[00:00:00] Speaker 01:
So we'll now take 23, hyphen 1084.

[00:00:03] Speaker 01:
I hope that's what you're here for, Whitson versus Hanna.

[00:00:09] Speaker 00:
May it please the court, I'm Sean Willett for plaintiff appellant Patina Gitt-Biggs for her guardian ad litem, Hollis-Whitson.

[00:00:16] Speaker 00:
And I'll try to reserve two minutes for rebuttal.

[00:00:20] Speaker 00:
Under Penbauer in Cincinnati, a county is responsible when its officer makes a decision in a context or area or resets final policy for the county.

[00:00:29] Speaker 00:
The question here is whether that same rule applies to sexual assault, because the county admits that if the sheriff had used excessive force in another way, that that would create municipal liability, because the sheriff set final policy over the custody and supervision of county inmates, including how to transport them and confine them and use force against them.

[00:00:48] Speaker 00:
And he made decisions on those subjects when he took Patina from her cell in handcuffs, confined her in his car and his house, and used excessive force against her by sexually assaulting her.

[00:00:57] Speaker 00:
all during a jail-to-jail transport, and all while she was in prison or in his custody.

[00:01:01] Speaker 02:
And all contrary to the written policy.

[00:01:04] Speaker 00:
Yes, Your Honor.

[00:01:05] Speaker 00:
And Justice Gorsuch's decision in Simmons tells us that it doesn't matter if the action in question violates pre-existing policy.

[00:01:12] Speaker 00:
It's still an act of the county, as long as the policy-making official is acting in a context or area where he has the authority.

[00:01:20] Speaker 00:
And the district court held on the post-trial order held that

[00:01:25] Speaker 00:
the action wasn't attributable to the county because it was unlawful, and because it served a personal agenda and not a legitimate policy goal.

[00:01:33] Speaker 03:
So could the sheriff have altered the written rules unilaterally?

[00:01:40] Speaker 03:
Could he have said, from now on, it's going to be OK for officers in this department to use their personal vehicle to transport prisoners?

[00:01:49] Speaker 00:
Yes, Your Honor.

[00:01:50] Speaker 03:
He could have done that in behalf of the county.

[00:01:51] Speaker 03:
And he could have said,

[00:01:53] Speaker 03:
From now on, it's OK to not transport detainees in their prison jumpsuit.

[00:01:59] Speaker 03:
They can be transported in street clothes.

[00:02:01] Speaker 03:
Yes.

[00:02:01] Speaker 03:
And he could have said, it's fine from now on, even though we have a written policy to the contrary, if you want to take prisoners by your house on your way to court.

[00:02:13] Speaker 03:
Yes, sir.

[00:02:14] Speaker 03:
OK.

[00:02:15] Speaker 00:
And I think that actually highlights the weaknesses in the county's argument here.

[00:02:19] Speaker 03:
I mean, could he also say, you know, even though it's arguably unlawful and we have a policy against it, I'm going to now authorize relationships between officers and inmates.

[00:02:38] Speaker 03:
Yes, Your Honor, he could have done that on behalf of the county.

[00:02:41] Speaker 03:
Okay, so your position is no matter how far out

[00:02:45] Speaker 03:
Lawful, unlawful, clearly outside his bailiwick or within it, he has the authority to change the policy unilaterally without any other intervention by anyone else.

[00:03:02] Speaker 00:
I think that's pretty much it, Your Honor.

[00:03:06] Speaker 03:
OK.

[00:03:06] Speaker 03:
So he could even have told a deputy, let's assume he didn't commit the rape.

[00:03:12] Speaker 03:
He could have told one of his deputies under your position, hey, listen, you're not supposed to be taking these detainees by your house, but I know you really like her.

[00:03:22] Speaker 03:
So go ahead, take her by your house and that that would have been official county policy.

[00:03:28] Speaker 00:
That would be official county policy under the rule of Pembar, because you'd be acting in a context or area, the use of force against prisoners, how to transport prisoners, that the sheriff has the authority to regulate.

[00:03:40] Speaker 00:
That's the question here.

[00:03:41] Speaker 03:
What about the relationships?

[00:03:43] Speaker 00:
Relationships between guards and prisoners?

[00:03:45] Speaker 00:
Yes.

[00:03:46] Speaker 00:
I think that would be, you know, I think

[00:03:51] Speaker 00:
There, you'd still be dealing with the treatment of prisoners by a guard.

[00:03:55] Speaker 00:
So that would be the thinnest authority to regulate.

[00:03:58] Speaker 00:
And in fact, the county did have a policy on relationships between guards and prisoners in this case.

[00:04:03] Speaker 00:
But I think the key difference here is that the rule in Pembaugh and in this court's precedence is whether the official is acting in an area that he regulated as the policymaker.

[00:04:14] Speaker 00:
It doesn't matter whether that specific action

[00:04:16] Speaker 00:
was specifically authorized by state law or even whether it violated state law.

[00:04:21] Speaker 00:
So take the decision of McKay, for example, where the sheriff personally participated in an unlawful arrest while the plaintiff was out on a valid bond.

[00:04:30] Speaker 00:
Of course, that violated state law.

[00:04:32] Speaker 00:
He wasn't specifically authorized to do that.

[00:04:34] Speaker 00:
It violated a state court order allowing the plaintiff to go free.

[00:04:37] Speaker 00:
But that was still an act of the county, even though it was egregious and unauthorized and violated state law against false imprisonment.

[00:04:45] Speaker 00:
And if you take the decision in Starrick, for example, there the county assessor fired the plaintiff in retaliation for objecting to his sexual advances.

[00:04:56] Speaker 00:
And that, of course, served a personal agenda, not an illegitimate policy goal, and it likely violated the laws against discrimination in Colorado and not Oklahoma.

[00:05:04] Speaker 00:
But it was still an act of the county because he had policy-making authority over how to hire and fire people.

[00:05:09] Speaker 00:
The court didn't ask, well, did he have policy-making authority to hire or fire in a particular manner?

[00:05:15] Speaker 03:
So would you agree that your position sort of rises and falls on whether we look at this at a more general rather than specific manner?

[00:05:29] Speaker 03:
Where your position is looking at the authority to make rules and and to govern how transportation was going to occur that would be your position and

[00:05:42] Speaker 03:
the district court's position, you know, decision was, I guess that would have been, to this question, would have been much more narrow.

[00:05:53] Speaker 03:
Did he have the authority to set policy when it comes to the rape of prisoners?

[00:06:01] Speaker 00:
I don't think I would put it quite like that.

[00:06:04] Speaker 00:
I would say that our position is that because he had the authority not only to transport the Tina,

[00:06:12] Speaker 00:
but also how to decide what are her conditions of confinement and how are you using force against inmates.

[00:06:18] Speaker 00:
Again, the sheriff has the power in the Colorado statute to set policy about the custody and supervision of inmates.

[00:06:24] Speaker 00:
And a usual part of that is how do you use force against them?

[00:06:28] Speaker 00:
How do you control them?

[00:06:30] Speaker 00:
And that's the context he was acting in here.

[00:06:34] Speaker 03:
So do you think if the sheriff is acting in his area of authority,

[00:06:41] Speaker 03:
even if his act may be unlawful, is your position that the county would be basically strictly liable for that type of behavior?

[00:06:48] Speaker 00:
If the sheriff is performing a function that he has the authority to regulate, then the county would be liable for that.

[00:06:57] Speaker 00:
And I do want to point out that that's really not a form of responding to superior or vicarious liability.

[00:07:03] Speaker 00:
The court addresses this in Pembroke.

[00:07:04] Speaker 00:
There are many things that a sheriff could do within the scope of his employment

[00:07:09] Speaker 00:
that aren't in a context or area that he regulates as a policymaker.

[00:07:13] Speaker 00:
So, for example, setting salaries of deputies, for example.

[00:07:18] Speaker 00:
The county board has the authority to approve or disapprove salaries.

[00:07:22] Speaker 00:
So even though that's within the scope of his employment, I don't believe that the county would be directly liable for that because he's not a policymaker with respect to that area.

[00:07:35] Speaker 02:
Is there anything the county can do to protect itself?

[00:07:39] Speaker 00:
The county, so yeah, for one thing, it could, I guess, so the state could change the law about, for example, in Denver, the sheriffs have much less power over law enforcement than sheriffs in other counties.

[00:08:00] Speaker 00:
The state could change the law so that the county voters could lobby the state to change the law so that the sheriff

[00:08:08] Speaker 00:
is no longer the final policymaker with respect to certain areas.

[00:08:12] Speaker 02:
It's the sheriff's office.

[00:08:13] Speaker 02:
Who else is going to be responsible, the county commission, for detention?

[00:08:17] Speaker 00:
One member of the police force.

[00:08:19] Speaker 00:
And the state could change the law so that the county commission has some sort of review authority over the sheriff's actions.

[00:08:25] Speaker 02:
Can you help me with this?

[00:08:26] Speaker 02:
Because here's where I struggle a little bit, is what is the policy that Sheriff Hanna made?

[00:08:34] Speaker 00:
The policy is the decision to sexually assault and falsely imprison an inmate.

[00:08:39] Speaker 02:
So we have a policy for this person and then a policy for everyone else who didn't suffer that.

[00:08:46] Speaker 02:
We have two policies.

[00:08:47] Speaker 00:
I think that, so Penbauer speaks directly to this.

[00:08:50] Speaker 02:
But Penbauer is different, isn't it?

[00:08:52] Speaker 02:
It's talking about law enforcement officials.

[00:08:56] Speaker 02:
acting in a proper role as far as whether to go search the doctor's office, if I recollect correctly.

[00:09:03] Speaker 02:
And there's a legal question.

[00:09:04] Speaker 02:
Can we go in there or not?

[00:09:06] Speaker 02:
He won't let us in yet.

[00:09:08] Speaker 02:
This is just completely different.

[00:09:11] Speaker 02:
Nobody would ever suggest for a second that the sheriff could do what the sheriff did here.

[00:09:16] Speaker 02:
And so it's not like Pembower.

[00:09:18] Speaker 02:
It's not like the employment cases where you're trying to deal with, can we fire this deputy or so forth.

[00:09:24] Speaker 02:
It's just off the charts.

[00:09:26] Speaker 02:
What's the limiting principle?

[00:09:28] Speaker 02:
Is there one, or is it just any time a sheriff goes AWOL, the county's liable?

[00:09:34] Speaker 00:
Well, the county concedes, again, that if the sheriff had engaged in what it calls a traditional use, of course, which I take to mean a regular physical beating, that that would create municipal liability.

[00:09:43] Speaker 00:
So I don't really think there's much daylight.

[00:09:45] Speaker 02:
But even that, and obviously I'm not condoning that, but to the extent there's a beating in a jail or something, it's about,

[00:09:53] Speaker 02:
the prisoner sassed or something, it's connected with the law enforcement role and abuse of that, but this is not connected in any way, shape, or form.

[00:10:03] Speaker 02:
This is purely personal satisfaction.

[00:10:07] Speaker 00:
And this court's cases, I mean, for Sarek, for example, tell us that even if the policymaker acts for personal reasons, for personal satisfaction by firing someone because she objects to your sexual advances, that doesn't change

[00:10:20] Speaker 00:
the rule in Pembaugh, which is that if you're acting in an area that you regulate, that is an act of the county.

[00:10:25] Speaker 00:
And the court repeated this in the Randle case where it describes Pembaugh at page 447 and said that when an official is acting within an area that he exercises policymaking authority, that is an official policy of the county.

[00:10:39] Speaker 00:
This is the way that Pembaugh described official policy.

[00:10:42] Speaker 00:
It said that

[00:10:43] Speaker 00:
It doesn't matter whether you're setting a rule or whether you're making a one-time decision that's inconsistent with the rule.

[00:10:51] Speaker 00:
And again, in Simmons, Justice Gorsuch made clear that even if you're acting contrary to a pre-existing rule, that that could still be an act of the kind.

[00:10:59] Speaker 01:
So even if the sheriff here had promulgated rules for the sheriff's department, saying how you transport prisoners,

[00:11:11] Speaker 01:
which would clearly have barred every step along the way here.

[00:11:14] Speaker 01:
That would not affect the share of the municipal liability in this case?

[00:11:19] Speaker 00:
No, Your Honor.

[00:11:20] Speaker 00:
That's Simmons.

[00:11:21] Speaker 00:
That's the case in Simmons where the county set up a standard policy for how it was supposed to hire and fire people and just cast aside that policy and made a decision that was completely not in conformance with it.

[00:11:34] Speaker 00:
And the reason that Pembar imposes liability in this case is not because

[00:11:41] Speaker 00:
So let me go back.

[00:11:44] Speaker 00:
So I think that one approach to this question of, well, this is a particularly egregious use of authority, right?

[00:11:52] Speaker 00:
If we take a hypothetical, for instance, imagine that the sheriff didn't, this wasn't a one-time use of authority by the sheriff.

[00:12:00] Speaker 00:
Imagine he passed a rule, he writes an honorable book saying that I and any staff member can have sex with an inmate.

[00:12:09] Speaker 02:
Then you have a much stronger case.

[00:12:13] Speaker 00:
But I think that the PEMBAR speaks exactly to this, that there's no material distinction between a rule like that and a one-time decision.

[00:12:22] Speaker 00:
Because policy-making authority, and the court says this in PEMBAR, policy-making authority entails the authority not just to make rules, but to adjust those rules in particular circumstances.

[00:12:33] Speaker 00:
And that's why this was an act of the county, because the sheriff's actions represented the final word of the county on the subject.

[00:12:40] Speaker 00:
He was the only person who could decide whether this violated county policy or whether it was an authorized exception or modification to it.

[00:12:47] Speaker 00:
There was no one above him who could decide, no, that's inconsistent with county policy.

[00:12:52] Speaker 00:
That's not what we stand for, who could distance the county from his actions.

[00:12:57] Speaker 00:
And that's why it's a county policy under Pembaugh.

[00:13:00] Speaker 00:
And I think this goes right back to the original intent.

[00:13:03] Speaker 00:
of the Ku Klux Klan Act, such in 1983.

[00:13:06] Speaker 00:
That statute was passed to address lynchings and rapes of black Americans enabled by local authorities.

[00:13:13] Speaker 00:
An official policy that permits lynching and rape certainly doesn't serve any legitimate policy goal.

[00:13:20] Speaker 00:
It would violate state law.

[00:13:21] Speaker 00:
It would be egregious.

[00:13:24] Speaker 00:
But that's exactly what Congress designed in 1982 to address.

[00:13:29] Speaker 00:
Also, of course, deliberate indifference cases.

[00:13:32] Speaker 00:
When a sheriff knows that inmates are going to be sexually assaulted or there's a high risk of sexual assault, it doesn't require that he act at all.

[00:13:41] Speaker 00:
If the sheriff completely fails to act, that would be an act of the county.

[00:13:45] Speaker 00:
So there's no formality requirement.

[00:13:47] Speaker 00:
There's no requirement there that he act in a particular way.

[00:13:52] Speaker 00:
Just knowing that a sexual assault is going to occur and not doing anything about it attributes to the county.

[00:13:57] Speaker 00:
Here, of course, he knew the sexual assault was going to occur.

[00:14:00] Speaker 00:
The only difference is that he did it.

[00:14:01] Speaker 00:
So I don't think there's any principled reason I'd suggest to put any sort of formality requirement on an affirmative act, given that obviously no such requirement for inaction by a sheriff.

[00:14:15] Speaker 00:
And going back to this court's ruling in McKay, where the sheriff personally participated in an unlawful arrest, I mean, there was nothing formal about that either.

[00:14:26] Speaker 00:
So I'll save the rest of my time.

[00:14:28] Speaker 01:
I have a question.

[00:14:31] Speaker 01:
prevail on your legal argument, what remedy are you seeking?

[00:14:35] Speaker 00:
The court could take two paths.

[00:14:37] Speaker 00:
It could either remand for proceedings consistent with the opinion, but we would urge that the court hold the county to the jury verdict below, because as the county agrees under the law of the case doctrine, if the county is responsible for the sheriff's actions,

[00:14:55] Speaker 00:
The county should be bound under the law of the case doctrine by the jury's verdict unless the county can show a manifest injustice.

[00:15:04] Speaker 01:
Well, the case doctrine can't bind a party that was not participating on the issue.

[00:15:16] Speaker 01:
I mean, the jury verdict was against the sheriff as an individual.

[00:15:26] Speaker 01:
I don't see how law of the case applies.

[00:15:30] Speaker 01:
The few cases you had signed law of the case were quite different situations from this.

[00:15:36] Speaker 01:
Do you have any other authority that would suggest that the municipality would be bound by the verdict against the sheriff?

[00:15:44] Speaker 00:
Well, the cases we did cite show that the law of the case doctrine applies to a defendant, even though the co-defendant didn't participate in the ruling.

[00:15:52] Speaker 01:
The proceeding was shaped the first way.

[00:15:54] Speaker 01:
Oh, those cases were so different.

[00:15:55] Speaker 01:
One was when the new party intervened.

[00:15:59] Speaker 01:
And when you intervene, you take it as you found it, when you wanted to intervene.

[00:16:06] Speaker 01:
Those cases were pretty readily distinguishable from this situation, where the party was dismissed from the case

[00:16:14] Speaker 01:
And then you're saying what later happens can bind that party?

[00:16:17] Speaker 01:
That doesn't sound like, well, the case to me.

[00:16:20] Speaker 00:
I'd go back to the lack of a dispute in the county's brief that it would be bound by the jury's verdict unless there's a manifest injustice here.

[00:16:28] Speaker 00:
First of all, the county doesn't challenge the verdict on the Assessive Force Plan.

[00:16:32] Speaker 00:
The only arguments that the county raises that are before the court here

[00:16:36] Speaker 00:
that there's some manifest injustice here.

[00:16:39] Speaker 00:
There are surely legal arguments about two of the counts and the verdict the county could have raised on the motion to dismiss, but didn't.

[00:16:47] Speaker 00:
And so for that reason alone, the law of the case doctrine applies to buying the county here.

[00:16:53] Speaker 00:
Thank you.

[00:16:56] Speaker 01:
Mr. Eddy?

[00:16:58] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:17:00] Speaker 04:
My name is John Cometti, and I represent the entity defendants in this matter, namely the Cedric County Board of Commissioners and the Office of the Cedric County Sheriff.

[00:17:09] Speaker 04:
To hold the entity defendants liable for misdemeanors' reprehensible conduct under these circumstances would amount to the very type of responding on superior liability

[00:17:18] Speaker 04:
In fact, strictly, the Supreme Court expressly forbids.

[00:17:22] Speaker 03:
Okay.

[00:17:22] Speaker 03:
Let me ask you a question.

[00:17:23] Speaker 03:
So do you agree that on the day this occurred, the sheriff with no one else's inclusion could have changed the policy to be that you can transport a detainee in your personal car and you don't have to use your sheriff's department vehicle?

[00:17:48] Speaker 04:
Yes, sir.

[00:17:48] Speaker 04:
I believe under this, under this, the way the statute is written in terms of the authority given to the sheriff, the sheriff would have the ultimate authority to modify its policies.

[00:17:56] Speaker 03:
Okay.

[00:17:57] Speaker 03:
And so he would have also been able to modify the policy that said you're not supposed to be taking detainees to places other than their intended location.

[00:18:09] Speaker 03:
I believe that's right.

[00:18:12] Speaker 03:
Okay.

[00:18:13] Speaker 03:
And so here, here's what I'm getting at.

[00:18:15] Speaker 03:
It seems to me that

[00:18:19] Speaker 03:
What's happened here happened as a result of a failure of those policies, of changing the policy from you have to be in your prison jumpsuit to you can wear street clothes.

[00:18:34] Speaker 03:
I mean, presumably you want people wearing their prison jumpsuit, so if they're out, people notice that there's a detainee or a prisoner.

[00:18:42] Speaker 03:
And then on the transport issue, if someone is in an official sheriff's department vehicle, it's obvious that they're on official business.

[00:18:54] Speaker 03:
And then if you don't want people taking detainees to their homes, there's a reason for that.

[00:19:03] Speaker 03:
It's because there's no reason, at least no good reason, for that to happen.

[00:19:08] Speaker 03:
So it seems to me what happened is that the county's

[00:19:11] Speaker 03:
policies changed and as a result the safeguards failed and then you have a rape.

[00:19:20] Speaker 03:
It's not so much was he authorized to commit a rape or did he commit a policy to rape people.

[00:19:26] Speaker 03:
It's you had policies that he changed that day that no longer made the inmate safe.

[00:19:36] Speaker 03:
And maybe that's gassing on a little bit long.

[00:19:39] Speaker 03:
But go ahead.

[00:19:39] Speaker 03:
Do what you want with it.

[00:19:41] Speaker 04:
Well, I would say with respect to the policies, the policies as written remain in place.

[00:19:45] Speaker 04:
And that's not a dispute.

[00:19:46] Speaker 03:
Well, you agree they weren't in place that day.

[00:19:48] Speaker 03:
I mean, he was entitled to, I think you agreed with me, he was entitled to take her in his personal vehicle.

[00:19:56] Speaker 04:
I think the key distinction here is the fact that it wasn't policy motivation which caused these tragic events to happen to Ms.

[00:20:03] Speaker 04:
Biggs.

[00:20:05] Speaker 04:
It was Mr. Hannes.

[00:20:06] Speaker 04:
Basically, personal decision to commit a crime, sexual assault for his own personal satisfaction.

[00:20:13] Speaker 03:
I mean, is there any evidence in the record that he did those things to further, that he changed the way he did things to further his crime?

[00:20:23] Speaker 03:
That he decided not to put her in a prison jumpsuit because he didn't want anyone to notice a prisoner going into his house?

[00:20:33] Speaker 04:
So I think it's important to note, Your Honor, that with respect to the entity defendants, we were dealing with this case from the perspective of Rule 12.

[00:20:41] Speaker 04:
So we were forced to accept the facts that were laid out in the complaint.

[00:20:44] Speaker 04:
And so based on the facts put in the complaint, those facts were alleged.

[00:20:48] Speaker 04:
That the sheriff essentially took those acts in order to conceal his criminal activity.

[00:20:53] Speaker 03:
Can you tell me the page for the complaint in the record?

[00:20:57] Speaker 03:
Unfortunately, I cannot.

[00:20:59] Speaker 03:
OK.

[00:20:59] Speaker 03:
Fair enough.

[00:21:00] Speaker 03:
It's an unfair question.

[00:21:03] Speaker 03:
I'm going to just look.

[00:21:04] Speaker 03:
Go ahead.

[00:21:05] Speaker 02:
When you say that it's not the policy that caused this, there was the matron program where a female officer had to accompany a female detainee during transport.

[00:21:18] Speaker 02:
And as I understand it, Sheriff Hanna did away with that.

[00:21:23] Speaker 02:
So why isn't that good enough?

[00:21:25] Speaker 02:
There was a policy that would have protected and prevented this.

[00:21:29] Speaker 02:
And he did away with it by making a policy, we're not doing that anymore.

[00:21:35] Speaker 04:
Right, Your Honor.

[00:21:36] Speaker 04:
But the key distinction here is the fact that there was purely criminal conduct.

[00:21:40] Speaker 04:
I think it would be potentially a difference.

[00:21:42] Speaker 02:
That's why you had the policy.

[00:21:44] Speaker 02:
That's why you had the matron policy, so that this criminal sort of conduct wouldn't happen.

[00:21:50] Speaker 02:
Had there been a female deputy in the car, highly unlikely this would have happened.

[00:21:56] Speaker 04:
It all goes back to the issue of whether the sheriff could have unilaterally modified that policy at will.

[00:22:02] Speaker 04:
And in fact, in this situation, he did.

[00:22:05] Speaker 04:
What distinguishes essentially that situation from what we're dealing with here is the fact that this was just purely criminal conduct.

[00:22:12] Speaker 04:
It was sex assault for purely personal reasons, which cannot be tied back to any legitimate policy goal of the sheriff's office.

[00:22:19] Speaker 02:
Well, he made a policy that enabled this to happen.

[00:22:22] Speaker 02:
What if

[00:22:25] Speaker 02:
He had done things correctly and had said, I'm taking this prisoner to the new location in her prison clothes and my business automobile.

[00:22:35] Speaker 02:
And on the way he said, Hey, I'd like to stop off at my house and we can have sexual relations.

[00:22:41] Speaker 02:
She said, no.

[00:22:41] Speaker 02:
And he beat her up.

[00:22:44] Speaker 02:
Then what do we have?

[00:22:45] Speaker 02:
Do we have a valid claim at that point against county?

[00:22:49] Speaker 04:
No, your honor.

[00:22:49] Speaker 04:
I think essentially it all comes back to.

[00:22:53] Speaker 04:
the logic applied in Pembauer and Pembroke.

[00:22:58] Speaker 04:
So with respect to final policymaker liability specifically, both those cases tell us that municipalities are only liable under Section 1983 for actions taken pursuant to a policy adopted by an official responsible under state law for making policy in that area of the entity's business.

[00:23:15] Speaker 04:
Now, in the immediate wake of those decisions, this circuit, this court, made its ruling in Starr

[00:23:23] Speaker 04:
and considered both Hembauer and Peprotnik, and determined that the elected county assessor's purely personal acts of sexual misconduct against his staff were not sufficient to bind the entity in that case, despite the fact that it was undisputed that that county assessor had the ultimate authority over his staff and all employment practices within his office.

[00:23:47] Speaker 04:
So I want to point that out, everyone, because I think counsel kind of lost over that fact.

[00:23:51] Speaker 04:
While the Starratt case did hold that the county could be liable for the unlawful termination, it expressly held that it could not also be liable for the sexual misconduct that occurred under those circumstances.

[00:24:02] Speaker 02:
What would it take for Ms.

[00:24:03] Speaker 02:
Biggs to have a claim here against the municipality, a municipal claim?

[00:24:09] Speaker 04:
Under the final policymaker theory?

[00:24:12] Speaker 04:
Yes.

[00:24:16] Speaker 04:
Frankly, I'm struggling to find an example where she could, given the nature of the conduct.

[00:24:21] Speaker 04:
sexual in nature, and it was blatantly for purely personal reasons.

[00:24:25] Speaker 04:
So I'm struggling to see how that type of conduct conducted by anyone, regardless of the role, could bind an entity under Monell when the ultimate basis for final policymaker liability is tied to policy and official policymaking.

[00:24:41] Speaker 03:
What if the allegation was that he committed the sexual act in retaliation for her breaking rules at the jail?

[00:24:52] Speaker 04:
Again, I think it just goes back to, at that point, it's still just a blatant sexual assault.

[00:24:59] Speaker 04:
And I'm just struggling to see how a government entity could be bound for that type of conduct.

[00:25:04] Speaker 04:
And in fact, Starrett tells us that it can.

[00:25:08] Speaker 03:
What if she was breaking rules at the jail and he caught her and instead of sexually assaulting her, he beat her with a nightstick?

[00:25:19] Speaker 04:
Well, that goes back to the comments of this court just a few minutes ago.

[00:25:22] Speaker 04:
I think there would be a stronger argument because there you could argue that there's some rational nexus, albeit a clear abuse, rational nexus to a legitimate government policy of maintaining order in a jail.

[00:25:36] Speaker 03:
Obviously not condoning that type of conduct and surely there would be a lot of... Well, my earlier hypothetical, it was the same objective.

[00:25:42] Speaker 03:
He just used different means to inflict the punishment.

[00:25:48] Speaker 04:
Well, it would ultimately come down to what the official's motivations were.

[00:25:53] Speaker 04:
There was nothing pled in the complaint in this case that said that Sheriff Hanna was committing the sexual assault for purposes related to law enforcement or the responsibilities or authority vested in the sheriff.

[00:26:07] Speaker 04:
It was for purely personal sexual gratification.

[00:26:10] Speaker 04:
I think that's the key distinction in this case, as Starrett tells us.

[00:26:19] Speaker 04:
So just to clarify this point, so while it's true that Hannah's role as sheriff did put him in a unique position with respect to the supervision over Ms.

[00:26:30] Speaker 04:
Biggs, and in fact, could have provided him with the opportunity to take advantage over here, that only satisfies the color of law element necessary to hold Mr. Hannah liable in his individual capacity under Section 1983, and not the more nuanced policy-making element necessary to bind the entities.

[00:26:50] Speaker 04:
So what plaintiff is doing here is essentially asking this court to combine these distinct analyses into one inquiry, essentially into one element, which is incorrect.

[00:26:59] Speaker 04:
To the extent plaintiff relies on this court's decision in Simmons, that case is highly distinguishable.

[00:27:05] Speaker 04:
The case involved wrongful termination by a district board where it was undisputed if the board was acting within its final policy-making authority to terminate employees, despite doing so in a manner that clearly contravened the written policies of the board.

[00:27:20] Speaker 04:
So this logic is not applicable to the defense here.

[00:27:24] Speaker 04:
Our argument is not that the county should not be liable because Hanna violated policies.

[00:27:29] Speaker 04:
Our argument is that the county and the sheriff's office should not be liable because Mr. Hanna, now Mr. Hanna, committed blatantly egregious criminal acts for nothing but personal gratification.

[00:27:43] Speaker 03:
Well, he committed criminal acts.

[00:27:48] Speaker 03:
for his personal gratification, but those were enabled by him changing certain policies.

[00:27:55] Speaker 03:
Do you agree with that?

[00:28:01] Speaker 03:
I mean, at some point he went from, in your position, authorized to unauthorized.

[00:28:07] Speaker 03:
Authorized to change dress code, authorized to change vehicle, authorized to change locations where he was taking a detainee, not authorized to commit a sexual assault.

[00:28:22] Speaker 04:
Correct.

[00:28:22] Speaker 04:
That's the main distinction in this case.

[00:28:26] Speaker 04:
Again, as Simmons does say, to the extent that Sheriff Hanna was in fact violating policies at the time, that is irrelevant for limiting Penn

[00:28:35] Speaker 03:
Would you agree that if those three items of policy had not been changed, that the assault wouldn't have occurred?

[00:28:46] Speaker 04:
Not necessarily.

[00:28:48] Speaker 04:
I mean, I guess with the exception of perhaps the policy with respect to taking inmates to your home.

[00:28:54] Speaker 04:
But I mean, something like this could just as likely occur had he used an officially sanctioned vehicle, had Ms.

[00:29:02] Speaker 04:
Biggs remained in her prison car,

[00:29:04] Speaker 04:
All Mr. Hanna would have had to do at this point is just pull over on a drive-through or some secluded place somewhere and conduct this sexual assault that way.

[00:29:12] Speaker 04:
So I don't think that necessarily changes the analysis.

[00:29:17] Speaker 04:
So really, the only direct authority playing it past to support her position is the out-of-circuit opinion in Bennett versus Pippen.

[00:29:28] Speaker 04:
The facts of that case simply put, a sheriff raped

[00:29:33] Speaker 04:
a potential criminal defendant.

[00:29:35] Speaker 04:
He was on duty at the time in the Fifth Circuit with very little analysis determined that the sheriff's office would be liable under those situations.

[00:29:42] Speaker 04:
No circuit other than the Fifth has ever held that.

[00:29:46] Speaker 04:
And indeed, both the Sixth and Second Circuits in Wooten and Roe, respectively, have specifically addressed Bennett and found that it essentially provides for responding on superiority order, which is not proper in the context of Section 1983.

[00:30:02] Speaker 04:
Nor do the court's holdings in McKay and Seifert, the former of which mentioned by counsel, support plaintiff's position.

[00:30:11] Speaker 04:
Because in those cases, it was not disputed that the sheriffs in those situations were acting within the realm of final policymaking authority.

[00:30:18] Speaker 04:
For instance, in McKay, a sheriff authorized an otherwise unlawful arrest.

[00:30:23] Speaker 04:
But there was no dispute that the sheriff was acting within the course and scope of his policymaking ability to affect sheriffs.

[00:30:30] Speaker 04:
With respect to Seifer, the sheriff retaliated against the reserve deputy by stripping him of his investigatory duties and eventually revoking his commission.

[00:30:39] Speaker 04:
But again, there was no dispute in that case that the sheriff was acting within his final policy-making authority to effectuate personnel matters over reserved deputies.

[00:30:52] Speaker 04:
In contrast here, Mr. Hanna had no final policy-making authority over whether to commit a blatant act of sexual assault.

[00:31:00] Speaker 04:
In direct mandates, a county cannot be found liable for the purely personal and, in fact, criminal acts of its elected officials.

[00:31:08] Speaker 04:
to see that my time is running out, so if there are no questions.

[00:31:12] Speaker 04:
Thank you for your time.

[00:31:13] Speaker 04:
I respectfully request that you affirm the decision of the District Court of Law.

[00:31:16] Speaker 04:
Thank you.

[00:31:18] Speaker 01:
30 seconds.

[00:31:23] Speaker 00:
Just a few quick points.

[00:31:24] Speaker 00:
First, I'd like to point out that the discussion so far has been focused on the sexual assault, but we also have to call some prison the claim.

[00:31:29] Speaker 00:
And there, McKay is directly on point because the sheriff has called it final policy making authority over how to confine inmates in custody.

[00:31:37] Speaker 00:
Second, I think Judge Carson may have been on to something in that this case took the first.

[00:31:45] Speaker 00:
The court would also rule based on the idea that the sheriff changed certain policies, like not bringing prisoners to their home, and like how to use force against prisoners in order to effectuate the assault.

[00:31:58] Speaker 00:
Imagine if what he did, imagine if he committed a sexual assault or beat somebody up to impose discipline, which we cited literally during the plot for five weeks, if that does happen.

[00:32:09] Speaker 00:
That that would be a change in... Was that your argument below?

[00:32:13] Speaker 00:
We did make an argument below both that his actions in this case were themselves official policies under Penn Bauer and that he shamed certain pre-existing policies.

[00:32:24] Speaker 01:
Okay.

[00:32:24] Speaker 01:
And how do you distinguish historic?

[00:32:27] Speaker 00:
I think Starr is distinguishable because the county assessor in that case didn't have policy making authority over actually how to handle the physical bodies of his employees.

[00:32:36] Speaker 00:
That's just not part of the assessor's office's business.

[00:32:40] Speaker 00:
And what happened there was that the court found that the assessor didn't use

[00:32:46] Speaker 00:
any official authority in his policymaking area to facilitate the harassment.

[00:32:51] Speaker 00:
Whereas here, there's abundant allegations in the complaint that the sheriff did use the authority.

[00:32:55] Speaker 00:
Actually, I think the sheriff helps us because there, the county was liable for the firing because he did use his official authority in doing that.

[00:33:02] Speaker 00:
And the court also suggested that it was a quid pro quo harassment claim.

[00:33:06] Speaker 00:
So if the sheriff used his policymaking authority over hiring and firing to facilitate the harassment, for example, by threatening an employment action, that that would be

[00:33:15] Speaker 00:
an official action of the county, because like here, they keep using as official authority.

[00:33:19] Speaker 00:
Thank you.

[00:33:25] Speaker 01:
Thank you, Counselor.

[00:33:32] Speaker 01:
Case is submitted.

[00:33:33] Speaker 01:
Counselor excused.