honors this court should reverse the denial of qualified immunity to mr drennen on the eighth amendment claim made by mr sherman for three primary reasons first the state of the case law is at best undeveloped on the question of whether in officers words that prompt an inmate to touch yourself in a sexual manner equates to unconstitutional touching by that officer but even if this court is not convinced that the case law is not clearly established this court need only look to its prior holdings concluding that harassment or verbal abuse does not rise to the level of an eighth amendment violation third if this is one of the verbal abuse  inducing an inmate to touch herself equates to contact by that officer this court still should not find an eighth amendment violation this court has previously found more egregious conduct to not rise to the level of cruel and unusual punishment under the eighth amendment there's been several cases where there's been direct personal contact by an officer to an inmate that was found not to equate to an eighth amendment violation why does there have to be touching what if you have a jail southern usual they have jails that have mezzanine there are railings and i'm using this is perhaps an imperfect analogy but constitutional violation because you didn't physically touch you your honor the situation that you just posed again involves words perhaps threats or some form of assault and this court has previously found that those words or threats to not rise to the level of an eighth amendment violation so if if a guard was to walk up to a prisoner and smack him in the face that could  the right circumstances be a constitutional violation right correct there have been no if the guard instead of doing it himself orders another prisoner to walk up to that same prisoner and smack him in the face you're saying constitutional violation when we're putting aside whether it's clearly established for a man who will get to them why would there be a difference in those two examples there at me well the difference would be the direct action of a corrections officer versus somebody else but i think that both of those scenarios are actually the same in that your question almost implies the power dynamics that i believe judge pearson raised in her district court opinion and those power dynamics are at least according to judge pearson and sherman is that you know based on the levels of power almost anything that comes from an officer's words is a direct order however there is no case law from this circuit holding as much judge pearson relied on a ninth circuit court case would be clear as well as district of massachusetts case to talk about it in asking if there was a case that's clearly established i asked you why would there be a difference from a constitutional standpoint whether you hit somebody yourself or you order somebody else to hit them for you and obviously this power involved that's why the prisoner command so why should there be a constitutional difference because your whole premise here is there was no touching so therefore no harm no foul and i don't understand that you're on i think that even and i apologize for not necessarily giving you a very direct answer to your question but our position doesn't rest solely on the fact that there's an absence of touching even if this court finds that due to the verbal exchange that took place in the sherman's reaction to those words even if this court finds that mr drennen essentially made physical contact with the inmate there are prior cases within this circuit from this court as well as both the northern and southern district that recognize sexually suggestive comments or sexually degrading comments even with paired with direct physical contact by an officer still do not automatically violate  several cases where there's been more gracious conduct in that the officer had direct contact with an inmate and this court found that it may be unpleasant it may be unsettling to us but it does not meet that very high burden of cruel and facts were actually not exactly this i would agree your honor that the facts are not identical here i would respectfully disagree that the conduct in question was isolated incidents of sexual contact by a guard brief instances of sexual contact by a guard or insufficiently severe instances of sexual conduct do not rise to the level beneath them in filing these weren't brief and they were incidental those six different occasions if you accord the complaint what we have to accord so what what is your best case from the six circuit where you say we have found more agreed conduct to not be a violation of the them your honor in a two thousand and thirteen case regular verse city of st louis this court affirmed summary judgment in favor of officers  who have touched an inmate's genital area in a sexual manner and use sexually degrading language and on multiple occasions paired that verbal harassment with direct contact with the inmates genitals in this court so that the district court didn't aaron granting all you say reglan for as the concept that the guard touched the prisoners general presumably once and this court is that do i have to understand it correctly the physical contact may have been on one occasion there is also so why is it more agreed that the prisoner touched the guard touched the prisoner general otoh area once if that's really what happened versus ordering in this case this woman inmate to do things to herself on six different occasions why is r n more agreed i don't get that of the act is that the number of acts your honor i would say that it was the nature of the acts that direct personal contact by an officer with the inmates genitals their score so my recently in two thousand and seventeen and hersey verse anderson noted that sexually suggestive comments even when coupled with isolated incidents of touching do not rise to the level of a constitutional violation now in that case i  will concede that the court wasn't addressed with actual physical contact by the guard however this court went so far as to say that incidence of touching and that's a plural now there wasn't a bright line number but more than one incident of touching even with paired with that sexually explicit language does not rise to the level of an eighth amendment violation there's also a sixth or i'm sorry an eleventh circuit case that cited in her in which a guard's solicitation of a prisoner's manual masturbation even under the threat of reprisal did not violate the eighth amendment and in this case we do not have a direct twenty years old at the time of the alleged events yes and miss sherman's deposition testimony states that she was never directly threatened and she was never bribed arc are we sort of mincing words here let's assume for a second that she wasn't directly threatened in the sense that the guards said if you don't do x all  do y that's a threat why is that different than the guard telling her to do x and leaving off what the consequences will be if she doesn't which seems to me in a know i think that it's important given the attention other courts have given to whether or not threats were made whether or not briberies been made in related cases unfortunately there's not a controlling authority that directly applies to the facts that were given so we're looking to unpublished cases from the circuit the cases from other circuits and in those cases that involve the sexually explicit conduct by an officer those courts always in their opinions whether or not this sherman consented to these verbal requests or mr dren and perhaps forcing himself on mr men is inconsequential i don't they good afternoon you know honors my name is sarah thomas cover excuse my voice i represent michelle rafferty and katy sherman miss sherman was not in fact a teenager nineteen years old and in the trumbull county jail trustee pod anyway he is supposed to be just doing a bar jacket it's your obligation to establish that the officer doesn't get qualified immunity once they've put your crew that you have to come forward to say they don't so i'd like you to that that this is a constitutional violation along the lines of the conversation that we had with your opposing counsel what's your best case that shows that this that it was clear that that constitutional violation was clearly established at the time i believe the sixth circuit case in one nine hundred eighty seven can't versus johnson on bent yes where you had a female corrections officer attorney i was a trial attorney in this case i was doing the best i could and i received a lot of case law and support both from the what's the best case you think of the one you practical question that it where we construct this artificial environment and we impose police officers for obvious reasons but if lawyers can point to the case that says that you can't do that or even the case that establishes a general principle federal and state regulations towards prisons in the training that that corrections officers get in the criminal law regarding sexual battery section twenty nine zero seven that a prison guard cannot request an inmate to do sexual favors for him and this was much more than sexual favors this was asking her to masturbate to expose herself and this was not just six incidents it was also they are sleeping they are unaware when he's coming in when he's going on shift when he's going to be tapping his fingers on her window and asking her to do things every night she's there she's wondering whether he's going to be asking her to actually demanding her because i don't believe a corrections officer can just asked with without it being a demand because she is in a prison environment there is threats of retaliation there is i think what you're making news you're making that basically says you don't have to have a case on point exactly on point to give fair notice to somebody that you can't do what they did but but you don't make a hopi pelzer argument in your brief but to me it's clear that every corrections officer should know that you cannot sexually abuse and in me i mean it's it's criminal and it's totally improper in the setting and where you're supposed to be protecting monitoring and controlling the inmate and instead you're abusing the inmate and you're using your position in power and authority to do that understand the supreme court tells us that we can't set these rights at a high level to provide the requisite notice where we're that line is the trick here of course so i'm just trying to find out where you for what case you rely upon that sets that line you know but i would i rely on the constitution on the eighth amendment that somebody should not be subject to cruel and unusual punishment and the case law that follows that because it's yes it's a case involving qualified immunity that you're aware of that ever succeeded by simply citing an amendment this is such a clear situation because there's no corrections officer this one even if you go out and talk to one hundred people on the street they're not going to say this is this is correct this is most people would say this is totally inappropriate if not illegal so the idea they hear a corrections officer who goes through training p r a training and this particular officer was a form police officer does not have notice that asking for ever and demanding sexual shows at night in the prison or in jail facility is improper is to me tucker totally unimaginable there's no way that trained like mr drennen who was trained for three years who worked as a corrections officer for so many years who was a police officer could not know had notice that this was not only imp totally improper and concision but possibly criminal so your argument is it's standards of decency which is a slippery slope in my opinion to start with but ignoring that evolving standards means it was ok at one point it's not ok now so at what point did the law then evolve to put somebody on notice that what the good old boys used to do is no longer appropriate well at this point there's there's criminal law against corrections officers ordering inmates to and engage in sex so the criminal law has as there's actually a criminal law that says you can't ask a woman inmate to expose yourself to you if you're jail or you can engage in sexual conduct it's be contact and it could be considered criminal depending on the specific facts before it is a minute this minute ago you said it was it was illegal now you're saying well maybe it maybe it could be but even if it could be we don't we don't determine what a crook what a constitutional violation is under the us constitution by looking at state law state criminal law prison regulations that's not what informs us what the what standards of decency and if the legislature who are the representatives of the people are going and creating laws that suggests that sexual conduct by a corrections officer to an inmate because of the power differential that the inmate cannot consent and is similar to a coach and the juvenile or our doctor in a patient that it is considered a felony in the state sexual  that's one you know i am but i believe the mores of today is that you cannot have and it's it's not just inappropriate it's illegal for a corrections officer and he has plenty of notice of t underlying conduct is or is not illegal arrest qualified me give ample room for mistaken judgments here because of the specific facts in this case it may require that the law is clearly established here what i'm saying is it's so obvious like judge clay said that this is the most egregious cases don't often go to litigation you don't you have the amica briefs cite an example of forcing of foster children into is also conduct which is inherently cruel unnecessary and otherwise unlawful and those factors themselves may suffice to give defendants notice that they will be held liable and is being protected by the immunity cars for from harassment from people this is the just the opposite of that here is a person in a position of power abusing it and harassing inmates the and the reality of the prison system is that there's not much that they can do about it she did feel intimidated by him there was no progress to move the next really curious about why you're relying upon that because it simply says the  dispositive question is whether the violent of nature of the conduct is clearly established you can say something is clearly established because it's clearly established that's the problem with the circular nature of the buy pushes on it is you don't cite their case it's cited in and it doesn't have any there's there's no facts that are at least recited in this in this recitation in the brief that address itself to the facts on this case you know we're trying to figure out is is adequate notice and i don't think the i have to provide an exact case in point that sets a precedent here here it is still obvious that this sort of conduct it is is improper unlawful and potentially criminal that it would give any not only corrections officer but any person on the street notice that this sort of proper conduct is improper and that's why i'm saying that the idea of what is clearly established and i'm trying i'm trying to help you out here by suggesting to you that the supreme court case law as we look for a case that is close enough and that's why i'm trying to give you the opportunity to tell us what that case is and none of the ones that you've been reciting either say what you say they say or are even in your brief you know i'm just going to incorporate by reference the cases that are cited in both the end of his briefs because to  me my background is as a felony prosecutor i did sex assault cases and child solve cases i cannot imagine that this in today's society are in any society is is proper behavior nobody and  texted me nobody here is suggesting this is a good idea nobody is suggesting this is proper nobody is coming to the defense of this officer and what he did the question is is it a constitutional tort that's our responsibility to determine i believe under the eighth amendment is because these two these inmates are some are sitting there in their prison in their jail cell doing their time and in that period of time for months they are concerned about whether this officer is going to go knock on their door knock on the window and ask and demand that they expose themselves and the they perform and they and he's he's he they may not be able to see him because it's dark but they can definitely hear him they can hear his responses and this is something that they had to deal with which is not part of what they're the their sentence should entail i believe it is cruel and unusual and thank you very much three very brief points as judge mckee said the question before this court is not whether the conduct by a weighted state statute or common law are even whether the conduct is and morally wrong the question is whether this alleged conduct reached the level of an eighth amendment violation i'll note that the can't be johnson case that opposing counsel cited was from the circuit however that case that doesn't that take away your argument here that there needs to be some sort of touching as a matter of our circuit precedent no your honor by virtue of this court stating that  back down to the trial court level we do not for close the possibility that the complaint could be dismissed on summary judgment so this court just addressed whether or not the allegations were sufficient to survive a twelve b six addressing physical contact by a guard were decided as recently as last year and so there hasn't been such a massive shift in the standards of decency that would require this court to given you know the numerous hypotheticals that have been thrown out that shows the lack of clearly established law but also the prior holdings where direct physical contact coupled with sexual degrading comments or or sexually suggestive comments does not rise to the level of anything then violation so i see that my time is up i asked this court to deny or reverse the denial of qualified immunity all right thank you very much in the