[00:00:00] Speaker 04:
25-12-62 Doe versus Ebling.

[00:00:05] Speaker 04:
Okay, you may proceed.

[00:00:10] Speaker 00:
Good morning, and may it please the court.

[00:00:12] Speaker 00:
My name is Rebecca Klinkowski, and I represent Jefferson County Deputy Sheriff Eric Ebling in this appeal.

[00:00:19] Speaker 00:
There are three things that I want to talk about with the court this morning.

[00:00:22] Speaker 00:
First, the complaint's complete lack of allegations that Deputy Ebeling had the supervisory authority to unilaterally restrict student one's movements, and that is fatal to Ms.

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Doe's claims, regardless of whether this court analyzes them under its 1999 decision in Murrell or whether it recognizes that Iqbal abrogated that decision.

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Second, I want to talk about how Iqbal changed the legal landscape for these claims and changed the state of mind element that's at issue here.

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And third, I want to talk about Deputy Ebeling's overarching entitlement to qualified immunity, because even if the court is disinclined to recognize the manner in which Iqbal changed the legal landscape, and I would also note this court's decision in Dodds v. Richardson affirmed that abrogation,

[00:01:17] Speaker 00:
At the very least, those decisions call into question the landscape for purposes of qualified immunity.

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The law can no longer be said to be clearly established.

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So let's talk about Deputy Ebeling's supervisory authority, because that's really the heart of this case.

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And there are no allegations in the complaint that Deputy Ebeling had supervisory authority over students, and that's in stark contrast

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to other defendants in this case.

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And in particular, we can look to the allegations against the Title IX coordinator at the school.

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We can look to the allegations against the assistant principal and the principal.

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All of those individuals, there are discrete, concrete allegations that they had authority to act.

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And again, that's fatal to Ms.

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Stowe's claim, regardless of whether this court recognizes the effect of Iqbal.

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because it changed the legal landscape for supervisory liability claims.

[00:02:19] Speaker 00:
So Ms.

[00:02:20] Speaker 00:
Doe and Deputy Ebeling both acknowledge Deputy Ebeling is a peace officer.

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And that role is defined in Colorado law.

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He's a school resource officer who has been assigned by his employer, the Jefferson County Sheriff's Office, to act in this capacity.

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Colorado laws, specifically CRS 22-32-146, speak to that role and the ability of law enforcement agencies to assign on-site peace officers to school.

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And I think it's also telling that CRS 24-31-312 speaks to the obligation of the employing law enforcement agency.

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to provide specific training to SROs.

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And Ms.

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Doe acknowledges that she grounds Deputy Ebling's authority in his role as a peace officer.

[00:03:12] Speaker 00:
That's made clear in her briefing, and that would be the only source of his authority in this context.

[00:03:18] Speaker 01:
Why isn't that enough?

[00:03:19] Speaker 01:
The briefs take issue with whether there's a finding that Deputy Ebling was an employee of the school district.

[00:03:28] Speaker 01:
He's a peace officer, but isn't the requirement that he's acting under color of state law.

[00:03:33] Speaker 01:
So why does it matter whether he works for the school, works for the local sheriff's department?

[00:03:40] Speaker 00:
Well, Your Honor, I think that this has to do with how we trace his authority, right?

[00:03:44] Speaker 00:
If he is as some states allow for.

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employed by the school.

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The school, as this court observed in Murrell, may have assigned him particular authority in this context to respond to these types of allegations.

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And again, that's an observation from Murrell, right?

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The court's not going to list out job titles.

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It really has to do with roles and the way that authority is assigned.

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So there are no allegations in the complaint that

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that can be the source of Deputy Ebeling's authority.

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There are no allegations that he has that authority.

[00:04:18] Speaker 00:
So we have to look to the other hat that he wears in this context, which is his role as a peace officer.

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And in doing so, we have to overlay the source of his authority and the bounds of his authority

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are the same as any other peace officer in the community.

[00:04:36] Speaker 00:
And in particular, that is constrained most notably by Fourth Amendment principles, and in particular, the protection against... Well, but why would we think about him like any other peace officer in the community?

[00:04:47] Speaker 01:
Because the amended complaint does talk in detail about his assignment to the school, and he's acting under a color of state law, and he was present at meetings

[00:04:58] Speaker 01:
where the family discussed these concerns that he was part of a discussion of a safety plan.

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So he's not like a peace officer in the community.

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He's directly involved with the family here.

[00:05:09] Speaker 01:
So why should we think of him the way you just mentioned?

[00:05:12] Speaker 00:
Sure.

[00:05:12] Speaker 00:
So let's talk about that.

[00:05:14] Speaker 00:
He is directly involved in those discussions, but let's remember how all of this came into being.

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Miss Doe makes her outcry.

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about these prior sexual assaults that occur off campus during the summer, but she doesn't make it to Deputy Ebeling.

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So he's not in this privileged position of being the only individual with knowledge about her allegations.

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And when we get to this first meeting in January, the other people who are there are important.

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It's Ms.

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Doe, her mother, the assistant principal, the principal, and Deputy Ebeling.

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And as alleged in the complaint, the point of that meeting is to come up with a safety plan.

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But the complaint alleges that no safety plan is ever created by the administration, by the district.

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That's not a role that is assigned to Deputy Ebeling.

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Although we acknowledge that had such a safety plan been put into place, Deputy Ebeling certainly could have enforced it on school grounds.

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But he can't unilaterally restrict Student One's movement throughout the school, which is what is alleged by Ms.

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Doe and really is foundational to her claim

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that he failed to respond reasonably.

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But again, we know that by the time Deputy Ebeling knows about Ms.

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Doe's allegations, the principal and assistant principal know actually prior to Deputy Ebeling, I think, if you look at the complaint.

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And in the interim between the January meeting and the February meeting, the complaint alleges that Ms.

[00:06:43] Speaker 00:
Doe makes allegations of continued harassment in the school too

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school administration not to Deputy Ebeling.

[00:06:51] Speaker 00:
There's no allegation in the complaint that he knew between those two meetings that this continued to be an ongoing problem.

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And so even had a safety plan been in place, he wouldn't have had the knowledge to do anything under it.

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But we can also look at what he does do.

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So after the February meeting, the February meeting is when Ms.

[00:07:12] Speaker 00:
Doe alleges that Deputy Ebeling says, I will not restrict Student One's movements in the school.

[00:07:18] Speaker 00:
I think fairly stated, he has no authority to do that.

[00:07:21] Speaker 00:
I don't think that the court can hold him liable for a constitutional violation that would require him to exceed.

[00:07:27] Speaker 02:
Well, he didn't say he didn't have authority.

[00:07:29] Speaker 02:
I mean, his statement actually implied he did have authority.

[00:07:32] Speaker 02:
He kind of said, I'm not going to do it now.

[00:07:37] Speaker 00:
As alleged in the complaint, Your Honor, yes.

[00:07:39] Speaker 02:
That's what we have to deal with right now.

[00:07:41] Speaker 00:
That is what we have to deal with right now.

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Whether the court says that implies that he does have authority or says this is just the words that he used, we have to ground that authority in something.

[00:07:55] Speaker 00:
The obligation is to respond reasonably in the face of harassment.

[00:08:00] Speaker 00:
And again, I think that implicates the Fourth Amendment, and we have to look to the totality of the circumstances here.

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So had Deputy Ebeling been the only person with knowledge of Ms.

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Doe's allegations, I think he

[00:08:12] Speaker 00:
would have been required to pass that information on to school officials.

[00:08:16] Speaker 00:
And maybe he would have been required to investigate.

[00:08:19] Speaker 00:
But that's not the facts of this case.

[00:08:21] Speaker 00:
In this case, what we have is Deputy Ebeling becomes aware of these concerns that Ms.

[00:08:29] Speaker 00:
Doe is voicing and the allegations from the summer after school administration.

[00:08:35] Speaker 00:
So telling school administration doesn't make sense.

[00:08:39] Speaker 00:
It's not a reasonable response.

[00:08:41] Speaker 00:
And he's also aware that prior to his learning of these allegations, his own home agency, the sheriff's office, has opened up a criminal investigation about the same allegations that we're talking about here.

[00:08:55] Speaker 00:
And so it's also not reasonable to require Deputy Ebeling to investigate in tandem with

[00:09:01] Speaker 00:
his own home agency.

[00:09:03] Speaker 01:
But the complaint doesn't say he was investigating in tandem.

[00:09:06] Speaker 01:
Actually, it says that he was, quote, meddling in their investigation.

[00:09:09] Speaker 01:
Isn't the negative inference for that that he's getting involved in a criminal investigation he has no business being involved in?

[00:09:17] Speaker 00:
Which would underscore his lack of authority, Your Honor.

[00:09:20] Speaker 01:
Well, there's a difference between lack of authority to investigate the criminal aspect to this that the Sheriff's Office may be investigating, whether or not student one committed a crime

[00:09:30] Speaker 01:
in an authority of you're assigned to the school, and so you can take reasonable measures to ensure Student One doesn't continue to harass Ms.

[00:09:40] Speaker 01:
Doe.

[00:09:40] Speaker 01:
Those are different levels of authority.

[00:09:43] Speaker 00:
They may be slightly different levels of authority, Your Honor, but I think we do have to focus on what Deputy Ebling could have done, right?

[00:09:52] Speaker 00:
So if the ask, right, the I'm not going to unilaterally restrict Student One's movements is,

[00:09:59] Speaker 00:
For example, changing schedules, that's not within his purview.

[00:10:03] Speaker 00:
Rerouting students through the school so that they don't come into contact with each other.

[00:10:07] Speaker 00:
And again, I think we have to get back to this idea that Deputy Ebeling can't act unilaterally.

[00:10:15] Speaker 00:
He can enforce a judicial protective order once Mistow gets one.

[00:10:19] Speaker 00:
And it appears either that he does that or that student one complies with that order because

[00:10:26] Speaker 00:
as alleged in the complaint for the first time, Ms.

[00:10:28] Speaker 00:
Doe can access her education.

[00:10:31] Speaker 00:
But it's this ability to unilaterally do something, which would have to be put through the framework of either reasonable suspicion or probable cause.

[00:10:40] Speaker 00:
What is the trigger for a law enforcement officer to act, even within the school context?

[00:10:46] Speaker 00:
And we know in other contexts that the Supreme Court has observed that students don't lose

[00:10:53] Speaker 00:
their constitutional rights at the schoolyard gate, right?

[00:10:55] Speaker 00:
I think that's Tinker versus Des Moines.

[00:10:57] Speaker 00:
And that's true not just with First Amendment, which I think was the issue in Tinker, but it's also true with concepts like

[00:11:05] Speaker 00:
being free from unreasonable searches and seizures, or being directed by a school resource officer as opposed to a school.

[00:11:10] Speaker 01:
You may be right on all of this, but why shouldn't we receive this argument more, what sounds like a summary judgment?

[00:11:18] Speaker 01:
Because we're looking at the amended complaint and taking all inferences and well-pleaded facts in favor of Ms.

[00:11:24] Speaker 01:
Doe.

[00:11:27] Speaker 01:
Well, I guess let me ask it this way.

[00:11:29] Speaker 01:
Is your argument that she doesn't even plead facts on what levels of authority he had, and for that reason you went?

[00:11:35] Speaker 00:
Yes, Your Honor.

[00:11:36] Speaker 00:
That is one of our arguments.

[00:11:38] Speaker 01:
Okay.

[00:11:38] Speaker 01:
But there are inferences.

[00:11:40] Speaker 01:
Would you at least agree that she has made in the amended complaint about not just his presence at the meetings, but his deliberate indifference, as she's claimed, to not taking any actions?

[00:11:54] Speaker 01:
And again, the fact that he's present, an inference could be that he does have some authority.

[00:12:00] Speaker 01:
Why isn't that right?

[00:12:02] Speaker 00:
Even if the court were to draw the inference that he has some authority, I don't think it's well fleshed out in the amended complaint that it is authority of the type that would be relevant to resolving this claim.

[00:12:15] Speaker 00:
And again, in light of the fact that school administration is aware and as alleged did not put a safety plan into place, and then when they do later put a no contact order into place, again, allegation is that is

[00:12:29] Speaker 00:
effective, whether Student 1 adheres to it or whether Deputy Ebeling has to then enforce it, and as is the judicially issued protective order.

[00:12:39] Speaker 00:
So he may have some level of authority, but it's not the authority necessary here.

[00:12:45] Speaker 00:
And the paucity of allegations against him in this context mean that you can't even get to that deliberate indifference threshold articulated in Miro, which, again, I think it's very clear

[00:12:59] Speaker 00:
that Iqbal and Dodds abrogated that decision.

[00:13:02] Speaker 00:
Those are not limited holdings.

[00:13:03] Speaker 00:
When you look at them, there's no rationale for limiting them in the way that Ms.

[00:13:09] Speaker 00:
Doe would have this court do.

[00:13:11] Speaker 00:
And I see that I have just under two minutes.

[00:13:13] Speaker 00:
I'll reserve the rest of my time.

[00:13:15] Speaker 00:
Thank you.

[00:13:26] Speaker 03:
Good morning.

[00:13:27] Speaker 03:
Good morning.

[00:13:27] Speaker 03:
May it please the court.

[00:13:29] Speaker 03:
We have had an extensive discussion about the nature of deputy of links authority.

[00:13:35] Speaker 03:
And that is an appropriate discussion to have.

[00:13:39] Speaker 03:
at the stage of summary judgment.

[00:13:42] Speaker 03:
It is not an appropriate discussion to have right now.

[00:13:44] Speaker 03:
As the court previously pointed out in its rulings from both the magistrate and the judge's ruling supporting the magistrate's ruling, the authority that Deputy Ebling has is actually a question of fact.

[00:13:58] Speaker 03:
And that is something that could be fleshed out after the motion to dismiss has been ruled on, which it has been.

[00:14:04] Speaker 03:
And then we can discuss exactly what the extent of his authority is.

[00:14:07] Speaker 04:
Well, can you help me then?

[00:14:09] Speaker 04:
I think your opposing counsel points to statutory language that describes the officer's authority.

[00:14:18] Speaker 04:
Can we not look at that?

[00:14:19] Speaker 03:
Judge, I'm not aware of any statutory language that actually limits school resource officers, SROs, authority within the school.

[00:14:28] Speaker 03:
We have to understand that there certainly is a difference between the responsibilities of an SRO and just a regular cop.

[00:14:34] Speaker 03:
If the responsibilities of an SRO were tantamount to those of a regular cop, then any time some kind of an issue came up, then you would just call the regular police.

[00:14:42] Speaker 03:
There would not even be the need for an SRO.

[00:14:45] Speaker 03:
But it's important to know how this SRO actually functioned within the building.

[00:14:49] Speaker 03:
The SRO was called in for the safety plan meeting.

[00:14:52] Speaker 03:
They didn't just call the Jefferson County Sheriff's Office and say, we need a cop here.

[00:14:56] Speaker 03:
We specifically need the SRO here, is what was argued.

[00:15:00] Speaker 03:
There's something else to the defendant, by the way.

[00:15:02] Speaker 04:
Let me ask, just following up on that.

[00:15:05] Speaker 04:
So are you alleging that Officer Ebeling could write up a safety plan?

[00:15:14] Speaker 03:
Not that he could write up a safety plan, Your Honor.

[00:15:17] Speaker 04:
Isn't that what you have to allege?

[00:15:19] Speaker 03:
Well, but it's not that he's the only one writing it, but he is still part of the process.

[00:15:24] Speaker 04:
But did he have any authority to do it on his own?

[00:15:27] Speaker 03:
I don't know, Your Honor.

[00:15:29] Speaker 03:
So that's not normally the way the safety plans are done.

[00:15:33] Speaker 03:
When we are talking about a school safety plan, it is traditionally a collaborative process.

[00:15:37] Speaker 03:
You will have the student there, the student's parents, administration, a student advisor over there, and a police officer as well, or the SRO, who is always brought in.

[00:15:47] Speaker 03:
There's an important thing here, I think, that the appellant touched upon as well, which he said, well, if he can...

[00:15:54] Speaker 03:
Once there was a safety plan, then he could enforce it on school grounds.

[00:15:59] Speaker 03:
I don't understand this distinction.

[00:16:00] Speaker 03:
So it seems to be that the appellant is drawing a distinction between being involved in the drafting of a safety plan as opposed to the enforcement of the safety plan.

[00:16:09] Speaker 03:
Well, if he has any kind of authority with respect to the safety plan, then he is involved in those decisions at that point as to how to keep the child safe.

[00:16:17] Speaker 03:
Again,

[00:16:19] Speaker 03:
If the officer there says, well, once a safety plan has been developed, I'm going to ensure that I'm one of the people who is enforcing it along with school officials.

[00:16:28] Speaker 03:
But at the same time, the reason they bring him in to the meeting to have the safety plan is because they wanted him, obviously, to have some kind of role in it.

[00:16:37] Speaker 03:
Otherwise, why bring him in at all?

[00:16:39] Speaker 04:
Well, I think opposing counsel is saying, yes, he was there to provide input.

[00:16:45] Speaker 04:
this is the situation or this is what I know, but could not actually make that safety plan happen.

[00:16:54] Speaker 04:
He was providing input, but he was not responsible for writing it.

[00:17:00] Speaker 04:
And there's no allegation that he could.

[00:17:06] Speaker 03:
Your Honor, where is the line at that point?

[00:17:09] Speaker 03:
If he's providing input, then at that point he is playing some kind of a role in the safety of the child.

[00:17:16] Speaker 03:
Also, if he is then tasked with enforcing the safety plan once it is written, then he has authority with respect to the power of the safety plan.

[00:17:25] Speaker 03:
When we have this collaborative process, there's really only one person writing a safety plan.

[00:17:31] Speaker 03:
Usually it's going to be an assistant principal or a student advisor.

[00:17:34] Speaker 03:
But if we take this argument to its logical extent, then that means that only the person who is writing the safety plan is the person who actually has the right to enforce it as well.

[00:17:44] Speaker 03:
But that's not the way that things actually transpired over here.

[00:17:47] Speaker 03:
In fact, defendant Christie said, well, the safety plan will be written and then if there are any kind of violations here, then you can go to me or you can go to this other person or you can even go to Officer Ebling.

[00:18:01] Speaker 03:
The school was behaving as though he had this authority.

[00:18:05] Speaker 03:
Again, Your Honor, this is one of the reasons.

[00:18:06] Speaker 04:
Well, I think they're behaving as if he had enforcement authority.

[00:18:11] Speaker 04:
There was no statement.

[00:18:12] Speaker 04:
I guess I'm pressing you.

[00:18:14] Speaker 04:
Is there any statement that he had the ability to write the plan?

[00:18:17] Speaker 04:
They had the meeting, and was he supposed to write the plan?

[00:18:21] Speaker 03:
Again, Your Honor, I think we're getting into the distinction of who's writing the plan.

[00:18:25] Speaker 03:
An SRO, as far as I know, has never written a school safety plan.

[00:18:30] Speaker 03:
That is written normally by school officials.

[00:18:32] Speaker 04:
Okay, so you're conceding that.

[00:18:34] Speaker 03:
That he, which part, Your Honor?

[00:18:37] Speaker 04:
That he couldn't write the plan.

[00:18:39] Speaker 04:
That's not how it's done.

[00:18:40] Speaker 03:
Well, he could write the plan.

[00:18:41] Speaker 03:
It's not a practice.

[00:18:44] Speaker 03:
As we know, Your Honor, there are rules, there are policies, and then there are various practices.

[00:18:48] Speaker 03:
As a former school teacher myself, I've never seen an SRO actually sit down and write a safety plan.

[00:18:55] Speaker 03:
But it is routine for the SRO to actually be involved in the development of the safety plan, which this SRO was.

[00:19:02] Speaker 03:
That's why he was brought into the meeting in the first place and then tasked with enforcing as well.

[00:19:07] Speaker 03:
We can't point to anything that says, well, here's the law, here's the rule that says he's going to enforce the safety plan.

[00:19:15] Speaker 03:
But as the appellant had conceded, and as a point of practice as well, once that safety plan is in place, he can actually go ahead and enforce the safety plan.

[00:19:23] Speaker 02:
Well, I mean, he made statements by, you can call me, I'll be one of the people you could contact.

[00:19:27] Speaker 02:
That's correct, Your Honor.

[00:19:29] Speaker 02:
The whole problem here is the prematureness of this.

[00:19:34] Speaker 02:
This is a motion to dismiss on the bare bone pleadings, which the rules say you don't have to plead facts and details.

[00:19:44] Speaker 02:
You just have to plead enough to get going.

[00:19:47] Speaker 02:
And so if you just barely plead enough to get going, then you're going to get dismissed because you haven't done what would be done at a summary judgment.

[00:19:54] Speaker 02:
And I'm just troubled.

[00:19:57] Speaker 02:
We don't know a lot of stuff here, and it might make a difference once we know this stuff, but we won't know it until we go to a summary judgment, it seems, and it just seems this is awfully premature to throw the case out right now.

[00:20:09] Speaker 03:
Judge, I completely agree with you, and I think this is why Judge Eyde has been so effective in her interrogation of me, is that these are legitimate factual questions that are being raised.

[00:20:18] Speaker 03:
And if we go through the entire discovery process, we go through the interrogatories, the depositions, and then we flesh out exactly what the extent of this officer's authority is, then the appellant can come back eight, nine months from now or whenever it is and make the same argument.

[00:20:33] Speaker 03:
At that point, we at least are functioning from the same set of facts.

[00:20:37] Speaker 03:
Right now, we all have questions about what is the extent of

[00:20:42] Speaker 03:
Officer Ebling's authority and what is not.

[00:20:45] Speaker 03:
And that's the problem is we don't know.

[00:20:46] Speaker 03:
This is when we traditionally allow cases to actually move forward.

[00:20:51] Speaker 01:
Counsel, in your response brief, you wrote that as an SRO, Ebling had supervisory power and authority over students in CHS and the responsibility to respond to reports of harassment.

[00:21:02] Speaker 01:
Did you plead that in the amended complaint?

[00:21:04] Speaker 01:
I can't recall that, Your Honor.

[00:21:06] Speaker 03:
I'm sorry.

[00:21:07] Speaker 03:
I just don't remember.

[00:21:10] Speaker 03:
Well, I think another thing that we have to do, it seems like the appellant's argument is almost that

[00:21:18] Speaker 03:
The SRO Ebling can do virtually nothing, in which case my question is, well, why is he there at all?

[00:21:25] Speaker 03:
What is the point of having an SRO there?

[00:21:27] Speaker 03:
They are a school resource officer ultimately to ensure the safety of children.

[00:21:32] Speaker 03:
So if he is there and he sees some kind of harassment or he suspects some kind of harassment, then he certainly has the right to step in.

[00:21:41] Speaker 03:
The thing is here, it would have been easy to step in as well.

[00:21:44] Speaker 03:
What was he asked to do here?

[00:21:46] Speaker 03:
He wasn't asked to go and arrest someone.

[00:21:48] Speaker 03:
He wasn't asked to go and detain someone.

[00:21:50] Speaker 03:
He was given a very simple ask, and that is, let's say that we have the victim over here and that we have the victimizer over here.

[00:21:58] Speaker 03:
Well, if they see one another, you simply tell the victimizer, you saw her, go the other direction.

[00:22:04] Speaker 03:
That is it.

[00:22:05] Speaker 03:
If he does something just as simple as that, we're not here right now.

[00:22:11] Speaker 03:
This whole thing, by the way, there's an argument about the sheriff's office.

[00:22:16] Speaker 03:
And well, he shouldn't step in because the Jefferson County Sheriff's Office was already investigating the sexual assault.

[00:22:25] Speaker 03:
That is a canard.

[00:22:26] Speaker 03:
Nobody is asking Detective Ebeling to actually involve himself in the investigation of the sexual assault.

[00:22:33] Speaker 03:
There was another investigator who was assigned to that and was doing that particular job.

[00:22:38] Speaker 03:
But the nature of sexual assault is complicated in the first place.

[00:22:42] Speaker 03:
And when we have

[00:22:43] Speaker 03:
students who are in the same building after a sexual assault has taken place.

[00:22:48] Speaker 03:
That increases that level of complexity because then you may have other issues.

[00:22:54] Speaker 03:
Sexual harassment, which took place here, possible witness intimidation, possible reoffending.

[00:23:00] Speaker 03:
That was Detective Ebeling's role is to prevent, to ensure that some of those things did not happen.

[00:23:05] Speaker 03:
So what we have here are really two different forums for who's responsible for what.

[00:23:11] Speaker 03:
The Jefferson County Sheriff's Office can go ahead and deal with the underlying sexual assault, which they investigated, and Detective Ebeling can go ahead and deal with the safety issue over at the school.

[00:23:21] Speaker 04:
Counsel, before you move on, and I'm moving away from facts totally, what do you think ICBAL did to Murrell?

[00:23:31] Speaker 04:
And after ICBAL, what do you have to show in terms of intent?

[00:23:37] Speaker 04:
Do you have to show discriminatory intent?

[00:23:41] Speaker 03:
So I think that the Iqbal argument, as I understand it, that Appellant is making, is a little bit odd, because I think there really what we are talking about is a vicarious liability issue.

[00:23:56] Speaker 03:
Now, I'm not going to get into all of the particulars of what Iqbal did with respect to vicarious liability, because vicarious liability is not at stake here.

[00:24:04] Speaker 03:
We are not trying to hold someone else accountable for the actions of Detective Ebling.

[00:24:09] Speaker 03:
We are actually trying to hold Detective Ebling accountable.

[00:24:13] Speaker 03:
And I don't think that the Iqbal case does anything when we are talking about direct liability rather than vicarious liability.

[00:24:22] Speaker 04:
So you just think Iqbal's inapplicable?

[00:24:25] Speaker 03:
I think in this particular case that Iqbal is inapplicable, again, because we're just talking about the direct liability issue.

[00:24:32] Speaker 04:
And you think Murrell is 100% good law, not unchanged?

[00:24:39] Speaker 03:
It seems as though Murrell continues to be good law.

[00:24:42] Speaker 03:
It has been law now for over 30 years.

[00:24:45] Speaker 03:
It has been cited repeatedly.

[00:24:46] Speaker 03:
And there's really no direct case on point that either appellants cited or that we were able to find that said that the Iqbal decision would actually change any of the standards that are being used when we're talking about direct liability rather than vicarious liability.

[00:25:03] Speaker 03:
Thank you.

[00:25:10] Speaker 03:
Thank you.

[00:25:11] Speaker 03:
Your Honor, I would like to reserve then three minutes for any kind of response if I may.

[00:25:16] Speaker 03:
If I may not, then I can keep going.

[00:25:18] Speaker 04:
Keep going.

[00:25:18] Speaker 03:
Okay.

[00:25:22] Speaker 03:
Going back to this issue by the way of authority, one thing that is important, I think Judge Federico, you pointed out to this as well, pointed this out as well.

[00:25:34] Speaker 03:
At no point was there any kind of allegation that he didn't have authority.

[00:25:38] Speaker 03:
He simply said he wouldn't do it.

[00:25:40] Speaker 03:
So at one point he was asked,

[00:25:43] Speaker 03:
to basically step in and redirect the victimizer here in case there was a situation where he potentially could harm the victim again or harass the victim again or intimidate the victim again.

[00:25:57] Speaker 03:
He didn't say, well, I can't really do anything like that.

[00:26:00] Speaker 03:
He simply said he would not.

[00:26:02] Speaker 03:
Further, Detective Ebling was designated as one of the three adults the child could go to for future reports of sexual harassment.

[00:26:10] Speaker 03:
Now, the thing about this is that when

[00:26:13] Speaker 03:
Again, if we flesh this out during the summary judgment stage and we start looking at various facts, then we can actually ask Defending Christie and other people in the building as well, okay, why did you specifically direct this student to go to Detective Ebling if there was some kind of an issue?

[00:26:30] Speaker 03:
Let's not only look at whatever the stated rules may be, but let's look also at your practices.

[00:26:37] Speaker 03:
Let's look at the general manner about which you went about these kinds of things.

[00:26:42] Speaker 03:
Also, the child, basically, they tried to take away her ability to go to others if there was some kind of a problem.

[00:26:50] Speaker 03:
Defendant Christie had instructed the child not to speak to others except those designated.

[00:26:57] Speaker 03:
And again, Deputy Ebling was one of the people who was actually designated.

[00:27:08] Speaker 03:
Your Honor, you also asked me about the Iqbal case, and there was the Dodds case that was referenced during the appellant's presentation.

[00:27:18] Speaker 03:
And again, in the Dodds case, we were talking about holding supervisors liable for the actions of their subordinates.

[00:27:24] Speaker 03:
That's not at all what's going on with Ebling.

[00:27:27] Speaker 03:
I think what's happening here is that the appellant is conflating supervisory power and supervisory authority.

[00:27:35] Speaker 03:
If this was a situation where we were trying to hold Detective Ebling's supervisors liable for his actions, then I think that the Iqbal case, the Dodds case,

[00:27:45] Speaker 03:
Both of them are fair game.

[00:27:46] Speaker 03:
We can have that conversation.

[00:27:48] Speaker 03:
But here, we're instead talking about Deputy Ebeling's supervisory power.

[00:27:56] Speaker 03:
And that is a completely different issue.

[00:27:58] Speaker 02:
What are you trying to hold Ebeling liable for here?

[00:28:02] Speaker 02:
What's the theory about what he is doing right now that would cause liability?

[00:28:07] Speaker 03:
Deliberate indifference.

[00:28:08] Speaker 03:
And that was the Morrell case as well from 1992.

[00:28:10] Speaker 02:
Deliberate indifference to doing

[00:28:13] Speaker 02:
What was he deliberately indifferent about doing?

[00:28:16] Speaker 03:
I'm sorry, I'm out of time here.

[00:28:17] Speaker 03:
But he was deliberately indifferent in terms of protecting a victim from sexual harassment after a sexual assault.

[00:28:25] Speaker 02:
What could he have done?

[00:28:26] Speaker 02:
What was alleged that he could have done?

[00:28:27] Speaker 02:
You were saying he wasn't an operative here at all.

[00:28:30] Speaker 03:
He could have stepped in.

[00:28:31] Speaker 03:
So in terms of any kind of harassment that took place after the alleged assault, he could have stepped in and actually redirected the student, kept them away from each other within the school building.

[00:28:41] Speaker 02:
But there wasn't an assault in that building in his presence where he could have stepped in.

[00:28:47] Speaker 02:
He wasn't even alleged that.

[00:28:48] Speaker 02:
So you're giving him such limited authority that I don't see what he did that could give him liability.

[00:28:57] Speaker 03:
He doesn't have to, Your Honor.

[00:28:58] Speaker 03:
We're not dealing again with the sexual assault.

[00:29:00] Speaker 03:
But sometimes what happens with a lot of sexual assault victims, especially if they're seeing their victimizer day in and day out, is there's continued harassment and continued intimidation.

[00:29:09] Speaker 03:
And that's what the student.

[00:29:10] Speaker 03:
or this child was experiencing.

[00:29:15] Speaker 02:
All right, thank you.

[00:29:16] Speaker 02:
Thank you.

[00:29:16] Speaker 04:
Thank you.

[00:29:26] Speaker 00:
I want to quickly address some of the things that opposing counsel brought up.

[00:29:30] Speaker 00:
First, there was a brief discussion about vicarious liability.

[00:29:33] Speaker 00:
There is no vicarious liability in the Section 1983 context.

[00:29:38] Speaker 00:
And I don't think that you can read ICBAL again as being so limited because what ICBAL starts off with, the court says, quote, here, we begin by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity, whether that is the

[00:29:57] Speaker 00:
actor in the first instance, whether that is on a theory of supervisory liability, this is not a limited ruling.

[00:30:05] Speaker 00:
And I also think it's important to look at Murrell's lineage.

[00:30:07] Speaker 00:
There's a lot of lineage going on in this case because we are dealing with, at this point, a series of decisions.

[00:30:15] Speaker 00:
But Murrell draws its authority from Woodward.

[00:30:19] Speaker 00:
Woodward is a supervisory liability case.

[00:30:22] Speaker 00:
So is Murrell.

[00:30:24] Speaker 00:
There's no basis in the law to draw a distinction as between these theories of liability.

[00:30:32] Speaker 00:
And I also want to go, I also want to speak to the point that opposing counsel raised that Deputy Ebeling could have intervened.

[00:30:42] Speaker 00:
But that in the first instance required that Deputy Ebeling knew of the harassment.

[00:30:47] Speaker 00:
So there are no allegations in the complaint that he knew of the harassment before the January meeting.

[00:30:54] Speaker 00:
As opposing counsel acknowledged, it's not his job to draft the safety plan.

[00:30:58] Speaker 00:
He certainly could have had a role in enforcing it.

[00:31:01] Speaker 00:
But again, as the complaint alleges, no safety plan is implemented by the school.

[00:31:07] Speaker 00:
And so there is nothing for Deputy Ebeling to enforce.

[00:31:11] Speaker 00:
And opposing counsel said, I don't know what his responsibility would have been in the safety plan.

[00:31:18] Speaker 00:
And the reason that he did that, my apologies, I'm over time.

[00:31:21] Speaker 00:
Thank you very much.

[00:31:22] Speaker 00:
It's always an honor to appear before the court.

[00:31:26] Speaker 04:
All right, case is submitted.

[00:31:27] Speaker 04:
Council will be excused.