at least focus my initial argument subject of course to your questions to the denial of immunity by the district court to our clients mr curse for ms dr cleveland and the political subdivision of hamilton county will on the when we look at the district court's opinion what is perplexing and apparent is the district court at least to me and hopefully to this court is that the district court lost its way in differentiating in terms of its analysis from its analysis of deliberate indifference versus his analysis as to whether or not there was recklessness or wantonness established on this record and by that i say in determining that there was no deliberate indifference in this case the district courts simply found that there was no evidence that cursed for and i'm quoting or dr cleveland disregarded that unknown or obvious consequence of douglas intoxication would be that he would have sex or perform sex acts on dead bodies specifically this court found that there was no the district court found there was no causal relationship in the context of the deliberate indifference analysis between that which the court viewed as known or should have been known to dr cleveland well actually your honor that's exactly my argument when you look at the definition of recklessness and wantonness as defined by the ohio supreme court you will find that i have found that they are mirror images of the development of the analysis of deliberate induced indifference by this court in a while ski for example and specifically in a while ski this court found that the first prong a deliberate indifference is that there must be facts in the record from which an inference can can be made that an injury is substantially likely to occur similarly told the ohio supreme court just as  first prong sir is that this that they would substantially likely that an injury would occur yes when you look at the first prong of recklessness or wantonness as defined by the ohio supreme court the first prong is that there is evidence that the act or failure to act was substantially likely to result in an injury in all probability likely to result in an injury to your point specifically heaters versus ashtabula which was a district court case in ohio found specifically that it wasn't some injury but that it had to be a foreseeable injury so that's the next issue is that this second prong of deliberate indifference according to this court is an awareness on the part of the actor no i appreciate that i'm looking at the elements of deliberate indifference as this court to find them in a while ski as being the knowledge and the the knowledge on the part of the actor that their act or failure to act will substantially likely result  harm and that then the actor is deliberately indifferent to that consequence and analogizing that to be a tool decision by the ohio supreme court where the ohio supreme court said recklessness and wantonness mean that there is a substantial likelihood in fact in all probability by the act or failure to act that an injury would a car occur that the actor is conscious of that which is similar to actually drawing the inference which is what this court indicated in deliberate indifferen and then thirdly that the actor perversely disregard the fact that he is conscious that his action or failure to act will cause injury just as you know why this court said the third prong would be a cal right you're looking at state law interestingly this or in my eyes versus tedford found in evaluating deliberate indifference that an opportunity without more without notice of a criminal propensity yes for two reasons first of all the supreme court of ohio has made it clear that in establishing recklessness and wantonness on a record as opposed to negligence there must to be evidence in the record that the actor was conscious that his decision his conduct whatever it was was substantially likely to cause or in all probability would cause an injury and disregarded that for example in the old pull case which was the seminal case or one of the seminal cases i guess of the three by the ohio supreme court involved the social worker who had allowed the child to remain in a in a setting with their natural parent and the child and it up being killed that supreme court of ohio specifically said that in that case there was no evidence that the social worker was conscious that by leaving the child in that home it was substantially likely that an injury would have her it don't you that's a very good question your honor because frankly in o'toole the court dealt with that with the more you know tool said was even though the social worker in that case took personal responsibility felt really bad that this child died and in fact if you when you read the case you see that he wrote on a report social worker error or worker error as the reason for the child's death what the supreme court specifically said was no we're not going we're going to void emotional ramifications we're going to void twenty twenty hindsight we're going to look at whether or not there is evidence in this record that the actor believed that by acting or failing to act there would be a substantial risk of harm and then as a follow up to your question the other reason the answer is no is that there is no causal myriad of of responses going in my mind but first of all i would say that whether or not that risk can be foreseen by the actor in which case it has to be foreseen to establish a duty right that's i don't believe that's exactly accurate in the record that he told everything to cleveland there's some question as to what that conversation was but to be to your point a generic concern about possible harm does not satisfy the recklessness standard as promulgated by the supreme court and it doesn't stand it doesn't frankly even satisfy a negligence standard for example there are no cases that i found that said some generic idea that someone might be drunk means that as a matter of law their employer is liable for anything that they may happen to do that is going on and i do not think that of your own i'm concerned i would like to get your response to the very construction activity and that those two little girls as hangers on were observed by workers into the visor there's some question as to why these two little girls were hanging around fast forward a few days this particular worker was doing work in a particular apartment and both those little girls were present this person that worker that one little girl at the store he took the other little girl into the closet and you violently raped her and what that court said that district court in ohio interpreting the ohio supreme court and i ohio law was it was foreseeable that two little girls hanging around in a construction site site might be injured but it is a quote giant leap to say that they were it was foreseeable that they would have been right in answer to your question judge grants what has troubled me about this case from the beginning is what i call a couple wild cards and in this case the biggest wild card we have is this criminal act we have a criminal we have mens rea that's developed we have an intentional tort not just an intentional port criminal mens rea and so if your line of reasoning or the line of reasoning is as you suggest i should say in all fairness is accurate then what we have our employers as insurers for the criminal behavior of their of their employees because there is no none also relationship that's been evidenced in this case between drinking or drug abuse and sexual  possible connection between those two and therefore if what we have is i know my i know my employee drink so there or it has been in the context of federal law has been pretty adamant and ohio courts have equally been adamant for an employer to be liable for or to foresee i should say it's not even liable it's in the context of foresee ability or for an employer to foresee the criminal act of its employee there must be knowledge or constructive knowledge on the part of the employer of the criminal propensity there's been an absolute rejection in this court as well in no it just goes so fast for me those probably doesn't go fast for you but yes that's for me thank the morning there please the court along with our harmon and joe hudson going to represent the family of angel here in range charlie i'd like to start talking about just what the that's the appeal we've brought and the constitutional violation is executive act abuse of power which shocks the conscience and i've separately brief the issue of violations  various express rights but i want to focus on this shocks the conscience because it can be proven in two steps that were just arrived in city of sacramento versus the first the action of the executive officers needs to interfere with rights that are in be clearly is yes and the bit that if you argue from very broad sense then it's less likely that some things would you agree with the proposition that the broader the principle that's that supposedly clearly established less likely that it's clearly it's less likely that some particular at patients and i understand that we need to have a lock for a profit i mean we don't need to have fairly established law for the purpose that you can prove this through deliberate indifference and do we have the liberty and different back you have first currently one policy makers for the county with notice of the risk of harm and the risk of harm here is noticed that there will be disrespect to the bodies in their care remember that the the county has a disrespect it's a very you stated that privately that he is here girlfriend in the presence of what you already in pretty to move a leg around yes just for the fun of the see whether the joint is i mean those types of things a b that should be i'm just wondering whether that's it's hear your grand scheme of person puts a cup of ice tea next to a body and touches it and it is medically necessary he's violated the well if he does it not only if he does it that if someone hires someone who might do that if i was on station which again i'm a drunk mortgage tendon have exclusive access to the body that that's that's not right that i know that that's likely to lead to harm and and when he got notice weiss that his mortgage pendant was both drunk on the job and coming home nothing like that what did he say the second time he said don't call back he told the wife not to call back if ever there's evidence of deliberate indifference knowingly wanting to bury your head  because he didn't want to change his force that is if in a case like this where you have family members under you to go near their loved ones and for this few days when the coroner has established only a notion that really offered immunity for individual liability a first frankly we don't have to show that it was merely an order to have  here they had repeated notice of various problems with work that that douglas was engaged in the buzz of the ring and when they got the most dramatic note from the wife and they told her not to come back they fish that dramatically ramp well established right if you've got the liberty act where they have time to do it right and they do not and then if you're in the context of something like the punch numbers that the one thing but if ever there is a government duty to to as a supervisor in the workplace if there's any government duty to do things correctly it should be  were from a third party that doubles during this is direct evidence that they were going to let their work into the more wildly wrong and that because they knew that letting somebody drunk work with the body was likely that the harm that the liberty did they know he was going to have sex with you know would we be here if he was manipulating accessing photographing yes i was here on trash you were on  yes there are other things even less bad that you can do to a dead body that would trigger the same right i hope we never see this again is the subject of a new process it was at the lower court that if you didn't get like which i would like to turn on the state law claims we have immunity with respect to the county and we have immunity with respect to the end of it and judge ferre still get to do it you just with respect to state law i'm unity and twenty seven forty four it's three steps first step says you don't get to the state or any of the books of the second step says if the if your injury happens on public property at the time of these injuries then you can sue but that brought everybody back again under the third step the county says this is policy therefore we don't you can't do and the case was very clear this is the simply supervision under eighty five which is really the four the question is whether there's any evidence of one and reck know because there are different ways to let go of it but but likewise because the federal definition is wrapped up with what talk does it shock the conscience that a drunk worker into the more i say yeah there neither in this case so i don't think that we reached that question according to the case law of this would have my understanding that this court has at least in two opinions that i cited in my brief we just rejected that premise and that i believe it was washing with i'm not mistaken where the court found that there needs to be a violation of the constitution before we reach the shock the conscience and in fact this court brayley gave the policy sort of construct or the judicial restraint argument for why that is so in the lack of definitive parameter for that kind of an in the bodies really made which is well i can't control what you find but i think this court has rejected that there that you can just find a property interest i think what well i again i'm saying that unless there's a property right or liberty interest there is no substantive or procedural due process and i thought the court just said to me i think we could just say there is a property interest for purposes would have said they had to say what sho evidence in the record that the nine one one operator believed that her instructions were substantially likely to result in harm we reject that that's an anderson and also an anderson if the court would note that that the supreme court cites favorably fabray and o'toole in o'toole the supreme court went further to embellish that definition to say a person reversed regard disregard of a known risk and rank in the court the supreme court said recklessness is the high standard so i'll submit to you that in andersen the fort was reiterating its definition but it also in that decision favorably cited fabr throughout the litigation of this case has noted the knowledge that curse her and or cleveland supposedly had about the alcohol and drug use there are no facts in this record than indicate cleveland or curse or had any idea of drug use with regard to  the sexual activity in the morgue and the drinking that chavez reports supposedly in eighty six or eighty seven which how that relates to the eighty two range case possibly is not apparent to me but this is the testimony in her deposition that says and so he came home and he was of alcohol and he smelled like sex with a woman this is page id four four four and four four five and do you know is that when you picked him up no this particular time that i'm referring to that i told him it smelled like it was he drove that day and when he came up i talked to kenny before he left work and he called me and said do you need anything do you want me to stop and pick up anything so i know that kenny was at work so she knew that kenny was at work because kenny called her from work this is the same woman who testified she never really knew if he was at work or not because kenny would just as soon lie to us tell the truth so this is the testimony that's in the record so we categorically reject that mr cursed or had knowledge that there was alcohol and drug use and sexual activity in the morgue and we categorically reject that this record supports that what we suggest is the record supports as judge rogers put in his dissent or in one of his dissenting opinions particularly in cheshire it was entirely reasonable that bernard cursor would trust douglas based on his knowledge of his work performance and mr cursor said this in his deposition at the time of this probably one of my few regular guys he and ben were my mainstay he kind of did a very good job i was pleased with him and he do anything around the billing that you'd ask him to do he never argued with you he was a good worker i trusted him i grew to rely on him i really trusted him and that's really really what upsets me when i heard this because i thought how could that guy betray my trust mr gary hudson's argument is one of negligence not recklessness thank you very much for your patience is a pleasure thank