show a lack of need to use force which right submitted is the case here because going back to the first point might like to emphasize he didn't resist the officers there was no need to slam him into the  simply not a basis to slam someone into a wall my point is that to the extent that the government says well there's a need to restore order the face of the complaint doesn't reflect that there would be that  where you know the government argues that the injuries alleged in the complaint are simply implausible and i would just state very clearly that that is not an appropriate or near appropriate method of analysis at this stage of li momentary and avoided isolate it was through clothing it was you know in erection not something that would be other than that it just seems to me to be a little bit different and he addressed that problems you know there's no justifiable intent behind this abuse but no objective prong it gets there because if there's no water the purpose it really establishes that this is sexual abuse it in a world where the modern standards of decency is zero may be aspirational maybe it's something we should adopt i'm just not sure that in a prison setting everything everything is abuse doubt that there isn't that this is actually appears but this isn't what's really happening in those instances is the officer is searching for contraband which is entirely justifiable and i think well but the case is the fact pattern in the cases is not really searching for contraband i mean the facts are such that it's truly gratuitous is it not most of the cases we've seen but if there  e kind of makes my point though because that's you know those are collier that's the most common situation where you're going to have something that is you know if anyone in another setting did that it would be sexual abuse  but because of the context of it happening you know who or how that happens we have reason to doubt that it's sexual abuse so you are creating this slippery slope or now everything that's alleged to be basically sexual is going to be able to pass a motion to dismiss  that and that at minimum p o in right of eight you know modern standard decency of zero tolerance is enough to infer that the officer was acting with something other than pure logical intent proposing is akin to the doors to a lot of lawsuits i don't think so for two reasons one i mean just review the case all on as far as i can tell there are not many situ many complaints claiming against a woman and against her breast and you know walking by her and zero tolerance is going to say come into court and sue and i'm not saying that's wrong or right but it  wouldn't you have thought two years ago that you would see a lot of losses all of a sudden it's really become a zero tolerance and people coming forward with as they did or just do it is certainly more prevalent and we're more aware of that in the past several months the second scoffer it was decided you know well before the more recent you know developments in this area and correctional officers and so i think there's a good basis for that is it is your position that a standard should either not have an objective component to right or if it did it would always be satisfied that it's a rough position is a second it's that in the context of sexual abuse any sexual abuse satisfies the objective standard of the it and does begin light of it to remember th kids constitute a natural ethan in a claim for sex or sexual abuse and then well that's it it seems to me that statement is a little bit different from what he just articulated there can be because i think calling the other side the government is a little inappropriate but you are the attorney general i work for the attorney general's office yes but the defendants in that case are two individuals  the question is this court quoted in the it's march third twenty seventeen order is whether the alleged sexual abuse rises to the level of cruel and unusual punishment i think the dialogue that's already occurred reminds us of a difficult acts single incident excuse me but not every incident even if based on conduct that is arguably inappropriate amounts to a constitutional violation so it's up to this court to decide what crosses the line between inappropriate and repugnant or that's a very dramatic and subtle way of describing the core i mean that's really maybe you could look at this differently from where you look at it so even six months ago it's very straight in to me that we are in your february of twenty eighteen in an atmosphere it's very different from say september of twenty seventeen let us have both sides in this case have discussed but all the cases tell us that context matters and i'm including in that statement crawford because i disagree with my learned adversary that there is a strict liability standard here essentially i don't think that's correct i don't think the objective of an eighth amendment case can be met went further with that than i are almost expecting him to to be honest but yes plain logical purpose underlies everything that happens in a prince or should but here there's no question that the incident such as it was occurred during a pat down search during the wind movement of sci great effort there is nothing unusual about that for the pat down search to be required was incidental to a legitimate plan the logical purpose for sure to do  pat down search an officer has to be close to the inmate obviously otherwise you can't pat me and mate we have to accept because it's in the he felt the officers penis rubbing against his bottom but that doesn't alter the fact that whatever was going on and why ever there was an erection to be dealt with the and most recently banks all fall into this analysis that i'm offering to knew about that they incidental to and officers into the anything in banks which is the only mate which is what crawford seems to say is that a factor only differentiating between incidents that are actionable it and incidents that are not in this case gratification for himself or word that he was trying to humiliate mr x and i think mr ricks might say that in fact i think it brief it probably does say that but we're does that come from unless that this case doesn't satisfy the possibility if you will another words i think this is in the situations where well first of all and this applies to both of the claims in it was i mean he he's not going to know because he wasn't facing him he couldn't observe it but it's plausible that this was done from a standpoint of seeking to humiliate and gratification i don't agree in that in the context in which this occurred will search every single bond that will take all day and that's just the reality of where and when this particular alleged incident occurred i also was followed with shover arguably overreacting maybe different in a way that was defending hyla i mean you're you're drawing inferences one way and they might be able to be drawn the other i'm discord is use that kind of language and its previous cases presidential opinion of our court provides the standard there is no presidential opinion exact totally understand that but i think that since we don't have a presidential opinion this court will have to look at what we do have and we can also look at the crawford case which i simply don't agree is applicable because on the facts presented the framework to disagree with the framework itself or i i don't i am moved to agree with the framework in a very general way but i'm not willing to agree that the framework fits this case because the framework in tails and now assists of context and the context was applied differently there than it could possibly be applied in a single case and then if you're analyzing context don't you at least get and here we have a prison individual alleging one fleeting incident that was not in the shadows of the war but if it's totally gratuitous but it wasn't as far as we can tell let me ask you if i may what is your position on the excessive force i have to be straightforward and say that context is they are and it's pretty clear it's not like some of the other allegations that are a part of my colleagues arguments is that this may have been instead all brushing now let me point to three things in the complaint that at least provide a basis to infer that it was not first head erection which suggests some state of arousal in perhaps pleasure stop the incident doesn't do anything other than reinforce what's happening and then pushes him for explaining what happened and that is that is in that way he becomes a part of the sexual abuse by being force in the harm that's been created by the sexual abuse force and the racial epithets i think should they did the exact opposite they only made it now we need situation worse and so that is how i think it factors at blessing i would like to add claim was this is by crawford himself that you plaintiffs in crawford in crawford you know he the officer is alleged to be groping him in states several things that are make clear that he's trying to get pleasure crawford crawford the decision in profit states quote no i'm out no amount of gratuitous or sexually motivated finally but it makes generals and dash even if limited it into ration or conduct are conducted through an inmate's close as it were in the case