with me in the courtroom today are a number of the representatives of the plaintiffs that have come here from montana we're going to focus our time today on the nine hundred eighty three claims so i'd be happy to address questions for any of the other many issues on appeal plaintiffs of several theories of liability in this case under nine hundred eighty three i'd like to focus on three the first is the hiring in failing to supervise teenage boys as attendance to girls locker rooms and as an age for girls gym teacher with an office and girls walk around the second to supervise reliability of the individual defendants and the third is the failure to respond to known risks and violations in the face of actual or constructive notice it's not necessary for any  is of this court agree that the boys who did the filming were state actors that is completely irrelevant what we're dealing with here is the state action of the individual defendants and of the destruct in order to find the school or the individual defendants liable for the hiring and failing to supervise the male talboys and student you have to find the planes were deprived of the constitutional right i think that's a given and the girls were have a constitutional right and their bo privacy that was violated by the filming and the peeping and watching by of their eyes you also have to find there was a policy practiced custom having adequate training and supervision and that in light of the duties assigned to the specific employee the need for know you can speak sir there are two issues and the first is you have to realize that these are employees who are skilled and healing with teenage boys they hired boys with jo that would place them in an area where girls were going to be naked i believe it is common knowledge that teenage boys have a possibility that they want to keep the girls you don't have to but your honor if you look at the court law on that governs this case they did not need to face the ultimate injury they had to proceed the constitutional violation which was the invasion of the girl's privacy and naked body yes the girls were filmed but it was enough that they were peep that it was enough that the boy in the wall watched them do you don't have to foresee the scheme that ultimately arose you simply have to see the constitutional violation let's talk about the role they were not questioned when they were in that run all the time they were given twenty four hour access to the school there are several instances in the record where they were in fact seen by a staff person unsupervised and are around and were not addicted because yes your honor but i believe that there is a fairly good line of cases that when you're going to have an individual who has access to the naked body of another that it's better to have same gender individuals we in fact have an expert to testify to that but you then have something you need to look a stopped and yet still from that period of time the year after he was given notice her quote under oath in the deposition was the girls think they're being videotaped another teacher dorothy testified that she actually said in the locker room as well and so either way this is the that's what's in the record and one of the issues you're on of that's up on appeal is the fact that after discovery closed after briefing had closed we received a sheriff interview with another student who said i told him the defender about the videotape as well we were denied the right to the sworn statement to the sheriff in a written statement as well as an oral statement told him that brock secretary told her he had missed a particular social event in the spring of zero two because he was home because he was mad at his son for watching videotape about had gotten out around the schools students were showing them about this one it's a one building school they were showing it during school in the hallways during passing periods in front of teachers talking about in classes over and over and over again and at the same time in the spring of zero two has a staff meeting where he's asked by stat what's happening with the videotape and again he tells them it's being handled he's telling them the price is handling it by the spring of zero two the defendants and the other sta county high school knew about the tapes because the tapes have got now and they were being shown around that school so it is in addition to misspend are under oath swearing that she told her boss and then not disputing that there is evidence that they knew context in is what had happened before that noticed that there were physical changes to the locker room there was a mirror install six feet high in a girls locker room that was too small for any girl to be able to use it which looked strange which every student who room these were in all the locker rooms they did this in the boys as well as the girls because during tournaments the girls used all the locker rooms they were mirrors at the back of lockers holes cut out of them stuffed up against glass so the person his locker was would never use it the only person who would see the mirror was the person on the other side and again we have sworn testimony of the students and the staff who saw these as they were happening saying yeah i saw that my thought it was odd the problem is that the defendants in this case are the only individuals who claimed they either didn't see it or didn't think it was odd and i believe there is sufficient precedent from this court that when something is so obvious you have to presume that it's not on your free time zone thank you very much  desoto and i'm here today with larry daley and we represent the individual defendants as well as the school district in this case one of the things that i think has to be knowledge at the outset is that all of the facts that the pla draw from the facts so that so that's really what we're talking as we do we do understand the more you do his job and assumes everything to be true but you know for example i don't quite know what to make of this principal or the superintendent the girls tell me they saw somebody has a gun in one of the  think the distinction is this because i think you know that the distinction is that there's no one who can say that having a gun doesn't carry with that inherent risk of danger so for example  going to the cafeteria because they're filming a school this film i wouldn't consider that necessarily a problem so i think some of it depends on the nature of the danger that you're talking about there's no place on the school grounds we're  for that policy i mean the policy really cause the constitutional harm one thing i think that has to be set out at the outset is that this scheme was concocted implemented and well underway long before these boys were even potentially because they're employees of the school they were they'll know but i think the final policy maker has to be making that final decision based on his ability to do so and i think the evidence of joe right is that he made a deliberate conscious choice not to act it's just that even perhaps negligently failed to could careless about leaving everything open propping open the doors of that well and during the day you know like like most buildings during the day you know when you go to gyms and schools the doors unlocked well you know girls that use the bathroom and so the doors aren't locked another thing that i think is important  that while the boys were allowed to be tell boys and so forth there's also nothing in the record to suggest that they were ever sent in there with the teachers or coaches or athletic director ever knowing there were girls in the room so for example actual or constructive notice not actual no that's deliberate indifference to the risk of harm i think that the evidence is they are if you look at the statements that were actually in the record and there are numerous ones nancy campbellton never said she got it wrong she said at her deposition that her statement made in the spring of zero three when she used the words last spring really meant that spring spring over those three and the reason said that was it was all based on the date of her husband's death which she then believed was two thousand and two we laded pointed out to her and to her lawyers that are has been in fact died in july of zero one which moved everything that the year of her sworn statement to the police she should a written statement as well as an oral testimony on oral statements where she stated that we are seven fifty three to seven fifty four in her written statement she is really mad so we staying home with this son tonight he and his girlfriend were caught at chris moore's watching the locker room videos she again said that in her statement to the sheriff e r for thirteen that he was one of the boys caught in chris morris basin watching the locker room videos very clear everyone knew when they were talking about that duncan staff meeting when they were talking about the brought being that his son they're talking about the locker room videotape from health county high with a naked girls that was shown throughout the school the issue of that you win mirror the defendants keep trying to argue there's only one date of when these mirrors popped up and that's wrong again questions of fact if you look at the testimony of the boys who were in the locker rooms that in october of zero one lucas brought the so the mirror is up a whole lot sooner than the invoice that they keep trying to pin it on and i would agree with you that is one of the many smoking guns that they should have realized you there's a hole in our wall and we're that didn't used to be there and we didn't put it there frank carter was our lead offender student  sophomore year not his junior year frankfurter told our lead offender in a law in january i'm sorry in two thousand and one that he had a key to the school she said this in a sworn statement to the sheriff she is never it is about that statement there are several statement about locker rooms that offend and saw including in the school year books which came out in the spring of zero two and all of the defendants saw which said that the worst thing about powell telling hi was the cameras in the bathroom and the perfect ten was the is persuasive in addition in the florence case this court held that a single report of a constitutional violation was sufficient to constitute deliberate indifference you have that single clear reporter brought in addition absolute impossibility to identify class members beyond those who are on videotapes because the boys don't know who they might interviewed the girls don't know if they were even there is now ev can't put together who is in that class so going beyond the number of eighteen name plaintiffs becomes very difficult and obviously the balance ever different view on the scope of you know it's like that movie right