to please the court my name is with hansen i represent six pretrial detainees who were who just a phony sexually assaulted while they were held that river held jail including the three opponents in this matter  officer for the sexually abused or within the statute of limitations period in her deposition which was taken by counsel for the county she testified that it occurred in the assault occurred two weeks before she left t jail the county attorney asked her after and i quote question after the incident with forty you were only at suffolk county for two more weeks answer about i don't recall exactly but i feel like yes she also explained prior to that that she didn't remember the exact dates but it was clear from her deposition when she went through the order of events and put them in context that the assault occurred one of those queer i mean they point to other fs couldn't establish municipal liability then they couldn't apply the doctrine to their claims and that simply cannot be the standard but the court ignored that there were individual claims here against the officers in their individual capacity to hold that because they couldn't hold the municipality liable they couldn't apply the doctrine to the individual claims would bar these types of claims against individual officers the proper standard is to consider whether there is proof of a specific ongoing discriminatory policy or a practice look more court ignored the nd part of practice and whether very i'm sorry you're saying that as to the individual defendants who are officers in suffolk county that if there was proof of a practice  if it was shown that officer footie had engaged in this over time and they individually regardless of their own positions were aware that then they had personal liability individually this is that is that right and the claims against those individual officers the doctrine should apply to those claims because of the phony dating gaijin an ongoing practice of sexually abusing and harassing these plaintiffs so whether or not there is municipal liability they should have considered the totality of the factual predicate to consider whether they had a timely claim against santa croce and i think part of the confusion lies in the fact that most of the time these claims come under title seven we're only looking at the employer it's only in the context of section one hundred and eighty three dollars where this argument that you're making which is whether the individual had a practice in the subject him to the continuing violation doctrine is that essentially why a lot of the cases talk about policy in general they talk about the employer and title seven contacts right right it is borrowed directly from title seven but in the context of  ms of cruel cruel or unusual punishment under the anthem and meant they have applied the same standard for conditions of confinement claims which this is falls under and this court has held that each successive incident this community the previous one so like in title seven it's a similar stand in which they consider whether a claim a cruise or changes throughout the confinement of that in this case pretrial detainee for sexual assaults and the said the sexual assaults occurred outside  they don't happen in a vacuum joseph already tried to rape center and then after that every time that he saw her he clawed at her and growled at her he would get in her way when she tried to come in and out of the library to try to rub up against her he would expose himself to these women who would masturbate in front of the and all of those things have to be in the put in the context that he already sexually assaulted  show that there was an ongoing practice of sexual abuse at least for the individual officers you address your liability argument and what what would support finding the  by the municipality to these six plaintiffs alone he sexually assaulted them at least fourteen to fifteen times he made ongoing sexual comments to law he could could you address and knowledge and i mean we have the sheriff at the top of the organization chart that we were focusing on the rehab unit that norrin fisher and stand was the director of and then there are individuals below that level and i was trying to trace through exactly who would have known what when to see how we get to the sheriff and knowing and acquiesce in creating a policy sure very quickly there were at least five internal st complaints against forty in the ninety's those have been discussed in the detail in the in our in our brief but both coworkers and supervisors also knew about his conduct the plaintiff himself complaints against forty and they were all investigated at that point the sheriff ordered the investigation it was aware of all of the all of the allegations inside of the report including additional statements at that point that when the investigation was happening mr foti retired he had retired yet it was right in that time frame right after the sheriff knew about all of this misconduct the sheriff allowed mr foti to retire to keep his pension and not be subject to discipline and this court has can not continue harassment harassment that occurred after the investigation well it certainly evidence as to the municipalities attitude towards these types of allegations they knew that there was sexual harassment you know act the fact they knew that there was sexual harassment they knew that there was sexual assault they knew that mr foley was abusing his position of power to take advantage of these women and  of close so i don't believe there is an issue of fact and it when the events occurred that would be sufficient to allow the case to go to a jury as noted in ms close it was deposition she was asked a series of times regarding event  two thousand and eleven where in the statement she specifically states that the events occurred in january two thousand and ten but she also testified right that it happened two weeks prior to a discharge which was in december two thousand and ten and that's in that testimony clarifying question there to make sure that she was still continuing to say what january two thousand temper i also know is that when they did their investigation that they did internal affairs determine that it couldn't have happened in january of two thousand and ten because she was only in the two thousand and ten i read the investigation report it said there was only one time in january two thousand and ten that she was in the mall library and he was out that day and i miss understanding that while you're out of the that that goes to the issue of fact when obviously always a phony denies that anything happened the st place so in other words if she was fabricating the value of her that you have for purposes of this motion summary judgment to believe that it happened in terms of what the date was there seems to be ambiguity is what i'm suggesting well there's no ambiguity in the sworn statement that you provided to internal affairs which indicated january two thousand and ten i could see as i could see a person having some lapse of memory as to as to the exact week of time with the season but we're talking about january two thousand and ten verses almost a assaults and harassment and according to the plaintiffs which we have to accept rejected as you know told them to shut up keep quiet right you're just saying that that's not enough to put it and it's not and here and it's all said and cruz is just that he's an right that's the law you have to show actual notice by the policy maker yes but as you are said if it's rampant or pervasive throughout the facility we've got at best santa croce and perhaps fisher having some knowledge on that one line up perhaps for sure i who was assaulted file a grievance according to her again i know you know the county may say that didn't happen but she said i filed a grievance that went to a sergeant you have a concern you have  sexual harassment officer is that's a situation where she is in a position where she's taking complaints relating to employment allegations of sexual harassment by you ploy and has nothing to do with you have allegations from any of  the racial harassment that case that that water district that was the highest level person was a human resource person and in that case we said that the conduct was severe enough and the people who knew within the water district or high enough that  involved in makes that went to the sheriff in the ninety's so that was part of the mix of information about officer phony that was in the jail something to say it doesn't say that has to be any evidence that the policy maker knew well judged as far as the things in the ninety's those two event me doing something inappropriate was with the name kennedy and that the only evidence is foley's own testimony that i believe that what was claimed was inappropriate and there's not even any evidence of what it what the inappropriate conduct was that's in the  the line though what we're talking about your honor was was in the ninety's was investigated by the sheriff's department did go up the line there was ultimately determinations made in that either things were unsubstantiated or in one instance had to discipline because it was determined that he failed to fill out a law book so there were these things were known up the line the point is that they weren't things that would lead the policymakers to believe that he would someone files a griev coordinator gets a copy of the now it's a process judge it goes to the grievance coordinator after the determination of the inmates not happy the and make an appeal to the warden and if the if and then at that point if the inmate still is displeased the inmate can appeal to the new york state commission on correction view is that there's an issue of fact or whether she filed a grievance or not under the handbook at that time inmates were told that if they file a grievance this supposed to get a response within five days inmates have an obligation officer who has it a requirement relating to sexual harassment of employees having knowledge of sexual assault by a corrections officer on inmates it's top it's two different things and the and the officer we're talking about sergeant fischer who's not a policymaker and doesn't and even if he was aware as the plaintive claims that she had knowledge that there was some assault going on and did nothing that is not sufficient to establish that policymakers ignored conduct by forty and did nothing with why wouldn't ms fisher given given her if you could her title why wouldn't she have the responsibility she heard time and time again that there was not just assault but harassment going on it i'm not saying she didn't have an seems to me highly enough placed to charge the county potentially with knowledge of this ongoing pattern of behavior your honor we we respectfully disagree and agree with the district court that the phrase that was used was these rogue officers in other words certain officers at a at a low level she's a sergeant the lower level before the lowest level as a corrections officer she's a nd level of authority and in the jail and even if she knew and failed to not a generalized fear of retaliation her affidavit suggests that she witnessed another inmate being beaten for not following orders she saw the injuries and she's also alleging obviously that she was sexually inmates in the the assault she did see the injuries after the fact anything else after that that she became aware is clearly speculation and then does not rise to the level of that fear of a prize or let me ask you about the continually violation issue because i was thinking the same thing that palin's counsel referenced if if you have someone who is over swan period of time harassing someone of whatever reason nobody else at the jail becomes aware of it other than that individual officer you're arguing to us i think that the continually violation would not apply to that officer that you'll be immune from the continuing violation doctrine that is violation doctrine no i think the lower court specifically said you know the days were discrete incidents and as such do not rise to the level of using a doctrine in this type of case where that's i mean this is the classic hostile working on is the a continuing violation lower court here though specifically determined that that was not the case here the question is whether that was correct or not though we are obviously saying that it is and what your response what case you have that says that harassment over time like this would not allow for the continuing violation doctrine see the harassment here over time is there were lying on things that go back to the ninety's which are not even rising to the level of the sexual harassment with regard to what the discreet violations would be for now but that that's on the issue really of the man l y the only that the relying on continuing violation to say that they were there cat calls and other things that happened repeatedly up to the day they were in the jail that he did this routinely and therefore the sexual assaults and other things that occurred prior to the three years should also be included that's their argument that the ninety's thing relates to the now claim but i think they also are arguing that as well and they may even brought it up with regard to the i a e a investigator in testifying with regard to what she knew and didn't know as part of her investigation so i think they are trying to lump everything in here and with regard to whether it was sexual abuse an assault watch they said you know the cat cause if you do believe that testimony does not rise then to the level that you know this was actually abuse that's the whole point of the continuing violation doctrine and you get to them you don't look at them in isolation that's the whole purpose of it understood but i think even when you look here as a whole it does not rise to the level of thank you nick thank you mr hanson and you have two minutes thank you i would st point out that almost everything that counsel has argued these are all questions of facts and that's the whole point is that there are so many questions of fact that these claims should in the in the report one inmate goes as far as you don't have to be in here for too long to know that this is what's going on and that forty does that is that but that is so general in vegas to be almost meaningless to me or if you have to look at who actually had knowledge or who can be charged with constructive knowledge but there is also there's also evidence that the head of security had knowledge of this of the designated sexual harassment officer with authority to  as you stated that there are instances that she she knew was sexually harassing there was inappropriate that the that violated they had to admonish him so many times that they told him to stop going to the tears to notarize to where the female detainees were to notarize things and they whenever possible would cover his shift with a woman if i may very quickly address the arguments that there had to be knowledge of previous sexual assaults this court has flatly rejected that point in cash be eerie and in doing so this court reasoned that the sheriff the municipality and the individual officers oh a special duty to to the people that they care for especially when they're pretrial detainees and they have not been convicted of a crime yet and this court in in the case stated that the law the new york law itself shows that the sheriff should have known of the risk of these types of assaults and does not make any difference whether there is assaultive or non assault or sexual activity in the print prison context the law does not tolerate either thank you very much we have the argument to reserve judgment