when she was subjected to voyeurism grooming and solicitation for sex by a guard at juvenile hall no reasonable corrections officer could have possibly believe that this conduct was lawful an officer who abuses his authority in this way and the power entrusted to him in this way knowingly violates the law and is not entitled to qualified immunity this conduct is offensive to human dignity and shocks the conscience under the  th amendment the decision below suggests that there is some level of sexual abuse of juveniles in juvenile hall that is constitutional and that sexually abusing juveniles is something that a reasonable officer might do and that decision is fundamentally wrong and should be reversed counsel it appeared that the district court was of the view that the specific touching was not of a sexual nature because the district court referenced i think a touch on the shoulder and a touch on the face what's your response to the district court apparent determination that those were not touching as of a sexual nature well st i would say that there is the fact that he tried to have sex with well i want to talk i felt could you focus on what i ask you st yes your honor  e there is a case called fun tanna which i think is instructive or a helpful reference point in this regard where a police officer had a handcuffed person in the back of a patrol car and in the back of the patrol car made sexual comments and sexually harassed that person and also massage that person on the shoulders and that was a case where this court had found that that conduct was infringed on a fundamental constitutional right to bodily integrity and privacy and was unconstitutional i don't think that the concept of non sexual touching is any kind of technical term in this court's civil rights jurisprudence as dr cresswell said what does it even mean non sexual touching  as area but he didn't make her uncomfortable and the touching was inappropriate touching occurred during in the context of a week long campaign to try to have sex with this ward in juvenile hall which included the touching which was a part of his way of familiarizing her himself with her and ingratiating himself with her and so we think that the touching in itself whether or not that would be unconstitutional or not is not really the issue that we're asking this court to decide the issue is whether this entire this campaign of sexual harassment and abuse which included a solicitation for sex and included the touching was on constitute we think it does shock the conscience let me ask it is your  let's see if i understand the complaint correctly you had two basic clients is that right i'm sorry rhonda to basic claim yes well there if i understand the court's question there is we've identif areas of conduct that are particularly egregious one is these the fact that he solicited her for sex and attempted to persuade her to have sex with him while she was a ward at juvenile hall and he was a corrections officer in juvenile hall and the other conduct was what we've and that traumatized her as she did now as she has a lasting psychological trauma as a result of these experiences and we do think that one one let me see going to a point you talk about one claim based on violation of two rights the right to integrity and privacy and i would say that that right includes the right to be free from sexual abuse that would include the right to be free from solicitations for sex by corrections officers at juvenile hall would also protect someone from the right from being subject of the victim of voyeurism by a corrections officer in juvenile hall so whether these i don't know if it's to put dispositive whether these are classified as two different rights or the same right but the it's correct that both of these types of institutions code words of court are and are not subject to a penal system they're not to be housed in a p p o institution and the language of the california well for instance in welfare and institutions code is that they are entitled to ace a safe and home like environment every everyone who is in the facility is classified as a ward is that she was that wasn't a special category for her that everyone there is classified as a war that's correct so she she is a ward in juvenile hall this is a non criminal status in california there the idea is for her to have a home like environment and to rehabilitate children and and juveniles who are in trouble situations or this court held that that this that nuance of the status is not going to change the standard that's applied all borders because she's a war we all wards in that in california juvenile system pre conviction post conviction or whatever there at any point during their journey through the juvenile system they're wards and they're protected on of the th amendment so those cases that deal with detainees should apply to award the standards well there are the standard for boards or for juveniles in general should be higher than for adult pretrial detainees even though their claims are both analyzed under the th amendment but we do think that the cases involving the  amendment are less helpful those are cases involving adults post conviction and this court in byrd has said that that is the standard for pretrial detainees and juveniles is higher so where were you if you could just zero in quickly where did the district court go wrong well that the the district court seems to have believed that since the officer did not actually succeed in molesting  that there is was a no harm no foul type situation but that's not where the line is or should be as this court has said in cases such as funtown a shrink and suppose there is no legitimate being a logical purpose out whatsoever for sexually predatory behavior by guards it's that infringes on a fundamental protected constitutional interest oh that's where i think that and of course this the district court also relied upon a number of th amendment cases involved in evaluating this vasquez's claims if the many cases that have found a constitutional violation are potentially helpful because we know that a th amendment standard is higher but where the where this court has mean mr anderson comes into court and says that nobody i didn't know that i wasn't supposed to try to have sex with the wards of juvenile hall and that was a that was a that was an argument that this court in shrank called quote both both legally and in matter of common sense this court said that argument is both legally and as a matter of common sense absurd which is strong language for additional decision but we don't think that mr anderson needed to be told that he shouldn't try to do the things he did did he actually say that he wasn't aware that he couldn't try to have sex with a warrant when that when those his words you know he he's asking the court to grant him qualified and exactly but that he didn't make the argument that he he didn't know it was impermissible to have sex with one of the wards that is that is the implication we're saying of well i'm just saying that that sort of misrepresents the record to say that he comes in here saying he didn't know that it was impermissible for him to have sex with the ward thank you i don't  but it was not my intention to to do so my the implication my argument is the the logical implication of the assertion of qualified immunity in this case would be to say that this is something that a in just all for amicus a c l u of southern california and may it please the court just how much sexual misconduct or state officials constitutionally permitted to perpetrate against teenagers in the juvenile justice system when ruling on samantha vasquez is appealed this make clear that the answer is none if this court adopts the district court's opinion it would permit state officials to engage in a shockingly broad range of sexual misconduct against teens in custody without fear of liability including verbal harassment physical touching voyeurism grooming for sex in addition to the attempt or solicitation at sex alleged by samantha here and we urge the courts to do three things in its ruling st this court should affirm a clear standard for evaluating challenges brought by those like samantha who are date detained in a juvenile justice system intended to promote healthy growth and development of the th amendment is violated when official misconduct constitutes a substantial departure from accepted professional judgment practices and standard set out by this court and gary h nd this court should hold that any amount of sexual harassment and sexual abuse of juveniles is unconstitutional including that alleged here and rd that state officers were on notice of the illegality including because no reasonable officer could have thought that these things that it was lawful to do these things to a teenager and this defendant should not be shielded by qualified immunity also do you not think that our current case is cover those bases that you particularly  decided in the intervening years there are a number of specific considerations that we would urge this court to reference in resolving it and affirming the gary standard one is that the court's reliance on the th amendment cases is an app a set clearly after kings ley in this courts to and castro it's there's no question that the th amendment standard is more protective for adults and we would urge the court to make clear that it must be yet more protective of children for at least two reasons  supreme court's decision in shawl makes clear that unlike a pretrial detainee for example for whom the state has an obligation to essentially maintain the status quo here because young people are still growing and developing and because the longstanding principle of the states parents patra interest the state has an affirmative obligation to promote their healthy growth and development which which places a higher obligation on the state and therefore a higher standard for evaluating conduct how would you articulate from professional judgment practices and standards i think that test allows this court to reflect both the heightened obligations under shawl as well as the supreme court's jurisprudence in roper ram miller montgomery j d b that the differences between adolescents and adults are universal and therefore that the state's heightened obligations should be reflected in any legal standard about how would that professional judgment be measured what  reference the acceptable invocation of professional standards we would submit that the prison rape elimination act and its implementing regulations are an appropriate set as it relates to the definition of sexual harassment and abuse and an appropriate way to set that baseline but why wouldn't that be a little bit inconsistent with that act in it's much as it articulated there is no private right of the action under that thank you your honor at st were certainly not placing an equal sign between the statute and the constitution and we're not suggesting that samantha had a private right of action were invoking korea for its relevance to evaluating what those professional judgment and standards would be from which this conduct constituted a substantial departure now this court in byrd invoked the prison rape elimination act commission report a report carried out pursuant to the statute as persuasive and and that report found children ill equipped to deal with the sexual advances of adult caretakers prius sets terminations as the default disciplinary sanction for staffing gauged in sexual abuse and those standards which set a baseline of zero tolerance for sexual harassment and abuse are the approach are appropriate guidance for this court and evaluating what just what the baseline is for appropriate treatment and it's consonant with the california state obligation for  be provided rehabilitative treatment my colleague invoked the provision regulating juvenile hall as a home like environment for these reasons the allegations that samantha was subjected to sexual harassment and abuse by nearly three hundred  tear gas weapon on his belt and nearly absolute power over her constitute a substantial departure from those standards this court's decision and shrank unfun ten in which my colleague have invoked it continues full language indicating that there there's really no situation that would justify any amount of purposeful sexual or verbal physical predation against the detainee because there is no government interest that could justify abuse of the one sided power arrangement that arises from a custodial situation like that experienced by juvenile honor we're suggesting that the interests that the supreme court and other courts have recognized as animating that state's obligation in relation to the th detention of juveniles necessarily implies a more protective application of the th amendment standard conduct would be constitutional if alleged by an adult detainee the application of gary h and the affirmation of that that jurisprudence would be i believe acceptable as well i do want to briefly address qualified immunity and still try to leave my colleagues some time for a bottle and just underscore that we see nothing in the purpose of qualified immunity served by qualified immunity here it's a doctrine intended to safeguard the government and protect the public at large  and we see no reasonable officer could have thought that an attempt at sex and the other sexual harassment and abuse alleged here were lawful you know st the record shows that trainings and policies prohibited it the pria regulations as we've  someone to a post in a prison large yard we would submit that sexual harassment and abuse of a teenager detained by state officials is similarly obviously an inherently cool wanton and antithetical to human dignity in the alternative  officials need and the word of alkyd breathing room to make reasonable but mistaken judgments about open legal questions simply put the sexual harassment and abuse of teenagers in custody is unconstitutional and that is sufficiently clear obvious only thank you morning your honor my name's james weekley i'm appearing for george anderson i'll be arguing the claims against george andersen only i'm not going to address the cost claims that will be addressed by ms rivera who is representing the county of kern and heath appleton  and i just want to point out that the facts in this case are greatly in dispute that we brought this up on a motion for summary judgment so we recognize that we have to take the facts as ms vasquez has told them and look at the evidence in light used words without threats he possibly viewed her without evidence of actually viewing or any made non sexual non harmful physical contact with her well that's your interpretation of the facts well i'll go ahead and ok but we're conflict of fact maybe but some evidence of the fact that he made a sexual advance toward his fast guys if i were sex tester without being invited touch engage in voyeurism thin had a dream and that he wanted to make he should make this dream come true with dreams have sexual intercourse with them as fast as assuming all that is in the record is that mr anderson position that that is not a clear violation of the th amendment yes under the facts of this case and i can go through the specific facts  the facts the facts here according to mr ask is the actual facts that she's claiming against mr anderson is he told him he told her about his personal life he suggested that she leave her boyfriend for him he called her baby make comments about her looks and appearance he giggled at or if you watched her in the shower he took his shirt off in front of her but she actually said what she actually said was she walked in on him when he was changing sure he touched on the face and shoulders without her consent and he told her a dream about her they wanted to come true those are the facts that she's claiming and under the case law i mean her big but under the case law those facts in argument her to use the case law those facts do not you know i love his knees and she was right in the middle of him when she opened his knees under the case law those facts do not give rise to a constitutional violation what case supports your argument that having a young lady stand between a guard's legs touching her on the face is non sexual what hey supports that you have to support your argument that this is non sexual conduct hawkins is an th circuit case i really don't want to is there tell me a strongest case in my circuit that supports your argument that this is non sexual conduct the watching what dessen case that we've provided the citations morning to the court to the court and to counsel this was a case of the cited in a motion for summary judgment referred to by the district court where i was cited this morning because frankly when i read the see it and you know about it until about ten minutes before we walked in i apologize it was a case that was referred to by the district court in the motion for summary judgment ruling it was a case we cited in our motion for summary judgment but it wasn't inserted into the brief if this is your strongest case that it's curious that it wouldn't be in your brief this is a case where the male prisoners claimed that a male guard entered his room while he was sitting on the toilet and began searching the room the inmate asked the guard to leave while he was still in the not sure that your basic premise that that we only have to rise to the level of the actually has a right to a cruel and unusual punishment for a ward of the state gary h specifically says the due process clause which implicitly incorporates cooling usual punishment clause standards as the constitutional minimum is the appropriate standard but what about castro castro now makes a distinction between th amendment cases and ate the many cases so  how does that affect your argument castro plays an objective standard which actually helps argument because what that says is the the actual intent of andersen is not relevant to whether a constitutional violation was committed so you're  saying that the th amendment standard is stricter than eight the limits no no what i'm saying is that if you use an objective standard with that means is we do not look at the intent of george anderson what we look at are just the facts we look at whether a reasonable person in his position would have considered this to be appropriate conduct of these that doesn't help you well of these facts not not the intent of george anderson not the conclusion or the language it's used like voyeurism that there's not a conclusion about saying a prison guard had a young girl stand between his legs while he told her about as a sexual dream that he wanted to come true when he there was no threat in the case not have to be a threat young boy to be sexual for something to be sexually abusive it does not have to be accompanied by a threat if someone invades your personal space in a sexual manner that threat can be inherent in the fact that there is an imbalance of power between them she has no avenue to retreat no where to go no one to turn to why isn't there a female making sexual comments to them they said they were fearful of him because he was a sheriff in a court said that's not enough but that's different they were not captive this young lady was captive those people could quit their jobs if they they went home every day she had nowhere to go she said by when when that event supposedly happened she just backed up walked away and left left at that vicinity but she couldn't leave the facility she never once never once did she say that george anderson threatened her in any way you suggest that we should use the eight amendment standard cruel and unusual punishment  is that in your case you know because the the courts in using the gary h case and the court the cases that we've cited here the courts analyze these cases both under the th the th and the th amendment pretrial detainees well one tenet th amendment only prevents the imposition of cruel and unusual punishment of convicted prisoners close quote and there is an argument in this case that the  still under the award of the superior court juvenile court constitutional violation would you agree that there's kind of a sliding scale work here the greater the governmental need in this case that the logical need for protection whatever the lessers dand and vice versa there's no pain a logical interest involved then the standard is much much higher for the officer would you agree with that in a sliding scale in this case if the court goes back and looks at the facts for example in the viewing of her in the shower that was described by a question was directed to the sexual dream that he wanted her to make itself does not have been a logical interest but it also doesn't give rise to th amendment violation under the under the case law caps can i just ask you one final question is your is that your position that sexual abuse or sexual harassment can there can be a state law claim but it doesn't wrath of the level of a constitutional violation so when would it rise to the level of a constitutional violation when the physical contact is sexual or harmful it would be a constitutional violation not just touching on the face or shoulder when of when the words are actual threats accompanied by the ability to commit a threat not a fear of somebody because of their position that's with the harken case thank you very let's hear from your co good morning may please the court my name is kathleen rivera and i'll briefly discuss heath appleton supervisory liability and costs if we get to that point we ask we are asking this court to affirm the order of the district court judge granting the motion for summary judgment by heath appleton for two reasons st the appellants have not identified a material issue of fact that prevents summary judgment for heath appleton in this case and nd appellants do not allege the district court judge was wrong on the law the only issue that the appellant set forth in their brief to this court is that the district court judge made the wrong inferences from the facts and that district court judge credited mr anderson mr appleton rather with the wrong facts and we submit that that doesn't provide a basis for overturning the district court's decision counsel this is fair to say that there was evidence in the record that that mr abbott was aware of the actions that were generally aware of the imaginary inappropriate actions that were performed by m no your honor and there are several different areas that were alleged to have been mr anderson's conduct so with regard to mr appleton's awareness of st of all the shower incident so i'll refer to that as the virginia sunder shower incident so that took place seven months before mr vasquez was ever remanded to juvenile hall so seven months before mr appleton became aware that mr anderson was the only male guard on a unit housing female wards policy in juvenile hall was never should a guard of the opposite record mr appleton addressed the issue with mr anderson at that time seven months later mr vasquez came into juvenile hall so he was aware that there were allegations that even before this vasquez came into the facility he the supervisor was aware that mr anderson had been viewing wards of the opposite gender no your honor what mr appleton was aware of was that mr anderson violated the policy to be the only male guard on the unit at this time females were directed to shower by mr anderson the employee that witness that that brought it to mr appleton's attention was miss virginia sunder but she did not view where mr anderson was on that unit she was in an adjacent unit and she heard mr ap mr anderson direct wards to go take their showers none of those wards reported that mr anderson viewed them there's no facts in the record that mr anderson was remember specifically the name spoke which one of the coworkers wrote down an incident on a napkin about inappropriate behavior of mr anderson that is miss under yes and my time is up would you like me to just answer your question more fully so what in asunder did at that time according to her testimony was she jotted down what happened that she heard mr anderson tell wards to go shower again she was on an adjacent unit she didn't walk over to mr anderson's unit to talk to him about that she jotted it down and then she called mr appleton the next day who was the supervisor and said this is something that i  overheard i'm concerned about it and mr appleton it's it's uncontroverted that he talked to mr anderson about it and nothing like that ever happened again the facts with miss vasquez where that mr anderson was present on the unit with maybe a female guards that he was not the only male guard she alleges that he viewed her in the shower not at a time when he was again violating that policy at a time when  took a particular interest in her well that's her statement well it sure looks like it well mr anderson also was a guard who was knowledgeable in gang and gang gathering of information and miss vasquez it's undisputed that she had numerous occasions to be housed at juvenile hall she and mr anderson were acquainted with each other from before this particular visit to juvenile hall and in fact he was also acquainted with her brothers who had been remanded to juvenile hall he gathered information while he worked with these wards and then provided them to members of kern county law enforcement and it also served as a safety it served a safety purpose in juvenile hall for his interest was in the tinning getting information well two that's part of the reason why mr anderson worked with wards was obtaining getting information but nd of all these wards were learning a skill they were juvenile hall is an old building and it needed painting repairing mr anderson would teach ward girls boys many words beyond mr vasquez how to chip away old paint paint cells and that provided a valuable purpose to maintaining juvenile hall and wards did numerous detail besides this they participated in laundry kitchen cleanup so wards were taught to take care of the facility where they were housed kelso what do you make of the district co observation that the evidence suggests that appleton had reason to know that anderson's the rectenna other wars shower constitute it misconduct under the policies in place why isn't that enough to raise a material issue of that well the difference the reason it's not enough to raise a material issue a fact is that yes it was a violation of policy for mr anderson to direct words to shower when he was the only male guard on that unit however miss vasquez's claims taking place seven months later did not concern that policy at all so for supervisor liability to be imposed on mr appleton he has to policy violation so the incident with ms vasquez doesn't concern that policy that would be even worse that was that was an even more egregious violation of the policy if he directed her to go into a shower where he could view her for his own gratification if that is taken as true and for purposes of summary judgment we have to take that as true that seven months later after the virginia sunder incident that mr anderson directed miss vazquez to go into a specific shower stall that would be a violation of policy there's no facts in the record indicating that mr appleton knew about that or had reason to know about no one had brought that to mr appleton's attention that mr anderson was directing wards to go into a specific shower that had a gap that allowed the guard to view from a certain point at the staff counter that's the allegation to view into that shower that isn't a fact that was brought to mr abbott his attention or the there's no facts in the record that he had any reason to know of that so therefore supervisor liability can't be established on the basis of what he may have known it requires personal action by a supervisor it requires knowledge or reason to know so if he had been informed previously of misconduct mr anderson that would be enough to raise some interior issue of fact regarding whether or not he had reason to know that this content and that this conduct continued or even elevated well i disagree your honor for the reasons that i stated that that the supervisor did wrong with your honor's analogy if mr appleton was aware that with the incident that happened seven months before that mr anderson was directing wards to go into a specific shower then i would agree with the court however at those aren't the facts from mr doesn't have to be the same exactly the same factual scenario if he is aware that mr anderson is valid in the policy  watching inmate shower doesn't matter whether it was you know by directing them to a shower or by going himself to the shower we can see it doesn't have to be a mirror image of the actual event that trigger violation there has to be for acquiescence there has to be knowledge and inaction that's what this court stated in the star versus baka case that that stated a case for supervisor there's no inaction by mr appleton because he did tell mr anderson don't do that again and by all accounts mr anderson never was the only male on the ward supervising females while they showered ok thank you council will put two minutes on the clock the next is that he that he is the one who actually according to anderson he's the one who actually authorized him to spend time alone with wards that the policy one thousand four hundred and twenty five and states that outside of and there's also evidence we know from the ward whose initials are a v that anderson was alone with vazquez all the time he was there and so given the fact that appleton is his supervisor you think the supervisor would know where his employees are but he should have known or should have known that the policy that developed was anderson does what he wants that's how the his own colleagues described the culture that developed when you have a when sexual abuse takes place our view is that really two ingredients are necessary st you obviously need to have the sexually predatory guard but in order for that guard to actually act and carry out sexual abuse a breakdown in the institution needs to take place to provide that officer with the opportunities to carry out the abuse and in our view appleton was instrumental in providing these opportunities by failing to force the policy policy that prohibited cross gender soup viewing in the shower outside of emergency and  policy that prohibited the words from being alone in the rooms with staff of the opposite gender if those policies had been a divorce and appleton anderson would and would never have had the opportunities to do what he did and that's why we think that appleton should be held responsible to some degree for what did happen and vasquez testified that she was never so scared in her life as she was of anderson at the time of these incidents he was forty five years old weighed three hundred pounds he wore a uniform he carried pepper spray obedience to his command was mandatory but he was a teenager when you know there is the two minutes that i put on the clock for his exam hired thank you ok we've got your argument thank you