good morning neil i guess and on behalf of jennifer wilson travelers the issue before the court today is for purposes of a section one thousand nine hundred three action whether police increase the risk of harm to a domestic abuse victim by communicating to her abuser that police simply are not going to get involved in this case police actively shielded this particular deputy from any sort of investigation police implicitly encouraged this police officer to continue with what he was doing and police failed to train their own officers and how to handle domestic violence situations the facts are largely largely uncontested but there  particularly salient ones which should guide the court's inquiry here the first one being for all of the years in all of the multiple incidents of domestic violence and police calls that were leveled against deputy rader not one appears anywhere in the step of his personnel file the personnel file has been completely and utterly cleansed in fact the reason for his terminations abusing his police authority so that he can get into a computer system to stalk a new girlfriend that to no reference whatsoever in his personnel file there was a port in the theory that the police then of the sheriff then emboldened him would you have to in turn show his knowledge that  is his personal file was absent such reprimands or documentation and if there's an absence of his knowledge of that in the can the sheriff's conduct have been bold and that's fair we do not have any  active evidence in the record that he knew about the contents of his personnel file we do have reason to believe that he knew that investigations had been started and then those investigative files conveniently disappear for over a year until this case is filed you know they disappeared i do not know if that has been designated to the court or not i apologize would he have to know that to meet the standard of their conduct emboldened him yes that in order for an assurance or communication to take place regardless of whether that's an active or an implicit communication yes he would have to have knowledge of that he does have knowledge and there is no dispute about this that in one of the incidents in which he chokes out ms wilson  head against a well police do cut or sheriff's deputies do come to the scene and they take the victim up to her room stand over her as she's sitting in her bed and then cajole her with threats that we may actually bring charges against you you he was present when that occurred he knew that was happening is that there was a second of five incidents that's correct five incidents that have been designated to the court because those are the five incidents of which the sheriff's office was aware a suggestion had been made in the response brief that those were therefore the only incidents i want to make clear that that is not the case but those are the five incidents that were directly communicated for purposes of investigating it so based on that the question is whether in action is actually communicating something to this individual the best way to illustrate it is this had sheriff campbell sat down with the deputy raider and said to him look you can you can choke  head against the wall you can send out these sexually explicit videos to everyone you want to go to town we are not going to get involved had we done that there would be very little dips that that is actively telling him that you're not going to get involved that is actively emboldening this particular individual to continue with what he's doing the only distinction between that illustration and what we have here is that it was done implicitly he knows that they're being called to each one of these and since he knows they're standing over him cajoling this witness whether he knows that the investigations are happening or not is an arguable point but when the investigative files not one both of them disappear conveniently all of that combines to paint a very clear picture to any reasonable finder of fact that they knew what was happening rager knew that they knew and they had communicated to him that they weren't going to do anything on all of this has been dealt with in the second circuit decision of oaken versus village of cornwall which has been briefed extensively to the court but for purposes of clarification and clarity here i want to make sure the court understands those are two separate issues yes we could go down the implicit assurance that and i have asked this court to consider oaken and perhaps even consider adopting it and deciding whether there were  complicit implicit assurances made to deputy rater but the court doesn't have to do that because there was active conduct here as well actively making investigative files disappear actively cleansing said there is also a mono claim here and the money the mo now claim is based on the fact that there is an absolute failure of training in this particular church department as to how to handle domestic abuse victims and calls and i won't belabor the briefing that has been done for the court but suffice it to say there's an evidentiary dispute going on here as to whether there is any evidence at all in this record that this particular sheriff's department had any kind of training whatsoever i recall the only evidence you've submitted on the point is that the pre pay sic training did not include training regarding how to handle a domestic abuse matter that's correct and when the discovery request was directed to show us all training that was received in domestic violence and that's the only response that's given our argument is it is perhaps inappropriate to implicitly request judicial notice of an indiana regulation and pointing this court to a website about a training that happened eight years after my client or after deputy rager was involved so there is an evidentiary issue here based on the record that the court has before it there is no evidence of any training on domestic violence situations in this particular department based upon that the emotional failure to train claim should have gone to the jury regardless of anything else that we have discussed in less the court begin with so even if there were inadequate training which is not the case i might add there has to be deliberate indifference by the power maker to the need for additional training in order to avoid events of this nature so the required to do something that turns a potential danger into an actual one as opposed to not taking steps to prevent it and there's certainly no seven circuit authority extending the concept of affirmatively creating in courts the nature of their claim under the the sheeny exception council what if anything hancock sheriff's office do to protect this one well do anything i believe they did they thousand and twelve which involve a key being thrown and the sort of thing no physical abuse adeptly talk to the plaintive regulars talk to it was a memo was put created and that was the end of it and two weeks later there was a so called major event because there was at least allegations of physical abuse although the plaintiff wouldn't wouldn't acknowledge it she was interviewed she was asked to give a statement sheet she refused she didn't want to get them into trouble and the sheriff knew about it and listed the the detective to do a full investigation which he did unfortunately it was misfiled it wasn't seen by the sheriff until after the october incident occurred two thousand and thirteen so we have an entire year between june of two thousand and twelve and october of two thousand  thirteen when the when he's arrested during which the department is of the view that they're getting along or at least no notice to being given to them that anything is going on  nature i'm sorry did you say that the hancock sheriff's department was not involved in the incidents in june of two thousand and twelve they were but not of two thousand and nine wins the council talks about five incidents i don't know about five if he's including the ones investigated by mccord's goal in two thousand and nine that could amount to five but we're talking about two incidents in june only one of which involved physical contact by years hiatus work nothing's going on then in july of two thousand and thirteen she complains to the to the captain about these text messages not about physical abuse he tells her to get a protective order he he had condoned any of his conduct if the record is just the opposite he was told his behavior was inappropriate and that are needed to stop and with so with regard to an implicit encouraged in the again this appears soley in the second circuit case which involved more serious facts than present here it's never been right any other circuit for that matter and affect this circuit in the the bully cases in the schools that we've cited has it essentially rejected implicit encourage meant as being a basis for an exception under the the sheeny rule and as the district court determined even if we were to adopt implicit encouragement such as in the second circuit our facts are highly distinguishable from those in the new york case that offensive told her to get a protective order reprimanded him this is hardly urgent in my view that can support a constitutional violation the district court was also correct  terms of a forty qualified immunity clearly we don't have clearly established law in this circuit to support constitutional liability and more importantly importantly equally what is the basis for individual liability against each of these officers this is constitutional liability we have to ask how did each of them deprive her of a constitutional right what did the sheriff and he asked the detective prepare a report after he heard about this twenty fourth incident what did the detective do he prepared the report they got misfiled what he prepared it what the captain can do he interacted with both of them multiple times and gave him advice and told them to stay conscience and which is still the standard employed for something to do process phylicia i know there have been cases that have suggested perhaps it's nice to be revisited as a standard but it is the standard employed in the circus and nationwide and the district court correctly determined there was no evidence to support a shot of conscience certainly none that a reasonable jury could rely upon in order to return a verdict and might also add on the qualified circuit even if we look outside our circuit so we don't even find a consensus the best we find one circuit that doesn't even recognize that the shiny exception is existing because after all it is  finally your honour's as to no liability again i think it's appropriate to simply advise the court that county deputies in indiana are required by statute to undergo domestic train duty officers such as rover what training was available what was it what training our officers provided in terms of dealing with domestics or off duty officers so i don't think there was a lack of production of evidence along those lines in the discovery process even if there was there is no underlying constitutional provision and it's not the law in this circuit that specialized training is even required the absence of specialized training does not equate to deficient training and moreover deliberate indifference to training needs requires evidence of prior circumstances which because the evidence does not meet the required or the requirements for intention infliction of emotional distress if there are no questions i will conclude my argument thank you thank you mr stevens oaken involved someone who hung out at a bar with a bunch of the police officers in that particular village this case involves one of their own this case involves them circling the wagons to protect one of their own deputies this case is much worse than oaken second counsel suggests that the bullying cases out of this circuit may somehow tacitly undermine any claim that implicit assurances will be recognized i this extensively in the reply brief but i would just point out the no bosnian case in particular this court explicitly leaves open the door that it's showing could have been made in that case that failure to discipline those students could have risen to the level of  violation it was just an absence of evidence that drove the ruling in the bosley even if we accepted your arguments and found that there was a constitutional violation how is it clearly established such a qualified as for the qualified immunity please remember that there are two different ways to establish whether something is clearly established the first is whether it has been recognized by most of the circuits or or whatever that particular language is every circuit but the fifth circuit recognizes the police may not affirmatively increase the risk of harm to an individual that is what has happened here the only way defendants to get a round that is by narrowing the  making the analysis so specific that that open would be the only way to meet that standard if the court is going to narrow its focus to that level of specificity the second prong is it's painfully obvious that they should that it's clearly established under the sheeny that this conduct was unconstitutional it is clearly established under the shany that police may not affirmatively increase the risk it's painfully obvious that police shouldn't be making investigative files disappear and cleansing personnel records either way i put all of your imes and charter engage in prolonged question but i don't know why you keep talking about that because you've already acknowledged twice that the gentleman had no knowledge of that and so it seems to me that you've gone in another direction now because qualified immunity isn't going to turn on the deputies knowledge ok thank you i appreciate your time thank you to both counsel the case is taking under advisement