that's certainly not coming from our office your honor defendants were aware about starting with love know the child in the th grade no prohibitions with her which were probably violated and other reports specific between forty something year old regard to the issue deliberate d indifference the only party raised that he was briefed on was dr mayo so there is no record evidence below as to the other defendants because they didn't raise that in the summ argument they did not present facts forward and therefore were responsible for responding to the claims that they challenge and they challenge asked will note the other thing i would argue and  over she did after that and she did it at a football game which would have been in the ball d that year two thousand and thirty and so principal mitchell identified to him that in violation of both the school rule trough work well there was no evidence when it occurred but actually when you look at the record we decided that and you you read that in favor plaintiffs that was after the incident where she tried to doctor and they gave her that nd deficiency notice because she didn't know to report anything and that until that point because the principal mitchell had not been read in to the issues with the cell and her constant obsessive behavior towards my client so i would agree i would argue one that's not an issue because they didn't raise it it's not in the record on appeal and two there was evidence of the st thing i would say your honor is that the fact that vigilantly she realized she was going to get caught and had to be more surreptitious doesn't do away with all the evidence they had up to two thousand and thirty if they had taken steps in two thousand and thirteen when they knew she'd attempted to kidnap this child and our evidence shows they knew she attempted to kidnap a child specifically to have a sleepover with felt house at that time they had reasonable actual knowledge of a risk to casey the specific child of this teacher focused on repetitively they did have  they take action at that point your honor the molestation and the abuse and the harassment that occurred from october rd seen all the way until october th and when she was finally arrested and then later convicted for that  the issue with the again going back to kent that dust trial you've been told they have no contact with multiple times been warned about all that i think that should be sufficient for the notice it's not that she's being malicious molested or harassed it's simply that she's at risk of being it and i would say the teacher not only violating her multiple no contact rules but also attempting to break state law and basically steal a child to or house whatever the reason should be sufficient however the factual dispute decided by the trout for has to do with whether they knew she was taking her for a sleep of none of the parties or at least on the before the trial for the district  that if they knew that it wasn't sufficient to meet the standard there is evidence of that in a police record that principal curley identified that at the time he was aware that the oath principal curley was cross examined about both the e mail and the police report admitted that's what it says i told him if that's what i told him at the time yes that's accurate and it is consistent with the e mail which is admission which is admissible and the rule d that i sent that is that further the rule is we only have to show it to be admissible in some what we could call detective taylor to the stand to testify as to what mr curly eight which is the official records exception to hearsay they did so citing two cases that deal with criminal law there's a huge distinction there in that rule eight thousand and thirty eight by its very text says the record is admissible at sat as by it except against the criminal defendant and the reason is because of the confrontation clause and so in criminal cases that may not be admissible but the rule the advisory committee notes that multiple states fall d including cases from this core that comes in we cited graham on federal levels which makes the point that the criminal even if it's the criminal defendant you can use that against the criminal defendant in a civil case and admission that in a police report you just can't use that against them in the criminal case and so that is there you can also get in under the business records exception we cited the g m case from this core so there's multiple ways that evidence is substantive evidence and determined at is that the trout were did not consider it and to this point no one has argued if they knew she was attempting to kidnap a the young girl to have a sleep over at her house any contact with all the other evidence they had that's not sufficient to show asil knowledge of a substantial risk and the other thing i would add to that your honor is all the cases with the context of text message here we had more we had admissions from the defendant that they had a school rule in flight that prohibited this and that there was a state criminal statute that prohibited that both of which were put in place they knew because it is a way mole lester's room their intended victims and they do they had to be very strict about that because of that so they had an a a natural focus on a specific child for multiple years with no e mail all those things in time with the knowledge that in fact they needed to do something because that was no there's them under their training and their own personal knowledge a risk over stockton and thomas goetz or in those cases require that there be actual notice of sexual abuse and or sexual harassment it can't be colloquial harassment as mr bauer has included in the balance briefing  material to the claims in the case one thing i want to address before i get into that in more detail is missed is about what is proper to new new argument this morning that we did not side deliberate indifference and our motion for warm water if this were a constructive notice case or if this was a standard that is a should have known standard or for negligence cases but this is not in the laws here under title their requirements for school districts and supervisory officials they have to have actual notice of sexual abuse or sexual harassment and then accurately indifferent to it the balanced view of all fifty six dollars application is an effort to convert the actual knowledge standard to a constructive notice standard and allow daughter to go to a university of missouri softball game with the teacher that coupled with the fact that the chronology as property by powell doesn't discuss does not provide a clear  chronology really this court needs to look at the chronology and in the sense that what happened on october th two thousand and fourteen what happened before it what happened after and that the issue there is that the school district and the school officials involved in that received actual notice actual notice of a sexual abuse or sexual harassment until that day and on that day those school officials immediately contacted law enforcement they immediately outlined children's division and they immediately removed the zel from a classroom and she never returned and so all of those were actions taken at the point that they had actual notice of sexual harassment or sexual abuse about one is in their brief that would require nothing more than a mission from the i went along for this to be an actual claim and that's not true because if we look at that october th two thousand and fourteen timeframe and didn't come in and confess what happened his mother came in with text messages that she found on the secret that appellate kept secret from her mother and the school district and that the teacher kept secret from me about from the mother the school district police report and one of the items that i would like to say about that is st if we look at the the the standard for the trial court it's an abuse of discretion standard i mean disability about events and looking at the si resolve that what the tro court did was look at make an argument as to why those hearsay statements would come in they're very contrary to all of the police cases cited by because all those police cases relate to the rule of three statement the hearsay of the police officer taking the report from the declarant and then we have that a cleric who talks about a conversation that he had with another teacher of the year prior and so what i would say is under that analysis that's untrustworthy  and so since it's untrustworthy that's another layer as to why the trial court playing the error and not considering that information i am i'm noticing that i'm out of time and i will see the rest of my standard top hold educators public servants legally responsible for a nother person's criminal act what a calvinist trying to do is to impose supervisory liability on dr male as well as the other two defendants this standard for that is very high in the court recognizes that it is not a constructive notice theatre it is not a negligent standard it is not it should have known or knew or should have known asking the court to do is just simply a say well they have ample notice of some stop that's not sufficient to wait they're qualified immunity the absolute no this must be apple notice of sexual harassment or sexual misconduct may please the court i'll try to address this very quickly i've got two minutes one we are not asking for vicarious liability for the cells conduct we are asking the court to do is hold the defendants liable they pose liability for their own conduct in honor i think mr marriott made a misstatement when he indicated we didn't raise that issue with the trial or if the court looks at app page six hundred and thirty two but no four we specifically cited the police report was admissible as a business record as a government and that is own statements were miscible as an admission by a party so we're we're using the actual notice standard that the th circuit and the supreme court is held as a political and we're asked to hold mr away and if you didn't present that present on appeal your honor i believe we did in regard to the issue of this being a rule fifty six case i just read your statement is this morning it's not there you can present as a separate issue the government abused it made a mayo continued to do the same thing over and over knowing it was not sufficient putting are on the honor system to stay away and self report even though that had worked multiple times and he cited several cases from this circuit in the supreme court talking about not doing the same thing over and over expecting different results as a record indicated is the definition of insanity and is lunacy if that doesn't fit with deliberate indifference i don't know what is the other section is multiple times there are reports that dr mayo received information including a report from principal mitchell that he simply refused to document or take any steps for so when you do absolutely nothing after multiple violations of the no contact rule that would also be indicative of the liver in different drawers