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.

POLK COUNTY and DARRYL L. CHRISTENSEN, 

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. 

____________________ 

ARGUED DECEMBER 5, 2019 — DECIDED MAY 15, 2020 

____________________ 

Before WOOD, Chief Judge, and BAUER, EASTERBROOK,

KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN,

SCUDDER, and ST. EVE, Circuit Judges. 

SCUDDER, Circuit Judge. While confined in the Polk County 

Jail, two female inmates, J.K.J. and M.J.J., endured repeated 

sexual assaults at the hands of correctional officer Darryl 

Christensen. The two women brought suit in federal court 

against Christensen and Polk County. A trial ensued, and the 

jury heard evidence of Christensen’s horrific misconduct over 
2 Nos. 18-1498, et al.

a three-year period. The County’s written policy prohibited 

sexual contact between inmates and guards but failed to address the prevention and detection of such conduct. Nor did 

the County provide any meaningful 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 different 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 such 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 affirm the jury’s verdicts 

against 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 own 

constitutional torts and not those of employees like Christensen—the evidence was sufficient to support the verdict 

against the County. 

I 

J.K.J. and M.J.J. sued Christensen and Polk County under 

42 U.S.C. § 1983, alleging that the defendants violated the 

Eighth and Fourteenth Amendments by acting with deliberate indifference 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 consolidated 
Nos. 18-1498, et al. 3

the cases for trial. The five-day trial ended with the jury finding 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. suffered from addictions and committed 

crimes that landed them in the Polk County Jail intermittently 

between 2011 and 2014. Located in northwest Wisconsin, the 

institution houses up to 160 inmates, including a small number of women, and employs about 27 correctional officers. 

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 pattern. 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 digital 

penetration 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 sure to take J.K.J. and M.J.J. to 

hidden areas to engage in the physical contact. Christensen 
4 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 during their incarceration. J.K.J. 

and M.J.J. explained their silence in terms familiar to many 

victims 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 internal investigation, and Christensen resigned upon being confronted. 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 officer Allen 

Jorgenson had an inappropriate relationship with a female inmate known as N.S. Sergeant Steven Schaefer brought the 

complaints to Captain Scott Nargis, the day-to-day head (effectively the warden) of the jail. Schaefer reported that Jorgenson had touched N.S. on her waist and rear end, adding that 

the complaints did not come as a surprise because “[w]e have 

all heard complaints about [Jorgenson’s] inappropriate comments to both inmates and staff.” 
Nos. 18-1498, et al. 5

Captain Nargis responded by partnering with Deputy 

Sheriff Steven Moe to investigate the contentions. Although 

Jorgenson and N.S. denied any wrongdoing, Nargis and Moe 

believed lines had been crossed. Indeed, the investigation revealed that Jorgenson not only flirted 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 testified that he initially did 

not believe Jorgenson had a sexual relationship with N.S. 

Based on those findings, Moe and Captain Nargis decided 

that the right response was to issue a written 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 testified, “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 efforts and his work, so we 

wanted to salvage him as an employee.” 

But the issue reawakened when N.S. sent Captain Nargis 

a letter, dated January 19, 2012, explaining that she had lied 

in denying the allegations about Jorgenson. At J.K.J. and 

M.J.J.’s trial, the district court admitted N.S.’s letter 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 letter 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 in 

a sexual manner towards me” and other inmates. Before detailing her own account, N.S. emphasized that “I did not tell 
6 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 day 

was”—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 office, visiting anywhere he shoves me & pushes 

me” and “very recently ... he grabbed me 

around my waist & kept his hand there til the KPod door opened then he slapped my butt.” 

 “[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 & butt as 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 letter by underscoring that “another reason 

I did not tell the truth [in the initial investigation] is because I 

don’t want problems with [Jorgenson] or any of the other jailers who will be mad @ me for confirming 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 letter, Deputy Sheriff Moe and Captain Nargis reopened the prior investigation to take a fresh 

look at Jorgenson’s conduct. Sergeant 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 letter, 

he found it “more likely” that Jorgenson had inappropriately 

or even illegally touched her. 

From there, however, Polk County chose not to revisit its 

prior disciplinary decision and determined that Jorgenson’s 

conduct still merited only the prior written reprimand. The 

jail 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 testified 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 reflected “not necessarily flattering talk amongst co-workers in the tier.” By way of example, 

Captain Nargis confirmed hearing that Christensen had made 

inappropriate sexual comments about women in general and, 

on one occasion, about an inmate’s breasts. Nargis even 

acknowledged that “on occasion” he too participated in tier 
8 Nos. 18-1498, et al.

talk, in an effort to be viewed as part of the group and a 

trusted leader of the officers. 

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 written policies against the sexual harassment 

and 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 staff. Any harassing 

officer was “subject to disciplinary charges and/or termination.” 

Another of the Manual’s provisions, Policy C-202, stated 

that 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 Prison 

Rape Elimination Act, a federal statute enacted in 2003 to deter the sexual assault of prisoners. The new language instructed that any staff member or inmate “who knows or reasonably suspects” sexual misconduct was to inform the “Jail 

Administrator” or, if the complainant was an inmate, she 

could inform a staff member, and went on to describe how 

such reports would be handled. The section noted that “Wisconsin State Statutes make it a criminal offense for correctional staff members to have sexual intercourse or contact 

with an individual confined in a correctional institution.” See 

WIS. STAT. § 940.225(2)(h). 

The 12-page Inmate’s Handbook also mentioned sexual 

misconduct, providing: “[e]very inmate has the right to be 
Nos. 18-1498, et al. 9

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.” As the plaintiffs’ 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.” Inmates 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 written policies, Polk County Jail staff

received no training (in any sense 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 officers to read a specified 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 told the jury that most of the 

time he just went through the motions of writing down a policy’s title and signing without reviewing anything. Even 

more, the trial record contained no evidence showing that 

Captain Nargis or anyone from the County dedicated any 

portion 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-specific) training on 

sexual harassment that addressed how employees should 

maintain proper co-worker relationships but which Sergeant 
10 Nos. 18-1498, et al.

Schaefer clarified was “not anything regarding inmates.” The 

jury also heard evidence about the jailers’ training on the 

vague topic of maintaining distance 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 officers, expressly admitted 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 officers to have sexual relationships with inmates. Those vague cautions were repeated 

to him during on-the-job training in the Polk County Jail. And 

when Sergeant Schaefer trained others, he gave the same admonishments. While Schaefer agreed that having sex with an 

inmate 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 affirmative evidence revealing the 

County’s dismissive attitude about preventing and detecting 

it. The prime example came in the “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 staff 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 that it “[s]eems that everyone is 

in a tizzy to train their staff on PREA.” Nargis testified that he 

used the word “tizzy” to mean “that there’s a bit of a scramble 

for, in this particular case, time and attention that seemed to 

be misplaced.” His email went on to state that, although 

“[t]here is no requirement for [the jail] to be compliant with 
Nos. 18-1498, et al. 11

everything that [PREA] calls for,” 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 policies and training. They did 

so through the testimony of Jeffrey Eiser, an expert on jail operations. Eiser explained that Congress enacted PREA in response to an “evident” and “prevalent” problem with sexual 

assault 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 

sufficiently covered only the third base—responding to sexual abuse complaints—but otherwise inadequately addressed 

prevention and detection. 

Eiser did not stop there. He then offered 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 staff 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 testified that, to 

detect sexual misconduct, a policy 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, confidential way for inmates to report abuse (through, for example, the use of a locked dropbox), instead of putting inmates in the position of having to 
12 Nos. 18-1498, et al.

hand a grievance to an officer 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 Christensen and Polk County. The 

case proceeded to the damages phase, and the jury then heard 

testimony about the impact the defendants’ conduct has had 

on the women’s lives. The jury translated that evidence into 

compensatory damages awards of $2 million each for J.K.J. 

and M.J.J. The jury further determined 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 the district court made. Polk 

County also moved under Rule 50 for judgment as a matter of 

law, arguing that the trial evidence was legally insufficient 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 latter 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 sufficed to allow the jury to find from the 

“tier talk” alone that “jail officials not only turned a blind eye, 

and perhaps even fostered, a culture where inappropriate sexual comments were accepted as the norm.” Highlighting the 

showing 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, Judge 
Nos. 18-1498, et al. 13

Conley explained that the jury had ample evidence from 

which to conclude that the County “downplayed the importance of preventing sexual assault and harassment within 

the jail.” Considered in its entirety, Judge Conley continued, 

the evidence supported the jury’s finding by a preponderance 

of the evidence that “if the County had provided adequate 

notice and training to correctional officers and inmates on 

what constitutes sexual harassment and abuse, and how to report it, plaintiffs [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 indifference 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 conclude 

that the trial evidence met that standard. To say that the sexual assaults he committed against J.K.J. and M.J.J. objectively 

imposed serious risk to their safety would be an understatement. And the evidence was equally sufficient to show that 

Christensen knew of that danger. Indeed, he admitted at trial 

that he knew he was putting the plaintiffs 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 effort failed and now on appeal he contends that 

the district court erred in not giving the jury a special 
14 Nos. 18-1498, et al.

instruction on his consent defense. Our review of the trial 

transcript shows that the district 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 matter, 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 acted with deliberate indifference to their 

safety and well-being. But the jury reached no such conclusion. The instructions were sufficient. 

Christensen’s last challenge is to the damages awards. He 

finds them problematic because the jury gave the same 

amounts to both women. To be sure, the sexual abuse had 

unique effects on J.K.J. and M.J.J., who each came to Polk 

County Jail from distinct lives and suffered their own personal tragedies. But that does not mean that they necessitated 

different compensatory damages amounts, particularly given 

the psychology expert’s recommendation 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 affirmed. 

III 

A 

We now turn to the more difficult question of Polk 

County’s liability. The County raises a few issues on appeal 

but only one merits discussion—whether the trial evidence 

was sufficient to sustain the jury’s verdict. Polk County is not 
Nos. 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 governments 

like 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 difficult to establish precisely because of 

the care the law has taken to avoid holding a municipality responsible for an employee’s misconduct. A primary guardrail 

is the threshold requirement of a plaintiff showing 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 officials 

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 plaintiff is complaining one of the institution itself, or is it 

merely 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 officially adopted by municipal decisionmakers), an informal 

but established municipal custom, or even the action of a 
16 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 attach, however. “The plaintiff 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 

plaintiff, in short, “must show that the municipal action was 

taken with the requisite degree of culpability and must 

demonstrate a direct causal link between the municipal action 

and the deprivation of federal rights.” Id.; see also Monell, 436 

U.S. at 694 (explaining that only when a municipality’s policy 

or custom “inflicts the injury” is the entity responsible under 

§ 1983). 

The most straightforward Monell claims are those in which 

a plaintiff alleges that an affirmative 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 unconstitutional policy or custom or to 

take particular action. See id. at 405. Consider, for example, a 

city with a policy authorizing its employees to take some unconstitutional act in connection with traffic stops after midnight. Deliberate conduct is easily inferred from the intentional adoption of the offending policy. And if a victim of the 

unconstitutional act emerges as a Monell plaintiff, there will 

be little doubt that it was the city’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 affirmative 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 properly 
Nos. 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 liability 

can 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 affirmative municipal action, a 

failure to do something could be inadvertent and the connection between inaction and a resulting injury is more tenuous. 

For these reasons, “[w]here a plaintiff claims that 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 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 sufficient to support the verdict against Polk County. The law affords great respect to jury 

verdicts. As a court of review, our role is limited to policing 

the evidentiary threshold necessary as a legal matter to meet 

Monell’s demands. In doing so, we do not reweigh evidence, 

assess the credibility of any trial witness, or otherwise attempt 
18 Nos. 18-1498, et al.

to usurp the jury’s role as factfinder. 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 benefit of every inference’ 

while refraining from weighing for ourselves the credibility 

of evidence and testimony.”). To the contrary, we must affirm 

unless there is “no legally sufficient evidentiary basis for a 

reasonable jury to find 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 requirements, we turn to the evidence 

J.K.J. and M.J.J. put before the jury here. 

B 

All agree that Polk County’s written policies categorically 

prohibited sexual contact with 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 Jeffrey 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 first instance 

and to detect it if it does occur. Eiser spotlighted for the jury 

that Polk County’s policy, although addressing incident response, fell far short on prevention and detection. 

Eiser then explained that any number of policy measures 

could have filled the gaps at little or no cost to Polk County. 

Consider the need to detect sexual abuse. The importance of 

a safe and confidential reporting channel—even something as 

simple 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 that 
Nos. 18-1498, et al. 19

she suffered a sexual assault at the hands of his coworker. 

Given the perceived comradery among the male guards and 

acceptance of sexual harassment at the jail’s highest levels (inferred perhaps foremost from the “tier talk”), the jury could 

have found that this was not a viable reporting option and indeed reflected a meaningful policy gap. Put most simply, the 

jury could have credited Eiser’s expert testimony as part of 

finding that Polk County’s policy deficiency affirmatively deterred the reporting and detection 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 because 

it can educate and sensitize guards as well as shape and reinforce institutional values, bringing to life words that otherwise exist only on paper. The trial 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 attend. 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 confinement setting presents to female inmates, educating 

jailers on the symptoms of an inmate suffering from the 
20 Nos. 18-1498, et al.

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

matters of prevention and detection, whatever form that 

might have taken. 

The trial evidence makes the bottom line plain: the jury 

could have found that Polk County’s sexual abuse prevention 

program was entirely lacking. The policy stated nothing but 

the obvious—do not sexually abuse 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 institution. The jury could have tallied these gaps as part of finding 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 Supreme 

Court 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 constitutional violations. See Connick, 563 U.S. at 61–62. Demonstrating that notice is essential 

to an ultimate finding 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 pattern. The district court declined to instruct the jury on the theory because it found insufficient evidence of previous instances of sexual assault known to the 

County. In so concluding, however, the district court 
Nos. 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 different training 

is so obvious, and the inadequacy so likely to result in the violation of constitutional rights” that a factfinder could find 

deliberate indifference 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 liable if it actually causes injury.” Id. Put another way, a risk of constitutional violations 

can be so high and the need for training so obvious that the 

municipality’s failure to act can reflect deliberate indifference 

and allow an inference of institutional 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 moral certainty that their police officers will be required to arrest fleeing felons.” Id. at 390 

n.10. “The city,” the Court continued, “has armed its officers 

with firearms, in part to allow them to accomplish the task.” 

Id. The Court concluded that under those circumstances, “the 

need to train officers in the constitutional limitations on the 

use of deadly force can be said to be ‘so obvious,’ that failure 

to 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 Monell
22 Nos. 18-1498, et al.

liability remains ajar. In Bryan County, the Court confirmed 

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 explained that “in a narrow range of 

circumstances,” deliberate indifference could be found when 

the violation of rights is a “highly predictable consequence” 

of a failure to provide officers 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 consequences of failing to train 

could be so patently obvious that a city could be liable under 

§ 1983 without proof of a pre-existing pattern of violations.” 

563 U.S. at 64. 

Though the Supreme Court has yet to confront a case that 

presents a viable Monell claim based on a municipality’s failure to act in absence of a pattern, 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 institution 

could be liable for failing to adopt protocols for the coordinated and comprehensive treatment of chronically ill inmates. 

See 849 F.3d at 382. The inaction came at a time when the institution “had notice of the problems 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 find 

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 coordinated 
Nos. 18-1498, et al. 23

care of chronic illnesses is obvious,” just like it is obvious that 

police officers would encounter situations where they would 

need protocols on the use 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 inmate’s suicide. See 368 F.3d at 

929. The training on suicide prevention—a requirement under the Eighth Amendment—was so inadequate and so 

widely 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. at 

409). The trial evidence allowed the jury to infer that policymakers “noticed what was going 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 

matter 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 indifference to the risk 

of such violations. Sometimes the notice will come from a pattern of past similar violations; other times it will come from 

evidence of a risk so obvious that 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 find that Polk County’s 

policy failures—both the prevention and detection gaps in its 
24 Nos. 18-1498, et al.

written 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 affirmative 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 Depʹt 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 responsibility 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 offenders 

pay for their offenses against society.” Farmer, 511 U.S. at 834. 

Now consider the delicate setting for J.K.J. and M.J.J. They 

were confined 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 difficult to conceive of any setting 

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 testimony of J.K.J., M.J.J., and their 

expert, Jeffrey Eiser. As J.K.J. aptly explained to the jury, 

“there’s a male figure standing in front of me in a uniform 
Nos. 18-1498, et al. 25

with a badge that has authority to do whatever he wants to 

me.” The confinement setting 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 risk 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 actions therefore could be attributed to the 

County for the purpose of Monell liability. See Gernetzke v. Kenosha Unified 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 action in question.”); see also 

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (employing similar reasoning). Captain Nargis even admitted to himself participating in “tier talk,” jailhouse chatter 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 exact 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 confirming the undeniable risk that a guard would grow too comfortable, lose his 

better angels, and step over the clear line marked in Polk 

County’s written 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 misconduct against inmate N.S. 

Recall the timing. Nargis learned of Jorgenson’s reported 
26 Nos. 18-1498, et al.

wrongdoing no later than January 2012. It was then that N.S. 

wrote her letter 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 expose her body for him, and in 

time intensified 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 “highly 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 accusations 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 evidence 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 escalating actions, cut short as 

they were, and Christensen’s early 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 insufficient to deter lesser 
Nos. 18-1498, et al. 27

[sexual] misconduct can be found to serve [as] notice that the 

practice is also insufficient 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 committed suicide 

simply shows that [the jail’s healthcare contractor] was fortunate, not that it wasn’t deliberately indifferent.”). 

And with red lights flashing, Polk County chose the one 

unavailable option—doing nothing. It did not change its sexual abuse policy, institute a training, inquire of female inmates, or even call a staff meeting. With the 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 claim 

a 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 was 

barely 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 written 

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 

sufficient to demonstrate deliberate indifference. Or, as the 

Supreme Court put the same point in City of Canton, the necessity to act, whether by different 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 be 

seen 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 find 

because “the existence of the INDOC Guidelines [addressing 

the coordination of medical care], with which Corizon [as the 

prison’s healthcare provider] was admittedly 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 indifference to sexual 

abuse. Remember that the County’s investigation of Jorgenson ended with the considered conclusion that a reprimand 

was adequate discipline. But even the reprimand came with 

jail officials assuring Jorgenson that the censure was “not a big 

deal.” The jury could have viewed this slap on the wrist as 

confirming the jail’s broken culture, as explaining why not 

only the “tier talk” was allowed to go on—with Captain 

Nargis himself participating in it as a way of fitting in and 

earning the confidence of the guards under his supervision—

but also why Nargis’s “tizzy email” evinced such a dismissive 

attitude toward sexual abuse training. See Cash, 654 F.3d at 

338 (holding the jury could infer deliberate indifference to the 

risk of inmate sexual assault because the jail’s issuance of a 

one-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 little to reinforce the dignity and 

respect owed female (and indeed all) inmates and instead 

seemed to enable a culture that condoned the sexual objectification 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 flawed conduct” but rather 

“based on repeated failures to ensure [the inmates’] 

safety ... as well as a culture that permitted and condoned violations of policies that were designed to protect inmates.” 

Woodward, 368 F.3d at 929. Risk that started as obvious (from 

the confinement setting and power dynamic between male 

guards and female inmates) was fully on display (following 

the Jorgenson incident) within an institution that scoffed 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 evidentiary ground seeing the 

County’s dormancy as more than oversight, but instead as deliberate inaction. 

We recognize that policies can always be more robust, and 

training can always be more thorough. PREA is not a constitutional standard, and jails are not required to adopt it. Our 

federal structure leaves the choices to state and local authorities. 

Our conclusion is more limited: the risks to female inmates 

in the confinement setting are obvious—indeed, PREA owes 

its very existence to that reality—and N.S.’s report of Jorgenson’s misconduct reinforced for 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 steps 
30 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 firearms to new 

police academy graduates, wish them Godspeed on the 

streets, and hope the new officers exercise sound judgment 

when 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 jailhouse walls, dispatch male 

guards to stand watch over its female inmates equipped with 

nothing more than a piece of paper with a flat instruction not 

to abuse those under their care. The jury had enough to conclude that Polk County deliberately chose a path of inaction 

when that option was off the table. 

E 

Much of the same evidence proving Polk County deliberately indifferent to the constitutional consequences of its inaction likewise illustrates that its indifference 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 indifference 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 find causation. And inferences were required, for finding causation is not a mechanical exercise like working a math 

problem and getting an answer, but instead requires jurors to 

view evidence in its totality, draw on their life experiences 
Nos. 18-1498, et al. 31

and common sense, and then reach reasonable conclusions 

about the effects of particular action and inaction. 

The circumstantial evidence paved multiple roads for the 

jury to travel to find 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 the County had put in place some 

of 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. testified 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 different policies or training, its culture would have changed, including its 

dismissive and flippant attitude 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 was 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 different 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’s 
32 Nos. 18-1498, et al.

code of conduct could have made any difference. 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 fixation 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 his 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 

officers 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 County’s acting to institute more 

robust policies—foremost addressing prevention and detection—and then training on those policies would have resulted 

in another correctional officer, 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 officer 

would have acted under the circumstances may not be an easy 

task for the factfinder.” City of Canton, 489 U.S. at 391. Nor was 

the jury compelled to conclude that the sexual abuse suffered 

by J.K.J. and M.J.J. had one and only one cause. See Whitlock 
Nos. 18-1498, et al. 33

v. Brueggemann, 682 F.3d 567, 583 (7th Cir. 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 their 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 justified the jury’s verdict against him. And the 

jury was furnished with sufficient evidence to hold Polk 

County liable not on the basis of Christensen’s horrific 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 inflicted on 

J.K.J. and M.J.J. The jury so concluded, and we AFFIRM. 
34 Nos. 18-1498, et al.

HAMILTON, Circuit Judge, concurring. I join Judge Scudder’s opinion for the court. In light of comments in the dissenting opinions, it is worth 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 train 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 conduct 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 find 

that 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 applies here to Christensen, who 

repeatedly gave in to the temptation to abuse his power over 

inmates. 
Nos. 18-1498, et al. 35 

EASTERBROOK, 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 County for failing to train guards 

about that policy. Yet the Constitution does not require 

training. See Connick v. Thompson, 563 U.S. 51 (2011). Nor 

does 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 validity of the policies—that is to 

say, the policymakers’ decisions—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 avert 

one 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 vicarious 
36 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 decision 

by 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 certainty 

that 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 County. 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 forbidding “an intimate social or 

physical relationship with a prisoner”. Another of the Jail’s 

policies says: 

under no circumstances will any inmate be the 

object 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 explication about “emotional” or “psychological” harassment, but anyone can understand the rule 

against intimate physical relations 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 in Canton’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. Plaintiffs 

do 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 paper 

tiger—when evidence shows that training makes all the difference between a policy that works and a policy that does 

not. 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 rife with sexual crimes committed by guards? Plaintiffs concede that the answer is no. 

They acknowledge that there had not been an instance of 

improper sexual contact before Christensen. Plaintiffs also 

acknowledge that the Polk County Jail was no worse on related subjects than other institutions, some of which used the 

training programs that the Jail did 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 spend 

more 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 inmates”? 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 that 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 that 

prevents 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 has 

been 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 Connick once again: The Justices recognized that the prosecutor’s office 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 roundabout route the majority 

has devised. 
Nos. 18-1498, et al. 41 

BRENNAN, Circuit Judge, with whom BAUER and SYKES, 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 circumstances” under which 

that theory applies do not fit here. Connick v. Thompson, 563 

U.S. 51, 63, 64 (2011). Nor does this 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’ terrible 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 knowledge. It is also undisputed 

that no pattern of similar violations put the County on notice 

of a need for specific training that would have prevented 

these sexual assaults. Yet the majority opinion concludes the 

same evidence that failed to show notice under pattern 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 a 
42 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 deficient 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 light most favorable to the verdict 

against the County, Martin v. Marinez, 934 F.3d 594, 596 (7th 

Cir. 2019), and noting disagreement 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 suffered serious injustices and traumatic injuries because of Christensen. The question is 

whether Polk County bears legal responsibility for Christensen’s actions. 

A. Trial Evidence 

Plaintiffs made four principal allegations against the 

County 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 former 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, psychological, or sexual harassment by 

facility staff.” The policy continues, “[a]ny officer engaged in 

such actions is subject to disciplinary 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 contact 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 arrival 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 jail’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 that 

sexual 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 continuing 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 training,” 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 certified 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 fraternizing with inmates. 

The majority opinion expresses concern that “the trial record ... contained no evidence showing that ... anyone from 

the County dedicated any portion 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 was 

to 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 training,” including policies I-100 and 

C-202. Despite Schaefer’s testimony 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 in their appeal brief which declares: “Sergeant Steven Schaefer also testified to never receiving any training regarding sexual assault”; and Schaefer 

“agreed that [he] received no training on sexual assault at any 

time.” Appellees’ Br. at 13. 

In addition to the training above, 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, sharing 

personal 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, Schaefer 

testified that “Christensen had dishonored and disgraced everything the sheriff’s department was about” and that 

Christensen’s behavior was “a betrayal 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 nonexistent.” Majority op. at p. 

10. It states the jury heard evidence about jailers’ training on 

maintaining distance from inmates, but “no testimony to suggest that training touched the topic of sexual assault” and that 

Schaefer “expressly admitted that much.” Id. It also states that 

Schaefer “denied any memory of being told that it was improper for jail officers to have sexual relationships with inmates.” Id. 

Schaefer testified differently than 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 provisions prohibiting physical 

relationships with prisoners. 

2. Inappropriate speech

Plaintiffs 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 examination 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 tier 

talk “on occasion” to establish trust among subordinate officers. When Nargis admitted to “tier talk,” he did so within 

plaintiffs’ definition (“not necessarily flattering talk”). Plaintiffs did not present evidence that tier talk connoted “sexual 
Nos. 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.2 

The 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 jury’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 by 

jail 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 a 

twelve-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 Nargis 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 were 

unreported, unspecific, and undated. Neither J.K.J. nor Christensen offered details on the alleged comments or the 

timeframe in which they occurred, and there was no evidence 

the County had notice of these comments. Nargis testified 

that during Christensen’s twelve-year employment, he did 

not 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 extrapolates 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 Christensen’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 allegations 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 investigation revealed that another inmate believed Jorgenson and N.S. had an “inappropriate relationship” but “no physical relationship,” and that Jorgenson 

allegedly misused a jail camera to focus on female inmates 

longer 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 denial, 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 reprimand, 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 take a whole fresh look at the 

situation.” After this second review, Nargis and Moe again 

could 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 inappropriate comments to female coworkers, which the County does not dispute. When 

staff first notified jail authorities of Jorgenson’s behavior towards coworkers, an investigation ensued, leading to Jorgenson’s resignation. It is undisputed that Jorgenson’s comments 

to staff went unreported until the N.S. investigation. It is also 
50 Nos. 18-1498, et al.

undisputed that in the nine years preceding trial, 14,100 inmates came though the jail, and 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. The 

letter was admitted, however, only for the limited, non-hearsay purpose of notice. The letter could not be considered on 

its merits, which the majority opinion appears to do. Majority 

op. at pp. 26–27 (“That Jorgenson’s grooming of N.S. did not 

end with rape is no liability shield; 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 did 

not 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 quoted 

testimony spoke of improper comments, not improper touching. As to those comments, Schaefer could not recall an example of Jorgenson making an improper comment to an inmate. 

Schaefer also testified that none of the Jorgenson comments to 

staff 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 preventing and detecting sexual 

assaults. 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 compliant with 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 the jail’s current anti-sexual assault policies. Plaintiffs argued the “tizzy” email proves that 

Nargis and the jail “consciously disregarded” PREA standards and thus disregarded the risk of sexual assaults at the 

jail. 

Plaintiffs’ opinion witness Eiser grounded his testimony 

on PREA’s recommendations, opining that the jail’s sexual assault policies and training were inadequate because they did 

not 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 agreed 

the 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. 

Plaintiffs agreed that state law, not PREA, governs county 

jails in Wisconsin, but they offered no evidence that the jail’s 

sexual 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 of 
52 Nos. 18-1498, et al.

Corrections annually reviews the jail’s policies, including its 

policy prohibiting fraternization with inmates. In each year of 

plaintiffs’ 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 Supreme 

Court has traveled a winding route. But that route has a constant beacon to courts: each case examines what federal power 

may be exercised over state and municipal governments and 

considers the Court’s desire to harmonize § 1983 with the 

structural limits of federalism. These precedents are dispositive here and warrant detailed review before their application. They prescribe a different outcome 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 incidents 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 responsibility 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. The 

Court distinguished the mere failure to act in the face of a pattern of incidents from “active conduct,” rejecting the argument that a pattern alone creates a “constitutional duty” to 
Nos. 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 ... into 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 relationship between federal courts and 

state governments ... .” Id. And those principles apply when 

relief is sought against local governments. Id. 

Rizzo formulated the heightened causation requirement 

between a policy and a constitutional 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 that 

an 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 Act 
54 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 to 

them. 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 use of the verbs “subject[s], or 

causes 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 the “mere right to control without any control or direction being 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 custom 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 plaintiffs could establish municipal 

liability by alleging unofficial policies, especially those of municipal inaction or inadequate training, such as here. Over 

three decades the Court has filled in those blanks. Each time 

the Court has set the requirements to establish municipal liability for failure to train, liability has become more difficult to 
Nos. 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 permitted the jury to infer liability 

attributable to inadequate training 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 officer]’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 injured detainees. 489 U.S. at 381. 

On the question of fault, the Court held that a claim of inadequate training triggers municipal liability “only where the 

failure to train amounts to deliberate indifference to the rights 

of persons with whom [municipal employees] come into contact.” Id. at 388. A municipality can be liable under § 1983 

“[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice” not to fully train employees. Id. at 389. Such a 
56 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 likely 

to 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. To 

prevail under this theory, a plaintiff must prove that municipal “policymakers know to a moral certainty” that its employees will confront a given situation 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 incident,” 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 plus 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 deliberate indifference for failing to 

train employees for rare or unforeseen 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 superior liability 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 suited 

to 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 unsatisfactorily 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 trained officers occasionally make 

mistakes; the fact that they do says little about the training 
58 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-train 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 recurring situations with which 

they must deal.” Id. And “[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 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 deputy 

sheriff 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 county’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 liable 
Nos. 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 superior liability.” 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 omitted). A “plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or 

statutory right will follow the decision.” Id. at 411 (emphasis 

added). In other words, the deprivation of a federally protected right must be the “plainly obvious consequence” of the 

municipality’s decision. Id. Bryan County instructs courts to 

focus on the particular constitutional 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 that 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 show 

that 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 federal 
60 Nos. 18-1498, et al.

rights may be a highly predictable consequence of a failure to 

equip law enforcement officers with 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 statutory 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 spent 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. 

Connick reflects the Court’s most recent and most exhaustive assessment of inadequate training liability. Because such 

a 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, and 
Nos. 18-1498, et al. 61 

those that may succeed without 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 similar 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 nondisclosure of favorable evidence 

that exculpated plaintiff, the Court 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 he 

could 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) (agreeing with majority on this requirement). 

Second, once it is established 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 “in 
62 Nos. 18-1498, et al.

the absence of training,” there must be “no way for novice 

officers to obtain the legal 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 part and dissenting in part)). In 

those situations, a plaintiff must show 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 the 

subtleties 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, “’proving 
Nos. 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 requirements, 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 attorney “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 regime of legal training and 

professional 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 Connick

that “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 held 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 either, for the reasons that follow. 

III. Theories of Liability 

The majority opinion holds the County employer liable for 

the crimes of its employee Christensen 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 rest 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 “narrow 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 omission of such measures from 

written policies, caused plaintiff’s injuries. Majority op. at pp. 

30-33. 

In reaching these conclusions, 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 superior liability, 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” may 

the municipality be deemed deliberately indifferent for retaining that program. Connick, 563 U.S. at 61. “Without notice
Nos. 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 distinct 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 obviousness of a risk is determined from “[a] pattern of similar constitutional violations 

by untrained employees.” Connick, 563 U.S. at 62. Under the 

single-incident theory, the question 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 omission 

in a training regimen” the question is whether the risk is “obvious in the abstract.” Bryan County, 520 U.S. at 410 (internal 
66 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 premised 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 part ways with my colleagues in the 

majority 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 officers, 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 sexual 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 constraints” 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 conduct 

was 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 cannot be met, as it characterizes 

the jail’s zero-tolerance abuse policy as “categorical[],” a 

“clear line,” as well as an “obvious” and “easy and evident” 

constitutional parameter. Majority op. at pp. 18–19, 25. The 

record 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 knowledge at all” of the relevant constitutional standard, id. at 67, here, a blanket prohibition against sexual assault. That means 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 without training “male guards would 

sexually assault female inmates.” Majority op. at p. 24. This 

conclusion assumes that jails present an “opportunity to 

abuse” 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 between 
68 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 establishes 

negligence, which “will not suffice” to establish § 1983 liability. Bryan County, 520 U.S. at 407. The record does not support 

the 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 assumed 

that absent training, male guards would have “obviously” violated behavioral norms and commit sex crimes.7 For these 

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

6 The majority opinion’s conclusion that 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? 

7 The 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 alone. 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 are 

left alone because in the record there was no evidence of sexual misconduct in the offending jailer’s background 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 plaintiffs at risk, and that more 

training would not have altered that knowledge. Despite 

Christensen’s avowals, the majority opinion holds the County 

liable for Christensen’s conduct because its sexual assault 

training 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 in 

the 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 failure to train simply because the 

municipality 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 attributed 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 superior liability 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, the 

Court 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 something 

the 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 majority 

opinion 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 ineffective 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 the discovery of Christensen’s 

crimes, 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 shows compliance with PREA would 

have yielded a better result. These same facts, however, persuade a majority of my colleagues 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 repeatedly to disregard that policy and, hiding his actions, assault the plaintiffs. 

To establish single incident liability, a plaintiff also must 

prove 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 attorney 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 on 
72 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 accusations of Jorgenson’s reprehensible conduct fell short of rape.”). 

2. The “Obvious” Contradiction

All agree this case turns on notice. The majority opinion 

states at p. 20: “The Supreme Court 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 constitutional violations. See Connick, 563 U.S. at 61–62.” Canton

in 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 characterized 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 concludes 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 misconduct 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) infrequent, 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 and conclusion based on this 

evidence, the majority opinion embraces a contradiction. The 

identical four categories of evidence served as plaintiffs’ evidence of notice in the district court. As in every appeal, we are 

limited by the record. The district court expressly ruled “that 

plaintiffs failed to put forth sufficient evidence to support 

finding a pattern of constitutional violations known to policymakers.” Opinion and Order at 7, J.K.J. v. Polk Cty., No. 15-

CV-428, 2018 WL 708390 (W.D. Wis. 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 evidence 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 its 

head, 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 majority opinion allows Jorgenson’s 

misconduct to provide “incremental notice of an obvious 
74 Nos. 18-1498, et al.

risk.” Majority op. at p. 26. Unexplained is why—if four categories of evidence did not provide that notice, as the district 

court held—one category could.8

If the response is that the “so obvious” notice necessary 

for single-incident liability differs from the “so obvious” notice for pattern liability, no authority so provides. Nor would 

it. The same evidence is not being considered as of different 

times, or in a different sense. Pattern and single incident theories of liability differ in their requirements, but they share 

the 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 consideration 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 omission in 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 “so 

obvious” 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 constitutional violations. See Connick, 563 

U.S. at 64 (explaining that with the single-incident exception 

“[t]he Court [in Canton] sought not to foreclose the possibility, 

however rare, ... that a city could 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 violations. Here, the district court 

concluded that those same categories of evidence failed to 

provide notice under a pattern theory, and an implied policy 

theory of liability is not before us. So the four categories cannot be considered here. 

There is only one way out of this 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 “so obvious” standard from the 

Canton footnote 10 hypothetical cannot 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” officers. 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 provide “obvious” notice of a need 

for more action. Cf. Connick, 563 U.S. at 61, 63, 71 (requiring 

“obvious” notice to establish 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 majority opinion of a need for more 

action. The need for additional policies 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 constitutional injuries suffered by 

plaintiffs. Bryan Cty., 520 U.S. at 411. This means plaintiffs 

must show that those guards lacked 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 rape 
Nos. 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 mention 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, produced “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 that 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 moral 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 does 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 link 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 training or a policy omission was in some manner deficient, “the identified deficiency ... must be closely related 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 behind 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 municipal 
Nos. 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 

superior liability.”). 

This case presents a glaring causation problem: When 

Christensen 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 “affirmative 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 affirmative link between the policy and 

the particular constitutional violation alleged.”); Rizzo, 423 

U.S. at 371 (rejecting liability because “there was no affirmative link between the occurrence of the various incidents of 

police misconduct and the adoption 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 was 

obvious, 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, Connick emphasizes the notice a municipality’s policymakers must have of the omissions in their training 

program causing municipal employees to violate a citizen’s 
80 Nos. 18-1498, et al.

constitutional rights before the municipality may be deemed 

deliberately indifferent. 563 U.S. at 61–62. “Without notice 

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. 

But the district court ruled, and it is unchallenged on 

appeal, 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 that 

same 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 causation 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 such that reliance on the County’s 

existing 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 direction 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 “nearly everything in [inmates’] 

lives.” Majority op. at p. 24. “With this authority and control ... c[o]me[s] power and, in turn, access opportunity to 

abuse it.” Id. Under this “delicate setting,” “the risk of constitutional injury” “was as obvious 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., concurring) (admonishing application 

of res ipsa loquitur doctrine in municipal liability claims). Res 

ipsa loquitur applies 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 might 
82 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 loquitur with 

the majority opinion’s reasoning: 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 causation, 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 language about sexual assault 

prevention and detection. They were caused by a miscreant 

guard’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. For 

example, no evidence shows that Christensen calculatedly exploited training and policy gaps. Nor does any evidence show 

that such gaps emboldened, let alone caused, Christensen to 

commit rapes. The record shows that when Christensen assaulted plaintiffs he knew he was 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 conduct, 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. Federalism 

The 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 must not 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 dictate 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 important 

federalism 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 

superior liability on municipalities—a result [] rejected in 

Monell.” Canton, 489 U.S. at 392 (citation omitted). “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 reaffirmed [since], Congress did not intend 

municipalities to be held liable unless deliberate

action attributable to the municipality directly 

caused a deprivation of federal rights. A failure 

to 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 flag: “[Section 1983] 

does not provide plaintiffs or courts carte blanche to micromanage local governments throughout 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 indifference would repeal the law of Monell.” 536 

U.S. at 73 (Scalia, J., concurring): 

[W]e do not have de facto respondeat superior liability, for each such violation 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. ... 

These restrictions are indispensable because 

without them, failure to train would become a 

talismanic incantation producing municipal liability in virtually every instance where a person 

has had his or her constitutional rights violated 
Nos. 18-1498, et al. 85 

by a city employee—which is what Monell rejects. Worse, it would engage the federal courts 

in 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 omitted). 

This case presents the infringement warned of in Canton,

Bryan County, and Connick by allowing a federal statute to dictate a municipality’s liability without proof of fault or causation. 

The majority opinion declares the County was deficient in 

preventing and detecting sexual assaults. This standard is 

drawn directly from the trial testimony of plaintiff’s opinion 

witness, Eiser, that the jail had inadequately addressed the 

prevention and detection of sexual assaults of inmates. Eiser 

testified PREA “set[s] the standard for jails very clearly.” According to Eiser, the PREA standard has three components: 

prevention, detection, and training. 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 testified 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 that the 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 municipalities 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 notice, which the County did not 

have. 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 the 

majority 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 rulemaking. 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 jail 

was 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 a 
Nos. 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 such 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 settings 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 Circuit 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 formulation, 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 guards supervise female inmates in a 

confinement 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 policies and training programs. 

This formulation also gives no guidance to district courts 

or municipal policymakers as to what training is or is not required to avoid a constitutional deprivation. This creates liability potentially unlimited in scope; if it has limits, those contours are ill-defined, and certain to confound and divide 

courts and policymakers. And in creating potentially unlimited liability, this court disregards 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 interpret a statute “[t]o displace 

traditional state regulation” unless 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 contemplates interference with state 

authority: ‘No State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ ... But this Court 

has never held that the Amendment may be applied in complete disregard for a State’s constitutional powers.” (quoting 

U.S. Const. amend. XIV § 1)). 

The majority opinion heralds federal involvement in what 

historically has been an area of state and local decision-making. Subsidiarity should be respected, especially with the Supreme Court repeatedly and specifically noting important 

federalism interests in precisely 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 explained in III., and the federalism principles noted in IV. 

Federal Rule of Civil Procedure 50 sets the standard and 

procedure courts are to employ in this role. “Judgment as a 
Nos. 18-1498, et al. 89 

matter of law is proper ‘if a reasonable 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 FED. R. CIV. 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 with a grant of summary judgment under Federal Rule of Civil 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 judgment 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 claim 
90 Nos. 18-1498, et al.

is legally sufficient. See FED. R. CIV. 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 determine the controlling law and exercise “responsibility to assure the fidelity of [their] judgment 

to the controlling law, a responsibility imposed by the Due 

Process Clause of the Fifth Amendment.” FED. R. CIV. 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 should disregard any jury determination for which there is no legally sufficient evidentiary 

basis enabling a reasonable jury to make it.” Id. 

The constitutional claim against the County never should 

have reached the jury. Summary judgment should have been 

granted to the County because the claim was legally deficient, 

as shown above.11 The legal deficiency of the claim, more than 

the lack of evidence, should have led to its demise. If summary judgment had not been granted 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 should not be held liable on 

plaintiffs’ legally deficient constitutional claim. Liability 

standards exist to govern behavior. Every tort case has a 

standard for fault and for causation. 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 downside 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-trial, took on inertia. Rule 50 exists to prevent that. The Supreme Court and federal appellate 

courts 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 this 

court 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 town 
92 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 evidence 

existed to hold sheriff liable because causal connection between his policies and death was tenuous in light of jury’s 

finding that individual correctional officers deliberately disregarded plaintiff’s medical needs); Palmquist v. Selvik, 111 

F.3d 1332, 1347 (7th Cir. 1997) (holding 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) (reversed jury verdict for plaintiffs 

due process claim after plaintiffs won 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) (reversed 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 obvious 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 extended 

the single-incident exception to the sexual assault context; 

 No federal appellate court has ever extended 

the single-incident exception 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 Liability for Sexual Assaults 

The 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 Monell

claim 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 that 

police 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 training 

hardly 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 of 

deliberate indifference absent a pattern of violations ... [because] we are not persuaded that 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 itself 

states it is not a failure-to-train case: “the deliberate indifference concern in this case ... is not 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 that guards make correct choices 

in this respect.” Id. at 336. Cash also based its conclusion of 

liability on a generalized risk rather than a particularized inquiry (violating Bryan County, 520 U.S. at 410–13), and it ignored the requirement of similar 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 found to serve notice that the 

practice 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’ pattern evidence of lesser misconduct failed to show notice of an obvious need for revised policies and training. Plaintiffs did not appeal that ruling. And 

unlike the majority opinion here, Cash does not deem it obvious that without training male guards will rape female 
96 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 Training 

A 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 choice 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) (“The 

complaints 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 officer] 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 which 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-incident 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’t 

prevent 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 single-incident theory because 

“[t]his case does not involve technical knowledge or ambiguous ‘gray areas’ in the law that would make it ‘highly predictable’ that a deputy sheriff ... would 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 about the impropriety of and potential consequences for engaging in sexual misconduct); 

Schneider, 717 F.3d at 774 (10th Cir. 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 stun 

guns 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.3d 
98 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 wrong thing, not left untrained. Id. Unlike Allen, no one 

disputes that had Christensen followed his training or the 

jail’s policies, the injuries to plaintiffs never would have occurred. 

These cases instruct that single-incident liability should 

not be extended to cases involving a rogue officer not complying with uncomplicated and constitutionally sound policies and training. Christensen admitted at trial that the 

County trained him on the illegality of sexual contact between 

guards 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 “concerned 

with 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-training 
Nos. 18-1498, et al. 99 

programs,’ thereby diminishing the 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 conclusions 

on 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 were 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 with everything PREA calls for); id. at p. 10 

(finding relevant what topics Sergeant 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 preventing 

and 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 found jail’s “sexual abuse prevention program was entirely lacking”); id. (stating County “exacerbated the gap by 

failing 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 especially 
100 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 training—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 not have sexual contact with an 

inmate, and if the jailer does, the jailer will be fired and prosecuted for a felony under Wisconsin 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 training 

would 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) (concluding 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 patently obvious need to train an 

officer not to sexually assault women.”); Andrews, 98 F.3d at 

1077 (“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 training 

hardly 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 expansion 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 opinion 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 failed to act in the face of known 

violations. 368 F.3d at 930. But unlike here, in Woodward the 
102 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 grapple 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 Glisson

involved 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 here. 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 officer covertly committed terrible sexual assaults against two jail inmates. That employee is now 

behind bars for 30 years and has millions of dollars of civil 

judgments 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 recognizing fault and causation 

on these facts, this decision departs from Supreme Court precedents, imports a negligence standard into the law of deliberate indifference, permits federal encroachment into an area of 

traditional state authority, and splits with other federal circuits. On these facts and under the controlling law, the employee, not the employer, should be held responsible for these 

plaintiffs’ injuries. Therefore, I respectfully dissent in part.