### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 18-1498, 18-1499, 18-2170 & 18-2177 J.K.J. and M.J.J., Plaintiffs-Appellees

,

v.

P OLK C OUNTY and D ARRYL L. C HRISTENSEN , Defendants-Appellants

.

____________________ Appeals from the United States District Court for the Western District of Wisconsin. Nos. 3:15-cv-00428 & 3:15-cv-00433 — William M. Conley

, Judge

.

____________________

A RGUED D ECEMBER 5, 2019

— D ECIDED M AY 15, 2020

____________________

Before W OOD , Chief Judge

, and B AUER , E ASTERBROOK, K ANNE , R OVNER, S YKES , H AMILTON , B ARRETT , B RENNAN , S CUDDER , and S T

. E VE , Circuit Judges

. S CUDDER , Circuit Judge . While con fi ned in the Polk County Jail, two female inmates, J.K.J. and M.J.J., endured repeated sexual assaults at the hands of correctional o ffi cer Darryl Christensen. The two women br ought suit in federal court against Christensen and Polk County. A trial ensued, and the jury heard evidence of Christensen’s horri fi c misconduct over2 Nos. 18-1498, et al.

a three-year period. The County’s wri tt en policy prohibitedsexual contact between inmates and guards but failed to address the prevention and detection of such conduct. Nor did the County provide any meaning ful training on the topic. What is more, toward the beginning of the relevant period,the County learned that another guard made predatory sexual advances toward a di ff erent female inmate. The trial evidence showed that the County imposed minor discipline on the guard but from there took no institutional response—no review of its policy, no training for guards, no communication with inmates on how to report su ch abuse, no nothing. In the end, the jury returned verdicts for J.K.J. and M.J.J. The case against Christensen was open and shut. But a divided panel of this court overturned the jury’s verdict against Polk County, determining that the trial evidence failed to meet the standard for municipal liability under Monell v. Department of Social Services , 436 U.S. 658 (1978). We decided to rehear the case en banc and now a ffi rm the jury’s verdictsagainst both Christensen and Polk County. While the standard for municipal liability is demanding—designed to ensure that a municipality like Polk County is liable only for its ownconstitutional torts and not those of employees like Christensen—the evidence was su ffi cient to support the verdict against the County.

I
J.K.J. and M.J.J. sued Chri stensen and Polk County under 42 U.S.C. § 1983, alleging that the defendants violated theEighth and Fourteenth Amendments by acting with deliberate indi ff erence to a serious risk of harm to their safety and well-being. They also brought a negligence claim under Wisconsin law against the County. The district court consolidatedNos. 18-1498, et al . 3

the cases for trial. The fi ve-day trial ended with the jury fi nding both defendants liable on all claims, and we recount the facts in the light most favorable to that verdict. See Martin v. Milwaukee County, 904 F.3d 544, 547 n.1 (7th Cir. 2018).

A
J.K.J. and M.J.J. su ff ered from addictions and commi tt ed crimes that landed them in the Polk County Jail intermi tt ently between 2011 and 2014. Located in northwest Wisconsin, theinstitution houses up to 160 inmates, including a small number of women, and employs about 27 correctional o ffi cers. Christensen worked for 19 years as one of the guards tasked with protecting the inmates—a duty he severely betrayed. J.K.J. and M.J.J.’s experiences with Christensen were unique but shared a basic pa tt ern. Christensen began by commenting on their appearances—remarks like “nice ass” and“you’re looking good”—with the verbal harassment then escalating to explicit sexual overtures. In time came physical contact, which began with Christensen groping and kissing the women and from there advanced to oral sex and digitalpenetration and eventually to intercourse. J.K.J. could not pinpoint the total number of times Christensen assaulted her but, by way of example, stated that, during a two-month period in the summer of 2012, he insisted on sexual contact every time he was on duty. For her part, M. J.J. estimated that Christensen engaged in sexual contact with her 25 to 75 times. These events spanned about three years. Christensen took steps to conceal his misconduct within the jail. While making inappropriate sexual comments in front of others, he always made su re to take J.K.J. and M.J.J. to hidden areas to engage in the physical contact. Christensen4 Nos. 18-1498, et al.

also instructed both women not to tell anyone of the encounters because, if word got out, he would lose his job and family. For the most part, the women heeded his admonishment and kept the abuse to themselves duri ng their incarceration. J.K.J. and M.J.J. explained their sile nce in terms familiar to manyvictims of sexual harassment and assault—shame, doubt anyone would believe them, and fear of retaliation.But the truth eventually came out. Another county’s investigator called Polk County to report an allegation that Christensen had sexual contact with an inmate. Polk County responded by commencing an intern al investigation, and Christensen resigned upon being co nfronted. A criminal investigation followed and led the Wisconsin Department of Justice to J.K.J. and M.J.J. After expressing initial reluctance to talk, both women eventually felt safe enough to trust the investigators with their stories. Christensen later pleaded guilty to criminal charges and is now serving a 30-year sentence.

B Christensen’s conduct was not the only evidence of sexual misconduct at the Polk County Jail that the jury heard. In 2012, toward the beginning of Christensen’s assaults of J.K.J. and M.J.J., complaints surfaced that correctional o ffi cer Allen Jorgenson had an inappropriate re lationship with a female inmate known as N.S. Sergeant Steven Schaefer brought the complaints to Captain Sco ttNargis, the day-to-day head (effectively the warden) of the jail. Schaefer reported that Jorgenson had touched N.S. on her wa ist and rear end, adding that the complaints did not come as a surprise because “[w]e haveall heard complaints about [Jorgenson’s] inappropriate comments to both inmates and sta ff .”Nos. 18-1498, et al . 5

Captain Nargis responded by partnering with Deputy Sheri ff Steven Moe to investigate the contentions. Although Jorgenson and N.S. denied any wrongdoing, Nargis and Moebelieved lines had been crossed. Indeed, the investigation revealed that Jorgenson not only fl irted with female inmates, but also focused video cameras on the female housing pod for an inordinate amount of time, and fostered an inappropriate relationship with N.S. But Moe testi fi ed that he initially did not believe Jorgenson had a sexu al relationship with N.S.

Based on those fi ndings, Moe and Captain Nargis decided that the right response was to issue a wri tt en reprimand to Jorgenson. As part of doing so they assured Jorgenson that the reprimand was not a “major deal” and he could move on from it. “After having confronted Allen,” Moe testi fi ed, “we felt that it was important that we recognize and support Allen’s prior work history. He was a good employee. He was a go-to employee. We appreciated his e ff orts and his work, so we wanted to salvage him as an employee.” But the issue reawakened when N.S. sent Captain Nargis a le tt er, dated January 19, 2012, expl aining that she had lied in denying the allegations about Jorgenson. At J.K.J. and M.J.J.’s trial, the district court admi tt ed N.S.’s le tt er not for its truth, but for the non-hearsay purpose of informing the jury of allegations of sexual misconduct that Polk County received during the relevant period. N.S. began her le tt er by saying “I’m sorry for lying” and “I would like to tell the truth about the allegations made against Allen Jorgenson” because “[t]here are many things [Jorgenson] has said & done that have been inappropriate ina sexual manner towards me” and other inmates. Before detailing her own account, N.S. em phasized that “I did not tell6 Nos. 18-1498, et al.

the truth [earlier] because [Jorgenson] has told me to keep quiet & said he didn’t wanna get in trouble.” From there N.S. described the following misconduct that “started during my last stay here from 10-27-10 til 7-6-11 & is continuing through my incarceration now”:

 Jorgenson “always makes comments about seeing us in the shower. He always calls it [a] ‘nice show.’”

 He has asked me “what the color of the daywas”—a question about the color of “my underclothes.”

 “He has told me he wants me to ride topless in his boat, [and] he has wanted me to lift my shirt for him while I’ve been here [in the jail] both times.”

 “Many times he’s leaned over the cart to look down my shirt.”

 “Recently he has started touching me.” “Everyone knows he’s doing these things” and“[w]hen he walks me back from the nurses offi ce, visiting anywhere he shoves me & pushes me” and “very recently ... he grabbed mearound my waist & kept his hand there til the KPod door opened then he slapped my bu tt .”

 “[W]hen giving me meds, he’ll look to see if the camera is on us. If not he comes around the cart & touches my back & bu ttas I go back in. One time the camera was on our direction, he said dam[n], I was gonna go in for the kill. Whatever that meant.”Nos. 18-1498, et al . 7

N.S. closed her le tt er by underscoring that “another reason I did not tell the truth [in the initial investigation] is because I don’t want problems with [Jorge nson] or any of the other jailers who will be mad @ me for con fi rming these accusations.” She also explained that she was not candid with her fellow inmates either because “I didn ’t want Allen [Jorgenson] in trouble or mad @ me, making it hell for me here.” Upon receiving N.S.’s le tt er, Deputy Sheri ffMoe and Captain Nargis reopened the prior investigation to take a fresh look at Jorgenson’s conduct. Se rgeant Schaefer also got involved, spoke with N.S. to verify her report, and concluded that she may have been telling the truth at that point. Moe, too, acknowledged at trial that, upon receiving N.S.’s le tt er, he found it “more likely” that Jorgenson had inappropriately or even illegally touched her.

From there, however, Polk Coun ty chose not to revisit its prior disciplinary decision and determined that Jorgenson’s conduct still merited only the prior wri tt en reprimand. Thejail took no further action in response to N.S.’s new allegations. Jorgenson later resigned after an unrelated investigation regarding his female co-workers

. Sexual harassment had appeared in the jail in other ways too. Christensen testi fi ed that he witnessed at least two other jailers, including Allen Jorgenson, make sexual comments to inmates. And then there was the issue of “tier talk,” a term that Captain Nargis agreed re fl ected “not necessarily fl a tt ering talk amongst co-workers in the tier.” By way of example, Captain Nargis con fi rmed hearing that Christensen had made inappropriate sexual comments about women in general and, on one occasion, about an inma te’s breasts. Nargis even acknowledged that “on occasion” he too participated in tier8 Nos. 18-1498, et al.

talk, in an e ff ort to be viewed as part of the group and a trusted leader of the o ffi cers.

C What Polk County had done (and not done) to prevent the sexual abuse of inmates was a key focus at trial. The County established wri tt en policies against the sexual harassmentand assault of inmates. Policy I-100 of the jail’s Policy and Procedures Manual listed inmates’ rights and stated that they were never to be subjected to “verbal, physical, emotional, psychological or sexual harassment” by sta ff . Any harassing

o ffi cer was “subject to disciplinary charges and/or termination.” Another of the Manual’s provisions, Policy C-202, statedthat jail employees were prohibited from fraternizing with inmates, including “[b]eing in an intimate social or physical relationship with a prisoner.” In July 2012, Polk County updated the Manual to include some language from the PrisonRape Elimination Act, a federal statute enacted in 2003 to deter the sexual assault of prisoners. The new language instructed that any sta ffmember or inmate “who knows or reasonably suspects” sexual misconduct was to inform the “Jail Administrator” or, if the comp lainant was an inmate, she could inform a sta ff member, and went on to describe howsuch reports would be handled. The section noted that “Wisconsin State Statutes make it a criminal o ff ense for correctional sta ffmembers to have sexual intercourse or contact with an individual con fi ned in a correctional institution.” See
W IS

. S TAT . § 940.225(2)(h). The 12-page Inmate’s Handb ook also mentioned sexual misconduct, providing: “[e]very inmate has the right to beNos. 18-1498, et al . 9

safe from sexual abuse and h arassment. No one has the rightto pressure you to engage in sexual acts. If you are being pressured[,] threatened, or extorted for sex, you should report this

to sta ff immediately.” As the plainti ff s’ expert would later describe it, however, this information appeared in “very small font; one paragraph in the middle not even headlined, not even with a title on it.” Inma tes received the Handbook during the intake process and were told to read it. At no point,though, did the jail provide the inmates with any further information on how to report sexual misconduct.

Aside from these wri tt en policies, Polk County Jail sta ff received no training (in any se nse of the word) focused on the sexual harassment or assault of female inmates. Few though they are, the details are important. Consider Polk County’s program that required o ffi cers to read a speci fi ed policy each day from the jail’s Policy and Procedures Manual and then to initial a piece of paper and write the policy’s title as proof they did so. For his part, Christensen to ld the jury that most of thetime he just went through the motions of writing down a policy’s title and signing withou t reviewing anything. Even more, the trial record containe d no evidence showing that Captain Nargis or anyone from the County dedicated anyportion of any live training session to reviewing the jail’s written policies or underscoring the necessity of reporting any known or suspected sexual misconduct. Any in-person training that occurred was hidden among the jail’s general training and completely silent on preventing and detecting the sexual assault of female inmates. There was, for example, a county-wide (but not jail-speci fi c) training on sexual harassment that addressed how employees should maintain proper co-worker relationships but which Sergeant10 Nos. 18-1498, et al.

Schaefer clari fi ed was “not anything regarding inmates.” The jury also heard evidence about the jailers’ training on the vague topic of maintaining dist ance from inmates, with no testimony to suggest that training ever touched the topic of sexual assault. Sergeant Schaefer, who helped oversee the training of new o ffi cers, expressly admi tt ed that much. He recalled being taught in “jail school” that he should not “become too close” with inmates or share personal information with them, though he explicitly denied any memory of being told that it was improper for jail o ffi cers to have sexual relationships with inmates. Those vague cautions were repeated to him during on-the-job traini ng in the Polk County Jail. And when Sergeant Schaefer trained others, he gave the same admonishments. While Schaefer agr eed that having sex with aninmate would qualify as being “too familiar,” he did not testify that he ever addressed this topic in any way, including in any training session. Beyond learning that training on sexual abuse was nearly nonexistent, the jury heard a ffi rmative evidence revealing the County’s dismissive a tt itude about preventing and detecting it. The prime example came in th e “tizzy email.” On February 21, 2014, near the end of Christensen’s abuse of J.K.J. and M.J.J., Captain Nargis sent an email to many sta ff members summarizing the contents of a training held the day before, which included the Prison Rape Elimination Act as one of its several topics. Nargis wrote thatit “[s]eems that everyone is in a tizzy to train their sta ff on PREA.” Nargis testi fi ed that he used the word “tizzy” to mean “that there’s a bit of a scramble for, in this particular case, time and a tt ention that seemed to be misplaced.” His email went on to state that, although “[t]here is no requirement for [the jail] to be compliant withNos. 18-1498, et al . 11

everything that [PREA] calls fo r,” the training would “hit the basics.” For their part, J.K.J. and M.J.J. presented evidence on the inadequacy of Polk County’s po licies and training. They did so through the testimony of Je ff rey Eiser, an expert on jail operations. Eiser explained that Congress enacted PREA in response to an “evident” and “p revalent” problem with sexualassault and abuse in jails. He added that PREA’s threefold objectives are “to prevent sexual abuse and harassment, to detect it, and then to respond to it.” But Eiser’s review of Polk County’s policies left him of the conviction that the jail had

su ffi ciently covered only the third base—responding to sexual abuse complaints—but otherwise inadequately addressed prevention and detection. Eiser did not stop there. He then o ff ered concrete examples of ways Polk County could improve its policies. To prevent abuse, a policy could make clear that the institution operates under a zero-tolerance policy on sexual abuse and harassment. It likewise could designate a PREA coordinator,
train sta ff on what to look for and how to report abuse as well as how to make inmates feel comfortable coming forward, take added care with job assignments within the facility, and ensure that all inmates understand their right to be free from sexual abuse and harassment. Similarly, Eiser testi fi ed that, to detect sexual misconduct, a po licy could make sure that the inmates understand what abuse entails, since they may come from life experiences that have blurred the lines of abnormal and normal relationships. Eiser added that a sound policy also would provide a safe, con fi dential way for inmates to report abuse (through, for exampl e, the use of a locked dropbox), instead of pu tt ing inmates in the position of having to12 Nos. 18-1498, et al.

hand a grievance to an o ffi cer who may be friends with the abuser. Polk County’s policy lacked all of these features.

D The jury returned a verdict in favor of J.K.J. and M.J.J. on their claims against both Chri stensen and Polk County. The case proceeded to the damages ph ase, and the jury then heard testimony about the impact the defendants’ conduct has had on the women’s lives. The jury t ranslated that evidence into compensatory damages awards of $2 million each for J.K.J. and M.J.J. The jury further dete rmined that Christensen’s conduct warranted his paying punitive damages of $3.75 million to each woman. Both defendants challenged the jury’s verdicts in post-trial motions. They moved under Rule 59 for a new trial based on errors that they contended th e district court made. Polk County also moved under Rule 50 for judgment as a ma tt er of law, arguing that the trial evidence was legally insu ffi cient to prove J.K.J. and M.J.J.’s § 1983 claims and that it was immune from liability on the state-law negligence claim. The district court agreed on the la tt er point and dismissed the negligence claim, but otherwise left intact the jury’s verdicts on the constitutional claims and denied the request for a new trial. Having presided over the trial, Judge Conley determined that the evidence su ffi ced to allow the jury to fi nd from the “tier talk” alone that “jail o ffi cials not only turned a blind eye,and perhaps even fostered, a culture where inappropriate sexual comments were accepted as the norm.” Highlighting theshowing J.K.J. and M.J.J. made of both Captain Nargis’s learning in 2012 of Allen Jorgenson’s sexual misconduct and his dismissive handling of PREA training in February 2014, JudgeNos. 18-1498, et al . 13

Conley explained that the jury had ample evidence fromwhich to conclude that the County “downplayed the importance of preventing sexual assault and harassment within the jail.” Considered in its enti rety, Judge Conley continued, the evidence supported the jury’s fi nding by a preponderance of the evidence that “if the County had provided adequate notice and training to correctional o ffi cers and inmates on what constitutes sexual harassm ent and abuse, and how to report it, plainti ff s [J.K.J. and M.J.J.] may not have been sexually assaulted and harassed” from 2011 to 2014. This appeal followed.

II Christensen gives us no good reason to upset the jury’s verdict against him. To establish that his conduct violated their Eighth Amendment rights, J.K.J. and M.J.J. had to prove that Christensen acted with deliberate indi ff erence to an excessive risk to their health or safety. See Farmer v. Brennan , 511 U.S. 825, 837 (1994); Sinn v. Lemmon , 911 F.3d 412, 419 (7th Cir. 2018). It was more than reasonable for the jury to concludethat the trial evidence met that standard. To say that the sexual assaults he commi tt ed against J.K.J. and M.J.J. objectivelyimposed serious risk to their safety would be an understatement. And the evidence was equally su ffi cient to show that Christensen knew of that danger. Indeed, he admi tt ed at trial that he knew he was pu tt ing the plainti ff s at risk and that his conduct not only violated prison policy but was criminal.Christensen’s only defense was to try to somehow persuade the jury that J.K.J. and M.J.J. consented to the sexual relations. The e ff ort failed and now on ap peal he contends that the district court erred in not giving the jury a special14 Nos. 18-1498, et al.

instruction on his consent defe nse. Our review of the trial transcript shows that the distri ct court completely and accurately instructed the jury on the elements of the Eighth Amendment claim. No further explanation was necessary to tell the jury how to consider the consent issue. If the jury had bought Christensen’s story that J.K.J. and M.J.J. were willing participants (and, for that ma tt er, even capable of being willing participants under the circumstances), it would have found that the women had not met their evidentiary burdens of proving that he ac ted with deliberate indi ff erence to theirsafety and well-being. But the jury reached no such conclusion. The instructions were su ffi cient. Christensen’s last challenge is to the damages awards. He fi nds them problematic because the jury gave the same amounts to both women. To be sure, the sexual abuse had unique e ff ects on J.K.J. and M.J.J., who each came to Polk County Jail from distinct lives and su ff ered their own personal tragedies. But that does not mean that they necessitated di ff erent compensatory damages amounts, particularly given the psychology expert’s recommen dation of identical courses of treatment for both women. Nor was the jury’s punitive damages award so great as to be unreasonable or outside the bounds of due process. The judgment against Christensen is easily a ffi rmed.

III

A

We now turn to the more di ffi cult question of Polk County’s liability. The County raises a few issues on appeal but only one merits discussion—whether the trial evidence

was su ffi cient to sustain the jury’s verdict. Polk County is notNos. 18-1498, et al . 15

automatically on the hook for Christensen’s unconstitutional acts just because it employed him. Under the familiar holding of Monell v. Department of Social Services , local governmentslike Polk County can be held responsible for constitutional violations only when they themselves cause the deprivation of rights. 436 U.S. 658, 691–92 (1978) . Time and again the Supreme Court has reinforced the strict prohibition against allowing principles of vicarious liability to establish municipal liability under § 1983. See id. at 694–95; see also Bd. of Comm’rs of Bryan County v. Brown , 520 U.S. 397, 403 ( 1997) (collecting cases and reinforcing that the doctrine of respondeat superior does not apply under § 1983).

Monell liability is di ffi cult to establish precisely because ofthe care the law has taken to avoid holding a municipality responsible for an employee’s mi sconduct. A primary guardrail is the threshold requirement of a plainti ffshowing that a municipal policy or custom caused the constitutional injury. See Monell , 436 U.S. at 690–91. “Locating a ‘policy,’” the Supreme Court has emphasized, “ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those o ffi cials whose acts may fairly be said to be those of the municipality.” Bryan County, 520 U.S. at 403–04; see also Glisson v. Indiana Dep’t of Corrs. , 849 F.3d 372, 381 (7th Cir. 2017) (“The critical question under Monell remains this: is the action about which the plainti ff is complaining one of the institution itself, or is itmerely one undertaken by a subordinate actor?”). A municipal action can take the form of an express policy (embodied,for example, in a policy statement, regulation, or decision offi cially adopted by municipal decisionmakers), an informal but established municipal custom, or even the action of a16 Nos. 18-1498, et al.

policymaker authorized to act for the municipality. See Glisson , 849 F.3d at 379. More is required before Monell liability can a tt ach, however. “The plainti ff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bryan County, 520 U.S. at 404. The plainti ff , in short, “must show that the municipal action was taken with the requisite de gree of culpability and must demonstrate a direct causal lin k between the municipal action and the deprivation of federal rights.” Id. ; see also Monell , 436 U.S. at 694 (explaining that on ly when a municipality’s policy or custom “in fl icts the injury” is the entity responsible under § 1983). The most straightforward Monell claims are those in which a plainti ff alleges that an a ffi rmative municipal action is itself unconstitutional. See Bryan County, 520 U.S. at 404–05. In those cases, inferences of culpability and causation are easy, for they follow directly from the municipality’s intentional decision to adopt the unconstitu tional policy or custom or to take particular action. See id . at 405. Consider, for example, a city with a policy authorizing it s employees to take some unconstitutional act in connection with tra ffi c stops after midnight. Deliberate conduct is easily inferred from the intentional adoption of the o ff ending policy. And if a victim of the unconstitutional act emerges as a Monell plainti ff , there will be li tt le doubt that it was the ci ty’s express instruction—not the employee’s independent choice—that caused the injury.
Here, however, J.K.J. and M.J.J. do not claim that Polk County took a ffi rmative action to harm them. To the contrary, their theory of Monell liability roots itself in inaction—in gaps in the County’s sexual abuse policy and its failure to properlyNos. 18-1498, et al . 17

train the jailers in the face of obvious and known risks to female inmates. These failures to act, J.K.J. and M.J.J. contend,were deliberate and together caused their constitutional injuries. The Supreme Court has recognized that Monell liabilitycan arise from such decisions because a “city’s ‘policy of inaction’ in light of notice that its program will cause constitutional violations ‘is the functional equivalent of a decision by the city itself to violate the Constitution.’” Connick v. Thompson , 563 U.S. 61, 61–62 (2011) (quoting City of Canton v. Harris

, 489 U.S. 378, 395 (1989) (O’Connor, J., concurring in part and dissenting in part)); see also Glisson , 849 F.3d at 382 (“[I]n situations that call for procedures, rules or regulations, the failure to make policy itself may be actionable.”). But the path to Monell liability based on inaction is steeper because, unlike in a case of a ffi rmative municipal action, a failure to do something could be inadvertent and the connection between inaction and a resu lting injury is more tenuous. For these reasons, “[w]here a plainti ffclaims that the municipality has not directly in fl icted an injury, but nonetheless hascaused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Bryan County, 520 U.S. at 405.Rigorous though these standards may be, they are not insurmountable. The question before us is whether the evidence presented to the jury was legally su ffi cient to support the verdict against Polk County. The law a ff ords great respect to jury verdicts. As a court of review, our role is limited to policing the evidentiary threshold necessary as a legal ma tt er to meet Monell ’s demands. In doing so, we do not reweigh evidence, assess the credibility of any trial witness, or otherwise a tt empt18 Nos. 18-1498, et al.

to usurp the jury’s role as fact fi nder. See Ruiz-Cortez v. City of Chicago , 931 F.3d 592, 601 (7th Cir. 2019) (“In our Rule 50 review, we give the nonmovant ‘the bene fi t of every inference’ while refraining from weighing for ourselves the credibility of evidence and testimony.”). To the contrary, we must a ffi rm unless there is “no legally su ffi cient evidentiary basis for a reasonable jury to fi nd for the non-moving party.” Woodward v. Corr. Med. Servs. of Ill., Inc. , 368 F.3d 917, 926 (7th Cir. 2004). Against this standard of review, and ever mindful of Monell ’s exacting liability requiremen ts, we turn to the evidence J.K.J. and M.J.J. put before the jury here.

B All agree that Polk County’s wri tt en policies categorically prohibited sexual contact wi th inmates and required responses to alleged violations. But J.K.J. and M.J.J. presented evidence that the policy contained material gaps. The jury heard expert testimony from Je ff rey Eiser about the importance of a policy that does not wait for reports of sexual abuse to trigger an institutional response, but instead contains measures both to prevent the wrongdoing in the fi rst instance and to detect it if it does occur. Eiser spotlighted for the jurythat Polk County’s policy, although addressing incident response, fell far short on prevention and detection. Eiser then explained that an y number of policy measures could have fi lled the gaps at li tt le or no cost to Polk County. Consider the need to detect se xual abuse. The importance of a safe and con fi dential reporting channel—even something assimple as a lockbox available to inmates—cannot be overstated. Under the County’s policy, an inmate seeking to report abuse is left to inform one of 27 employees in a small jail thatNos. 18-1498, et al . 19

she su ff ered a sexual assault at the hands of his coworker. Given the perceived comradery among the male guards andacceptance of sexual harassment at the jail’s highest levels (inferred perhaps foremost from th e “tier talk”), the jury couldhave found that this was not a viable reporting option and indeed re fl ected a meaningful policy gap. Put most simply, the jury could have credited Eiser’s expert testimony as part of fi nding that Polk County’s policy de fi ciency a ffi rmatively deterred the reporting and detectio n of sexual abuse of female
inmates. The policy gaps only widen when the focus turns to the County’s sexual abuse training. Training is important becauseit can educate and sensitize guards as well as shape and reinforce institutional values, brin ging to life words that otherwise exist only on paper. The tr ial evidence showed that the County’s training on preventing and detecting the sexual harassment and abuse of inmates was all but nonexistent. The training consisted almost exclusively of informing guards of the easy and evident—that the jail’s policies prohibited sexual contact with inmates. The only training even addressing the sexual assault of inmates by guards came in a single session on the Prison Rape Elimination Act in 2014, well after much of Darryl Christensen’s abuse of J.K.J. and M.J.J. had occurred, and which he did not even a tt end. And even then the jury— ever mindful of Captain Nargis’s dismissive “tizzy email”— could have found that the County itself hardly took the PREA training seriously. What was missing stands out. The jury heard no evidence of the County informing guards of the inherent vulnerability the con fi nement se tt ing presents to female inmates, educating jailers on the symptoms of an inmate su ff ering from the20 Nos. 18-1498, et al.

trauma of abuse, requiring o ffi cers to report each other’s misconduct, or taking any time to otherwise instruct guards on

ma tt ers of prevention and detect ion, whatever form that might have taken.

The trial evidence makes the bo tt om line plain: the jury could have found that Polk Coun ty’s sexual abuse prevention program was entirely lacking. The policy stated nothing but the obvious—do not sexually ab use inmates. The County then exacerbated the gap by failing to use training as the means of making the policy prohibition a reality (or, at the very least, mitigating risk) within the instit ution. The jury could have tallied these gaps as part of fi nding the conscious, deliberate municipal inaction upon which to rest Monell liability.

C Identifying municipal action—or, as it were, inaction—is only part of the requisite inquiry under Monell . The SupremeCourt has made plain that a failure to act amounts to municipal action for Monell purposes only if the County has notice that its program will cause co nstitutional violations. See Connick , 563 U.S. at 61–62. Demonstrating that notice is essential to an ultimate fi nding and requires a “known or obvious” risk that constitutional violations will occur. Bryan County, 520 U.S. at 410. In many Monell cases notice requires proof of a prior pattern of similar constitutional violations. See id . at 62. This case presents no such pa tt ern. The district court declined to instruct the jury on the th eory because it found insu ffi cient evidence of previous instances of sexual assault known to the County. In so concluding, however, the district courtNos. 18-1498, et al . 21

recognized that J.K.J. and M.J.J. had available another path to show Polk County had the requisite notice. The alternative path to Monell liability comes from a door the Supreme Court opened in City of Canton v. Harris , 489 U.S. 378 (1989). The Court observed that there may, as here, be circumstances in which “the need for more or di ff erent trainingis so obvious, and the inadequacy so likely to result in the violation of constitutional rights” that a fact fi nder could fi nd deliberate indi ff erence to the need for training. Id . at 390. “In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liab le if it actually causes injury.” Id . Put another way, a risk of constitutional violations can be so high and the need fo r training so obvious that the municipality’s failure to act can re fl ect deliberate indi ff erence and allow an inference of instit utional culpability, even in the absence of a similar prior constitutional violation.The Court did not leave the liability point in any way abstract. To the contrary, it gave the express example of “city policymakers [who] know to a mo ral certainty that their police o ffi cers will be required to arrest fl eeing felons.” Id . at 390 n.10. “The city,” the Court continued, “has armed its o ffi cers with fi rearms, in part to allow th em to accomplish the task.” Id. The Court concluded that under those circumstances, “the need to train o ffi cers in the constitutional limitations on the use of deadly force can be said to be ‘so obvious,’ that failureto do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Id . (internal citation omitted). Drawing upon this precise example from City of Canton

, the Court has since reinforced that this doorway to Monell22 Nos. 18-1498, et al.

liability remains ajar. In Bryan County, the Court con fi rmed that City of Canton “did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.” 520 F.3d at 409. The Court explaine d that “in a narrow range of circumstances,” deliberate indi ff erence could be found when the violation of rights is a “highly predictable consequence” of a failure to provide o ffi cers what they need to confront “recurring” situations. Id . And even more recently, in Connick v. Thompson , the Court renewed its prior observations that City of Canton “sought not to foreclose the possibility, however rare, that the unconstitutional co nsequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pa tt ern of violations.” 563 U.S. at 64. Though the Supreme Court has ye t to confront a case that presents a viable Monell claim based on a municipality’s failure to act in absence of a pa tt ern, our court has done so twice. Our en banc decision in Glisson v. Indiana Department of Corrections relied upon City of Canton to hold that an institutioncould be liable for failing to adopt protocols for the coordinated and comprehensive treatmen t of chronically ill inmates. See 849 F.3d at 382. The inaction came at a time when the institution “had notice of the prob lems posed by a total lack of coordination,” but then “despite that knowledge, did nothing for more than seven years to address that risk.” Id. In reasoning fully applicable here, we concluded that a jury could fi nd that the prison knew for certain that its health providers “would be confronted with patients with chronic illnesses, and that the need to establish protocols for the coordinatedNos. 18-1498, et al . 23

care of chronic illnesses is obviou s,” just like it is obvious that police o ffi cers would encounter situ ations where they would need protocols on the us e of excessive force. Id.

And in Woodward v. Correctional Medical Services of Illinois, Inc. , we upheld a jury’s Monell verdict against a jail’s healthcare provider for an inma te’s suicide. See 368 F.3d at 929. The training on suicide pr evention—a requirement under the Eighth Amendment—was so inadequate and sowidely ignored that the contractor was on notice that a constitutional violation was a “highly predictable consequence of [its] failure to act.” Id . at 929 (citing Bryan County, 520 U.S. at409). The trial evidence allowed the jury to infer that policymakers “noticed what was goin g on and by failing to do anything must have encouraged or at least condoned” the misconduct that caused the inmate’s death. Id . at 927. It did not

ma tt er that no one had been hurt before, as the law allowed no “one free suicide” pass. Id . at 929. These teachings from the Supreme Court and our court make plain that Monell liability based on a failure to act, at its core, follows from a showing of constitutional violations caused by a municipality’s deliberate indi ff erence to the risk of such violations. Sometimes th e notice will come from a pattern of past similar violations; other times it will come from evidence of a risk so obvious th at it compels municipal action. But at all times and in all Monell cases based on this theory, the Supreme Court has directed the focus on the presence and proof of “a known or obvious” risk.

D The jury had ample evidence to fi nd that Polk County’s policy failures—both the prevention and detection gaps in its24 Nos. 18-1498, et al.

wri tt en policies and the absence of training—occurred in the face of an obvious and known risk that its male guards would sexually assault female inmates. Start with the County’s a ffi rmative obligation to protect its inmates: “[W]hen the State takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume some responsibility for [her] safety and general well-being.” DeShaney v. Winnebago County Dep ʹ t of Soc. Servs. , 489 U.S. 189, 199–200 (1989). Just as the healthcare contractor in Woodward shouldered a constitutional duty to protect inmates from suicide, Polk County bore the constitutional re sponsibility to protect its inmates from sexual assault. This requirement comes from the Eighth Amendment, because “[b]eing violently assaulted in prison is simply not part of the penalty that criminal o ff enders pay for their o ff enses against society.” Farmer, 511 U.S. at 834.

Now consider the delicate se tt ing for J.K.J. and M.J.J. They

were con fi ned in circumstances where they depended on male guards for nearly everything in their lives—their safety as well as their access to food, medical care, recreation, and even contact with family members. With this authority and control for the guards came power and, in turn, access and opportunity to abuse it. It is di ffi cult to conceive of any se tt ing where the power dynamic could be more imbalanced than that between a male guard and a female inmate. The jury knew that from common sense—the reality was as obvious as obvious could be—and they heard the point reinforced and underscored through the testimon y of J.K.J., M.J.J., and their expert, Je ff rey Eiser. As J.K.J. aptly explained to the jury, “there’s a male fi gure standing in front of me in a uniformNos. 18-1498, et al . 25

with a badge that has authority to do whatever he wants to me.” The con fi nement se tt ing is a tinderbox for sexual abuse. But there was more. J.K.J. and M.J.J. presented evidence that the County was aware of sexual misconduct happening within its jail, rendering the ri sk to female inmates far from hypothetical. The jury learned that Captain Nargis knew of sexual comments male guards made about female inmates.This was especially consequential because Nargis was responsible for creating and implementing the jail’s policies and standards, and his action s therefore could be a tt ributed to the County for the purpose of Monell liability. See Gerne tz ke v. Kenosha Uni fi ed Sch. Dist. No. 1 , 274 F.3d 464, 468 (7th Cir. 2001) (“The question is whether the promulgator, or the actor, as the case may be—in other words, the decisionmaker—was at the apex of authority for the ac tion in question.”); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (employing similar reasoning). Captain Nargis even admi tt ed to himself participating in “tier talk,” jailhouse cha tt er that the jury easily could have found amounted to sexually inappropriate banter—in a word, harassment. The tier talk bespoke volumes about the jail’s culture—the exac t point the district court underscored as part of rejecting Polk County’s Rule 50 motion challenging the jury’s verdict. A reasonable jury could have viewed the jail’s denigrating culture as con fi rming the undeniable risk that a guard would grow too comfortable, lose his be tt er angels, and step over the clear line marked in Polk County’s wri tt en policies. If the County had looked the other way until this point, the notice became undeniable when Captain Nargis learned of Allen Jorgenson’s sexual mi sconduct against inmate N.S. Recall the timing. Nargis learned of Jorgenson’s reported26 Nos. 18-1498, et al.

wrongdoing no later than Janu ary 2012. It was then that N.S. wrote her le tt er explaining the predatory and escalating nature of Jorgenson’s sexual pursuit of her within the jail. Recall, too, the details: N.S. informed Nargis that Jorgenson’s conduct began with watching her (and other female inmates) shower, grew to requests to expo se her body for him, and in
time intensi fi ed to forcibly touching her in a sexual manner— all the while ordering her to “keep quiet.”A reasonable jury could have viewed the County’s learning of Jorgenson’s sexual exploitation of N.S. as sounding an institutional alarm, making it “h ighly predictable,” if not certain, that a male guard would sexually assault a female inmate if the County did not act. Bryan County, 520 U.S. at 409. By that point the risk was not only obvious, but blatantly so. To be certain, the accusation s of Jorgenson’s reprehensible conduct fell short of rape. But it would be naive in the extreme to dismiss the misconduct as no more than boorish behavior or, more to it, providing no incremental notice of an obvious risk. The jury was not compelled to see Jorgenson’s conduct as jailhouse horseplay, as guards somehow just being guards, or anything of the sort. The eviden ce allowed the opposite conclusion: the jury was entitled to conclude that, separate and apart from whatever discipline should befall Jorgenson, the County had a plain example of predatory sexual behavior staring it in the face. It took no imagination for the jury to see parallels between Jorgenson’s esca lating actions, cut short as they were, and Christensen’s earl y abuse of J.K.J. and M.J.J. See Cash v. County of Erie , 654 F.3d 324, 337 (2d Cir. 2011) (upholding a Monell jury verdict because “knowledge that an established practice has proved insu ffi cient to deter lesserNos. 18-1498, et al . 27

[sexual] misconduct can be found to serve [as] notice that the practice is also insu ffi cient to deter more egregious misconduct”). That Jorgenson’s grooming of N.S. did not end with rape is no liability shield; it was good fortune. See Woodward

, 368 F.3d at 929 (“That no one in the past commi tt ed suicide simply shows that [the jail’s he althcare contractor] was fortunate, not that it wasn’t deliberately indi ff erent.”). And with red lights fl ashing, Polk County chose the oneunavailable option—doing nothing. It did not change its sexual abuse policy, institute a t raining, inquire of female inmates, or even call a sta ff meeting. With th e writing on the wall, Polk County deliberately chose to stand still, or at least a reasonable jury could have so concluded. Having taken no action despite the obvious and known risk of sexual assaults in its jail, Polk County could not claima lack of notice, much less surprise, upon learning that Christensen sexually assaulted J.K.J. and M.J.J. The County’s written policies were lacking and its training on the topic wasbarely existent. Even if the County somehow harbored a different perspective, that view became untenable upon learning of Jorgenson’s misconduct. The jury could have viewed the allegations of Jorgenson’s wrongdoing as exposing as false any belief the County may have had that its barebones wri tt en policy and training were enough to protect its female inmates from sexual abuse. The County’s inaction following knowledge that the existing program was not working— Jorgenson’s sexual misconduct underscored that reality—was

su ffi cient to demonstrate deliberate indi ff erence. Or, as the Supreme Court put the same point in City of Canton , the necessity to act, whether by di ff erent training or new preventative measures, was “so obvious” and “the [existing]28 Nos. 18-1498, et al.

inadequacy so likely to result in a violation of constitutional rights” that a deliberate choice to stay the course could beseen as a policy for which Polk County bears legal responsibility. 489 U.S. at 390. We likewise reasoned in Glisson that “the key is whether there is a conscious decision not to take action” and the record allowed a reasonable jury to so fi nd because “the existence of the INDOC Guidelines [addressing the coordination of medical care ], with which Corizon [as the prison’s healthcare provider] was admi tt edly familiar, is evidence that could persuade a trier of fact that Corizon consciously chose the approach that it took”—“not to adopt the recommended polices—not for Glisson, not for anyone.” 849 F.3d at 380, 381. All of this is doubly true when coupled with other evidence of Polk County’s deliberate indi ff erence to sexual abuse. Remember that the Coun ty’s investigation of Jorgenson ended with the considered conclusion that a reprimand was adequate discipline. But even the reprimand came with jail o ffi cials assuring Jorgenson that the censure was “not a big deal.” The jury could have viewed this slap on the wrist as

con fi rming the jail’s broken culture, as explaining why not only the “tier talk” was allo wed to go on—with Captain Nargis himself participat ing in it as a way of fi tt ing in and earning the con fi dence of the guards under his supervision— but also why Nargis’s “tizzy email” evinced such a dismissive

a tt itude toward sexual abuse training. See Cash , 654 F.3d at 338 (holding the jury could infer deliberate indi ff erence to the risk of inmate sexual assault because the jail’s issuance of aone-page memorandum was a “token response” to a prior instance of lesser sexual misconduct).Nos. 18-1498, et al . 29

Viewing this evidence all together, the jury could have found that Polk County did li tt le to reinforce the dignity and respect owed female (and indeed all) inmates and instead seemed to enable a culture thatcondoned the sexual objecti fi

cation of the women in its custody. Through this lens, Christensen’s repeated sexual assaults of J.K.J. and M.J.J. were not the result of a “single instance of fl awed conduct” but rather “based on repeated failures to ensure [the inmates’] safety ... as well as a culture that permi tt ed and condoned violations of policies that were designed to protect inmates.” Woodward, 368 F.3d at 929. Risk that started as obvious (from the con fi nement se tt ing and power dynamic between male guards and female inmates) was fully on display (following the Jorgenson incident) with in an institution that sco ff ed at PREA, denigrated female inmates, and devoted not a word of its policies or a minute of any training session to concrete measures to prevent, detect, and respond to sexual assault. The jury stood on solid evid entiary ground seeing the County’s dormancy as more than oversight, but instead as deliberate inaction. We recognize that policies can always be more robust, andtraining can always be more thorough. PREA is not a constitutional standard, and jails are not required to adopt it. Ourfederal structure leaves the choices to state and local authorities.

Our conclusion is more limited: the risks to female inmates in the con fi nement se tt ing are obvious—indeed, PREA owesits very existence to that reality—and N.S.’s report of Jorgenson’s misconduct reinforced fo r Polk County that the risks were real and acute in the jail . Faced with that notice, the County had a legal obligation to act—to take reasonable steps30 Nos. 18-1498, et al.

to reduce the obvious and known risks of assaults on inmates. See Farmer, 511 U.S. at 844–45; Ortiz v. Jordan , 562 U.S. 180, 190 (2011) (reinforcing Farmer ’s requirement of a reasonable response). Just as a municipality cannot issue fi rearms to new police academy graduates, wish them Godspeed on the streets, and hope the new o ffi cers exercise sound judgmentwhen deciding whether circumstances warrant the use of lethal force—the precise example the Supreme Court provided
in City of Canton —Polk County could not, knowing all that it did about the risk within its ja ilhouse walls, dispatch male guards to stand watch over its female inmates equipped with nothing more than a piece of paper with a fl at instruction notto abuse those under their care. The jury had enough to conclude that Polk County deliberat ely chose a path of inaction when that option was o ff the table.

EMuch of the same evidence proving Polk County deliberately indi ff erent to the constitutional consequences of its inaction likewise illustrates that its indi ff erence was the moving force behind J.K.J. and M.J.J.’s injuries. “The high degree of predictability” that constitutes notice, the Supreme Court has emphasized, “may also support an inference of causation— that the municipality’s indi ff erence led directly to the very consequence that was so predictable.” Bryan County, 520 U.S. at 409–10. Having established that the jury could conclude that the risk of constitutional injury—here, the sexual assaults—was obvious, it took but a small inferential step for the jury to fi nd causation. And inferences were required, for fi nding causation is not a mechanical exercise like working a math problem and ge tt ing an answer, but instead requires jurors to view evidence in its totality, draw on their life experiencesNos. 18-1498, et al . 31

and common sense, and then reach reasonable conclusions about the e ff ects of particular action and inaction.

The circumstantial evidence paved multiple roads for the jury to travel to fi nd that Polk County’s inaction caused J.K.J. and M.J.J.’s constitutional injuries. The assaults did not end until Christensen was reported, giving rise to an eminently reasonable inference that if th e County had put in place someof Eiser’s proposed policies and training to prevent but especially detect sexual abuse, Christensen’s conduct would have been exposed sooner, perhaps by one of his fellow guards. Or it may have been reported by another inmate or even by the victims themselves. J.K.J. and M.J.J. testi fi ed that they did not feel comfortable reporting the abuse while they were still within the jail. N.S. similarly waited before revealing the full extent of Jorgenson’s conduct because she worried he would make it “hell” for her there. If Polk County had di ff erent policies or training, its culture wo uld have changed, including its dismissive and fl ippant a tt itude toward sexual assault, and these women or someone else may have felt able to report the abuse at some point during the three-year period of Christensen’s conduct. Because any of these inferences from the evidence would have been reasonable, the jury wa s entitled to conclude that if Polk County had taken action in response to the glaring risk that its female inmates’ health and safety were in danger, J.K.J. and M.J.J.’s assaults would have stopped sooner, or never happened at all. The County presses a di ff erent view. It sees a guard’s sexual abuse of an inmate as so patently wrong and so plainly prohibited by Wisconsin law and the jail’s policy that no amount of training and no enhancements to the institution’s32 Nos. 18-1498, et al.

code of conduct could have made any di ff erence. And this is especially so, the County urges, given the lengths to which Christensen went to hide his conduct. Put most bluntly, no amount of training, no policy, no monitoring—nothing, literally nothing—could have prevented or detected what he did to J.K.J. and M.J.J., or so the County would have it. The County’s narrow fi xation on Christensen exposes its

error. Monell liability did not hinge on predictions about whether Christensen would have brought himself to stop abusing J.K.J. and M.J.J. Maybe more robust policies could have fostered a zero-tolerance culture in which Christensen would not have felt free to openly harass female inmates, thereby opening the door to hi s escalating abuse. Or they could have caused Christensen to curb his conduct because of a greater risk of detection—whether from closer monitoring, more frequent guard rotations, or a policy preventing male

o ffi cers from being alone with female inmates. But maybe not. The point need not detain us because the evidence allowed the jury to conclude that the Co unty’s acting to institute morerobust policies—foremost addressing prevention and detection—and then training on thos e policies would have resulted in another correctional o ffi cer, an inmate, or even J.K.J. and M.J.J. taking some step to stop Christensen’s sexual assaults.The evidence did not require the jury to accept as inevitable that Christensen’s conduct was unpreventable, undetectable, and incapable of giving rise to Monell liability. Admittedly, “[p]redicting how a hypothetically well-trained o ffi cer would have acted under the circ umstances may not be an easy task for the fact fi nder.” City of Canton , 489 U.S. at 391. Nor was the jury compelled to conclude that the sexual abuse su ff ered by J.K.J. and M.J.J. had on e and only one cause. See WhitlockNos. 18-1498, et al . 33

v. Brueggemann , 682 F.3d 567, 583 (7th Ci r. 2012) (“[T]here is no rule demanding that every case have only one proximate cause.”). The law allowed the jury to consider the evidence in its entirety, use its common sense, and draw inferences as part of deciding for itself. Indeed , the Supreme Court envisioned precisely that approach in City of Canton , observing that the causation inquiry often will be complicated but emphasizing that “judge and jury, doing thei r respective jobs, will be adequate to the task.” 489 U.S. at 391.

* * * Darryl Christensen’s long-term abuse of J.K.J. and M.J.J. more than justi fi ed the jury’s verdict against him. And the jury was furnished with su ffi cient evidence to hold Polk County liable not on the ba sis of Christensen’s horri fi c acts but rather the County’s own deliberate choice to stand idly by while the female inmates under its care were exposed to an unmistakable risk that they would be sexually assaulted—a choice that was the moving force behind the harm in fl icted on J.K.J. and M.J.J. The jury so concluded, and we AFFIRM.34 Nos. 18-1498, et al.

H AMILTON , Circuit Judge , concurring. I join Judge Scudder’s opinion for the court. In light of comments in the dissenting opinions, it is wo rth emphasizing that the Monell claims against the county are based on much more than whether guards knew right from wrong or knew that it was a crime to have sex with inmates. The Monell claims are also based on the county’s failure to monitor its guards and its failure to provide effective channels for complaints so as to discourage such abuse. To illustrate the point, consider an analogy involving only greed, rather than lust and a guard’s horrific abuse of power over inmates. Any bank will trai n its tellers that they should not steal and that theft is a crime. All tellers know that whether they receive the training or not. Suppose, though, that a bank’s managers fail to co nduct regular audits of tellers’cash drawers. Most tellers are honest despite the lack of oversight, but one gives in to temptation. Managers later discover that the one teller has been stealing money for years. The risk of embezzlement, even by tellers who know the law and the rules, is obvious. So is the need for audits. The risk and need are so obvious that the bank’s stockholders could easily findthat its managers (i.e., its policymakers) were not merely negligent but deliberately indifferent (i.e., reckless) toward this obvious and known risk, even if only one teller gave in to the temptation. The same logic appl ies here to Christensen, who repeatedly gave in to the temp tation to abuse his power over
inmates.Nos. 18-1498, et al . 35

E ASTERBROOK, Circuit Judge , dissenting in part. I agree with the majority that the verdict against Christensen is sound and with Judge Brennan that the verdict against Polk County is not. Because this appeal has occasioned so much ink, and my assessment differs somewhat from that of my colleagues, I have concluded that it would be helpful to state briefly why I find the claim against the County lacking. The majority recognizes that the County’s stated policy— no sexual contact between guards and inmates—satisfies the Constitution. It faults the Co unty for failing to train guards about that policy. Yet the Co nstitution does not require training. See Connick v. Thompson , 563 U.S. 51 (2011). Nordoes the Constitution require every municipality to implement current understandings of best practices, such as the Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301–09 (PREA). The duty is to avoid unconstitutional policies. We are supposed to assess the validi ty of the policies—that is to say, the policymakers’ decisi ons—not how well subordinates implement those policies.

Connick is the only decision in which the Justices assessed on the merits a contention that a unit of government violated the Constitution by inadequate training that failed to avertone particular bad outcome. It rejected the claim. The reasons the Court gave are true of the Jail as well. Christensen is the one and only rapist among the guards; no prior, similar incidents notified the County about looming problems. And as soon as supervisors learned of Christensen’s misconduct, the County ended his employment and put him in prison himself. See slip op. 4. This could well have avoided liability for an employer under Title VII of the Civil Rights Act of 1964, a statute that unlike 42 U.S.C. §1983 allows vicarious36 Nos. 18-1498, et al.

liability. See Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998); Faragher v. Boca Raton , 524 U.S. 775 (1998). Liability under Monell v. New York City Department of Social Services

, 436 U.S. 658 (1978), is supposed to be harder and depend on the validity of the policy. One major reason why Connick (and every other decisionby the Supreme Court in which failure to train was advanced as a theory of liability) found no municipal liability is that the Court sees knowledge as the proper goal of training. Canton v. Harris , 489 U.S. 378, 390 n.10 (1989), observed: [C]ity policymakers know to a moral certaintythat their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), can be said to be “so obvious,”that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights. In other words, a policy such as “comply with the Fourth Amendment” is useless to non-lawyers without information about what compliance entails. Is it lawful to shoot a fleeing felon? If the answer depends on ongoing danger, how much danger justifies deadly force? A city that stops with “obey the Constitution” lacks a genuine policy.

Contrast that with Polk Coun ty. One statewide rule, reflected in a criminal law, forbids sexual intercourse or contact between guards and prisoners. Wis. Stat. §940.225(2)(h).Nos. 18-1498, et al . 37

The Jail reinforces this by forb idding “an intimate social or physical relationship with a prisoner”. Another of the Jail’s policies says: under no circumstances will any inmate be theobject of verbal, physical, emotional, psychological, or sexual harassment by facility staff. Any officer engaged in such actions is subject to disciplinary charges and/or termination. I can see a need for explicatio n about “emotional” or “psychological” harassment, but anyone can understand the rule against intimate physical re lations between guards and inmates. The Jail made sure that every guard knew about this rule. What training is required to get guards to grasp it? The problem is not a want of comprehension (as inCanton ’s hypothetical) but a want of compliance . Yet subordinate employees’ failure to comply with a valid policy is not a ground of liability against a municipality. The difference between comprehension and compliance is vital to understanding when training is required. Plaintiffsdo not argue that training is essential to guards’ comprehension. It ought to follow that the County is not liable.I could imagine the possibility of liability—under a theory that a policy is irrelevant if it is nothing but a papertiger—when evidence shows that training makes all the difference between a policy that works and a policy that doesnot. But plaintiffs have not made such an argument. Consider two possibilities that might have been relevant if the goal were to expand liability beyond anything the Supreme Court has yet recognized.38 Nos. 18-1498, et al.

First, was Polk County Jail ri fe with sexual crimes committed by guards? Plaintiffs conc ede that the answer is no. They acknowledge that there ha d not been an instance of improper sexual contact before Christensen. Plaintiffs also acknowledge that the Polk Co unty Jail was no worse on related subjects than other instit utions, some of which used the training programs that the Jail di d not. Plaintiffs’ expert testified that the Jail had a “good” record overall. My colleagues in the majority refer to “the jail’s broken culture” (slip op. 28) but do not compare the Jail with the results achieved by other institutions that require guards to spendmore time in training. If training does not improve outcomes, its absence cannot spoil an otherwise valid policy. Second, does the social science literature, or any expert evidence in this record, show that more training achieves better compliance with simple rules such as “no intimate contact between guards and inma tes”? The plaintiffs did not offer any such evidence, their expert conceded that there is none, and my search through scholarly sources did not turn any up. Unless evidence shows th at more training markedly decreases the prevalence of sexual misconduct by guards (or by employees at private firms), liability based on the lack of such training is just vicarious liability by another name. Law schools must offer courses in legal ethics, because education can be vital to understand complex doctrines such as the attorney-client privilege and the rules against conflict of interest. But law schools do not try to “train” law students not to steal from clients’ trust funds or rape people who come to them in search of advice. Implementing rules against theft and rape does not depend on imparting infor-Nos. 18-1498, et al . 39

mation to would-be lawyers, so training is not how to achieve compliance. Threats of criminal prosecution or losing one’s livelihood offer better prospects of deterring malicious conduct. Polk County threatened guards with both kinds of punishment, and it carried through against Christensen. Those steps show vividly that the Jail does not tolerate sexual abuse of prisoners—that the policy is not just a cynical attempt to deflect liability. I do not see anything in the Constitution thatprevents a county from electing deterrence and incapacitation as the means of enforcing its policies.A belief that people can be trained (or perhaps conditioned) not to commit crimes underlies the rehabilitation model of criminal punishment. But many years of scholarly study failed to produce support for that model, which hasbeen abandoned. Today punishment for the purpose of rehabilitation is forbidden, at least in the national courts. See 18 U.S.C. §3582(a); Tapia v. United States , 564 U.S. 319 (2011).Faith in the power of training to reduce crime is no more appropriate when applied to suits under §1983. In sum, plaintiffs have not tried to show that the rule against guards’ intimate contact with prisoners is hard to understand (in general, or for the Jail’s guards in particular). That leaves nothing for a jury to consider. The suit fails for legal reasons. Evidence that earlier violations of the Jail’s policy were tolerated by slaps on the wrist would be better proof that the “real policy” differed from the written one, but only if the toleration were attributable to the County rather than to subordinates. If policymakers create a valid rule that is sabo-40 Nos. 18-1498, et al.

taged by persons lower in the hierarchy, liability is supposed to fall on those persons rather than the governmental entity. That is how Monell differs from respondeat superior.At all events, in a case based on a theory of singleincident liability, which is how my colleagues treat this suit,evidence about laxity concerning less-serious matters is irrelevant. Consider Connickonce again: The Justices recognized that the prosecutor’s offi ce in Orleans Parish had violated the Brady doctrine repeatedly but held that this did not show a toleration of wrongdoing. If that was not enough in Connick , the Jail’s failure to control lewd talk or do more in response to one guard’s sexual harassment is categorically insufficient to make the County liable for a different guard’s
rapes. The question under Monell is not whether the County could have done better at inducing compliance with its rules. With the benefit of hindsight, that’s always possible.The question is whether the County had a constitutional policy. If Monell is to be overruled, and vicarious liability established, that should be done forthrightly (and by the Supreme Court), rather than via the ro undabout route the majority has devised.Nos. 18-1498, et al . 41

B RENNAN , Circuit Judge , with whom B AUERand S YKES , Circuit Judges , join, dissenting in part. The majority opinion holds a municipal employer liable under § 1983 for a failure to train and a failure to supplement policies because its employee did what those policies and training expressly forbade him to do.Liability is based on the single-incident theory hypothesized in City of Canton, Ohio v. Harris , 489 U.S. 378, 390 n.10 (1989). The “rare” and “narrow ci rcumstances” under which that theory applies do not fit here. Connick v. Thompson , 563 U.S. 51, 63, 64 (2011). Nor does th is case meet the stringent fault and causation requirements set by the Supreme Court to prove § 1983 liability. The majority opinion upholds a jury verdict finding a county liable for a jail guard’s repeated rapes of two inmates. It does so without any evidence that Polk County actually and directly caused the plaintiffs’ te rrible injuries, and no affirmative link between the County ’s policies and the guard’s
crimes.It is undisputed that these horrible crimes were perpetrated without the County’s knowle dge. It is also undisputed that no pa tt ern of similar violations put the County on notice of a need for speci fi c training that would have prevented these sexual assaults. Yet the majority opinion concludes the same evidence that failed to show notice under pa tt ern liability shows notice under single incident liability, as well as causation.

This court’s decision stands alone, unaided by precedent. The Supreme Court has never ruled that a Monell claim based on a municipality’s failure to act is viable in the absence of a42 Nos. 18-1498, et al.

pattern. No federal appellate court has extended the singleincident exception to the sexual assault context. Nor has a federal appellate court applied that exception when the employee’s compliance with the municipality’s policy and training would have prevented the injuries. And no federal appellate court has held that specialized training is required for an employee to know that rape is wrong. Because the legally de fi cient constitutional claim against the County never should have gone to the jury, I respectfully dissent in part. 1 I. Background

The facts as I understand them are described below, recounting the evidence in a lightmost favorable to the verdict against the County, Martin v. Marinez , 934 F.3d 594, 596 (7th Cir. 2019), and noting disagreemen t with how some facts are set forth in the majority opinion. M.J.J. and J.K.J. were female inmates at Polk County Jail at various times between 2011 and 2014, and guard Darryl Christensen admits he covertly and repeatedly sexually assaulted them. Plaintiffs suffere d serious injustices and traumatic injuries because of Christensen. The question iswhether Polk County bears legal responsibility for Christensen’s actions.

A. Trial Evidence Plaintiffs made four principal allegations against theCounty at trial: (1) the jail’s sexual assault policies and training were inadequate; (2) the jail tolerated sexually offensive

1 The majority opinion is correct that Christensen’s appeal fails, and this dissent is limited to the question of the County’s liability.Nos. 18-1498, et al . 43

comments by guards; (3) a form er guard’s alleged misconduct shows the jail’s sexual assault policy was deficient; and (4) the jail underutilized recommendations under the Prison Rape Elimination Act, 34 U.S.C. §§ 30301–09. After considering the evidence in support of these allegations, the jury reached a verdict against the County.

1. Policies and training The jury considered several County policies prohibiting sexual contact between guards and inmates. Two stand out.Policy I-100 forbids any mistreatment or harassment of inmates, explains inmates’ rights, and instructs staff that it is never acceptable for “any inmate [to] be the object of verbal, physical, emotional, psychologi cal, or sexual harassment by facility staff.” The policy continues, “[a]ny officer engaged in such actions is subject to disci plinary charges and/or termination.” Similarly, policy C-202 prohibits any “intimate social or physical relationship with a prisoner.” That policy also informs jail staff that sexual cont act with any inmate is a criminal offense under Wisconsin law and any officer that suspects such conduct has a duty to report it. See Wis. Stat.§ 940.225(2)(h) (categorizing sexual contact and sexual intercourse by a correctional staff member with an inmate as a Class C felony). In language consistent with these policies, inmates are provided a handbook upon arri val at the jail that says:Every inmate has the right to be safe from sexual abuse and harassment. No one has the right to pressure you to engage in sexual acts. If you are being pressured threatened, or extorted for sex, you should report this to staff immediately.44 Nos. 18-1498, et al.

Plaintiffs’ opinion witness on prison training standards, Jeffrey Eiser, testified that the ja il’s policies prohibited sexual contact between inmates and guards. Eiser also corroborated that the County trained Christensen that sexual contact with inmates was a felony and against jail policy. Christensen said the same. At trial he acknowledged the jail trained him thatsexual contact with inmates is against jail policies and a felony. Specifically, Christensen testified:

 He knew his assaults violated jail policy;

 He was trained his assaults were a crime;

 He knew he was putting plaintiffs at risk;

 He never forgot that sex with inmates was a crime; and

 He did not require more training to know his assaults
were a crime. The jail’s onboarding and cont inuing education programs also instruct employees that sexual contact with prisoners is a crime and never permitted. The Wisconsin Department of Corrections annually approved these programs, requiring: (1) eight to ten weeks of “field t raining,” during which a new corrections officer shadows an experienced officer to learn jail policies and procedures; (2) completion of a 160-hour jail training program to become a ce rtified corrections officer; (3) 24 hours of continuing education each year to be recertified; and (4) daily training, which includes specific training on the jail’s prohibition against f raternizing with inmates. The majority opinion expresses concern that “the trial record ... contained no evidence showing that ... anyone from the County dedicated any portio n of any training session to reviewing the jail’s written policies.” Majority op. at p. 9. But Sergeant Steven Schaefer of the Polk County’s Sheriff’s de-Nos. 18-1498, et al . 45

partment, who worked at the jail from 2002 until 2015, testified that “[o]ne of the methods of training within [the] jail wasto have jail staff review policies on a routine basis.” “[T]raining on policies related to improper sexual relations or improper relationships with inmates,” Schaefer continued, were part of that “routine traini ng,” including policies I-100 and C-202. Despite Schaefer’s testimon y to the contrary, plaintiffs’ counsel told the jury during closing argument: “You heard Sergeant Schaefer say, ‘We never trained on it. We never trained on it. We never trained on it.’” Plaintiffs’ counsel continued that misrepresentation intheir appeal brief which declares: “Sergeant Steven Schaefer also testified to never receiving any training regarding sexual assault”; and Schaefer “agreed that [he] received no t raining on sexual assault at any time.” Appellees’ Br. at 13. In addition to the training ab ove, Schaefer testified “[correctional officers] were all required to attend” countywide training on sexual harassment, and he provided the training to new employees from time to time. This training, according to Schaefer, instructed guards on the jail’s numerous prohibitions on conduct between staff and inmates, including improper comments, becoming too close or too familiar, sharingpersonal information, sexual relationships, and sexual assaults. Schaefer agreed that improper relationships between inmates and guards was “something that the jail as a whole took very seriously.” Consistent with that concern, Schaefertestified that “Christensen had dishonored and disgraced everything the sheriff’s department was about” and that Christensen’s behavior was “a bet rayal of the [jail’s] ethical standards.”46 Nos. 18-1498, et al.

The majority opinion describes the County’s training as “vague cautions” and “nearly no nexistent.” Majority op. at p. 10. It states the jury heard evidence about jailers’ training onmaintaining distance from inmates, but “no testimony to suggest that training touched the to pic of sexual assault” and that Schaefer “expressly admitted that much.” Id . It also states thatSchaefer “denied any memory of being told that it was improper for jail officers to have sexual relationships with inmates.” Id

. Schaefer testified differently th an that. He stated when he trained new jail officers, he trained them not to engage in too familiar relationships with inmates, and that “too familiar” would include an officer having sex with an inmate. He also agreed the jail’s training included training on policies about“improper sexual relations or improper relationships with inmates.” Schaefer also attested he received training on Polk County Jail’s policies including C-202 (fraternization with inmates) and specifically those pr ovisions prohibiting physical relationships with prisoners.

2. Inappropriate speechPlaintiffs alleged that jail staff routinely made sexually inappropriate comments about female inmates. They pointed to Captain Scott Nargis, who oversaw daily operations of the jail. During Nargis’s adverse ex amination at trial, plaintiffs’ counsel asked if he ever “engaged in tier talk which is not necessarily flattering talk amongst co-workers,” and Nargis responded “yes.” Nargis also agreed that he participated in tiertalk “on occasion” to establish trust among subordinate officers. When Nargis admitted to “tier talk,” he did so withinplaintiffs’ definition (“not necessarily flattering talk”). Plaintiffs did not present evidence that tier talk connoted “sexualNos. 18-1498, et al . 47

talk,” that Nargis’s “tier talk” was sexually explicit, or that Nargis made comments sexual in nature with, about, or around inmates or guards. The only reference at trial to “tier talk” occurred during plaintiffs’ cross-examination of Nargis. 2The majority opinion accepts plaintiffs’ new, sexuallycharged definition of “tier talk.” Majority op. at p. 19 (finding that “tier talk” implied “acceptance of sexual harassment at the jail’s highest levels”). 3 While this court views the facts in the light most favorable to the ju ry’s verdict, it need not draw unreasonable inferences, see Tindle v. Pulte Home Corp. , 607 F.3d 494, 496 (7th Cir. 2010), or define terms differently than they were used at trial. The evidence at trial of sexually inappropriate remarks byjail staff was as follows: (1) J.K.J. testified two officers overheard Christensen making flirtatious comments to inmates;(2) Christensen testified he overheard three guards make sexual comments to inmates; and (3) Nargis testified that over atwelve-year period Christensen made one sexually inappropriate comment and “it could have happened” that Christensen made another.

2 Plaintiffs’ counsel in their appeal brief were less than candid with this court when they wrote: “Captain Narg is routinely engaged in sexually explicit ‘tier talk.’” Appellees’ Br. at 14.

3 The district court’s order on the County’s Rule 50 motion also assumes “tier talk” had a sexual implication despite the lack of any trial evidence or definition that “tier talk” included a sexual component. See Opinion and Order at 8–9, J.K.J. v. Polk Cty. , No. 15-CV-428 (W.D. Wis. Feb. 5, 2018), ECF No. 279.48 Nos. 18-1498, et al.

The specifics of these comments are as follows: The flirtatious comments overheard by J.K.J. and Christensen wereunreported, unspecific, and undated. Neither J.K.J. nor Christensen offered details on the alleged comments or the timeframe in which they occurre d, and there was no evidence the County had notice of these comments. Nargis testified that during Christensen’s twelve-year employment, he didnot recall but “it could have happened” that Christensen commented on a female’s “rear end. ” Nargis also recalled being told that Christensen once remarked about an inmate’s breasts. The majority opinion ex trapolates from these two instances when it states: “Captain Nargis confirmed hearing that Christensen had made inappropriate sexual comments about women in general.” Majority op. at p. 7.

3. Investigation of former guard
No one disputes that Christ ensen’s assaults were unprecedented and hidden from jail officials. Apart from Christensen, the jail’s history contains only one other allegation of sexual contact between a jail guard and an inmate: another inmate saw guard Allen Jorgeson put his arm around inmate N.S.’s waist and “pat her on the butt.” This occurred in 2012, two years before Christensen’s assaults were discovered. 4 Schaefer reported these allega tions to Nargis, who in turn questioned Jorgenson and N.S. individually. Each denied any improper relationship or contact. Despite these denials,Nargis requested the assistance of Chief Deputy Sheriff Steven Moe to further investigate Jorgenson.

4 Christensen’s assaults began in 2011, and the County first learned of them on October 29, 2014.Nos. 18-1498, et al . 49

The findings of that investigat ion revealed that another inmate believed Jorgenson and N.S. had an “inappropriate relationship” but “no physical re lationship,” and that Jorgenson allegedly misused a jail camera to focus on female inmateslonger than necessary. Nargis and Moe did not limit their investigation to internal inquiries, reaching out to former inmates as part of their review. Because of inconsistent witness accounts, including N.S.’s deni al, Nargis and Moe could not confirm that Jorgenson engaged in any sexual contact with N.S. They did conclude that Jorgenson’s affiliation with N.S.violated jail policy. As a result, Jorgenson was issued a written reprimand. Up until this point, N.S. continued to deny Jorgenson acted improperly. Days after Jorgenson’s repriman d, N.S. recanted her denials in a letter to Nargis. N.S.’s letter stated that Jorgenson made sexually harassing gestures and indecent remarks, and said Jorgenson put his arm around N.S.’s waist and touched her ”back and butt.” As a result of this letter Nargis and Moe reopened the investigation “to ta ke a whole fresh look at the situation.” After this second review, Nargis and Moe againcould not confirm N.S.’s allegations and decided the reprimand of Jorgenson remained the proper level of discipline. At trial, no evidence was submitted that Nargis or Moe erred in the Jorgenson investigation or performed their inquiries in bad faith. Jorgenson made sexually in appropriate comments to female coworkers, which the County does not dispute. Whenstaff first notified jail authorities of Jorgenson’s behavior towards coworkers, an investigat ion ensued, leading to Jorgenson’s resignation. It is undisp uted that Jorgenson’s comments to staff went unreported until the N.S. investigation. It is also50 Nos. 18-1498, et al.

undisputed that in the nine years preceding trial, 14,100 inmates came though the jail, an d the Jorgenson circumstance was the only known allegation of an improper relationship between a guard and an inmate. The majority opinion recounts N.S.’s letter in detail. Theletter was admitted, however, only for the limited, non-hearsay purpose of notice. The lette r could not be considered on its merits, which the majority opinion appears to do. Majority op. at pp. 26–27 (“That Jorgenso n’s grooming of N.S. did not end with rape is no liability sh ield; it was good fortune.”). On Schaefer’s testimony about Jorgenson, the majority opinion states “Schaefer reported that Jorgensen had touched N.S. on her waist and rear end, adding that the complaints didnot come as a surprise because ‘[w]e have all heard complaints about [Jorgenson’s] inappropriate comments to both inmates and staff.’” Majority op. at p. 4. But Schaefer’s quotedtestimony spoke of improper comments, not improper touching. As to those comments, Schaefer could not recall an example of Jorgenson making an im proper comment to an inmate. Schaefer also testified that no ne of the Jorgenson comments tostaff or inmates that he knew of rose to a level requiring discipline.

4. Prison Rape Elimination Act (PREA)
PREA played a large role in plaintiffs’ case. They argued the jail failed to implement its policy recommendations, showing a lack of concern for pr eventing and detecting sexualassaults. Plaintiffs claimed Nargis openly “denigrated ... PREA standards.” For this assertion, plaintiffs cited a 2014 email from Nargis to jail staff which stated:Nos. 18-1498, et al . 51

Seems to be that everyone is in a tizzy to train their staff on PREA. There is no requirement for use [sic] to be compliantwith everything that the law calls for, but nevertheless it is federal law. So we’ll hit the basics of PREA training.At trial plaintiffs called this the “tizzy” email. Plaintiffs argued Nargis’s choice of the word “tizzy” was “mocking” of PREA and “indicat[ed] that he disliked PREA.” Plaintiffs also claimed the email never discussed any specific PREA measures, but merely restated th e jail’s current anti-sexual assault policies. Plaintiffs argued the “tizzy” email proves that Nargis and the jail “consciou sly disregarded” PREA standards and thus disregarded the riskof sexual assaults at the jail. Plaintiffs’ opinion witness Ei ser grounded his testimony on PREA’s recommendations, opin ing that the jail’s sexual assault policies and training were inadequate because they didnot fully adopt several components of PREA. Eiser also testified there is no empirical data that compliance with PREA yields better results. And he conceded that PREA-compliance is not mandatory for county jails in Wisconsin, and that its standards are better viewed as “best practices.” Eiser agreedthe County had a good record on sexual assaults—even factoring in Jorgenson’s misconduct— because of the lack of incidents of sexual contact between guards and inmates, much less criminal sexual assaults like Christensen’s.

Plainti ff s agreed that state law, not PREA, governs county jails in Wisconsin, but they o ff ered no evidence that the jail’ssexual assault policies or training fell below state legal or administrative standards. As for compliance with state law, the County presented evidence that the Wisconsin Department of52 Nos. 18-1498, et al.

Corrections annually reviews th e jail’s policies, including its policy prohibiting fraternization wi th inmates. In each year of plainti ff s’ incarcerations, that Department found the jail to be in full compliance with all applicable Wisconsin statutes and regulations. Language addressing PREA was added to the jail’s anti-fraternization policy in 2012, with an accompanying PREA training in 2014. II. Municipal Liability and the Law of Monell Municipal liability under § 1983 as set by the SupremeCourt has traveled a winding route. But that route has a constant beacon to courts: each ca se examines what federal power may be exercised over state and municipal governments and considers the Court’s desire to harmonize § 1983 with thestructural limits of federalism. These precedents are dispositive here and warrant detailed review before their application. They prescribe a differentoutcome than reached by my colleagues in the majority.

The first is Rizzo v. Goode , 423 U.S. 362, 365–66 (1976), in which the Court struck down a district court order requiring police training reforms for violating federalism principles.The Court held “there was no affirmative link between the occurrence of the various incident s of police misconduct and the adoption of any plan or policy by petitioners ... showing their authorization or approval of such misconduct.” Id . at 371. The Court also dismissed plaintiffs ’ argument that “even without a showing of direct responsib ility for the actions of a small percentage of the police force,” the local government’s failure to act in the face of a pattern is actionable. Id . at 375–76. TheCourt distinguished the mere failure to act in the face of a pattern of incidents from “active conduct,” rejecting the argument that a pattern alone crea tes a “constitutional duty” toNos. 18-1498, et al . 53

develop preventative procedures to deter speculative abuses. Id . at 372, 375–76, 378. The Court also rejected “invocation of the word ‘pattern’ in a case where ... the defendants are not causally linked to it.” Id . at 375–76.

Federalism, the Court made clear in Rizzo , governed its holding. Id . at 377–80. The district court’ s injunctive relief, the Court ruled, had “departed from the[] precepts” of federalism “[w]hen it injected itself ... in to the internal disciplinary affairs of this state agency.” Id . at 380. “[T]he principles of federalism,” the Court admonished , “play such an important part in governing the relationsh ip between federal courts and state governments ... .” Id . And those principles apply when relief is sought against local governments. Id

. Rizzo formulated the heighten ed causation requirement between a policy and a constituti onal violation now integral to all § 1983 claims. See Polk Cty. v. Dodson , 454 U.S. 312, 326 (1981) (citing Rizzo , 423 U.S. at 370–77, for the proposition thatan official policy “must be the moving force” of the constitutional violation). It also constrained federal courts from “second-guessing municipal employee-training programs” to avoid “implicat[ing] serious questions of federalism.” Canton

, 489 U.S. at 392 (citing Rizzo , 423 U.S. at 378–80).

In Monell v. New York City Dept. of Social Servs. , 436 U.S. 658 (1978), the Court adopted Rizzo’s federalism-influenced requirements and set parameters for establishing municipal liability. In Monell , the Court considered “[w]hether local governmental officials and/or local independent school boards are ‘persons’ within the meaning of 42 U.S.C. § 1983.” Id . at 662. Based on “[a] fresh analysis of the debate on the Civil Rights Act of 1871,” id . at 665, the Court held that the Act54 Nos. 18-1498, et al.

“compell[ed] the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.” Id . at 690. So local governments could properly be sued as “persons” within the meaning of § 1983. Although Monell exposed municipalities to § 1983 lawsuits, the Court circumscribed how that statute applied tothem. In particular, the Court limited claims against municipalities in two ways by holding that liability under § 1983 cannot be predicated on a theory of respondeat superior, and that a municipality’s own policy or custom must be the “moving force” behind the constitutional violation. Id . 691–92. The Court interpreted the statute’s us e of the verbs “subject[s], orcauses to be subjected” as requiring a municipality’s direct involvement, as opposed to liability on a vicarious basis. Id . at 692. Thus, the court ruled that th e “mere right to control without any control or direction be ing exercised” cannot support § 1983 liability. Id . (citing Rizzo , 423 U.S. at 370–71). For those reasons, a local government is liable under § 1983 only “when execution of a government’s policy or custom ... inflicts the injury.” Id . at 694. The policy or cust om must be the “moving force” behind, or actual cause of, the constitutional injury. Id

. The municipality in Monell officially adopted an unconstitutional policy, so the municipality itself “unquestionably” caused the constitutional violation. Id . at 690, 694–95. Monell left unanswered whether plaint iffs could establish municipal liability by alleging unofficial po licies, especially those of municipal inaction or inadequate training, such as here. Over three decades the Court has filled in those blanks. Each timethe Court has set the requirements to establish municipal liability for failure to train, liabili ty has become more difficult toNos. 18-1498, et al . 55

find. These decisions always steer clear of respondeat superior

.Underlying those decisions, and the requirements they impose, are the federalism principles articulated in Rizzo and the Court’s intent to harmonize § 1983 with those principles. First of the municipal training cases was City of Oklahoma City v. Tuttle , 471 U.S. 808 (1985). In Tuttle , seven Justices rejected an instruction that perm itted the jury to infer liability attributable to inadequate traini ng from a single incident of unconstitutional activity by a non-policymaking employee. Id . at 821 (plurality opinion) ( “We think this inference unwarranted ... [because it] allows a § 1983 plaintiff to establish municipal liability without submitting proof of a single action taken by a municipal policymaker.”); id . at 830 (Brennan, J., concurring in part and concurring in the judgment) (“Under the instruction in question, the jury could have found the city liable solely because [the office r]’s actions on the night in question were so excessive and out of the ordinary. A jury finding of liability based on this theory would unduly threaten petitioner's immunity from respondeat superior liability.”). Four years later, the Court further shaped the contours of inadequate training liability in Canton . There, the plaintiff sued the city for failing to adequately train its police when to summon medical care for inju red detainees. 489 U.S. at 381. On the question of fault, the Co urt held that a claim of inadequate training triggers municipal liability “only where the failure to train amounts to delib erate indifference to the rights of persons with whom [municip al employees] come into contact.” Id . at 388. A municipality can be liable under § 1983 “[o]nly where a failure to train re flects a ‘deliberate’ or ‘conscious’ choice” not to fully train employees. Id . at 389. Such a56 Nos. 18-1498, et al.

deliberate choice could be shown when “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious , and the inadequacy so likelyto result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Id . at 390 (emphasis added).

Canton offered two examples of what “so obvious” means. First, police may “so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers.” Id . at 390 n.10. 5 In the second example, the Court left open the possibility—now known as the “single-incident theory”—that a pattern of similar violations might not be necessary to show deliberate indifference. Toprevail under this theory, a plaintiff must prove that municipal “policymakers know to a moral certainty” that its employees will confront a given situat ion and fail to train for it. Id

. To illustrate a single incident scenario, the Court posed the hypothetical of a city that arms its police force with guns and deploys those officers into the public without training. As the

5 Expounding on this principle, and foreshadowing the Court’s holdings
in Bryan Cty., Okl. v. Brown , 520 U.S. 397, 407–08 (1997), and Connick v. Thompson , 563 U.S. 51, 62 (2011), Justice O’Connor wrote in concurrence: “[M]unicipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations ... .” City of Canton, Ohio v. Harris , 489 U.S. 378,397 (1989) (O’Connor, J., concurring in part and dissenting in part). “Allowing an inadequate training claim” without proof of a pattern “to go to the jury based upon a single inci dent,” Justice O’Connor continued, “would only invite jury nullification of Monell .” Id . at 399.Nos. 18-1498, et al . 57

Court explained, given the known frequency with which police encounter fleeing felons pl us the “predictability that an officer will lack specific tools to handle those situations,” “the need to train officers in the constitutional limitations on the use of deadly force ... can be said to be ‘so obvious’ that the failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Id . at 390 n.10; see also Connick , 563 U.S. at 63 (explaining same) (quoting Bryan Cty.

, 520 U.S. at 409). But in either scenario, a plaintiff cannot establish that a municipality acted with deliberat e indifference for failing to train employees for rare or un foreseen events. Relying on Rizzo , the Court in Canton stressed the need for a rigorous fault standard because:
[A] lesser standard of fault would result in de facto respondeat superiorliability on municipalities ... . It would also engage federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suitedto undertake, as well as one that would implicate serious questions of federalism.

Id . at 392 (citing Rizzo , 423 U.S. at 378–80).

As for causation, Canton cautioned that just because “a particular officer may be unsa tisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program.” Id . at 390–91 (citations omitted). “And plainly, adequately traine d officers occasionally make mistakes; the fact that they do says little about the training58 Nos. 18-1498, et al.

program or the legal basis for holding the city liable.” Id . at 391. “Neither will it suffice,” the Court stated, “to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.” Id . Only when a plaintiff “prove[s] that the deficiency in training actually caused the [employee]’s indifference” can liability attach. Id . Even more, “the identified deficiency in a city’s training program must be closely related to the ultimate injury.” Id . at 391.

In Canton

, the Court gave reasons for this stringent causation standard. A failure-to-trai n claim “could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recu rring situations with which they must deal.” Id . And “[i]n virtually every instance where a person has had his or her consti tutional rights violated by a city employee, a § 1983 plaintiff w ill be able to point to something the city ‘could have done ’ to prevent the unfortunate incident.” Id . at 392 (quoting Tuttle , 471 U.S. at 823 (plurality opinion)). Eight years later, the Court imported Canton ’s failure-totrain principles into the hiring context in Bd. of Cty. Comm’rs of Bryan Cty. v. Brown , 520 U.S. 397 (1997). There a deputysheriff who caused the plaintiff’s injury had received no training in proper pursuit and arrest techniques. Id

. at 400–02. The Court addressed whether the coun ty’s decision to hire the offending deputy sheriff triggered liability under Monell : “Where a plaintiff claims ... the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liableNos. 18-1498, et al . 59

solely for the actions of its employee.” Id . at 405 (citing Canton 489 U.S. at 391–92, and Tuttle , 471 U.S. at 824 (plurality opinion)). And “[w]here a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superiorliability.” Id . at 415.

“ Canton makes clear,” the Court explained in Bryan County, that “deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Id . at 410 (internal quotation marks omitte d). A “plaintiff must demonstrate that a municipal decisionreflects deliberate indifference to the risk that a violation of a particularconstitutional or statutory right will follow the decision.” Id . at 411 (emphasisadded). In other words, the deprivation of a federally protected right must be the “plain ly obvious consequence” of the municipality’s decision. Id

. Bryan County instructs courts to focus on the particular constituti onal violation that occurred, not constitutional violations in general. Subject to this particularity requirement, Bryan County identified three ways a municipality could be liable for inadequate training. First, “[i]f a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice th at a new program is called for.” Id . at 407. Second, “the existence of a pattern of tortious conduct by inadequately trained employees may tend to showthat the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the ‘moving force’ behind the plaintiff's injury.” Id . at 407–08. And third, the single-incident theory as laid out in Canton , 489 U.S. at 390 n.10: in a “narrow range of circumstances, a violation of federal60 Nos. 18-1498, et al.

rights may be a highly predictable consequence of a failure to equip law enforcement officers wi th specific tools to handle recurring situations.” Bryan Cty. , 520 U.S. at 409. In this third scenario, liability hinges on the likelihood that “a violation of a specific constitutional or stat utory right” will recur and “the predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights.” Id . at 409. Finally, we come to Connick v. Thompson , 563 U.S. 51 (2011). There, the plaintiff spen t 18 years in prison, including 14 years on death row, because an assistant district attorney willfully suppressed blood evidence that exculpated plaintiff. Id . at 55–56. The plaintiff alleged that violation was caused by the district attorney’s deliberate indifference to an obvious need to train prosecutors to avoid violations of Brady v. Maryland, 373 U.S. 83, 87 (1963), to disclose evidence favorable to the defense. The jury agreed, awarding plaintiff $14 million in damages, and the district court added more than $1 million in attorney’s fees and costs. 563 U.S. at 57. The Supreme Court reversed the jury verdict in Connick

. In fact, in each of the post- Monell cases discussed— Tuttle

, Canton

, Bryan County, and Connick —the Court reversed a jury verdict for the plaintiff.

Connickreflects the Court’s most recent and most exhaustive assessment of inadequate training liability. Because sucha claim treads so closely to vicarious liability, the Court admonished: “A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Id . at 61 (citing Tuttle , 471 U.S. at 822–23). The Court recognized two types of inadequate training claims: those that require a pattern of similar constitutional violations, andNos. 18-1498, et al . 61

those that may succeed withou t a pattern under single-incident theory. Id . at 71–72.

Per Connick , to prevail under a pattern theory a plaintiff must prove “[a] pattern of simil ar constitutional violations by untrained employees.” Id . at 62. “[C]ontemporaneous or subsequent conduct cannot establish a pattern of violations that would provide ‘notice to the cit[ y] and the opportunity to conform to constitutional dictates ... .’” Id . at 63 n.7 (quoting Canton , 489 U.S. at 395). A pattern of constitutional violations means prior violations “similar to” the “specific” violation suffered by the plaintiff. Id . at 62–63, 63 n.7, 67. In Connick

, despite at least four prior Brady violations in the same district attorney’s office, and that up to four prosecutors may have been responsible for the nondi sclosure of favorable evidence that exculpated plaintiff, the Co urt held that the plaintiff had failed to establish a pattern of similar violations. Because the plaintiff in Connick could not rely on a pattern of similar Brady violations, the Court addressed whether hecould prevail under the “single-incident” theory hypothesized in Canton

. Id . at 63–71. In Connick , the Court set three requirements to establish liability under Canton’s single-incident hypothetical: First, single-incident liability applies only when dealing with “untrained employees.” Id . at 61–62, 67; see also id . at 91 (Ginsburg, J., dissenting) (agreei ng with majority on this requirement).

Second, once it is establishe d that the offending employee was untrained, a plaintiff alleging single-incident liability must prove “police officers have no knowledge at all” of the required constitutional standards. Id . at 67. That means “in62 Nos. 18-1498, et al.

the absence of training,” there must be “no way for novice officers to obtain the lega l knowledge they require.” Id . A plaintiff meets this requirement when there is “no reason to assume” the officer is “familiar with the constitutional constraints” of the prohibited conduct. Id . at 64. That a policy has“gray areas,” the Court cautioned, does not mean an employee “will so obviously make wrong decisions that failing to train them amounts to ‘a decision by the city itself to violate the Constitution.’” Id . at 71 (quoting Canton , 489 U.S. at 395 (O’Connor, J., concurring in partand dissenting in part)). In those situations, a plaintiff mustshow it was “highly predictable” that employees would be confounded by those gray areas and make incorrect decisions as a result. Id

. Third, an absence of formal or specialized training does not show deliberate indifference because “failure-to-train liability is concerned with the substance of the training, not the particular instructional format.” Id . at 68. Put more simply, under the single-incident theory there is not inquiry into thesubtleties of training. Instead, the key question to qualify under Canton ’s hypothetical is whether the municipal employee is “equipped with the tools to interpret and apply legal principles.” Id . at 64; Bryan County , 520 U.S. at 409. The question is not whether better or more training might have prevented the violation. “[S]howing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability.” Connick , 563 U.S. at 68; see also id. at 73– 74 (Scalia, J., concurring) (rejecting liability “under the rubric of failure to train simply because the municipality does not have a professional educational program covering the specific violation in sufficient depth”). Said another way, “’provingNos. 18-1498, et al . 63

that an injury or accident could have been avoided if an employee had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct’ will not suffice.” Id . (quoting Canton , 489 U.S. at 391). Applying these three requ irements, the Court in Connick contrasted Canton’s hypothetical with an attorney asked to make a Brady determination. In the absence of a pattern of similar Brady violations, a district atto rney “is entitled to rely”on prosecutors’ law school or bar exam training, ethical obligations, and on-the-job experience, to deal with Brady decisions. Id . at 66-67. “In light of this re gime of legal training andprofessional responsibility, recurring constitutional violations are not the ‘obvious consequence’ of failing to provide prosecutors with formal in-house training about how to obey the law.” Id . at 66. The Court therefore concluded in Connickthat “this case does not fall within the narrow range of ‘singleincident’ liability hypothesized in Canton .” Id . at 71–72. These precedents control the consideration of this case. The Supreme Court has never he ld a municipality liable for a failure to act in the absence of a pattern of prior similar violations. See Majority op. at p. 22 (recognizing same). This case does not present such a claim ei ther, for the reasons that follow. III. Theories of Liability The majority opinion holds the County employer liable for the crimes of its employee Chri stensen under the single-incident theory hypothesized in Canton , specifically for failure to train and for failure to supplement County policies. Majority op. at 18-23. Those holdings re st on three conclusions:64 Nos. 18-1498, et al.

1. In the absence of a pattern of prior similar sexual assaults at the jail, the rapes of J.K.J. and M.J.J. by Christensen pose one of those “rare” and “narr ow range of circumstances” ( Connick , 563 U.S. at 64, 71–72) the Court hypothesized in Canton ’s footnote 10, in which the need for training in constitutional requirements is “so obvious ex ante ” ( Id . at 72) (concurrence). Majority op. at pp. 20–30.2. The jail’s omission of sexual assault prevention and detection measures in its written policies amounted to unconstitutional inaction under Monell . Majority op. at pp. 18–20. 3. The failure to train about sexual assault prevention and detection measures, or the omi ssion of such measures from written policies, caused plaintiff’s injuries. Majority op. at pp.
30-33. In reaching these conclusion s, the majority opinion departs from the Supreme Court’s requirements in Canton

, Bryan County, and Connick and oversteps the culpability and causation rules governing § 1983 claims, resulting in respondeat superiorliability, an outcome forbidden since Monell

. A. Failure to Train

1. Single-incident theory For a failure-to-train claim the standard of municipal fault is deliberate indifference. Connick , 563 U.S. at 61 (labeling this “a stringent standard of fault”); Canton , 489 U.S. at 388–89. Only when a municipality has “actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights” maythe municipality be deemed deliberately indifferent for retaining that program. Connick , 563 U.S. at 61. “Without noticeNos. 18-1498, et al . 65

that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Id . at 62 (emphasis added). The Court has recognized two ways to establish notice. The first requires a prior pattern of similar constitutional violations to prove deliberate indifference, the second does not. See Connick , 563 U.S. at 62–63. Per Connick , the second—the “single-incident theory”—is distin ct from and serves as an exception to the pattern theory. Id . at 62–63; 71–72. These two theories share the same objective of discerning whether “the need for further training” was “so obvious.” Canton , 489 U.S. at 390 n.10. Bryan County phrased this question as whether “a municipal actor disregarded a known or obvious consequence of his action.” 520 U.S. at 410 (describing Canton’s standard of fault); see also Connick , 563 U.S. at 61 (quoting same). Either way, the key term is “obvious.” See Farmer v. Brennan , 511 U.S. 825, 841 (1994) (describing Canton ’s application of deliberate indifference as an “obviousness test”). Under the pattern theory, the ob viousness of a risk is determined from “[a] pattern of si milar constitutional violations by untrained employees.” Connick , 563 U.S. at 62. Under the single-incident theory, the questi on is whether the risk is “obvious in the abstract.” Bryan County, 520 U.S. at 410 (applying Canton’s standard of fault) (internal quotation marks omitted). The majority opinion says “[t]he Court did not leave the [single-incident] liability point in any way abstract.” Majority op. at p. 21. The Court in Bryan County said the opposite. When evaluating “the risk from a particular glaring omissionin a training regimen” the question is whether the risk is “obvious in the abstract.” Bryan County, 520 U.S. at 410 (internal66 Nos. 18-1498, et al.

quotation marks omitted). Under either theory an objective test is applied. Farmer , 511 U.S. at 841 (“It would be hard to describe the Canton understanding of deliberate indifference, permitting liability to be prem ised on obviousness or constructive notice, as anything but objective.”). The majority opinion recognizes that this case does not present a pattern of misconduct which gave notice to the County that its training program would cause constitutional violations. Majority op. at p. 20. Nevertheless, it concludes the need to supplement the County’s sexual assault training was “so obvious” that the failure to do so amounted to deliberate indifference under Canton’s single-incident theory. Majority op. at p. 27. I respectfully partways with my colleagues in themajority that the requirements to establish single-incident liability have been met here.

As noted above, to illustrate “so obvious” notice of a need for training under the single-incident theory, Canton hypothesized a city deploying armed o fficers, untrained on the constitutional limits of the use of deadly force, to capture fleeing felons. 489 U.S. at 390 n.10. In Connick , the Court distilled Canton’s hypothetical into three single-incident liability requirements. None of these are met here. First, single-incident liability applies only when dealing with “untrained employees.” Connick , 563 U.S. at 61–62, 67; id

. at 91 (Ginsburg, J., dissenting) (agreeing with the majority that failure-to-train liability attaches “only when the failure” involves “untrained employees”). It is undisputed that the jail trained Christensen that sexu al contact with inmates was against jail policies and a felony, so this prerequisite is not

met.Nos. 18-1498, et al . 67

To meet Connick ’s second requirement there must be “no reason to assume” the County’s jail guards were “familiar with the constitutional constraint s” of the prohibited conduct. Connick , 563 U.S. at 64. But Christensen testified to five ways he was familiar with the policy prohibiting sexual contact: (1) he knew his conduct violated jail policy; (2) he was trained his conduct was a crime; (3) he knew he was putting plaintiffs at risk; (4) he never forgot that sex with inmates was a crime; and (5) he did not require more training to know his conductwas a crime. Unlike the nuanced and compound legal standards imposed by deadly force limits ( Canton ) and Brady ’s evidentiary obligations ( Connick ), even the majority opinion recognizes this requirement cann ot be met, as it characterizes the jail’s zero-tolerance abus e policy as “categorical[],” a “clear line,” as well as an “obvious” and “easy and evident” constitutional parameter. Majority op. at pp. 18–19, 25. Therecord does not show that County guards, let alone Christensen, had “no knowledge at all” of the relevant constitutional standard. Connick , 563 U.S. at 67. On this second requirement, plaintiffs must prove the County’s jail guards “ha[d] no kn owledge at all” of the relevant constitutional standard, id . at 67, here, a blanket prohibition against sexual assault. Thatmeans a court must find there is “no way for novice [guards] to obtain the legal knowledge they require” unless they are trained. Id . at 64. The majority opinion concludes that withou t training “male guards would sexually assault female inmates.” Majority op. at p. 24. This conclusion assumes that jails present an “opportunity toabuse” and male guards will “obvious[ly]” exploit that opportunity unless trained otherwise. Id . As the majority opinion puts it: “It is difficult to conceive of any setting where the power dynamic could be more imbalanced than that between68 Nos. 18-1498, et al.

a male guard and female inmate,” so it is “obvious as obvious could be” that male guards will “sexual[ly] abuse” female inmates. Id

. 6 An opportunity in which abuse may be committed does not establish deliberate indifference. At most it establishesnegligence, which “will not suffice” to establish § 1983 liability. Bryan County, 520 U.S. at 407. The re cord does not supportthe assumption that, unless trained to refrain from sexual assaults, every male guard at Polk County Jail posed a risk to the bodily integrity of female inmates. Nor can it be assumedthat absent training, male guards would have “obviously” violated behavioral norms and commit sex crimes. 7For these

reasons, Connick ’s second requirement also is not met.

6 The majority opinion’s conclusion th at the “power dynamic” of confinement places municipalities on notice of the risk of sexual assaults is unlikely to prove workable for district courts. If the unalterable nature of confinement places municipalities on perpetual notice sufficient to establish § 1983 liability, how do courts determine if a municipality failed to act in the face of that obviousness?

7The majority opinion’s conclusion of obviousness also rests on a theory rejected by other federal appellate courts. Whitson v. Stone Cty. Jail , 602 F.3d 920, 927 (8th Cir. 2010) (“We ... could scarcely hold as a matter of course that every male guard is a risk to the bodily integrity of a female inmate whenever the two are left alon e. Absent evidence to the contrary,we assume that jailers will not violate models of social decorum or otherwise commit a punishable offense.”); Barney v. Pulsipher , 143 F.3d 1299, 1310–11 (10th Cir. 1998) (refusing to find that the defendants knew of a substantial risk of assault based on the proposition that every male guard is a risk to the bodily integrity of a female inmate whenever the two areleft alone because in the record there was no evidence of sexual misconduct in the offending jailer’s backgrou nd nor was there evidence of previous incidents of sexual misconduct by jailers generally); Hovater v.Nos. 18-1498, et al . 69

Third, “failure-to-train liability is concerned with the substance of the training, not the particular instructional format.” Id . at 68. Under Connick , this poses the question whether Christensen was “equipped with the tools to interpret and apply legal principles.” Id . at 64. The majority opinion frames the applicable principle as “do not sexually abuse inmates,” calling it an “easy and evident” constraint. Majority op. at pp. 19–20. Christensen thought so too, testifying he knew his assaults were crimes that put plai ntiffs at risk, and that more training would not have altered that knowledge. Despite Christensen’s avowals, the majo rity opinion holds the County liable for Christensen’s conduc t because its sexual assaulttraining failed to educate and sensitize guards to the following:

 the dignity and respect owed female inmates;

 the inherent vulnerability the confinement setting presents to female inmates;

 the symptoms of an inmate suffering from the trauma of abuse;

 report[ing] each other’s misconduct; and

 matters of prevention and detection.
Majority op. at pp. 19–20, 28. This scrutiny of existing policies and training goes too far, violating the third requirement of Connick . The single-incident liability inquiry under Connick stops after the question of whether Christensen knew his conduct was a crime. It does not ask whether better or more training might have prevented

Robinson , 1 F.3d 1063, 1066–68 (10th Cir. 1993) (“[T]here is no evidence inthe present case of an obvious risk that male detention officers will sexually assault female inmates if they are left alone.”).70 Nos. 18-1498, et al.

his crimes. On this exact question the Court in Connick stated: “’[P]rov[ing] that an injury ... could have been avoided if an [employee] had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct’ will not suffice.” Id . at 68 (quoting Canton , 489 U.S. at 391). See also Connick, 563 U.S. at 73–74 (Scalia, J., concurring) (rejecting liability “under the rubric of failu re to train simply because themunicipality does not have a professional educational program covering the specific violation in sufficient depth”); id

.at 78 (Scalia, J., concurring) (“[A] bad-faith, knowing violation, could not possibly be attrib uted to lack of training. ...”)This third requirement ends where it does for good reasons. As the Court ruled in Canton , a municipality cannot act with deliberate indifference for failing to train employees for rare or unforeseen events. A less than rigorous fault standard “result[s] in de facto respondeat superiorliability on municipalities—a result we rejected in Monell .” Canton , 489 U.S. at 392 (citing Monell , 436 U.S. at 693–94; Rizzo , 423 U.S. at 378–80). That result also intrudes upon the federalism interests that the Monell failure-to-train cases strongly reinforce. In Canton , theCourt noted how “[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to somethingthe city ‘could have done’ to prevent the unfortunate incident.” Id . at 392 (quoting Tuttle , 471 U.S. at 823 (plurality opinion)). While the education and sensitization steps the majorityopinion lists fit into that category, the stringent fault requirements of Canton do not demand them. None of the three requirements in Connick are met here to satisfy Canton ’s single-incident hypothetical.Nos. 18-1498, et al . 71

The single-incident theory fails here for two other reasons. Bryan County requires a “direct causal link” link between Christensen’s crimes and an ine ffective training regimen. 520 U.S. at 404. See also Tuttle , 471 U.S. at 823 (requiring “affirmative link”); Rizzo , 423 U.S. at 371 (same). The record here shows no such link. Before th e discovery of Christensen’scrimes, there were no prior instances of similar sexual assaults; Eiser agreed the jail, including the Jorgenson incident, had a “good” record on sexual assaults. And Eiser testified that no empirical data show s compliance with PREA wouldhave yielded a better result. These same facts, however, persuade a majority of my colleague s that the need for more or better sexual assault training was “so obvious.” To the contrary, the record shows the County’s training “equipped [Christensen] with the tools” to understand its uncomplicated zero-tolerance assault policy, Connick ’s third requirement. 563 U.S. at 64. Christensen chose repe atedly to disregard that policy and, hiding his actions, assault the plaintiffs. To establish single incident liability, a plaintiff also mustprove that municipal “policymakers know to a moral certainty” that its employees will confront a given situation and fail to train for it. Canton , 489 U.S. at 390 n.10. Here, the County had not previously faced the circumstance of a guard raping inmates. Even so, the jail had a zero-tolerance sexual assault policy and trained its guards on it. In Connick , the Court ruled that “[a] district at torney is entitled to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations.” 563 U.S. at 67. Connick also requires similarity among violations. See id . at 62–63. Following Connick ’s reasoning, the County was also entitled to rely on72 Nos. 18-1498, et al.

its policies and training given the absence of any sexual assaults similar to Christensen’s at the jail. See Majority op. at p. 26. (“To be certain, the accusati ons of Jorgenson’s reprehensible conduct fell short of rape.”).

2. The “Obvious” Contradiction All agree this case turns on notice. The majority opinionstates at p. 20: “The Supreme Court has made plain that a failure to act amounts to municipal action for Monell purposesonly if the County has notice that its program will cause constitutional violations. See Connick , 563 U.S. at 61–62.” Cantonin footnote 10 provides that the need to train officers on constitutional limits “can be said to be ‘so obvious’ that failure to do so could properly be charac terized as ‘deliberate indifference’ to constitutional rights.” 489 U.S. at 390 n.10. The evidence the majority opinion relies on to conclude notice falls outside the sphere of single-incident liability. The majority opinion conclude s repeatedly and with certainty that the jail posed an obvious risk that male guards would sexually assault female inmates. Majority op. at p. 24 (“obvious and known risk”), id . (“the reality was as obvious as obvious can be”), id . at p. 27 (“obvious and known risk of sexual assaults in its jail”), and id. at p. 30 (“ the risk of constitutional injury—here, the sexual assaults—was obvious”). In support of this conclusion it reviews “evidence that the County was aware of sexual misc onduct happening within its jail.” Id . at p. 25. That notice evidence falls into four categories: (1) Nargis’s tier talk ( Id . at pp. 19, 25, and 28); (2) the “tizzy” email ( id . at pp. 19 and 28); (3) in frequent, undated, and mostly unreported inappropriate comments by four guards over a twelve-year period ( id . at p. 25); and (4) information gleaned from the Jorgenson investigation ( id . at pp. 25–28).Nos. 18-1498, et al . 73

On this evidence the majority opinion holds that the County disregarded obvious notice of risk and the need for “different policies or training” and “more robust policies.” Id . at pp. 31-32.

But in its consideration of an d conclusion based on this evidence, the majority opinion embraces a contradiction. The identical four categories of evid ence served as plaintiffs’ evidence of notice in the district court. As in every appeal, we are limited by the record. The distri ct court expressly ruled “that plaintiffs failed to put forth sufficient evidence to support finding a pattern of constitution al violations known to policymakers.” Opinion and Order at 7, J.K.J. v. Polk Cty. , No. 15- CV-428, 2018 WL 708390 (W.D. Wi s. Feb. 5, 2018), ECF No.279. And plaintiffs have not challenged that holding on appeal. Appellees’ Br. at 45 n.10 (“Plaintiffs do not argue on appeal that deliberate indifference is established here due to a pattern of similar past incidents.”). These four categories of evid ence fail as “so obvious” notice under a pattern theory, as found by the district court. Nevertheless, in the majority opinion the same four categories provide “so obvious” notice under a single-incident theory. The majority opinion turns the single-incident theory on itshead, using the same facts to produce the opposite conclusion. On this same record, the need for more training and better policies is simultaneously “not at all obvious” and “so obvious.” The lack of a pattern deprived the County of notice of a need, but the same evidence now provides notice of such a need. For example, the majori ty opinion allows Jorgenson’s misconduct to provide “incremental notice of an obvious74 Nos. 18-1498, et al.

risk.” Majority op. at p. 26. Unexplained is why—if four categories of evidence did not provid e that notice, as the district court held—one category could. 8 If the response is that the “so obvious” notice necessaryfor single-incident liability differs from the “so obvious” notice for pattern liability, no authority so provides. Nor would it. The same evidence is not be ing considered as of differenttimes, or in a different sense. Pattern and single incident theories of liability differ in thei r requirements, but they sharethe identical objective of notice. Under either theory, a municipality’s policymakers must have notice of omissions before being deemed deliberately indifferent. Connick , 563 U.S. at 61-62; Bryan Cty. , 520 U.S. at 410; Canton , 489 U.S. at 390 n.10. Evidence that falls short under one theory falls short under the other as well. Do not construe my dissent as concluding that the four categories of evidence listed above are always irrelevant. Those categories would be relevant under other avenues of liability, such as implied policy or pattern theories. But the single-incident theory requires that the need for training be obvious without considerat ion of prior violations. See Connick, 563 U.S. at 63 n.7 (rejecting contemporaneous or subsequent evidence to prove notice ). When evaluating “the risk from a particular glaring omissionin a training regimen” the question is whether the risk is “obvious in the abstract.” Bryan County, 520 U.S. at 410 (internal quotation marks omitted).

8 Also unexplained is how notice of an“obvious risk” could be “incremental.” Incremental denotes gradual, or progressive, the opposite of a “soobvious” need necessary for deliberate indifference under a “single incident” theory. Canton , 489 U.S. at 390 n.10.Nos. 18-1498, et al . 75

That is for good reason. Single incident liability exists for a limited circumstance in which a municipality faced no prior instances of similar cons titutional violations. See Connick , 563 U.S. at 64 (explaining that withthe single-incident exception “[t]he Court [in Canton ] sought not to foreclose the possibility, however rare, ... that a city coul d be liable under § 1983 without proof of a preexisting pattern of violations”). The singleincident theory is a way to show liability, without evidence of past constitutional violatio ns. Here, the district court concluded that those same categories of evidence failed to provide notice under a pattern theory, and an implied policytheory of liability is not before us. So the four categories cannot be considered here. There is only one way out of th is contradiction. If notice is no longer required, what remains is liability without notice: respondeat superior

. Monell and Supreme Court precedents forbid that result. Because the “s o obvious” standard from the Canton footnote 10 hypothetical ca nnot be satisfied here, the plaintiffs’ constitutional claim is legally deficient.

B. Failure to Supplement Policies The second basis on which the majority opinion concludes liability—that a failure to supplement County policies amounted to unconstitutional inaction under Monell —also relies on Canton’s single-incident theory. For a number of reasons, that approach cannot be squared with the Court’s admonitions in Canton

, Bryan County, and Connick either.

Canton ’s single-incident hypothetical expressly considers only “the need to train” o fficers. 489 U.S. at 390 n.10. The Court has never extended single-incident liability outside fail-76 Nos. 18-1498, et al.

ure to train. See Connick, 563 U.S. at 64 (limiting single-incident theory to “the obvious need for specific ... training”); Bryan County, 520 U.S. at 410 (limiting single-incident theory to “a particular glaring omission in a training regimen”). The claim at issue involves something different—purported gaps in the County’s sexual assault express policies—not failure to
train.As just noted, the majority opinion’s unconstitutional inaction holding relies exclusively on the same four categories of evidence that failed to prov ide “obvious” notice of a need for more action. Cf. Connick , 563 U.S. at 61, 63, 71 (requiring “obvious” notice to establis h single-incident liability); Bryan County, 520 U.S. at 410 (same); Canton , 489 U.S. at 390 n.10 (requiring “so obvious” and “plainly obvious” notice). So appears the contradiction: the same evidence the district court found did not provide notice, a finding left unchallenged on appeal, gives notice in the majo rity opinion of a need for more action. The need for additional po licies is simultaneously “not at all obvious” and “so obvious.”The majority opinion concludes that the County’s zero-tolerance sexual assault policies contained “material gaps”because those policies did not include information about preventing and detecting sexual assaults. Majority op. at pp. 18-19. To prove deliberate indifference, plaintiffs must show it was “highly predictable” that, absent supplements to its zero-tolerance assault policies, male Polk County Jail guards would inflict the particular consti tutional injuries suffered by plaintiffs. Bryan Cty., 520 U.S. at 411. This means plaintiffs must show that those guards la cked the tools to know that sexual assault is a crime and violated County policies. See id

. But as explained above, there were no prior instances of rapeNos. 18-1498, et al . 77

at the jail and plaintiffs’ own opinion witness agreed the jail had a “good” record on sexual assaults. As with all of its guards, the County gave Christensen the tools to stop himself; he chose not to. The majority opinion instead grounds fault solely on three generalized risks:

 That “[t]he confinement setting is a tinderbox for sexual abuse.”

 That any “guard would grow too comfortable, lose his better angels, and step over the clear line marked in Polk County’s written policies.”

 That it was “’highly predictable,’ if not certain, that a male guard would sexually assault a female inmate if the County did not act.” Majority op. at pp. 24–26 (emphases added). 9 Absent from these generalizations is any me ntion of how purported gaps in County policies amounted to deliberate indifference. Left unexplained is specifically how the decision to rely on policies that, until Christensen, produc ed “good” results on the particular risk of sexual assaults amounted to deliberate indifference. It cannot be said a situation that has never occurred is likely to recur. See Bryan County , 520 U.S. at 409 (basing predictability on “[t]he likelihood th at the situation will recur“).

The deliberate indifference standard in Canton has an important corollary. Under the single incident theory, Canton requires employers “know to a mo ral certainty” that their employees will face a “difficult choice of the sort that training or

9 If such a generalized risk suffices to trigger notice here, the same generalized risk could apply for jail fights, medical attention, and other aspects of confinement.78 Nos. 18-1498, et al.

supervision will make less difficult.” Walker v. City of New York , 974 F.2d 293, 297 (2d Cir. 1992) (citing Canton , 489 U.S. at 390 n.10). Case law has referred to this as the “difficult decision” or “difficult choice” requirement.However phrased, it is not a “difficult choice” or a “difficult decision” for a guard not to rape an inmate. Such a decision is mandated by the law, written policies and training here, as well as any moral code. Just so, Christensen had no “difficult choice.” He was instructed by the written policies, training, and the law not to sexually assault, but he willfully and surreptitiously ignored that training and instruction. For all these reasons, this case do es not fit within the narrow and rare single-incident exception to the pattern requirement for municipal liability.

C. Causation To recover from the County under § 1983, plaintiffs also must prove “a direct causal lin k between the municipal action and the deprivation of federal rights.” Bryan County, 520 U.S. at 404. A municipality cannot be liable “unless deliberate action attributable to the municipality directly caused a deprivation of federal rights.” Id . at 415. Even if traini ng or a policy omission was in some manner deficient, “the identified deficiency ... must be closely relate d to the ultimate injury” such that “the deficiency ... actually caused the police officers’ indifference.” Canton , 489 U.S. at 391. Said slightly differently,“a municipality can be liable under § 1983 only where its policies are the moving force behi nd the constitutional violation.” Id . at 389 (citations, internal brackets, and quotation marks omitted). These causation requirements are “stringent”and “rigorous” to prevent expansions of constitutional tort liability and the use of federal courts to restructure municipalNos. 18-1498, et al . 79

institutions. See Bryan County, 520 U.S. at 415 (holding a lesser causation standard embroils “serious federalism concerns” and permits “municipal liability [to] collapse[] into respondeat superiorliability.”). This case presents a glaring causation problem: WhenChristensen assaulted the plaintiffs, he knowingly and willfully acted in defiance of his training and County policies. No evidence shows that Christensen decided to assault plaintiffs for any reason related to inadequate training or policies. The majority opinion cites no “affi rmative link” between the occurrence of Christensen’s crimes and the County’s alleged inaction. Tuttle , 471 U.S. at 823 (plurality opinion) (“At the very least there must be an affirm ative link between the policy and the particular constitutional violation alleged.”); Rizzo , 423U.S. at 371 (rejecting liability because “there was no affirmative link between the occurrence of the various incidents of police misconduct and the adopti on of any plan or policy”). Without an affirmative link, the causation requirement is not

met. The majority opinion rests its conclusion of causation on the obviousness of a risk: “’The high degree of predictability’ that constitutes notice ... ‘may also support an inference of causation ...’” Majority op. at p. 30 (citing Bryan County, 520 U.S. at 409–10). Because the risk of constitutional injury wasobvious, the majority opinion decides, only a “small inferential step” therefrom is necessary to find causation. Majority op. at p. 30. But there must be a foundation from which to take that step. That is missing here.

First, Connickemphasizes the notice a municipality’s policymakers must have of the omissions in their training program causing municipal employees to violate a citizen’s80 Nos. 18-1498, et al.

constitutional rights before the municipality may be deemed deliberately indifferent. 563 U.S. at 61–62. “Without noticethat a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Id . at 62. But the district court ruled, and it is unchallenged onappeal, that the misconduct evidence did not constitute a pattern of constitutional violations. The lack of a pattern deprived the County of notice of a need for additional training and policies. Nevertheless, the majority opinion relies on thatsame evidence to conclude obviousness and notice. But it cannot be both ways; notice of a risk cannot simultaneously be not present and present. Respect for the district court’s finding on an issue not appealed should control, and not form the foundation for a conclusion of causation. Second is the type of causat ion found. Certainly, the absence of supplemental training and policies may increase the likelihood that a guard might assault an inmate. The inquiry here, though, is whether male Polk County Jail guards posed a risk to female inmates suchthat reliance on the County’sexisting policies and training would result in guard-on-inmate rape. Bryan County, 520 U.S. at 411. The district court did not perform this “legal inquiry,” id ., for failure to train or unconstitutional inaction liability, and what remains is just a conclusion of potential causation. But liability under § 1983 requires actual causation of an injury. Bryan County, 520 U.S. at 404–05; Canton , 489 U.S. at 389; Monell , 436 U.S. at 692 (holding the “mere right to control without any control or directio n having been exercised” will not support § 1983 liability (citing Rizzo , 423 U.S. at 370–71));Nos. 18-1498, et al . 81

Rizzo , 423 U.S. at 372, 375–76, 378 (distinguishing the mere failure to act from “active conduct”). “Proving that an injury or accident could have been avoided if an employee had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct will not suffice.” Connick

, 563 U.S. at 68 (quoting Canton , 489 U.S. at 391 (internal quotation marks and brackets omitted)). The question is not whether the inaction potentially caused plaintiffs’ injuries; it is whether the inaction “actually” ( Canton , 489 U.S. at 391) and “directly” ( Bryan County, 520 U.S. at 415) caused the injuries. Here, no evidence shows that County inaction actually and directly caused plaintiffs’ injuries. Third, the majority opinion permits a finding of liability in jail and prison settings based not on proof of causation, but a presumption of negligence. Male jail guards have exclusive “authority and control” over “n early everything in [inmates’]lives.” Majority op. at p. 24. “With this authority and control ... c[o]me[s] power and, inturn, access opportunity to abuse it.” Id . Under this “delicate setting,” “the risk of constitutional injury” “was as ob vious as obvious could be.” Id . at pp. 23, 28. “The jury knew that from common sense[,]” so “it took but a small inferential step for the jury to find causation.” Id . at 28.

Far from Monell’s “rigorous” causation requirements, the majority opinion’s reasoning echoes res ipsa loquitur, presuming negligence from Christensen’s crimes. See Tuttle , 471 U.S. at 831 n.6 (Brennan, J., concurri ng) (admonishing application of res ipsa loquitur doctrine in municipal liability claims). Res ipsa loquiturapplies when “the facts of the occurrence warrant the inference of negligence” and “the defendant [has] exclusive control of all the things used in an operation which might82 Nos. 18-1498, et al.

probably have caused injury.” Jesionowski v. Bos. & M. R. R. , 329 U.S. 452, 456 (1947) (emphases added) (citation and quotation marks omitted). Compare the elements of res ipsa loquiturwith the majority opinion’s reason ing: The jail’s “authority and control” through “male guards” over “nearly everything in [inmates’] lives,” supports an inference of causation. Majority op. at p. 24. Instead of causation or deliberate indifference, negligence is presumed. Monell requires more: deliberate indifference and moving force caus ation, not “simple or even heightened negligence.” Bryan County, 520 U.S. at 407. Plaintiffs’ appalling injuries were not caused by a lack of specific training and policy la nguage about sexual assault prevention and detection. They were caused by a miscreantguard’s hidden, willful, and criminal defiance. There is no evidence that Christensen made the decision to assault plaintiffs for any reason related to inadequate training or policies. Forexample, no evidence shows that Christensen calculatedly exploited training and policy gaps. Nor does any evidence show that such gaps emboldened, le t alone caused, Christensen tocommit rapes. The record shows that when Christensen assaulted plaintiffs he knew he wa s acting contrary to his training and in violation of County policies. From this undisputed evidence, any reasonable fact finder would have to conclude that Christensen’s bad-faith cond uct, in conflicting with his employer’s policies and training , caused plaintiffs’ injuries. Christensen, not the County, was the “moving force” that caused plaintiffs’ injuries. Monell , 436 U.S. at 691–92.Nos. 18-1498, et al . 83

IV. FederalismThe majority opinion encroaches on the federalism principles that the Supreme Court’s Monell cases hold so essential.

Monell 's policy requirement was intended to balance § 1983’s remedial purpose with the principle that the power exercised by federal courts mustnot be so broad as to upend the delicate balance of powers among federal, state, and local governments. See Michael J. Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability under Section 1983 , 62 S. Cal. L. Rev. 539 (1989). The majority opinion upsets that balance. It extends federal civil liability by allowing a federal statute to di ctate municipal liability, impermissibly infringing on state and local independence and selfgovernance. It also defines notice of constitutional violations so broadly that liability may now arise in any confinement setting, without limit. The Supreme Court has emphasized the importantfederalism interests implicated by municipal liability cases involving failure to train, like this one. Allowing § 1983 cases to advance against municipalities for failure to train or inaction “on a lesser standard of fault would result in de facto respondeat superiorliability on municipalities —a result [] rejected in Monell .” Canton , 489 U.S. at 392 (citation omi tt ed). “This is an exercise ... federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism.” Canton , 489 U.S. at 392 (citing Rizzo , 423 U.S. at 378–80). The Court sounded the same warning in Bryan County :Where a court fails to adhere to rigorous requirements of culpability and causation, munic-84 Nos. 18-1498, et al.

ipal liability collapses into respondeat superior liability. As [] recognized in Monell and [] repeatedly rea ffi rmed [since], Congress did not intend municipalities to be held liable unless deliberate
action a tt ributable to the municipality directly caused a deprivation of federal rights. A failureto apply stringent culpability and causation requirements raises serious federalism concerns,in that it risks constitutionalizing ... requirements that States have themselves elected not to impose. 520 U.S. at 415 (citing Canton , 489 U.S. at 392).

Connick raised the same cautionary fl ag: “[Section 1983] does not provide plainti ff s or courts carte blanche to micromanage local governments th roughout the United States.” 536 U.S. at 68. While Justice Scalia joined the Connick opinion in full, his concurrence explained that the dissent’s “theory of deliberate indi ff erence would repeal the law of Monell .” 536 U.S. at 73 (Scalia, J., concurring):
[W]e do not have de facto respondeat superiorliability, for each such violation under the rubricof failure to train simply because the municipality does not have a professional educational program covering the speci fi c violation in su ffi

cient depth. ... These restrictions are indispensable because without them, failure to train would become atalismanic incantation producing municipal liability in virtually every instance where a person has had his or her constitutional rights violatedNos. 18-1498, et al . 85

by a city employee—which is what Monell rejects. Worse, it would engage the federal courtsin an endless exercise of second-guessing municipal employee-training programs, thereby diminishing the autonomy of state and local governments.

Id at 73–74 (quotes, citations, and footnotes omi tt ed). This case presents the in fringement warned of in Canton

, Bryan County, and Connickby allowing a federal statute to dictate a municipality’s liability without proof of fault or causation. The majority opinion declares the County was de fi cient in preventing and detecting sexual assaults. This standard is drawn directly from the trial testimony of plainti ff ’s opinion witness, Eiser, that the jail had inadequately addressed the prevention and detection of sexu al assaults of inmates. Eiser
testi fi ed PREA “set[s] the standard for jails very clearly.” According to Eiser, the PREA st andard has three components: prevention, detection, and trai ning. The prevention and detection components are lifted directly from the text of PREA. 10 The changes he recommended to allow for easier reporting of sexual assaults—including the lockbox for inmate complaints mentioned in the majority opinion—are all teachings of PREA. Eiser further testi fi ed the jail had addressed only one of the PREA components in its policy, and what should occur if a facility cannot meet all the PREA components.

10 At 34 U.S.C. § 30302 PREA provides: “ The purposes of this chapter are to—(6) increase the accountability of prison officials who fail to detect, prevent , reduce, and punish prison rape.” (emphasis added).86 Nos. 18-1498, et al.

Per the majority opinion “PREA is not a constitutional standard, and jails are not required to adopt it.” Majority op. at p. 29. Yet, it concludes thatthe county’s liability rests on Eiser’s testimony that the municipality failed to prevent and detect the sexual assaults by a guard of two inmates. Strikingly, an opinion witness who advanced a standard the majority opinion says is not required now sets the fault standard in this circuit, even though that witness agreed the County had a “good” record on sexual assaults. What type of action must muni cipalities take to satisfy this new standard and avoid liability? The majority opinion says “reasonable steps to reduce the obvious and known risks of assaults on inmates.” Id . at p. 29. But what those reasonable steps should be requires no tice, which the County did nothave. Recall, the district court concluded that the four categories of evidence, including the Jorgenson incident, did not collectively make a risk of rape known to the County. Per themajority opinion, the only direction given to courts and municipal policymakers on those reasonable steps are the detection and protection measures of PREA. If Wisconsin municipal jails should be held to the PREA standard, that decision should be made by the people of Wisconsin through their legislature, or by the Wisconsin Department of Corrections through administrative rulemaki ng. Instead, PREA’s adoption effectively comes by way of this court. This case presents another federalism concern: One of the mechanisms by which the majority opinion concludes the jailwas on notice of policy and training gaps applies to all confinement settings. As the Court explained in Bryan County, establishing that a municipality acted with “deliberate indifference ... require[es] proof that a municipal actor disregarded aNos. 18-1498, et al . 87

known or obvious consequence of his action.” Id . at 410 (internal quotation marks omitted) . The Court specifically rejected fault based on generalized risk. Id . But the majority opinion permits fault based on su ch a generalized risk by defining “obvious” so expansively as to render the term effectively without meaning.Because the majority finds the risk of sexual assault is “obvious” in all confinement setti ngs involving male guards and female inmates, Majority op. at p. 24, and inaction in the face of that “obvious” risk establishes deliberate indifference, any municipality in the Seventh Ci rcuit operating a confinement setting with male guards and female inmates may now be subject to liability and federal oversight if it does not enact new policies or training. This fo rmulation, founded on an incurable standard of notice, is unworkable. Regardless of what steps a municipality takes, it is on notice of the risk of sexual assaults so long as male guard s supervise female inmates in aconfinement setting. And even if a municipality enacts policies to prevent sexual assaults and trains employees on those policies (like Polk County), it is deliberately indifferent unless it enacts additional policie s and training programs. This formulation also gives no guidance to district courts or municipal policymakers as to wh at training is or is not required to avoid a constitutional deprivation. This creates liability potentially unlimited in scop e; if it has limits, those contours are ill-defined, and certain to confound and dividecourts and policymakers. And in creating potentially unlimited liability, this court disreg ards each of the warnings and cautions on this topic passed to us from the Supreme Court and repeated above.88 Nos. 18-1498, et al.

For these reasons, our law interpreting § 1983 should follow the Court’s lead and avoid intrusion into an area of traditional state authority such as this. See, e.g., Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc. , 554 U.S. 33, 50 (2008) (holding the“federalism canon ... obliges us to construe [a statute]’s exemption narrowly”); BFP v. Resolution Trust Corp. , 511 U.S. 531, 544 (1994) (refusing to interp ret a statute “[t]o displace traditional state regulation” unle ss Congress’s intent to do so was clear from the statute (citing Gregory v. Ashcroft , 501 U.S. 452, 460–61 (1991)); Gregory, 501 U.S. at 468 (“By its terms, the Fourteenth Amendment contemplat es interference with stateauthority: ‘No State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ ... But this Court has never held that the Amend ment may be applied in complete disregard for a State’s constitutional powers.” (quoting U.S. Const. amend. XIV § 1)). The majority opinion heralds fe deral involvement in whathistorically has been an area of state and local decision-making. Subsidiarity should be resp ected, especially with the Supreme Court repeatedly and specifically noting important federalism interests in prec isely this type of case. V. Rule 50 and the Jury Verdict Courts are the gatekeepers for the questions a jury may properly answer. In permitting a jury to determine whether a municipality is liable under § 1983, courts are constrained by the Supreme Court cases relayed above in II., the parameters of failure to train liability as ex plained in III., and the federalism principles noted in IV.

Federal Rule of Civil Proced ure 50 sets the standard and procedure courts are to employ in this role. “Judgment as aNos. 18-1498, et al . 89

matter of law is proper ‘if a re asonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.’” Lawson v. Sun Microsystems, Inc. , 791 F.3d 754, 761 (7th Cir. 2015) (quoting F ED

. R. C IV

. P. 50(a)(1)). This court reviews de novo a district court’s ruling on a post-trial motion for judgment as a matter of law under Rule
50. Andy Mohr Truck Center, Inc. v. Volvo Trucks N.A. , 869 F.3d 598, 602 (7th Cir. 2017) (citation omitted). The evidence is viewed in the light most favorable to the verdict. Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc. , 831 F.3d 815, 822 (7th Cir. 2016). This standard applies regardless of whether the verdict under review was for the plaintiff or the defendant and regardless of the case’s underlying legal issues. Schandelmeier-Bartels v. Chicago Park Dist. , 634 F.3d 372, 376 (7th Cir. 2011).The showing required for judgment as a matter of law under Rule 50 has been equated wi th a grant of summary judgment under Federal Rule of Ci vil Procedure 56. The Advisory Committee Note to the 1991 amendments to Rule 50 explains that, in part, those amendments are intended to call attention to the similarity between judgme nt as a matter of law under Rule 50 and summary judgment under Rule 56. The Supreme Court has also “noted that the ‘genuine issue’ summary judgment standard is ‘very close’ to the ‘reasonable jury’ directed verdict standard ... .” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251 (1986); see also Miller v. Fisher, 381 F. App’x 594, 596 (7th Cir. 2010) (“The standard [for reviewing a Rule 50 motion] mirrors our appellate analysis of a motion for summary judgment.”). When considering whether a claim survives a motion for judgment as a matter of law, courts decide whether the claim90 Nos. 18-1498, et al.

is legally sufficient. See F ED

. R. C IV

. P. 50(a)(1) (stating a judge may grant judgment as a matter of law if the movant shows“a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue”). This question differs from the factual finding asked of and made by a jury. District courts must determin e the controlling law and exercise “responsibility to assure th e fidelity of [their] judgment to the controlling law, a responsibility imposed by the Due Process Clause of the Fifth Amendment.” F ED

. R. C IV

. P. 50 advisory committee’s note to 1991 amendment (citation omitted). That note provides good guidance: “In ruling on such a [Rule 50] motion, the court shou ld disregard any jury determination for which there is no legally sufficient evidentiary basis enabling a reasonable jury to make it.” Id

. The constitutional claim agai nst the County never should have reached the jury. Summary judgment should have been granted to the County because th e claim was legally deficient, as shown above. 11 The legal deficiency of the claim, more thanthe lack of evidence, should have led to its demise. If summary judgment had not been g ranted on the claim, judgment as a matter of law should have been granted to the County.

If this court had reversed the district court’s denial of the County’s motion for judgment as a matter of law, it certainly would not have “taken a case from the jury.” Rather, it would have exercised its proper role by deciding that the jury never should have considered the claim against the County in the first place. Putting to the side the understandable sympathy

11 The County moved for summary judgment on plaintiffs’ § 1983 claims on this issue (Dist. Ct. D.E. 54), which the district court denied. (Dist. Ct. D.E. 160 at 30).Nos. 18-1498, et al . 91

factor—the desire to make someone pay for the assaults these plaintiffs endured—the County sh ould not be held liable on plaintiffs’ legally deficient co nstitutional claim. Liability standards exist to govern beha vior. Every tort case has a standard for fault and for causatio n. The court’s role is to preclude a finding of liability if there is no legal basis and no causal link to hold the defendant at fault. Otherwise courts fail to ensure that the law is properly applied. A jury’s verdict must be respected, but the jury can only be posed a question the law allows. This jury was asked a question it should not have been. This case presents the downsi de of the mantra “let a questionable claim go to the jury.” A claim that should have been denied at summary judgment, or resolved after the evidence was presented, or even post-tri al, took on inertia. Rule 50 exists to prevent that. The Supr eme Court and federal appellatecourts consistently overturn verdicts that rest on incorrect legal grounds. As noted above, the Court’s failure-to-train decisions that control here each reversed a jury verdict for the plaintiff: Tuttle , 415 U.S. at 813 ; Canton , 489 U.S. at 391; Bryan Cty ., 520 U.S. at 400; and Connick , 563 U.S. at 57. In addition to these reversals, in the last twenty years thiscourt has overturned jury verdicts, for plaintiffs and for defendants, in at least twelve cases when a prisoner inmate sued under § 1983. 12 In about the same time frame this court has

12 Martin v. Milwaukee Cty. , 904 F.3d 544 (7th Cir. 2018) (reversed jury verdict for plaintiff on a prison sexual assault claim because rape not within scope of employment); Ruiz-Cortez v. City of Chicago , 931 F.3d 592 (7th Cir. 2019) (vacated jury verdict for defendant on a Brady violation claim, ordered a new trial on that claim, and affirmed summary judgment for town92 Nos. 18-1498, et al.

twice overturned a jury’s finding of an unconstitutional policy in Monell cases. See Thomas v. Cook Cty. Sheriff’s Dept. , 604 F.3d 293, 298 (7th Cir. 2010) (concluding insufficient evidenceexisted to hold sheriff liable because causal connection between his policies and death was tenuous in light of jury’sfinding that individual correctional officers deliberately disregarded plaintiff’s medical needs); Palmquist v. Selvik , 111 F.3d 1332, 1347 (7th Cir. 1997) (hol ding municipality was not deliberately indifferent for failure to train because the lack of

on Monell claim); Nelson v. City of Chicago , 810 F.3d 1061 (7th Cir. 2016) (reversed jury verdict for plaintiff on an unlawful search and seizure claim and ordered a new trial); Barber v. City of Chicago , 725 F.3d 702 (7th Cir. 2013) (reversed jury verdict for defendant on claims of arrest without probable cause and excessive force and ordered a new trial); Phillips v. Cmty. Ins. Corp. , 678 F.3d 513 (7th Cir. 2012) (reversed jury verdict for defendants on a claim of excessive force and remanded to enter judgment for plaintiff); Duran v. Town of Cicero , 653 F.3d 632 (7th Cir. 2011) (reversed denial of defendant’s new trial motion on claims of excessive force, false arrest, and equal protection violations against police officers and town); Fox v. Hayes , 600 F.3d 819 (7th Cir. 2010) (rev ersed jury verdict for plaintiffs due process claim after plaintiffs wo n on false arrest, malicious prosecution, violation of due process, and state law claims because plaintiff’s state law theory was the same as violation of due process claim); Watkins v. Kasper , 599 F.3d 791 (7th Cir. 2010) (rev ersed jury verdict for incarcerated plaintiff’s exercise of free speech claim because inmate’s speech was inconsistent with legitimate penological interests); Thomas v. Cook Cty. Sheriff’s Dep't , 604 F.3d 293 (7th Cir. 2009) (reversed jury verdict for plaintiff’s wrongful death action against sheriff under Monell and remanded to enter judgment in sheriff’s favor); Campbell v. Miller , 499 F.3d 711 (7th Cir. 2007) (reversed jury verdict for defendant officer because no jury could find his public strip search of the plaintiff in a driveway was reasonable); Riccardo v. Rausch , 375 F.3d 521 (7th Cir. 2004) (reversed jury verdict for incarcerated plaintiff on a failure to protect claim); Campbell v. Peters , 256 F.3d 695 (7th Cir. 2001) (reversed jury verdict for incarcerated prisoner on qualified immunity grounds).Nos. 18-1498, et al . 93

training was not sufficiently ob vious and any inadequacy was not sufficiently likely to result in a constitutional violation). Because the constitutional claim against the County had no legal basis, judgment as a matter of law should have been granted.

VI. Other Case Law The majority opinion expands municipal liability under § 1983 beyond the boundaries established by federal appellate courts, including that of this circuit:

 No federal appellate court has ever extendedthe single-incident exception to the sexual assault context;

 No federal appellate court has ever extended the single-incident ex ception when the employee’s compliance with the municipality’s policy and training would have prevented the injuries; and

 Specialized training is not required to know that rape is wrong. A. Single-Incident Liabilityfor Sexual AssaultsThe other federal appellate courts to have ruled on this issue have rejected the “so obvious” single-incident exception in the sexual assault context: 13

13 The majority opinion is also at odds with this court’s order in Johnson v. Cook Cty ., 526 F. App’x 692 (7th Cir. 2013), in which this court rejected single-incident liability and affirmed the dismissal of an inmate’s Monellclaim after the inmate was sexually assaulted by a Cook County Jail employee. Id. at 697.94 Nos. 18-1498, et al.

Eighth Circuit: Parrish v. Ball , 594 F.3d 993, 999 (8th Cir. 2010) (rejecting plaintiff’s single-incident theory because “tell[ing] officers to not sexually assault detainees [] is not so obvious that not doing so would result in an officer actually sexually assaulting a female detainee"); S.J. v. Kansas City Missouri Pub. Sch. Dist. , 294 F.3d 1025, 1029 (8th Cir. 2002) (rejecting plaintiff’s single-incident claim after finding there is no patently obvious need for public schools or principals to train volunteers not to commit sexual abuse); Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996) (rejecting plaintiff’s single-incident theory after determining there is no “patently obvious need for the city to specifically train officers not to rape young women”).

Ninth Circuit: Flores v. Cty. of Los Angeles , 758 F.3d 1154, 1160 (9th Cir. 2014) (rejecting plaintiff’s single-incident theory of liability because “[t]here is [] every reason to assume thatpolice academy applicants are familiar with the criminal prohibition on sexual assault, as everyone is presumed to know the law”).

Tenth Circuit: Schneider v. City of Grand Junction Police Dep’t , 717 F.3d 760, 774 (10th Cir. 2013) (rejecting plaintiff’s single-incident claim because “[s] pecific or extensive traininghardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior’’ (quoting Barney v. Pulsipher , 143 F.3d 1299, 1308 (10th Cir. 1998)); Barney v. Pulsipher, 143 F.3d at 1308 (“[T]his case does not fall within the narrow range of circumstances justifying a finding ofdeliberate indifference absent a pattern of violations ... [because] we are not persuaded th at a plainly obvious consequence of a deficient training program would be the sexual assault of inmates.”).Nos. 18-1498, et al . 95

Eleventh Circuit: Floyd v. Waiters , 133 F.3d 786, 796 (11th Cir. 1998), vacated on other grounds by 525 U.S. 802 (1998) , reinstated by 171 F.3d 1264 (11th Cir. 1999) (board of education was “entitled to rely on the common sense of its” security guards not to sexually harass and rape underage girls.). The only federal appellate case arguably to the contrary may be Cash v. Cty. of Erie , 654 F.3d 324, 337–38 (2d Cir. 2011). But Cash does not apply a single-incident theory analysis or
even cite to Canton’s single-incident hypothetical. Cash itselfstates it is not a failure-to-train case: “the deliberate indifference concern in this case ... is no t with a failure to train prison guards to distinguish between permissible and impermissible sexual contact with prisoners. Nor is it with providing sufficient supervision to ensure th at guards make correct choices in this respect.” Id . at 336. Cash also based its conclusion ofliability on a generalized risk rather than a particularized inquiry (violating Bryan County, 520 U.S. at 410–13), and it ignored the requirement of simil ar prior violations (violating Connick , 563 U.S. at 62–63). A failure to supervise case, Cash holds: “[K]nowledge that an established practice has proved insufficient to deter lesser [sexual] misconduct can be foun d to serve notice that thepractice is also insufficient to deter more egregious misconduct.” 654 F.3d at 337. See Majority op. at p. 26 (quoting same). But that holding offers no help. Here, unlike Cash , the district court ruled that plaintiffs’ pa ttern evidence of lesser misconduct failed to show notice of an obvious need for revised policies and training. Plaintiffs di d not appeal that ruling. And unlike the majority opinion here, Cash does not deem it obvious that without training male guards will rape female96 Nos. 18-1498, et al.

inmates. To the extent the majority opinion may read Cash differently, district courts in the Second Circuit have not followed suit. 14 B. Failure to Comply with Policies and TrainingA federal appellate court also has never extended the single-incident exception when the employee’s compliance with the municipality’s policy and training would have prevented the injuries:

Fifth Circuit: Pena v. City of Rio Grande City, 879 F.3d 613, 624 (5th Cir. 2018) (determining single incident theory should

14 Recall, to prove deliberate indifference under the single-incident theory of liability, Canton requires employers “know to a moral certainty” that their employees will face a “difficult choi ce of the sort that training or supervision will make less difficult.” Walker v. City of New York , 974 F.2d 293, 297 (2d Cir. 1992). District courts in the Second Circuit after Cash have not concluded that sexual assault qualifies as a “difficult decision.” See

, e.g. , R.A. v. City of New York , 206 F. Supp. 3d 799, 803 (E.D.N.Y. 2016) (“Thecomplaints against Defendant ... show a conscious decision by Defendant ... to commit sexual assault, which does not present a ‘difficult choice’ [that] further training would prevent.” (quoting Walker , 974 F.2d at 297 (citations omitted)); Noonan v. City of New York , 2015 WL 3948836, at *4 (S.D.N.Y. June 26, 2015) (decision to commit a sexual assault cannot reasonably be seen as posing the type of “difficult choice” contemplated by the Second Circuit in Walker .); Doe v. City of New York , 2013 WL 796014, at *4 (S.D.N.Y. Mar. 4, 2013) (“Plaintiff has not plausibly alleged that either [officer]’s decision to rape her or [second officer]’s decision to aid and abet that rape was a ‘difficult choice of the sort that training or supervision will make less difficult.’” (quoting Walker , 974 F.2d at 298)); Castilla v. City of New York , 2012 WL 5510910, at *6 (S.D.N.Y. Nov. 14, 2012) (“It beggars common sense to posit that [the office r] faced a difficult choice as to whether or not to coerce sex from [plaintiff] and that training would have alleviated that conundrum.”).Nos. 18-1498, et al . 97

be limited to “cases in whic h the government actor was provided no training whatsoever”); Estate of Davis ex rel. McCully v. City of N. Richland Hills , 406 F.3d 375, 377–78, 385–86 (5th Cir. 2005) (concluding single-inc ident exception did not apply when training occurred).

Ninth Circuit: Jason v. Tanner, 938 F.3d 191, 199 (5th Cir. 2019) (rejecting single-incident theory because prison had trained about sling-blade misuse, “albeit training that didn’tprevent th[e] attack,” and “this was the first and only slingblade attack in a presumably otherwise incident-free program”).

Tenth Circuit: Waller v. City & Cty. of Denver , 932 F.3d 1277, 1288 (10th Cir. 2019) (rejecting si ngle-incident theory because“[t]his case does not involve technical knowledge or ambiguous ‘gray areas’ in the law thatwould make it ‘highly predictable’ that a deputy sheriff ... wo uld need ‘additional specified training’ to ... put [him] on notice that [he] may not violently assault a restrained detainee”); Keith v. Koerner, 843 F.3d 833,839–40 (10th Cir. 2016) (rejecting failure-to-train liability because jailer received training ab out the impropriety of and potential consequences for engaging in sexual misconduct); Schneider, 717 F.3d at 774 (10th Ci r. 2013) (rejecting failure-totrain liability where the offending officer “was, in fact, instructed against relationships with women he met on duty. ...”); Porro v. Barnes , 624 F.3d 1322, 1328–29 (10th Cir. 2010) (county jail’s policy of training jailers to use stun guns and failure to enforce federal policy that banned use of stunguns on immigration detainees did not demonstrate deliberate indifference). On first glance, the only federal appellate court case on the other side of this question might be Allen v. Muskogee , 119 F.3d98 Nos. 18-1498, et al.

837 (10th Cir. 1997), in which a divided panel reversed summary judgment granted to a city on an excessive force claim and held that failure to train officers how to deal with armed and mentally ill persons fits within the Canton single-incident exception. Id . at 844. But in Allen the officer was trained to do the wrongthing, not left untrained. Id . Unlike Allen , no one disputes that had Christensen followed his training or thejail’s policies, the injuries to plaintiffs never would have occurred. These cases instruct that single-incident liability shouldnot be extended to cases involving a rogue officer not complying with uncomplicated and constitutionally sound policies and training. Christense n admitted at trial that the County trained him on the illegality of sexual contact betweenguards and inmates. Christensen also admitted he did not require more training to know his conduct was a crime. Even plaintiff’s opinion witness Eiser conceded at trial that no proof exists that better or more training could have dissuaded Christensen from his predatory and assaultive behavior. C. No Need for Specialized Training The third requirement from Connick is that the degree of training received by municipal employees is not relevant to establishing liability under Canton ’s single-incident hypothetical. 563 U.S. at 68. Per Connick , courts should be “concernedwith the substance of the training, not the particular instructional format.” Id. To rule to the contrary would “provide plaintiffs or courts carte blanche to micromanage local governments.” Id. This would “‘engage the federal courts in an endless exercise of second-guessing municipal employee-trainingNos. 18-1498, et al . 99

programs,’ thereby diminishing th e autonomy of state and local governments.” Connick, 536 U.S. at 75 (Scalia, J. concurring) (quoting Canton , 489 U.S. at 392). Applying Connick , the inquiry is whether the Polk County Jail trained its guards not to commit sexual assault, not the amount or particulars of that training. Connick , 563 U.S. at 68. Nevertheless, the majority opinion is replete with conclusionson the nature, quantity, and timing of the training: what language was and was not included in Polk County’s written policies; what topics were and wer e not discussed in training sessions; when the training did and did not occur; and how the training should have been done, in contrast to how it was done. 15 The majority opinion equates its conclusion of insufficient training with no training. But that decides the amount,

15 Majority op. at p. 2 (“Nor did the County provide any meaningful training on the topic [of sexual assault].”), id. (finding relevant that no further training occurred after Jorgenson incident); id. at p. 9 (“no training (in any sense of the word) focused on the sexual harassment or assault”); id. at pp.10–11 (quoting email that training would “hit the basics” but no requirement jail would be compliant wi th everything PREA calls for); id. at p. 10 (finding relevant what topics Sergea nt Schaefer did and did not train officers on); id. at p. 11 (noting plaintiffs’ evidence on “inadequacy of Polk County’s policies and training”); id. (recounting Eiser’ s testimony on insufficiency of training); id. at p. 19 (“[T]he County’s training on preventingand detecting the sexual harassment and abuse of inmates was all but nonexistent”); id. (“The training consisted almost exclusively of informing guards of the easy and evident.”) id. (noting single session on PREA); id. at p. 20 (stating jury could have fo und jail’s “sexual abuse prevention program was entirely lacking”); id. (stating County “exacerbated the gap byfailing to use training as the means of making the policy prohibition a reality”); id. at p. 27 (identifying failure to institute a training session after Jorgenson incident); id. at p. 31 (stating County should have “put in place some of Eiser’s proposed policies and training to prevent but especially100 Nos. 18-1498, et al.

type, and frequency of training. After Connick , 563 U.S. at 68, that is not the court’s inquiry. The County’s policies and trai ning—that guards are not to sexually assault inmates—admits of no nuance, separating it from the deadly force training of Canton and the Brady prosecutorial obligations of Connick . The training here is imperative and declarative: a jailer may no t have sexual contact with an inmate, and if the jailer does, the jailer will be fired and prosecuted for a felony under Wiscons in law. That is not a gray area, confounding correctional officials, nor did Christensen so testify. In fact, he admitted exactly the opposite: he knew what he was doing was criminal, and that no more trainingwould have altered that. Christensen, not the County, committed the legally and morally violative decisions here. Federal appellate courts to have addressed this issue have held that specialized training is not required for an employee to know that sexual assault is wrong: Eighth Circuit: McGuire v. Cooper, 952 F.3d 918, 2020 WL 1069461 at *3 (8th Cir. 2020) (con cluding reasonable supervisor would not know that a failure to specifically train a deputy not to sexually assault a woman would cause that deputy to engage in that behavior); Parrish , 594 F.3d at 999 (“[W]e do not believe that there is a pate ntly obvious need to train an officer not to sexually assault women.”); Andrews , 98 F.3d at1077 (“In light of the regular law enforcement duties of a podetect sexual abuse”); id. (“If Polk County had different policies or training, ... these women or someone else may have felt able to report the abuse ... .”).Nos. 18-1498, et al . 101

lice officer, we cannot conclude that there was a patently obvious need for the city to specifically train officers not to rape young women.”).

Ninth Circuit: Flores , 758 F.3d at 1160 (“We agree with our sister circuits that ‘[i]n light of the regular law enforcement duties of a police officer’ there is not ‘a patently obvious need for the city [ ] specifically [to] train officers not to rape young women.’” (quoting Andrews , 98 F.3d at 1077)).

Tenth Circuit: Schneider, 717 F.3d at 773–74 (rejecting failure-to-train liability because “[s]pecific or extensive traininghardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior” (quoting Barney
, 143 F.3d at 1308)); Barney, 143 F.3d at 1308 (same).

Eleventh Circuit: Sewell v. Town of Lake Hamilton , 117 F.3d 488, 490 (11th Cir. 1997) (reversing jury verdict against town and rejecting failure-to-train liability because it is obvious that a police officer should not “barter arrests for sexual favors”). The majority opinion’s expans ion of § 1983 liability becomes even more apparent when one considers how many of the decisions listed above would have come out the opposite way under the majority opinion’s rule.

D. Seventh Circuit For support the majority opinio n cites to two decisions of this court: Woodward v. Corr. Med. Servs. of Ill., Inc. , 368 F.3d 917 (7th Cir. 2004), and Glisson v. Indiana Dep’t of Corr. , 849 F.3d 372 (7th Cir. 2017) (en banc). Neither assists here.

In Woodward, this court affirmed a judgment under Monell when a contractor repeatedly faile d to act in the face of known violations. 368 F.3d at 930. But unlike here, in Woodward the102 Nos. 18-1498, et al.

contractor violated an express policy and willfully ignored its own policies. 368 F.3d at 926. Woodward was not a failure-totrain case, and it did not gra pple with the requirements of Canton and Connick ; indeed, it mentions neither case. Woodward also found “a direct link” between the policy at issue and the constitutional deprivation, an inmate’s suicide. 368 F.3d at 929. That requirement comes from Bryan County

. 520 U.S. at 404. As noted above such a link is absent here. The majority opinion also cites Glisson as a pathway for J.K.J. and M.J.J. to make their case to a jury. Glisson held that an inmate healthcare provider could be liable under § 1983 for failing to establish any protocol for the coordinated care of inmates with chronic illnesses. 849 F.3d at 380. But Glissoninvolved a failure to enact a policy, not a failure to train employees. Id . at 382. In Glisson , this court concluded that the contractor had deliberately chosen not to have any policy as to the coordination of care, even though the contractor had actual knowledge that would result in deprivation of rights. Id . at 382. That is not the case he re. No one disputes the jail had express zero-tolerance sexual assault policies and trained its guards about those policies. And, actual knowledge of sexual assaults is absent here . Even more, to align with Glisson

, sexual assaults by male guards would have to be as obvious as not coordinating care for sick people, which was not shown here.

VII. Conclusion

A lone correctional o ffi cer covertly commi tt ed terrible sexual assaults against two jail inmates. That employee is now behind bars for 30 years and has millions of dollars of civiljudgments against him. At issue is whether his public employer is also liable for those crimes.Nos. 18-1498, et al . 103

Under the majority opinion, a single subordinate employee may secretly override municipal policy and create a new policy under which that public employer is accountable. That is vicarious liability, a collapse into respondeat superior against which the Supreme Court has repeatedly warned for 60 years. By stepping out and re cognizing fault and causationon these facts, this decision departs from Supreme Court precedents, imports a negligence stan dard into the law of deliberate indi ff erence, permits federal encroachment into an area of traditional state authority, an d splits with other federal circuits. On these facts and unde r the controlling law, the employee, not the employer, should be held responsible for these plainti ff s’ injuries. Therefore, I respectfully dissent in part.