violation the test is whether or not the evolving standards of society allow that type of conduct and i think that we have established convincingly because and what happened here obviously is not negligence which of course the car is permitted to go forward but it's definitely outrageous we however have to fit it into the mo now construct was liability under no mel because he was not properly trained we argued in our papers and we've submitted records into the court that although it was illegal mr wholesome the types of situations to avoid the circumstances we just took to look for for other people as i was thinking about what actually happened here and the whole notion that this was going on without any supervisor knowing about it to me doesn't make sense this all happened out in the open wholesome never worked by himself always work for are there is for two months when most of the contact occurred between th and that they didn't know that this was going on we submitted expert testimony at the trial court level in the canyon that the training was insufficient the court rejected that add a hand and said what the court told me if you know there was a rule against that therefore there couldn't be a claim the court assume that he was properly trained but when you look at all the material that supports whether or not he was properly trained there was not one written document that would support the fact that these people were given any time during the hundreds of hours of training that they go through at the very least a jury should be willing to be able to decide or allowed to decide as to whether or not the training if there was any that was given was enough and sufficient experts should be allowed to testify they should be allowed to articles that have been written about this very significant problem deliberate indifference i mean something it's illegal you're not supposed to do it he's clueless there's no doubt about that from reading the transcript he still missing i guess yes  once you start talking about facts then you're talking about what the damages are going to be in this case but a prisoner cannot consent to sexual relations with a guard yes we have the issue teed up you've got about five and a half minutes once you say your are so extreme and i do also want to i agree that it's appropriate to start with more now because i understand that the eighth amendment issue is a thorny one and there's a lot going on there i think we went on it but i think that the mo now issue is not even close to being a close question and i think we have to look at what the key facts are here we know that the department categorically prohibits this con know the deputy holds some not only was aware that he could be fired for it but he testified that he received that policy manual as part of his training that the wholesome we know went out of his way to hide this affair because he knew he forgot fired we also know that the department does training its deputies we know from sergeant major moto if that happens we know that lieutenant kennedy teaches a class where he talks about it we know that senior deputy robinson teaches a class where he talks about it so we know that there is a system wide program and that is the standard under mo now whether there was a system  wrong if it was true and she immediately confronted him about it and asked him if was happening there's no evidence your honor that she reported it in addition your honor there's no evidence about when she confronted him about that she may have confront she may have learned about it and confronted him about it five minutes before this was reported to the department in five minutes before they took action to figure out what was going on in which case it would have no relevance whatsoever and she found out about it at the same time that the department higher ups found out about it she could have approached him after the department found out about it meaning that she heard about it through the grapevine and one of them asked him we don't know deputy whole time never said there's no evidence in the record about when that happened with her supervisors had absolutely no indication whatsoever that there was anything going on and she was shocked to find out about it or opposing counsel if i heard him correctly argued the facts of the record suggests that was housed in a unit were he didn't work out right for part of the time that this was going on he did work there and was assigned there question factual question is addressed to that period of time during th signals that they use a flashlight flashing where she would bang go into the phone room to make a phone call to him and there were also a few times where because she was a trustee so called and was able to do certain tasks in the jail issue deputy bruna man testified that she was trains on this issue and there's an exhibit attached to her deposition in the record that talks about how to avoid inappropriate dealings  oh no i never received the training they testified i don't remember i don't remember you go through hundreds and hundreds and hundreds of hours of training for six months in the police academy and from the department and they didn't remember dallas ferr testify that i do but he did vaguely recall training that you're supposed to go and talk with supervisor of someone doing something wrong which is another aspect of the training clients but they did not in any point say oh i'm categorically denying that i did  actually if not if the other side can't make money at all they can't make the substance of their claim that right your honor it's any idea underlying saussy and cases like that you tell the world the parameters department had a very prompt and powerful and strong reaction to this once this inmate came forward and reported death which i think undermines the argument that someone had to know about in a department to turn a blind eye to the art department on that really undermines that argument and i also just want to emphasize that this happened with two very fast sexual encounters that happened over a period of six to eight weeks one had been in the middle of december the other one extra hours here you should have had a couple extra documents and writing here you should have done this little thing out for that but the whole point of the city of canton as applied by this circuit is that it's not for this court or for an attorney to be employees in that case it involved allowing a drunk to drive home i think and there was a policy against it then violated their own policy and then with department violated their own polic ny circuit found that just because it was illegal doesn't mean they were necessarily properly trained just because there was a rule and regulation in the sheriff's department prohibiting this type of conduct doesn't necessarily mean that they were properly trained i'm not asking this court to apply and anything except that we are entitled to a trial on the merits of whether or not this regulation in another itself is adequate i mean these are all questions that juries need to to the side not this court it is quite clear that there was a regulation against that wholesome remember no training other deputies remembered no training and there was not one written documents in the hundreds and of training documents that were produced as part of the record in this case is there any evidence that a deputy didn't know that it was wrong not that i could think of i would think matter of law that's necessarily enough i disagree i disagree completely with the notion that we're just trying to nit pick i mean if there was some document there that would be one thing there was a regulation against it i don't think  think you can thank both counsel for their arguments very interesting case which will be submitted for decision and will proceed to the last case on the calendar for this morning which is very persons mcdaniel counsel are present if they come forward