fact that he's represented by these lawyers unless you raise it with me and i think that's a common ruling for a trial judge and with a motion limit he has to say well raise it with me at the time and i'll be able to make a decision so judg didn't say you're precluded from ever raising that he said don't bring up the fact that he's represented by these lawyers unless you raise it with me depending on what he says about some of this if it turns out he denies any contact with any witnesses or has any interest in th case he's just a witness like any other witness then i may let you say are you represented by mr webster in a different matter defense counsel i understand i read it again slowly ok this is that what the judge was saying what the judge was saying because i do side b from finding it in my notes ok it's a dock one hundred page forty six and the court says don't bring up the fact that he's represented by these lawyers unless you raise it with me he's giving him an opportunity to keep going yes depending on what he says about some of this if it turns out he denies any contact with any witnesses or has any interest in the case he's just a witness like any other witness that i may let you say are you represented by mr webster in a different matter is it wasn't the judge saying they are there if he did not going in and working to get these witnesses lined up if he denied that then i would let you get into the fact that they can't place counsel representing him in criminal in that's the only fair reading what the judge said i think that's fair ok well did he deny that he worked for players counseling getting witnesses at any point i don't think there's any trial testimony of that all we have here is that we think he may be biased and the judge says if that comes up let's we will discuss it so if if defense asked the question did you assist players counseling beginning with this is and he says yes  then a fair reading of what you just said the district judge said was that i'm not going to lie you to get into the fact that he was represented in a criminal matter isn't that correct i would say no i would say that the judge left it open it was at a pretrial conference and it would depend on what he said and i think that's a normal ruling for a trial court judge to do in a motion and let me and and then you start there on the record what happened that trial about this nothing they never raised it all right so having to like recall my prior life as a private practicing lawyer but i thought the general rule was that when you get some kind of squishy motion in limine like this you've got to reraise the objection at trial in order to preserve it that's correct and they did not they made they never raise the issue again after this they never made a proffer they didn't make any objection contemporaneously to any testimony of bailey and that includes all the other issues that they're raising about mr bailey never was there an objection to that and the trial judge has the complete authority to make rulings at trial but he needed to bring it up because there was nothing definitive there was no proffer in the st place even in the pretrial discussion and i think judging  very clearly said depends on what he says i may let you get into that and so i think he did exactly what he should do so as i mentioned previously he continues to say the witness was sergeant bailey  as i pointed out there was a conversation between warden angle and and mr ray corporation directly several months before our clients were rape that says where the warden says if you're suspected of having committed some sexual misconduct so we have that and we have two allegations of two different incidents from sergeant bailey and this is not like it's an inmate who's just saying hey i was raped this is this is coming from sergeant bailey twice and right yes and the discussion between hangal and reyes as well now the the defense has also conceded that were r there also testimony from bailey that recount sexual misconduct by officers at the jail related to radius by basically there was some evidence in the record of the lieutenant by some by some other officers  there were there was a report that was admitted without objection that was the jinx investigation where he investigated whether this occurred and there were conversations with others about it there were comments that you could provide that would provide context such as the one of the planet's herself saying that it was obvious that anyone could see that this was going on and mr ray asked himself who said that he was sure that others people saw him go into the closet room with the various inmates i guess but what i'm asking is there are also some evidence admitted at the trial that there may have been sexual misconduct taking place at the jail not related to rice lieutenant swann what was reported to have  females come into his office late at night to clean the floors and that was investigated as a possible episode of sexual misconduct and i think it laid it was there was a non hearsay purpose to that though as well because one of the pla was asked why didn't you go tell lieutenant swan and she and so there's a there's a non hearsay purpose to introduce in the evidence about lieutenants want to say do you really think that someone like that was going to help or the defense has conceded several points in this case and one of them is that if bailey testifies it's a classic jury question judge hankel directly said this would be a classic jury question to the defense at the argument on s judgment and the defense attorney said i agree that it creates a dispute of fact in addition moving to the deliberate indifference judge incl asked if that testimony meaning bailey's testimony is here and properly considered isn't it so that the jury should find that the warden was deliberately indifferent and the defense attorney said i do agree with that indicating that this is a jury question and then the court finally using the language of and l case and the mon elk ace on the question of final policymaker said aunt to the defense attorney for summary judgment hearing and the warden is a person whose edicts or acts could fairly be said to represent official policy defense attorney said yes so that it was concede there was never an objection to a single jury instruction in this case the issue is not addressed by the defense as an issue in the pretrial order that by itself i agree with your honor that is sufficient right there to preclude it as being an argument on appeal so what do you say though to my question about you know looking through state law and there being essentially  here i can see in the cases where you where you get that i think that such a statement the courts have made and it's a correct statement that it is a question of of law and i've seen the including the phrase state law but our case law but the united states supreme court our understanding of the actual function of a government official in a particular area will necessarily be dependent on the definition of the official function of the relevant state law state and local positive law as well as custom and usage have force the force of l begin by reiterating that the identification of policymaking officials is a question of state law and i just there isn't any state line or so far as i can tell at least that i mentioned well that's probably because the issue is conceded as i mentioned before trial we went into that will ask the question and defense attorney said yes and when the jury instructions came out there was no objection to the jury instructions with which went through the final policy maker so it was a can see it was almost like a stipulation  addition though i can point out to you that there is an th circuit case mandel where even a physician's assistant a p a is responsible for the inmates that were working in the field but was the final policy maker  on that type of issue so i see it as more of a facts and circumstances case i do understand that there are statements in the law about it's a question of state law i think it would be important thing here is that it was a question of law and that it was conceded there was a stipulation so why would you go through all of the confusion of that for the jury if it's already been conceded do you agree just descriptively and then you haven't thought about it because you assume the issue was conceded but do you do you agree with your friend on the other side that there is essentially no state law to look to i don't actually no i don't recall anything in the record where there was a statute about wardens in the state of florida system  i think it's just a matter of can but the way the supreme court has also said it even in law now is the real question is do the actions and edicts of that person fairly represent that organization and i think you're looking at the warden of a prison and you're looking at supervision of guards who potentially are abusing and mates that's got to be within the warden's policymaking function now let me ask you this about the concession point because you said that even as late as summary judgment the other side was effectively conceding this but doesn't the district court's order on summary judgment say among the issues to be tried will be whether these acts and edicts are those initial policymaker or whatever i mean the district court didn't seem to think it to be conceded that sort of teeing it up for trial well this is the same judge hankel as you know is an excellent judge you know he had the concession in his hand but the jury instructions weren't done until the conclusion of the trial so i think that he was within his power to look at the record as it was and conclude that he was the final policy maker with respect to the other  items that they've argued on have a dench area shoes we've been through the record very carefully and there was just an complete failure to object to all of these other things the the main exhibit about their conduct came in through exhibit number one which was  jenks investigation of this incident had comments from other people the defense attorney said we want the whole thing in and then the same thing happened with the specter of the swan investigation there was no objections and not only was there no objection when these things were thoroughly addressed by judge angle in pretrial conferences but they were not can they were and there was no contemporaneous objection during the trial of this case and so we believe that all of the issues that they have raised have been waived and not only were they it we believe the judge incl made the right conclusions on down the line and it ultimately was a jury question and it's not our job here today to question the jury's determination of baileys credibility re assess credibility and the points brought up by plaintiff's counsel st your honor dealing with the issue of state law and whether or not a warden within a county jail system is a final policymaker even using the standard that he discusses and frankly that we were also talking about  the decision of the final policy maker must be unreviewable the only evidence at trial was that the decision to launch an investigation for example in this case by c id which is a criminal investigation division comes from the sheriff in confessed to having sex with a different woman different female inmate that doesn't mean that his decision is not unreviewable so really the bottom line the point that i wanted to make on this issue of final policy maker is that it was extremely unclear at best it was unclear and the really the choice if the court finds there is an issue there the choices you find that the plaintiff failed to meet their burden to show he is a final policymaker or do you have a new trial because the plaintiffs believed that the judge had ruled that way notwithstanding all the three other pronouncements to the contrary can you can you help me with my question about motions in limine objections at trial i'm kind of shooting from the hip here but i thought i recalled again from my practice life that if you got anything other than what i think courts of called an unequivocal motion in limine ruling then you really had to re raise the objection whether that's an objection to the admission or a proffer with respect to exclusion a trial to preserve the right and this gets to i think judge cougars question about  as for plaintiffs counsel which was the trigger to then you know because he says that under the judge's ruling as judge toler pointed out there you can't go into the fact that he is also represented and then but so is your understanding of the laws that you don't have an obligation at that point to say judge for the record you know we need to make proffer here why not if not if he said if the judge in advance says this is the condition under which you can bring this in and then that condition doesn't occur which is they had bailey said no i haven't done anything to help them out then that might have opened the door completely we might revisit the issue but the judge had a trial says this is the trigger has not met because he  admitted that that he did contact right as appointed counsel also points out that raw is testified it is not the only evidence on notice well bailey's the only evidence on notice ryan says that later that  angle and expressed to him some concern about whether he was in gauging his conduct with another inmate however in this court in dover says georgia department of corrections side in the brief held that under barely very similar circumstance a single report