eighty three case based on an incident that happened in hale county in december of two thousand and fourteen the the district court in this case incorrectly held that the sheriff and the chief jail administrator were entitled to qualified immunity because their actions did not constitute deliberate indifference on the evening in question as my older rivera was a young hispanic woman she was riding in a passenger vehicle with her husband shoot they were stopped in hale county on a rural interstate her husband was intoxicated he was arrested for d w i she was also intoxicated was placed under arrest republican  taken to the hale county detention center and booked in while she was there the senior jailer on duty manual pharaoh's took her into a secluded room and sexually assaulted her the room that manual pharaoh's checker into was not protected by video surveillance which existed at all other points in the jail but this one room had been exempted from the video surveillance program by a deliberate action of the sheriff david  had mental health issues in the jail it was also used as an overflow booking room and as an arraignment room but even though it had these up other purposes and even though it did not specifically have the video cameras and everybody there knew that it did not have video cameras everybody knew this was a blind spot in the jail which provided a danger zone for actions of this kind nothing was done to restrict access to that room it was not there was a civil rights of a person in custody and he subsequently entered a plea and receive probation on that that criminal offense what happened that evening was set in motion and facilitated by the hiring of manual of us as well two years earlier at the time a new ad for a job there at the hale county jail standard policy in the state of texas is that you have to produce an application then application you have to list any criminal charges that have ever been filed against you you have to state the disposition of those charges you have to provide documentation about those charges and those things are all part of the counts of sexual indecency with a child by contact as a juvenile he was required to disclose those the offices were subsequently discovered by a j bonner the jail administrator these were two separate events in two separate counties is that correct they were two separate events rodder yes they had two separate dates of all fans listed on the t let's report i believe that they were both in the same county they may have been in sister counties right next to gether but it wasn't like they were far apart in different places in the state in the record on appeal that they obligation is there and then attached to it is the discovery of the two juvenile detention events correct so if i'm just thinking sort of that your position is that the actions do establish deliberate indifference and the various actions you're going to take us through or the failure to investigate further on hiring the insufficiency of training and then the lack of supervision roughly let's go would help me most as you discuss each one if you could give me a case any circuit case that establishes that for example the first one the failure to investigate an arrest that led to decline charges nevertheless goes beyond oversight negligence but it's clearly established that that would lead to a substantial risk of harm so each of these are good actions that you think establish deliber indifference any circuit case law that says that a reasonable person would have known that that would be lead to discover a substantial risk of harm and i will attempt to do that maybe start with the hiring so if you don't look beyond an arrest that your record show lead declamation was not arrested to juvenile detention is there a case that you know that would just that alone and you can make an aggregate argument then do you have any case most of the closest one because that's the qualified immunity question as i understand it you i believe that the closest one is that hardiman case ok but hardman wasn't an arrest not conviction hardiman and gross are in the pre employment files there are statements so i'd really like one that just has arrests are beyond a red flag it may not exist but that's a problem we've got i have i have i have read a couple of the cases in this case i don't have them here with today i'd be happy to submit a rule twenty eight letter of that's ok on those i don't know how to deal with brown from the supreme court because they are it wasn't sexual assault it was excessive force they were the police officer had actually been convicted of assault and some other things public drunkenness interference with law enforcement actual convictions as an adult and for aggressive behavior in the the allegation in the civil rights case was excessive force there the supreme court says even that's not enough for a wrongful hiring claim under the constitutional standard how do you distinguish how do you have to show that this is a better case than brown how do you do that when you don't even have convictions because of the fact that there was enough disparity between what was alleged in the con the police conduct the law enforcement conduct in that case and the underlying convictions and that's where the supreme court said the underlying convictions did not involve use of excessive force in a police and that they didn't really they would not have been enough to put someone on notice that they would have been that the officer would have been a risk of using excessive force against someone there's nothing in the record here is there that are on the record does it have the actual charge that is on the beach the state charges decline on one of them it does it's on page twelve ninety eight ninety nine in the record other two charges one charge was declined the other charge was quote referred and it was referred the agency that it was referred to was the juvenile probation office and randall county so that indicates that that charge was did not tell him anything about it but they have they have access to the what about the training i don't mean to move you off the hiring but i'd rather you know i'm interested in what this isn't a zero training case but the materials that they put in the record are certainly aren't elaborate so again i have a case that you think establishes that this level of training where they get the guy to sign they follow what i guess is a is that how it's described but how would that you know again get to the the high level of deliberate indifference as opposed to maybe negligence and it is essentially  training case and one of the cases that discusses there is walton be dawson which is cited in the brief that's an eighth circuit case from two thousand and fourteen and that's a case where the door of the cell block correct correct but he already a certified ph peace officer under texas law he was not wrong he was trained by the hale county sheriff's department and the essence of their training was do not have sex with an  inmate it's and that was it was are you sure about that statement he was not a licensed jailer under the these d call standards he didn't get his license not prior to going to be employed by hale county ok he paid his license for the first time through hell county before or after the  no sexual conduct and they have the photos any signs that he would do it and and that may seem blunt and minimalist and be offensive in its minimalism but it's not a zero training case smoky row training case and so your best to your best authority for violation of clearly established law for this minimalist but state approved training would be what the circuit walters  expert report i know you're the expert right ok our expert report said in recent years in light of the growing body of knowledge and in light of the adoption of preah in the federal system and in the state system not yet trickle down to the counties and that you haven't reached best interests you're not at the top but that's not really saying that the sheriff and the jailer you know any reasonable person in their position would have known that this is the liberty difference but they knew that they had problems within the jail because of the earlier incident with toby castigate ha who was another jailer there he was a senior trailer interestingly he was also mr farrow says field training officer i didn't as a jail works a little bit against him because the cameras caught him and then the colleagues reported him which in this circumstance which has innumerable tragic aspects to it malicious not just accidental the to me the real problem is the two other officers walk away leaving pharaoh's alone no cameras but then the sheriff wouldn't be on notice that this is going to happen based  have thoughts on that but i believe it it supports our case in two ways one is it shows the effectiveness of the camera system and shows how the cameras would have helped in this case there isn't a case that i know that says you have to have a camera everywhere especially if it's a multipurpose room where attorneys are going in and the booking room was occupied which i think is an undisputed fact you're right that the incident the prior incident that took place a few months earlier did it happen and in the same room it did not it happened in the jail law dormice area but the second way i think that that prior incident supports us is it puts the sheriff on notice that they have systemic problems about what sex in the jail prior incident what additional training or other measures should the sheriff implement they should have had the training that priya recommends training on what constitutes sexual contact there was even a dispute between mr farrow's about whether doing what he did was sex with an end mate or not they should have had positive reinforcement of the other employees the people that left mr farrow's alone to say that no male trainer will be left alone with a female inmate period into starvation in the material said there can be no consent is that one of the points that he thought well he was goaded into this that's correct that's correct and  way you can have consent and toby castigate i was never told that asking a female detainee to masturbate in front of him was sexual contact with a person and those are substantial problems in the jails training that constitute deliberate indifference what about their absences argument that there's a causation problem with the additional training because the rapier was so so plainly you know unlawful and that it's not a situation where it's a violation of procedure and it's a serious violent offense that was committed and so anyone would know that's a legal in this individual just had a malicious mindset and was not going to follow the law to engage someone is going to engage in an act like this but that doesn't justify prison officials or jail officials putting their head in the sand and just well it's going to happen anyway similar to the old boys will be boys mentality we still must do what we have to show that hat if this additional training i think the supervisions here is there's a strong causal link if this is if you've been given supervision or additional people that is one of happened but how do you show that additional manuals are discussions about improper sexual conduct would have prevented this person from engaging in this horrific act i'm out of time and my i answer because it would have empowered those two female other employees to have intervened done something about the situation prevented mr farrow's from being in the room where this this attack was allowed to take place thank you or defined at a general proposition level but rather in light of the specific and particular facts of the case would be objective rian reasonable and violating the clearly established law to have zero training on the issue of sexual s doubt about that i don't believe the evidence in this case shows that there was zero training at this facility you look at the materials you know in you probably know them well they're not extensive i didn't see any reference to  rape or abuse instead it was sort of avoid sexual harassment avoid romantic or consensual contacting do you see anything in their training that says this is what rape is this is what abuses are assault no your honor and i would cite this court to the case of force versus los angeles county of los angeles it's a nice circuit case but they said your brief and no your honor it's one i discovered after the briefly if it weren't for them and it's hard for us but what's the site for doing it's not circuit twenty fourteen case i don't have the end point site on it i can provide that told what florists versus county of los angeles let me just read their specific statement this involved police officers but they said we agree with our sister circuits that in light of the regular law enforcement duties of a police officer there is not a patently obvious need to specifically trained officers not to write not to  not to rape so not to commit a sexual assault that's your argument that they don't need that but i thought you just a minute ago said zero training would be zero training in sexual improper sexual conduct but that's different than a breach of policy in this case we don't deny that there was a breach of policy earlier when mr castillo stood outside the cell and encouraged or watched an inmate perform a sex act on herself but there was no contact but that breach the policy it wasn't actually a byelection of all excessive force policies say don't facilitate a suicide be you can't just say don't do it i mean we here in campuses everywhere don't rape but then you need a huge amount of training to understand that rape includes a person who's drunk not being able to consent these are just not don't do things i think what the florist case stands for and they cite the eighth circuit and the tenth circuit as well in their opinion is there is no duty to god in to train your officers not to commit a criminal sexual act and there's no clearly established law that says it's deliberate indifference not to do that you have to i mean officers of whatever their race well you have to train your officers and what their routine duties are and criminal violations of people into custody is not part of the regular office of picture with a line before it's a no contraband to inmates that's it no training that's that's not all that was provided though i know there is more but you're taking a legal position that you didn't cite and didn't urge that sounds somewhat extreme to me where is your initial statement was yes it would be violative of clearly established law to have no training now you're slicing a finer line and saying well buttoned you don't need training on violent acts because those are criminal but i can think a lot of things that an jailer would do that would be criminal and it can't just be sufficient training to say don't do that so i i'm getting very confused at the at the legal position you're urging to us now i would think you'd be saying we have considerable materials he took the call he signed the statement all that is there in the record but what i'm trying to i guess focus on is the what the case upheld that if you have absolutely no training for the routine duties that an officer is encountered was that is where it's so facto you've got deliberate indifference that is not what we have in this case we do have trading he did passes was criminal in nature it didn't just violate the policies it violated the law as well in this case and to impose some sort of a responsibility on supervisors in jails to train their officers in every possible criminal criminal violation that might occur within that facility it's just not the clearly established law it's what they were tamely encounter after that prior incident with the other jail guard did the sheriff's officer take any action with regard to which its employees try to prevent similar situations from happening to people what if any action was taken after that first incident the record shows that there was some follow up not extensive follow up in reiterating the policy details policy but i think the probably the most significant thing that took place here is that that jailer was given an option of either be terminated or resigning and he did so the policy was in force and it was obvious to everyone else that worked at that jail as a result of that incident that that policy would be enforced on that just that one infraction that was of make i think these are undisputed facts with an intoxicated woman for close to an hour is there any training about you don't want to have that specialist it's undisputed there were two women officers there who he told to lea what training did it how did this jail have about women should do booking there was an informal policy at the jail that male officers were male jailers work to be alone but it's not part of their written they walk away there's no explanation for why they walked away from that but i would invite you to view the video if you have not already in this case which was submitted there was of course a camera monitoring the  hallway and when you actually view the circumstances in this case there's a long broad hallway that leads down to the jail cell area this is out in the administrative area the booking area there is just to the left is the booking desk and across the hall of bagley not more than fifteen twenty feet away is this multipurpose room and during the entire fifty five minutes that she is in that room with mr a few hours the door of that room is never closed nevertheless even within the fifty five minutes people are constantly walking up and down and down that hallway going to the back going to the jail area coming back to the desk there's not more than a minute period in that time that anyone is at that booking to us just fifteen feet away during that whole time period the doors never closed and fourteen times during that fifty five minutes mr pierre of some self comes out of the room and walks over to the desk and walks back into element to these two defendants what's the cite for the informal policy that men shouldn't be left informal legit nodding policy how do you say that it is a policy and it was understood but again i would put her oral announcement to everyone and it's not written down lesley do not know the nature by which but i believe his deposition does state that it was an informal policy there at the jail that they are not to be left alone recognizing that there are facilities that the two female officers by leaving him alone with with this person the day by late this informal policy as well as him i believe he was superior to the have and off in his he was the sergeant i think on duty at that time so even if it was a violation of policy or not up exactly sure whether or not he advised them or told them to leave so they may have actually actually by the policy but may have been told by him to leave the room  nevertheless they they and other officers were never far from that door it's almost incomprehensible how this act placement you watch the video but i would also just point you were talking about that policy of not being left alone with people situation jail that was under a act in the contract policy have that you do not leave them alone and specifically designed to prevent sexual assaults and the sheriff of or the administrator of the facility in that case was aware that that policy had violated on numerous occasions but this court stated even under that circumstance that was not sufficient to sufficient facts from which you could infer a substantial risk or that or deliberate indifference either one on the training point earlier you said citing the ninth circuit and said just one of the responsibility to train their employees on every possible criminal violation that might occur but here we're talking about what is probably the most well known in common crime that occurs in prisons and jails either to other inmates or in a case like this through the employees of rape and there's this federal statute that's been passed to would address the problem the prison  have to concede there is subjective awareness that there is a risk of this crime occurring in the jail oh let me make two points on that first of all the prison rape elimination act is really designed to eliminate inmate on in the eight rights it was not designed as a policy prescription for jails regarding their jailers and their interactions with invades and so i think that it's certainly not clearly established law it's not a national standard and it doesn't apply to county jails either their expert even admitted that it does not apply to county jail to anything about male guards being unsupervised with food female detainees in the act is there anything in the act addressing that issue that was not calling it out in the in the record whether it does or not so it's and the right to limitation it refers to is the inmate in on inmate violence but just pointing to some standard that would apply to that that might apply to that that their expert admits does not apply to county jails cannot become the clearly established law about what jails have to do to with regard to jailers activities i'm not saying that i'm saying it's a well known risk statute is it it isn't it that even even not just inmate on inmate we look at our case where there are a lot of cases just like this where the guards are committing sexual acts against the inmates that's a well known problem and it's wrong and it is clear that at this facility there was a that he read it he received it he understood it and why why isn't actually or primary argument rather than saying enough of a policy would be don't do well that's sort of the absolute at the other end i believe that there was enough of a policy to establish what is necessary to show that there was no deliberate indifference and to make a few other points about the causation argument i think  causation i think is important in this case the council has pointed out that there was no video monitoring in this area this particular room there was a reason for that the room was audio that could have been done but there's no it there's no state standard that requires that anywhere there's no national standard that requires jails to have video in every room but the point being that when they made th decision not to put video monitoring in that room they did not do it knowing that there was a problem and that when there had never been an occasion and it's not like this there have not been any incidences other than the one prior one  the jail that was back in the jail cell area that was monitored so it doesn't show that lack of monitoring was the problem if this incident occurred back where there was monitoring and no incidences that ever occurred in this room so there was no notice or awareness on the part of our officials that this room was a problem area and if you look at the video and you see that it is not more than fifteen feet from the bookies this notice of risk doesn't e never lead to proximity multiple crimes of violence do you have an opinion on that as to whether that action constrained by border county commissioners brian county versus brown which in that case is noted there was an arrest just and a plea of guilty just one year  for assault and battery just one year prior to talking about proximity the assault of a woman in the officers custody in this case there is  prosecution no plea of guilty no conviction no further court action or disposition of the case at all of a minor under a law that is oh it's a new twist on it that i hadn't really picked up on in the says is undisputed that he lied in his application was there a question have you ever been arrested and he said no and then you guys quote it no your honor i don't know where he gets that argument from if you look at the what he sings to  me what i feel like he is referring to maybe you can clarify this is on the documents themselves the application and then the document that the jail is supposed to fill out the jail of ministers administrator check off what kind of records you've got and they're supposed to about certified copies of court dispositions and that is not checked the reason it's not checked is because there was no court disposition of this case at all there was no prosecution in this case at all we don't know what the facts behind the case or it was a mere arrest that doesn't it's not from both of them they never reached a court they were rushed but never the arrests were within the same month at the age  of when he was sixteen years old and what was in potter county one was in randall county and if you know texas amaryl of the city of amaryllis it's all the county lines between on either side it's partially in rebel county partially in p t so within a month period he was arrested it seems like twice because there's a little difference between the dates for an incident as a fifteen year old with someone else who was a minor under thirty not points for the you can read the rule itself for the owner when he gets the arrest information doesn't he ask what are these about and the applicant says i don't remember i mean to me th troubling fact in the whole hiring decision because how could someone not remember being arrested twice that's going to when most impactful events of you i mean he didn't deny that he was arrested he just didn't really know or understand what the arrest was about and that can be a fact when you realize this is sexual contact but absent i think that's unlikely perhaps it's possible that it was a plausible answer but it would at a minimum one and that lead you to follow up and investigate further when someone has been arrested twice says oh i don't i don't know what that was about but he did follow up your honor he did contact the d a in both counties he did contact the probation departments in both copies and they were not able to provide him any more information about any court dispositions in this case so he had no into the record to point to behind this arrest eight years prior at the age of fifteen we don't know what hard to find people to take these jobs that you have you hire someone who has to completely unexplained arrest for sexual contact with a minor i don't want to discount the difficulty oftentimes of finding suitable people but the texas call does not disqualify a person on thank you i'm like to start by correcting one misimpression judgments in that i believe counsel left with as far as that application goes he asked a great question did he lie out of the application and the answer is yes there was a space on that application i do not have the record cite but it is in the record please look at them there is a space on the application that says have you ever been arrested for anything and he mentioned that yes he had been arrested he was arrested a few months back for a theft of mr farrow's testified when i asked him confronting him with this criminal let's rap sheet and i asked him tell me about these two arrests he said i have no idea i don't remember i said you don't remember being taken in for questioning by the juvenile probation office no you don't remember anything being any investigation being conducted to you know i have no idea why and that was that was very disturbing you want to probably correct several things but in your brief at the end you have a section summary judgment evidence when viewed as a whole establish this fact issue but there's no authority do you have a case that would say even if individually these points of deficiency don't establish deliberate indifference that together they do you have a case that stands for that proposition i do there there were several cases and i was looking for case on your other question and then you just surprised me with up the cases where the summary judgment below has been overturned it has been on the grounds that the subjective deliberate indifference of the official becomes a fact issue and that that fact issue must be determined by the jury one of the cases that you were talking about where well if there is an undisclosed off into the record case from from this court and i believe judge costa you're on the case it says part of the reason that they found no deliberate indifference there based on prior charges was because the prior charges had been examined by another governing body and had just stuck his head in the sand he said well i've i've asked manual for this and he said i don't know i've asked the d a s office about this and they've said i don't know so we talked about his deposition about well did you send somebody to go up to and all of potter county will know and i think there's a fact issue there is to whether he even did call randall or potter county because on today more details about those two arrests no we did not hale county would have had the right to get those as a law enforcement agency and as an employer and they never did during the pendency of this case they have not sought to get this the but  bonner did not even make a written note of who he talked to randall potter counties what day he talked to them he didn't make any notes at all suddenly four years after mr farrow's was hired he remembers talking to someone but cannot remember any more details than that himself already been a jailer of two years had there been any other disciplinary problems or issues with him there had been a couple of disciplinary issues none arising to this level and not involving improper sexual contact where there are efforts in discovery to find out what happened in these two incidents and they were just unsuccessful because most of these cases like the one with the the officer who work for a school district one of the civil rights cases pursued it came out that he'd actually been let go of that job so you could show that the failure to investigate meant there was not information that otherwise would have been available was there any attempt here to get to the bottom of these two arrest only by requesting that information from hale county it was not forthcoming and there was there's been nothing else done since then you know and there juvenile which is the big the big problem that individual plaintiffs it's my understanding cannot get those abeyance until the resolution of this there's also a a pending case against mr firas he is still a defendant in this case also held in abeyance thank you