history of problems with the plaintiff attacked the plaintiff from behind in the wind unit on at rayburn correctional center in the yard area with a swing blade yard tool it's important to note that prior to this incident for at least the seven years prior to this incident there were no prior incidents involving involving your tools used in the attack on an inmate and so the questions that you have today are two one whether these officers were deliberately indifferent to the plight of constitutional rights and to whether the law was clearly established at that time that their actions were unlawful and i'll start with the officers in this case because we have a fair to protect claim  officers in the failure to train claim against the warden himself with respect to deliberate indifference the first element is always knowledge awareness of the risk in this case as i mentioned just a moment ago there were no prior incidents for the seven years prior to this furthermore each of the defendants both of the officers and the warden testified that they were not aware of any prior incident involving an inmate being attacked using a feared or felt threatened by the correctional to control policy or in the way it was implemented on the wind unit and this is important because at the end of the day these officials must have knowledge or awareness of the risk of a substantial risk of serious harm before they can be held liable so there's no dispute there was a two control policy that's correct and there's no dispute that sling blade or swing blade  allowed to be used with a designated as a restricted to the to drop out it was not designated as a restricted to one of the talk control policy the district court interpreted the talk control policy to say that dangerous weapons would be considered restrictive tools however both of the officers and you have an example of what was designated as a restricted to a restricted to i believe a couple of examples would be a hacksaw power a tool is restrictive or nonrestrictive at the end of the day the question still remains the underlying question that must be answered is was there knowledge an awareness of a substantial risk of serious this implement would be it what it would how it houses all levels i guess you would consider any if any offense committed that where they were committed to the department of corrections could be housed at reyburn correctional center now respect to wind unit itself a wind unit i believe officer ladner testified that that was a minimum security area they're all in dormitories there is a maximum security area where they are in cell blocks and that's because minimum security and that determination about whether or not there is going to be minimum a maximum security is made at least in part based on some assessment of the classification of the inmates that have the is th i believe it's initially it's based upon the classification of their offense although i can't be tell the positive about that but in terms of in terms of where they are housed within rayburn correctional in order to be considered a minimum custody you have to have had good behavior for at least i think six months i think was the testimony that if they receive a disciplinary violation that serious enough to warrant a lockdown or higher security status they would go under level one for ninety days at least ninety days and then they would go to level two for ninety days at least before they would be allowed to be back in with a minimum security population such as wind unit so there's a certain amount of time that they've had to have shown good behavior at least within the prison no rule violations the one of maximum security level one within administrative segregation which is what they call the where they put  rule violators of folks that violate the rules that's where they are transferred to his administrative segregation level one would be the first level and then if they do well and that there is no rule violations and their conduct is sufficient then they will move institution in terms of them showing the offender showing that he can follow the rules he can abide by the policies and the environment offender could be among this over three hundred people got released in the into the wind unit at any given point that there was convicted for a violent offense right that's correct that's correct and that's one of the reasons that we would go back to and really harp on this lack of prior violations lack of prior incidents incidences with the our tools because they do your call they do work call every single day or almost every single day when the weather is good enough to do it they will issue tools to certain offenders and then the offender will go out in the yard and they are you free fervent for well what will happen is that as they make a yard call well where are all of the offenders that would like to go out to the yard will be allowed out into the yard which is a quite a large area and the officer will either pick several offenders or if he has offenders that request you know work assignment something like that he will bring them over to the to the tool storage locker and he will take that offenders id which is what he needs to get anywhere and everywhere if he wants to eat anybody who is among that more than three hundred who's coming to be there when unit is eligible for issu regularly yes yes and then the the tools are only issued for two to three hours at a time in the morning and then in the afternoon and officer pearce testified that all the  tools each pacific too was upset a specific number on it and the offender has to give his offender id to the officer he will then keep that id issued the tool and record exactly which to which offender so that now that there accountability if this tool is abandoned know if this tool is used improperly or something happens the offender that it's issue to issue to will be held responsible for that as well as anyone that actually any other person that might use that to one appropriately should they be able to get a get their hands on it but in questioning his testimony stated that he had he had worked on when the unit for at least one year believe is the key officer who issues these tools and he had never had an offender leave his tool before every single time the offender he would issue the offender the tool they would use the tool and then they would bring it back he would store it back they would get their id back and there were no issues with that and so the question ultimately becomes their knowledge or awareness of a substantial risk of serious harm this court in dovi robertson  basically said that in order to know of an excessive risk of harm to an inmate that risk must show itself in concrete form meaning just the policy itself saying that some tools are dangerous or could be used as weapons does not put an officer or a warden on notice that they will be used or that they are unlikely to be used as weapons it only matters if they know that there is a substantial likelihood that it's going to happen wickham quick record question and so the blue brief states that at least as far back as two thousand and seven there were no prior assaults by inmates with  yard tool at the prison correct correct and then it goes on to say during the previous seven year period there had been only four incidents three with a broom one with a mop correct so this was the first and only sling blade attack the four incidents that we referenced there it's in that same seven hundred time period because that's all the same seven year time p s l the documentation that we have however as i noted earlier all of the officers testified that they could never remember any prior incident like this and officer pierce has had eleven years as a corrections officer at that point at the point of this incident or ladner head twenty years at this point and warden tanner had thirty three years with the department of corrections at the time of this incident so like i say we only have records going back to seventy years that we could point out any other tool like object that may have been used in an incident just to show in seven years with over one thousand offenders within correctional center there were four prior incidences and all of them involved cleaning utensils such as a broom or a mop something like that and so with respect to your question judge graves about the dangerousness we think it's about the circumstances and that are involved and as this court said invalid the city of houston it's common sense the procedures carried out on a regular daily basis without any showing of prior violations gives rise to a strong inference that such violations are not so obvious or so likely to result in a violation let me ask you a question about the power of the because i mean the appellee are obviously makes much of the policy did the po required direct supervision of those inmates who had the sling blade not of the swinging boy directly of restricted tools the policy said yes retroactive and there is agreement that direct supervision means that person at all times that would be correct are and in terms of supervision i'm glad you brought that up because part of the part of the issue and part of the argument on the other side is that these tools are just handed out random lay that there's no control over them and that there's no supervision however we showed in our briefing the record evidence that there are at least four officers at all times o when unit as well as security cameras on the backside of wind unit yard that can monitor that side as well as multiple officers on the other side that can and have issued display reports and wri ups to offenders who made bad choices or or violated some rule of the prison on the wind yard and they observe that from their position where they were within the prison because all of these  areas are only separated by chain link fence and all of the officers are or taht monitoring supervision being observant that you're responsible for every area of the prison not just the place where you are assigned you're responsible for that but you're responsible for everything and both of the officers in this case pierson ladner both testified that that they were aware that the officer working the security cameras has written up multiple offenders for things they've done on windy yard in other places and i think it's reasonable for them to at least have assumed that there was if not someone there that there would have been someone there keeping an eye or that would have had an eye to that area at that time we don't know that there and family third the questions of law for which this court has jurisdiction to issue a decision the constitutional right in question first is the eighth amendment right to reasonably safe conditions of confinement that's well established we often say farmer v brennan is the seminal case it is not the right to enforce the tool control policy and i want to speak to that just a minute because the defendants rely heavily on dovi robertson in that case this court said that the violation of the policy there did not give rise to the violation of a constitutional right defendant's rely on that to say the violation of the toll control policy can never in and of itself justify a liability here don't know is a very different case the facts are very different the policy in that case required that when someone transports female detainees if the driver is male he needs to bring along a female companion the intent of that policy was to minimize allegations of sexual assault but just because there's a male driver driving a bunch of females you don't automatically assume or at least to use the courts language it's not highly predictable that there will be a sexual assault here by contrast where in a prison were own a prison yard it is highly predictable that if you issue a sling blade to a violent offender he'll use it as a weapon are it's not highly predictable i don't understand that at all well it's highly predictable because prisons are like  streets of america are known to be very violent places what about what about brooms and mops i mean according to the record and in this case as far as we know there were incidents with with brooms and mops but no previous incidents with the sling boy actually i'd love to address why there might not have been any previous incidents and it's because until four years ago inmates who were issued sling blades to work worked in the fields and they were supervised by going guards r c c used to have sixty gun guards to supervise inmates carrying sling blades they don't have the budget for that anymore they only had cherry different efforts on the record four years ago officer pierce testified all right so then for four years there were no incidents with sling blades is that right well this incident was in aug twenty fifty so that is four years ago from today i believe the testimony that they cease using the gun guards four years ago probably this time last year so we're in the same period so is it is it is it highly predictable know now that there were incidents with brooms and mops of being being used and there are of course public incidents i'm not saying it's in the record here probably isn't of brooms and mops being used for sexual assaults but in any event when we know common sense tells us that a broom or a mop intrade has a wooden or of a metal handle or something metal on the end of it could be used to injure someone severely so is yard tools which include sling blades are more dangerous i do think it's highly predictable in the prison environment that a violent offender will use any implement in his hands especially one that already has a blade on it as a weapon and that's the testimony in this case the defendants themselves agreed to that and in fact that's why warden tanner wrote the tool control policy itself and the tool control policy itself says restricted tools are any tools that may be used as weapons and they give a list of tools and to your question judge graves know a sling blade is not on that list but the policy says the list is just illustrated these are just examples where we found in the record evidence that these defendants were subjectively aware of a substantial risk of serious harm but disregarded that risk i'll tell you than tanner testified testified himself that the risk was obvious he agreed that it was kind of like a risk that is two five seven six a draft of the tool control policy in part to address that risk the tool control policy has a section on restricted tools it says restricted tools are any tools that can be used as a weapon it lists examples i think everyone would agree that a sling blade is a restricted tool what what should we do when we issue a restricted tool i asked warton tanner he said you've got to directly supervise them quote course it's essential to directly supervise inmates who are handed sling blades officer peers in fifteen years of employment at our c c he received only fifteen minutes of training on tools and i don't know if that means inventorying of tools maintenance of tools supervision of tools i don't know fifteen minutes in fifteen years and that wasn't twenty sixteen after the incident in question so you there was no one standing there near enough to see either of that the human made to whom the trial had been issued abandoned him or of that someone else pictures up and use it as a weapon as that is not your complain describe their practice in a nutshell and this this testimony is to six o three to zero six this is officer pierce testifying this is this is the practice every morning at seven a one officer on the day in question officer peters runs three hundred inmates out of their dormitory and into the prison yard he even picks off quote just random four or five  inmates and gives them sling blades for the next two or three hours three hundred inmates for five of them armed with sling blades roam the prison yard this prison yard is gigantic it has a full sized football field  baseball diamond a basketball court several other recreational areas for that two to three hours only one officer is responsible for making periodic rounds that's it now they will say we had lots of other officers who were supervising that's not true there were two other officers on the wind unit but they were dorm officers assigned to the dorm the other officers to whom they point were assigned to the vote the laundry the gym outside the window unit they were assigned to posts inside buildings off the unit if any of these people had any line of sight it was through windows fences and gates it was not their job to supervise  on this gigantic yard the reason this happened the reason on the day in question bernard turner abandoned his sling but and by the way he was charged with kidnapping r battery the reason no one saw him abandon a sling blade on the ground and the reason no one saw actually he abandoned it on the ground to go inside and watch t v nobody saw that no camera on the person the reason nobody saw another inmate named victor charged with second degree murder pick up the inmate stalk my client and strike him violently in the back of the head the reason nobody speech is his ultimate conviction was a visual homicide manslaughter my apologies the reason nobody saw that is not because they were negligent this is not a negligence case the reason nobody saw it is because defendants practice of issuing sling blades and relying on periodic grounds only made the prison yard unsafe and it's that practice i think judge prison yard and relying on soley periodic rounds to supervise them that's their practice now they say that faithfully follow the took control policy what they mean is they face really require that an inmate give them an id in exchange for a sling blade that's it that's it for defendants to issue sling blades and not supervise them is that objectively reasonable as a matter of law i don't think this court wants to hold that because to say that is to say that  and let nature run its course so what would be the constitutional minimum assuming that there's been a decision made to issue a broom or a mop or a sling blade or a screwdriver or any other thing that that practices i'm talking about a constitutional minimum for how much supervision there should be if a broom or a mop or a sling blade is to be issued and used on the prison property too for some sort of maintenance or repair violent offenders with implements that can be used as weapons i don't think this is like the microwave cases right it's not obvious that a microwave can be used as a weapon it's not obvious that a cup of water will be weaponized by boiling it in a microwave and throwing it on an inmate that's not obvious it is obvious that a violent offender will use a sling blade as a weapon and i think when you issue a weapon you need to supervise it provision you're talking about a degree of supervision and that's the question of fact in this case actually and i said get to that the district court does denied defendants motion for summary judgment because she found there are two genuine going but you still haven't answered my question about constitutional minimum i mean would you say for example i'm just making this up i'm trying to give you an answer here would you say for example that the constitution as a minimum would require that for every person issued to sling blade that there be a  guard within ten feet with his or her eye constantly on the on the inmate with a sling blade or would it be something less than that or something more than that but i think who could be something more than periodic rounds i think it i think i think what we have to define is i'm just asking you what the constitution requires of us suppose the you're an attorney and you've been hired by the prison system to draw up a policy that's not going to get that that's not going to run afoul of the was restricted to direct supervision and direct supervision means eyes on what would the training be in addition to reading the part well i think the point is there but anyway i just i'll just say that there's there's training on all sorts of things they have training on how to keep his keys on the tool belt prisons train according to the senate r c c trains its officers every single day therefore it's very striking that in fifteen years officer pierce had only fifteen minutes of training generally on tools so i think there was a total absence of training and i think the failure to train here on a tool control policy to require them to read and understand the tool control policy to understand that when you issue a sling blade to a violent offender you must directly supervise its use and that means  them supervision it's not too much to ask that they reinforce that through some sort of seminar or periodic training session back to why the district  going tanner's failure to train made it obviously likely that someone would suffer substantial bodily harm the district court found that there are sufficient facts in the record from which a jury could conclude that you know defendants did not take reasonable measures and no excuse me yes the failure to train didn't make it obviously likely that someone would be injured this case turns on questions of fact that the court cannot reach that's what i would ask the court to do just that i would just like to to conclude you you asked what does the constitution require many times and you asked what what policy would i require of r c c if our advise in the question is not what policy does the constitution require because we don't we don't purport to have a private right of action to enforce a policy the question is does the constitution require reasonably safe conditions of confinement and that answer is yes and that's the constitutional right we seek to force not some right to force the tool control policy thank you others like to address just a few points made by close of counsel first of us importantly is this a factual statement about the the timeline of the four years prior to this that they had taken outside the prison gates and worked out in a field outside of everything and there was a four post gun guard meeting one on every corner to make a perimeter and if they stepped outside the perimeter there were certain issues that would go that was not what they did inside the president inside the wind unit yard which is completely different fact peirce test the question was yard duty then is something different than field duty that was playing as councils question and also appears very different yes and then they went on to explain and that's our away site nine ten to nine twelve four definite p definite ladder or away eleven fifty four to eleven fifty eight where they explained the old way of taking people out in the yard and actually the question that brought up this discussion was just about why there still a work duty label for every inmate meaning he's on field crew eight a field crew nine and that was an explanation of why there is that label there but that they don't do it anymore because they don't have enough officers to take them outside the prison ga crews that went outside that had gun guards with the practice that happened on the when unit yard it's been the same all of the officers testified that that's been the same policy since they drafted the policy and with respect to the policy in the training ward tender testified he drafted the policy in connection with multiple other folks from the prison to determine what was best practices and one tenor also testified that these policies and the way that they are implemented are audited every three years by the american correctional so ca sion in that they that they are in compliance every single year or every single audit with the a c a requirements in terms of the policy and the way it's implemented during their audit they would review all the policies themselves to make sure they are in compliance with the a c s standards for policies and then they would actually go out and do personal observations speak with officers to make sure that the implementation and the way it's being done is consistent with the policy itself and so we go back to whether or not this is a highly predictable incident and i would submit to you that seven prior years documented in no prior instances that any of these officers could remember does not suggest highly predictable and when you go back to it you go back to the circumstances surrounding it judge smith to your question about the constitutional minimum i think it all depends upon i hear her complaining that the policy was not being adequately follow or implemented well it's our contention that the policy was being followed in the way that they were implementing the policy at this time that they were doing it as was supposed to be done well what do we do with with the evidence that at least at the time of this particular incident according to what we heard today the person to to him the employment had been checked out left or dropped out or water abandon it or whatever and went in and to watch t v and nobody saw that and then that he was picked up and used as a weapon by someone else and nobody saw that i mean i think in the end this can just be considered a one time incident or an isolated incident that they do this policy every single day twice a day i counted people proximately four thousand instances in the seven years prior and there's been one there's been one instance may i make one point about training more of my time actually your your time has expired thank you mr walters your case and only these cases are under submission