honour's in this case the trial court found as a fact that no jury could conclude could reasonably find that defendants knowingly and unreasonably disregarded an excessive for risk of harm by allowing these miners to and by encouraging them to play tackle football without equipment that was a specific finding made by the trial court which was clearly contradicted by the record in this case we had record evidence direct evidence and circumstantial evidence that the defendant officials understood the very specific substantial serious risk of injury here and it came literally out of the mouths of defendants in most of these deliberate indifference cases that we read what we find is we get evidence from others not from the defendants but from others and we infer from that evidence  impute actual knowledge on to the defendant officials here how do you get around the idea that are like following here artists all that he wants as opposed to be compelled to play it's sure well couple of things there are cases out there including the night case which comes from this court from the third circuit where there was actually voluntary activity and yet  finding of deliberate indifference and more importantly what we saw in that case the pollute the police officers agreed there was a stop there was a police stop the driver was  intoxicated as was the passenger they agreed with the police officer that they could make it home the driver drove home the passenger decided to walk home in a cold she eventually passed out suffered hypothermia and a brain injury while she where the plaintiff actually volunteered to wrestle with an older wrestler and i won the super came back volunteered and in that case the court specifically referred to the night case to say voluntary activity does not form a injuries children who were hit and at the wind knocked out of them but only injuries including to ankles including to fingers so we know from this record that there were multiple injuries in for example the c e o case as well as in a case called fillers which is another deliberate indifference case we had one prior instance which wasn't even a serious as the ultimate injury but here we're talking about injuries to ridge people being hit hard enough that they lose their breath people who were suffering bone or suffered in his or suffered any sort of paralysis at this facility that's that's very similar to the seattle case and the hiller case where in seattle it was the first time that a wrestler that suffered quadriplegia as a result of wrestling similarly in the hiller case where they had taped the students to the wall they were playing at a game called fly to the wall and they take the students to the wall they had only been one prior instance of someone being injured and that was just a person who was different number one that would be a condoned activity to go to the swimming pool even though you know that there is a even though you know there's risk to go to the swimming pool and to have these kids swim is a condoned activity at this facility diving headfirst into case is that these guards allowed them to play this tackle football as a means of taking out their aggression on the other kids because they were otherwise fighting so instead of fighting i want you to get at them on the field you can be rough you can you can punish them you can hear them as hard as you want so they're actually condoning activity which number one they know at least they say they know not to be allowed at the facility they're actually condoning it and number two that they're telling these kids be bad aggressive be that rough because instead of fighting we'd rather you get at them this way well that's what makes that well sure is the way to be used now it's a way to take out their aggression but it's not something that in the minds in their own minds they consider to be a significant risk of serious injury a substantial risk of serious injury i have this right it was an on reasonable risk of harm he called it an unreasonable risk of harm and injury and he said i don't even have to tell the staff people that every one of them should know it and if i ever saw it happen i would stop it immediately and was a reason for  it is enough that the official act or fail to act despite his knowledge of a substantial risk of harm plaintiff need not show that the prison official acted or failed to act believing that the harm actually would befall well yes q let me ask you a slightly different question  there according to mitchell there was an actual rule that they should not undertake that activity and he specifically said that there was training on the fact that if he saw it he would stop it that's what makes it different and what makes the difference here is the even in this instance two things not only in this instance the presence of a ruling that they shouldn't do it but more importantly the direct understanding of these officials that they not only knew they shouldn't do it answer that your honor because that was that was our contention was that the rule of the of the institution was that tackle football wasn't permitted but in the court below mr ross and his client took the position that the at newcastle was to play tackle football all the time and in the norm so high on the rules and the district court said well taking the testimony in the light most favorable to the plaintiff i'm going to assume that the norm here was tackle football but it is certainly our position although there is conflicting evidence on this i will i will concede it's our position that the rule at newcastle was that the the the inmates were supposed to play touch football in our brief there are a number of problems with mr best his eighth amendment claim but the fundamental problem is this the eighth amendment forbids cruel and unusual punishment allowing inmates to participate in a recreational activity of their own choosing and that their own initiative cannot reasonably be described as punishment without distorting the ordinary meaning of language this court in the supreme court has repeatedly said that to be actionable under the eighth amendment a condition has to be imposed on an inmate quote unwillingly quote against his will it must be quote unwanted but that's not this case this football game wasn't part of of say a physical education class  everybody had to participate in it wasn't even some kind of a sponsored intramural game this was a bunch of guys getting together a pickup football game on a saturday morning in their free time but it was a comment that it wasn't and and  common activity that the guards were fully aware oh sure sure all that actually the record shows that the the most common activity was basketball but that it was common for them to play football as well as to play other sports but my point is that the ones who want to play under some walk but they do not have a constitutional responsibility this is not an eighth amendment matter this is at most a matter of negligent supervision i'm going to guard negligence which of course categor threshold of an eighth amendment violation if i could turn the question around them a little bit if an inmate is exposed to second hand smoke that may well be a constitutional problem the inmate chooses to smoke him self that's not an eighth amendment violation and it doesn't matter if the inmate wants to smoke a pack a day two packs a day five packs a day if he would has emphysema and was just smoke five packs a day the degree of the risk isn't is what's determin e it's the fact that this is his own choice it isn't something it's being imposed on him as a condition of confinement it's of no moment i gather that the guards disregarded the institution's own internal rules prohibiting this t that's correct that is not of any constitutional significance three factors christie and i'm wondering whether whether the christie test even applies to a case like this were statues pacifically designees your client has  well i don't think it does not well i guess the better way to put it is that christie pasted the christie test is by definition satisfied when you have a case like that christie is useful we have these kind of in between institutions where it's not entirely clear whether it's an alter ego of the state or not but here we've got we've got explicit statutory provisions we have a and explicit concession below on summary judgment that this is a state run institution and we have case law that repeatedly has held that the welfare department of course is up the commonwealth as a center receive federal funding probably most most parts of the welfare department received some federal funding but any of that funding be used to pay a judgment in that if there were s i don't know i i don't even know if it's possible to segregate that federal funds of course float to the commonwealth and then they are appropriated even though they come from the federal government they are then appropriated by the general assembly to one department or another  i don't know if if in this case those funds would continue to be segregated in a way that that would allow anyone to answer that question but i think the more important point is that word is who does the judgment operate against  you know if if this money it or if it's a judgment were paid for from non federal funds well ultimately we would have gotten that money from private citizens but that doesn't make the welfare department a private institution and just the mere fact that the federal funds may eventually end up paying a judgment doesn't mean that the judgment would flow against say the federal government it's worse not that if you prevail and that argument the case proceeds you can see individuals that's correct i'm sorry only harm disagree yes well i'm not sure what you mean by hold harmless or going that we have indemnification a system where in fact the judgement would be paid by the commonwealth even though the as a as a matter of  form the judgement would run against the individuals but we would indemnify them against the judgement or maybe as a practical matter yes as in the negative in terms of why in terms of where the money ultimately comes from i suppose it and this case the judgment would go ultimately against the department of public welfare which is part of the state and up is as long as we're on the subject of of judgments and who pays and so forth i might i'd like to just address of qualified immunity for one moment and i think the the most important fact here is that there is no case there is literally no case that has ever imposed constitutional liability on a set of fa sorry if you think we should address it even though you just record you know what a question well i think you can it is a question of law it's raised below and you certainly can affirm on any basis it appears on the record there are there are only a handful of cases that i was way no because that doesn't get you around the fact that it was still a voluntary activity that was it was done by the inmates at their own choice and i threw an initiative and in the same way for others it would be true if they were if they said let's allow some of the inmates to remain in them in the barracks and they all have to go out on the football field and you're you're admitting that you're liable because there is if so five to a substantial risk of serious it what i mean perhaps i misspoke what i meant to say was compulsion would be enough to get you over that first hurdle that there is no liability for voluntary activity if the inmates are choosing to do something on their own then it's not punishment and if they were they were if they were incidents of that facility is it what has happened statewide nationwide you know how do we and of course that's that's the next step is there substantial risk of serious harm again i'm not sure i know what to tell you except that w ever you would need it's not here the supreme court has said what you need is a risk that is quote excessive a risk that is sure or very likely to come to pass but in addition of course to there being a substantial risk of injury i think this might might be germane to judge went isn't a chart of his points it also has to be a risk of a type that is contrary to standards of decency in our society and sure there is always a risk when you participate in sports that something untoward is going to happen but it's not the kind of risks that our society finds find acceptable and you've got millions of people playing sports every day inside and outside the prisons and yeah some of them get injured there is an inherent risk in sports so you've got all these hurdles deployed this is really what is your challenge though doesn't it because how come we have to calibrate what society a municipal ordinances and regulations that that have gradually come to forbid smoking in public places you look you look to what people do day to day is a matter of common sense i think that what you look at is going to vary a lot depending on what the what the circumstances are but ultimately i guess it comes down to a question of your own judgment is this something that we as a as a society would find tolerable or not tolerable freddie you know the only other point i would like to make is that i would like to to follow up on one of judge went his questions to mr ross in that the the rule that mr ross is asking for would indeed  crimp in athletic pursuits not just in juvenile facilities but in prisons as well where the eighth amendment applies and we're talking about not just football weight rooms swimming pools for men just number of injuries i find in the case law come from basketball games miles i'd like to see if i can directly answer the question that you're on a trip hardiman just asked how are we to calibrate what society will tolerate with the standard that the court should set here i would suggest that the very first step in making that analysis is to look at higher level than the risk of injury injury in tackle football with equipment where you can be paralyzed without equipment to an even higher level defend than blue said it was obvious and commonsense that it presented a danger of when you don't have the statements from the individual defendants in the case as to what they believe is acceptable and tolerable then we have to look at well what would society tolerate here so we can figure out whether or not they should have known that no what i'm saying is even before we get to well something as you know what the what the society believes i'm suggesting the first step is what do these defendants believe because that's critical to whether or not they should allow the activity here one of the actually believe it rises to a higher level of risk which is what defendant stewart said here it rises to a higher level of risk so for example when you have boxing with headgear they understand there's a risk but let's say they're doing extreme for get what they call it now they have this extreme fighting where they're ok just and they're literally trying to kill each other well when you know that rises to this higher level of risk and you believe it's unacceptable it's unacceptable i might agree with your guest took me along without what about s said no the supreme court said all three of them are fully open but under that factor of whether it's going to come out of the that the state treasury we asked the question in discovery you have insurance to pay this judgment state but nonetheless the court had to do the analysis to see whether or not it gets eleven the minimum unity and it focused very seriously on well do you have insurance and insurance is regiment we don't know that to the to this day we still don't know and many