[00:00:02] Speaker 00:
We're ready for the next case.

[00:00:04] Speaker 00:
25-7052 Hardin versus Hetchcock.

[00:00:37] Speaker 01:
Good morning.

[00:00:38] Speaker 01:
My name is Bob Blakemore.

[00:00:40] Speaker 01:
I'm the attorney for the appellant in this case.

[00:00:44] Speaker 01:
It is a case involving sexual abuse of two former inmates at the Pushmataha County Jail.

[00:00:51] Speaker 01:
And this appeal is with respect to a Monell claim against the sheriff and his official capacity.

[00:01:00] Speaker 01:
I wanted to begin by addressing some issues that

[00:01:06] Speaker 01:
really haven't been touched on in the briefing, and that's because I didn't file a reply.

[00:01:12] Speaker 01:
And it's something that I really wasn't expecting, that the sheriff would continue to challenge the underlying violation.

[00:01:27] Speaker 01:
So one of the prerequisites of any Monell claim or most Monell claims, ordinarily you have to show that there's a

[00:01:36] Speaker 01:
underlying constitutional violation by one of the employees or officers of the governmental entity.

[00:01:44] Speaker 00:
You do.

[00:01:45] Speaker 00:
And just to be clear, Mr. Blakemore, so that my silence does not suggest otherwise, there's a question on whether you should have followed the reply brief if you had something to say.

[00:01:55] Speaker 00:
I mean, making new arguments, new arguments in the context of an oral argument is not the time to do it.

[00:02:02] Speaker 00:
OK, you can go ahead and tell us what you want to tell us.

[00:02:05] Speaker 00:
But there's a problem with that.

[00:02:08] Speaker 01:
Okay.

[00:02:08] Speaker 01:
Well, I wanted to just address that.

[00:02:12] Speaker 01:
One, we do address the underlying violation in our brief.

[00:02:16] Speaker 01:
And we address the evidence that supports on both Mr. Smith and Ms.

[00:02:22] Speaker 01:
Works and the fact that there's actually another 10th Circuit decision in the case of Ms.

[00:02:30] Speaker 01:
Works.

[00:02:31] Speaker 01:
that holds that under the first element of qualified immunity, that a reasonable jury could find that she was subjected to sexual abuse in violation of her constitutional rights.

[00:02:47] Speaker 01:
So I see the fact that they're continuing to argue that as a collateral attack on the 10th Circuit's order.

[00:03:00] Speaker 02:
They also raise... Why did you go ahead and address it in your opening brief then?

[00:03:07] Speaker 02:
Well, it's a necessary element and I wanted to just... Wouldn't it have been easier just to simply recite what you just recited, which is the 10th Circuit has already ruled on with respect to Ms.

[00:03:19] Speaker 02:
Work's, the constitutional violation issue?

[00:03:21] Speaker 01:
Well, I do put that in the brief.

[00:03:23] Speaker 02:
Yeah, but you went through and addressed it anyway.

[00:03:26] Speaker 01:
Yes, I do.

[00:03:28] Speaker 01:
I do in the brief.

[00:03:30] Speaker 01:
I was just pointing out that the fact that they are continuing to challenge that, I don't think that they can.

[00:03:40] Speaker 01:
But I believe that even if they could, that the evidence is there that supports that there's an underlying violation with respect to Ms.

[00:03:50] Speaker 01:
Works and with respect to Mr. Smith.

[00:03:54] Speaker 01:
They raise an argument with

[00:03:56] Speaker 01:
Mr. Smith under Rule 412.

[00:04:02] Speaker 01:
And if you look at the district court's order, the district court said that they did not appropriately address that.

[00:04:12] Speaker 01:
I actually raised that in my response brief below when they were trying to get into his history of sexual conduct.

[00:04:21] Speaker 01:
They did not address it in the

[00:04:25] Speaker 01:
in the record below and now they're raising it for the first time.

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on appeal.

[00:04:30] Speaker 00:
Well, to your point, we're dealing with the Monell claim.

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And so the question is whether there's a policy that causes an unconstitutional injury.

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And part of that also goes to the question of deliberate indifference.

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So speak to me, please, about why one should view either Sheriff Duncan or Hedgecock as being deliberately indifferent in these circumstances.

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And you can start with Duncan, if you would.

[00:04:58] Speaker 01:
OK, so under the Duncan administration, there's evidence, significant evidence, of deliberate indifference in that there was a pattern of sexual misconduct under their own policy by Ms.

[00:05:21] Speaker 01:
Nichols, the jailer Ms.

[00:05:25] Speaker 01:
Nichols,

[00:05:26] Speaker 01:
with respect to another inmate who went by the name of Little Jeff.

[00:05:32] Speaker 01:
She actually had sex with him multiple times in his cell, in the laundry room, and became pregnant with twins from their relationship inside the jail.

[00:05:48] Speaker 01:
And that's consensual sex, is it not?

[00:05:50] Speaker 01:
It was consensual sex.

[00:05:56] Speaker 01:
sexual misconduct.

[00:05:58] Speaker 00:
Well, it violated the jail policy, but the point, at least in part, for deliberate indifference, not only does there have to be a pattern from which there could be the belief that there would be a constitutional injury, but there has to be notice of that.

[00:06:12] Speaker 00:
And so the only thing that is going on is violations of jail policy, albeit related to sexual activity,

[00:06:22] Speaker 00:
then why would the Duncan administration have been on notice that she may well essentially rape somebody?

[00:06:29] Speaker 01:
Because you go from this pattern of sexual misconduct, which is also a felony under Oklahoma law, in addition to being a violation of their internal policies.

[00:06:45] Speaker 01:
But it just shows a fundamental lack of supervision.

[00:06:49] Speaker 01:
And it's not hard to get to,

[00:06:51] Speaker 01:
Coercive sexual conduct, that there's an excessive risk of coercive sexual conduct is going to happen.

[00:07:02] Speaker 01:
The fact that he's allowing this to happen in the jail, knowingly allowing it to happen in his jail.

[00:07:09] Speaker 02:
That's what I want you to address, the knowing part of it.

[00:07:12] Speaker 02:
Isn't there, I mean, I didn't see it strangely in your briefing, but the district court recited

[00:07:18] Speaker 02:
that Sheriff Duncan knew that Nichols was sleeping with Little Jeff.

[00:07:21] Speaker 02:
And that Little Jeff said in his deposition that Duncan knew they were sleeping together because he made it a point to come back and make sure I knew that he knew I was doing it.

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And he told me I needed to quit.

[00:07:32] Speaker 02:
That was Sheriff Duncan, according to the district court.

[00:07:34] Speaker 02:
Is that accurate?

[00:07:35] Speaker 01:
And that is in our brief.

[00:07:37] Speaker 02:
Isn't that really?

[00:07:37] Speaker 02:
I mean, you've got actual knowledge there by Sheriff Duncan.

[00:07:41] Speaker 01:
Correct.

[00:07:42] Speaker 01:
There was actual knowledge by Sheriff Duncan.

[00:07:45] Speaker 02:
And him telling them,

[00:07:47] Speaker 02:
police the inmate, he needed to quit.

[00:07:49] Speaker 01:
Right.

[00:07:50] Speaker 01:
And this is in our brief as well.

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Little Jeff's testimony was that after he told him he knew what he was doing, that he just laughed and walked off.

[00:08:00] Speaker 01:
And the conduct continued.

[00:08:03] Speaker 01:
And this is under the umbrella of this policy that they had that violated the Oklahoma jail standards of one jailer, one ship.

[00:08:17] Speaker 01:
So the only reason that this was able to continue and to happen is because they were knowingly violating the Oklahoma jail standards.

[00:08:28] Speaker 00:
They actually- Is it categorically, should one presume that it's categorically a constitutional violation because something violates the Oklahoma jail standards?

[00:08:38] Speaker 01:
No, sir.

[00:08:39] Speaker 01:
It's not categorically.

[00:08:40] Speaker 01:
It's evidence of, and that's under Lopez versus LaMaster, when you're put on notice

[00:08:47] Speaker 01:
I mean, they're on constructive notice that it's a violation.

[00:08:50] Speaker 01:
They know what the jail standards require.

[00:08:54] Speaker 01:
And there's an admission, one, that the Department of Health issued reports telling them this was a violation.

[00:09:04] Speaker 01:
And also, Hedgecock and his deposition admitted that the one jailer was a violation of the jail standards.

[00:09:14] Speaker 01:
But when you couple that with,

[00:09:16] Speaker 01:
I think that in and of itself, that's not a constitutional violation.

[00:09:21] Speaker 01:
But when you couple that with the sexual misconduct that was happening at the jail, in addition to the other evidence which would come in, I believe, under Tefoya, of just kind of the debauchery, the drugs coming in,

[00:09:45] Speaker 00:
the weapons, the drug use, the fact that there's... Well, weapons and drugs do not... How do weapons and drugs give you a substantial risk of a sexual assault?

[00:09:57] Speaker 00:
I mean, those two things are different, and at least as far as I can tell.

[00:10:00] Speaker 00:
And so speak to me why one should have been on notice because there's drugs and guns going in the jail, that there may be a sexual assault by a guard on an inmate.

[00:10:11] Speaker 01:
Well, again, I think you look at it in the...

[00:10:14] Speaker 01:
and the totality of the circumstances.

[00:10:16] Speaker 00:
You do, and the totality of the circumstances in the Duncan administration was one guy, right?

[00:10:21] Speaker 00:
I mean, was there any evidence of Nichols doing anything with anybody else?

[00:10:25] Speaker 00:
Yes.

[00:10:26] Speaker 00:
Oh, really?

[00:10:27] Speaker 01:
Yes.

[00:10:28] Speaker 01:
There was another inmate named Bell, and that's in my brief as well.

[00:10:33] Speaker 00:
OK, and going beyond Nichols, was there anybody else?

[00:10:36] Speaker 01:
Well, my client, Sean Smith, and those were

[00:10:42] Speaker 01:
Those were instances prior to Mr. Smith.

[00:10:47] Speaker 02:
But the... What's in the record about the Brian Bell, with her interactions with Brian Bell?

[00:10:53] Speaker 01:
That Sheriff Duncan admitted that there was a sexual relationship between Bell and, inmate Bell and Ms.

[00:11:10] Speaker 01:
Nichols.

[00:11:10] Speaker 02:
Was that about the same time as the sexual relationship with Little Jeff?

[00:11:16] Speaker 01:
That's my understanding, yes.

[00:11:18] Speaker 02:
Do you know where that is?

[00:11:19] Speaker 01:
I know it's in my brief.

[00:11:22] Speaker 01:
It's in my notes here.

[00:11:27] Speaker 02:
So you would have two assaults that you're suggesting that Sheriff Duncan knew.

[00:11:32] Speaker 02:
Yes, at least.

[00:11:33] Speaker 02:
And really multiple, apparently, times with little Jeff, but another assault with Nichols with Brian Bell.

[00:11:43] Speaker 01:
I don't know if his first name is Brian, but it is Bell.

[00:11:45] Speaker 02:
I have it in my notes, but I could be wrong, yeah.

[00:11:48] Speaker 02:
But in any event, he was another inmate.

[00:11:50] Speaker 00:
Yes.

[00:11:50] Speaker 00:
What do we do with the Graham decision?

[00:11:52] Speaker 00:
Why is this an assault at all?

[00:11:54] Speaker 00:
I mean, if there's consensual sex, it is not a constitutional violation.

[00:12:00] Speaker 01:
Again, it's sexual misconduct.

[00:12:03] Speaker 01:
And I believe that it rises to the level you can't allow as a sheriff

[00:12:12] Speaker 01:
you can allow this kind of conduct.

[00:12:15] Speaker 01:
To be clear, no one is sanctioning that conduct.

[00:12:18] Speaker 01:
But again, it goes to notice of an excessive risk.

[00:12:25] Speaker 01:
And actually, Graham, I think, helps that argument.

[00:12:30] Speaker 01:
Because what Graham says, as you know, is that when you cross the line to coercive conduct, then it becomes a constitutional issue.

[00:12:40] Speaker 01:
You already had a legal issue.

[00:12:42] Speaker 01:
with respect to felonies being committed.

[00:12:46] Speaker 01:
So he was on notice of the substantial and excessive risk that it would cross the line into constitutional violation and actually that it was substantially certain based on the inadequate staffing, the utter lack of supervision.

[00:13:12] Speaker 01:
Then going to Ms.

[00:13:15] Speaker 01:
Works and Sheriff Hedgecock, the district court held that, one, that they were only on notice of the consensual sexual relationship, which, again, we've talked about that and why I believe that that's more than sufficient.

[00:13:41] Speaker 01:
to put them on notice of an excessive risk.

[00:13:45] Speaker 01:
But I think more so what the district court said with respect to Hedgecock is that he made changes to the staff, and they took the policies more seriously.

[00:14:01] Speaker 01:
They're a new policy language.

[00:14:05] Speaker 01:
For one, I don't really see that there's any

[00:14:09] Speaker 01:
relevant evidence that that had any impact.

[00:14:12] Speaker 01:
But the biggest issue with Hedgecock is that what he did not do is he didn't change the single jailer policy.

[00:14:23] Speaker 01:
He continued to have the one jailer, one shift policy even after the debacle under Sheriff Duncan.

[00:14:34] Speaker 00:
And what is the evidence that draws a line between the single jailer policy and the assaults that took place here?

[00:14:45] Speaker 00:
I mean, why should that be obvious to me?

[00:14:48] Speaker 01:
Well, because it's unlikely that it would happen if you had staffing, even as just required under the minimal guidelines.

[00:15:01] Speaker 01:
And actually, Sheriff Hedgecock

[00:15:05] Speaker 01:
Conceded during his deposition that sexual abuse is much quote much less likely if you have double staffing of both genders and That's the issue that he did not address and then in that environment you had what happened to to miss works I see my time is up.

[00:15:28] Speaker 03:
Thank you may it please the court Allison Levine for appellee and

[00:15:34] Speaker 03:
B.J.

[00:15:34] Speaker 03:
Hitchcock in his official capacity as sheriff of Pushmataha County.

[00:15:40] Speaker 03:
As you're aware, this case involves two vastly different alleged sexual assault incidents, which occurred at two different times, under two different sheriff's administrations, under two different sets of policies and procedures.

[00:15:57] Speaker 03:
The only thing these two incidents have in common

[00:16:01] Speaker 03:
is that neither were caused by the policies, customs, training or supervision at the Pushmataha County Jail.

[00:16:08] Speaker 00:
Let me be clear, by virtue of speaking of two different regimes, you're here also defending the Sheriff Duncan regime, right?

[00:16:18] Speaker 03:
Yes, correct.

[00:16:20] Speaker 03:
Because of the way the municipal liability, yes.

[00:16:24] Speaker 00:
Oh, in their official capacity.

[00:16:25] Speaker 00:
Well, then speak about why, at least in that moment in time, relative to the assault on Mr. Smith, there would not have been deliberate indifference in the Duncan regime relative to that assault.

[00:16:41] Speaker 03:
There was no deliberate indifference in the Duncan regime because there was no, he was aware that Nichols had had sexual relationships with inmates before, inmate Bell and inmate McCarran.

[00:16:56] Speaker 03:
But he was aware.

[00:16:56] Speaker 02:
And there was a no tolerance policy.

[00:16:59] Speaker 02:
No such thing as consensual sex under their policy.

[00:17:03] Speaker 02:
And he disregarded that policy more than once

[00:17:08] Speaker 03:
Correct.

[00:17:09] Speaker 02:
Right.

[00:17:09] Speaker 02:
So why isn't that deliberate indifference?

[00:17:13] Speaker 02:
He disregarded a zero tolerance policy and said it was because it was consensual.

[00:17:20] Speaker 02:
Is there an exception to the policy?

[00:17:24] Speaker 02:
When inmates have consensual sex with

[00:17:27] Speaker 02:
with the officers?

[00:17:28] Speaker 02:
There was no exception to the policy.

[00:17:30] Speaker 02:
Of course not.

[00:17:31] Speaker 02:
Right.

[00:17:32] Speaker 02:
But he disregarded that policy.

[00:17:34] Speaker 03:
He did.

[00:17:35] Speaker 03:
But a policy violation does not equate to a constitutional violation, even where alleged sexual assaults of inmates occurred.

[00:17:44] Speaker 03:
And that was made clear in Hovater v. Robinson, which we discussed in the briefing.

[00:17:49] Speaker 02:
This policy led to, had he terminated her,

[00:17:54] Speaker 02:
and had her criminally charged as he did in these instances, she never would have been there to assault again.

[00:18:02] Speaker 03:
Correct.

[00:18:04] Speaker 03:
That is true.

[00:18:05] Speaker 03:
But when we're talking about the Monell liability and what he has to have constructive notice of, we're talking about constructive notice of constitutional violations.

[00:18:16] Speaker 02:
And this was sexual assault by an officer, by an officer

[00:18:24] Speaker 02:
that was rape, considered rape under Oklahoma law.

[00:18:29] Speaker 02:
And that's not sufficient notice to say, hmm, we've got a little problem with this particular officer who's doing this right under our noses more than once with two different inmates.

[00:18:43] Speaker 02:
We're just going to tell the inmates to stop.

[00:18:48] Speaker 03:
A state law violation also is not a constitutional violation.

[00:18:53] Speaker 03:
That's from Davis versus Shearer, the 1984 US Supreme Court decision.

[00:18:59] Speaker 02:
Well, my understanding is you're suggesting this wasn't a problem because it was consensual.

[00:19:04] Speaker 03:
No, I'm not saying it was a problem because it was consensual.

[00:19:07] Speaker 03:
I'm saying there was no history of, there was no custom of permitting constitutional violations.

[00:19:14] Speaker 03:
Because before this lawsuit was filed, there was no evidence that any inmate had ever alleged that their constitutional rights were violated.

[00:19:25] Speaker 03:
There was no allegations of non-consensual sex, of coerced sex, of sexual assault.

[00:19:32] Speaker 02:
Oh, you're saying somebody has to complain before they have notice?

[00:19:36] Speaker 03:
There would have to be evidence of that.

[00:19:38] Speaker 02:
There is evidence.

[00:19:38] Speaker 02:
There is evidence.

[00:19:39] Speaker 03:
But the evidence is of consensual relationships.

[00:19:42] Speaker 02:
That's what I'm just asking you.

[00:19:44] Speaker 02:
So your argument is there's evidence of an inmate improperly having sex, and they knew about it, but they're going to ignore it because it was consensual.

[00:19:53] Speaker 02:
They labeled it consensual.

[00:19:55] Speaker 02:
Isn't that right?

[00:19:56] Speaker 02:
Because, yes.

[00:19:57] Speaker 02:
So that is the argument you're making.

[00:19:59] Speaker 02:
That's what the district court accepted.

[00:20:01] Speaker 02:
Let's talk about what you're doing in this case.

[00:20:04] Speaker 02:
You're arguing that both of these individuals were having consensual sex with the inmates, aren't you?

[00:20:11] Speaker 02:
Yes.

[00:20:11] Speaker 02:
Right.

[00:20:12] Speaker 02:
And what happened to them?

[00:20:13] Speaker 02:
Well, this was... They got terminated and charged under Oklahoma law, right?

[00:20:19] Speaker 02:
Yes.

[00:20:20] Speaker 02:
So what's the difference here?

[00:20:22] Speaker 02:
Again, the difference is that there was no... According to you, it is consensual sex.

[00:20:30] Speaker 02:
Both of these.

[00:20:31] Speaker 02:
Yes.

[00:20:32] Speaker 02:
And yet these people were terminated and charged.

[00:20:36] Speaker 03:
Yes.

[00:20:37] Speaker 03:
For consensual sex, as you label it now.

[00:20:39] Speaker 03:
Right.

[00:20:40] Speaker 02:
And I do want to separate... So what's the difference here as far as notice?

[00:20:44] Speaker 03:
Well, the difference with works, especially.

[00:20:49] Speaker 02:
Again, we are in a... Let's talk about the first, with Duncan.

[00:20:54] Speaker 02:
With Duncan.

[00:20:54] Speaker 02:
Yeah, that's the important one.

[00:20:56] Speaker 02:
Duncan's the one that knew about all these incidents.

[00:20:59] Speaker 02:
and did nothing about it.

[00:21:01] Speaker 02:
Yes, he did.

[00:21:02] Speaker 02:
Because they were consensual.

[00:21:04] Speaker 03:
Because they were consensual, because there was no evidence of constitutional violations.

[00:21:09] Speaker 02:
According to you, these were also consensual, right?

[00:21:16] Speaker 03:
Yes.

[00:21:16] Speaker 03:
We believe the evidence shows that these were also consensual.

[00:21:20] Speaker 02:
So why wasn't it okay?

[00:21:21] Speaker 02:
Why were they charged and terminated both?

[00:21:24] Speaker 03:
Well, Nichols was charged and terminated because, again, I want to make clear that it was not Mr. Smith that went to jail administration or went to the OSBI and said that he'd been sexually assaulted.

[00:21:37] Speaker 03:
Jailer Nichols was found going through inmate property with Mr. Smith.

[00:21:42] Speaker 02:
Are you suggesting that as long as nobody complains, as long as the inmate's happy with the sex and enjoys having sex with the officer, there can't be notice?

[00:21:54] Speaker 03:
There would be notice of the violation of policy, but there would not be notice of constitutional violations.

[00:22:04] Speaker 02:
And that's not a constitutional violation because they labeled it consensual.

[00:22:12] Speaker 03:
Yes.

[00:22:13] Speaker 02:
And you're labeling these consensual also?

[00:22:16] Speaker 03:
Well, prior to Smith, even assuming that the Smith, the sexual encounter between Nichols and Smith was not consensual, assuming that is the case, there is absolutely no evidence in the record that the sexual encounters with Bell and with McCarran were not consensual.

[00:22:38] Speaker 03:
There's no evidence of that.

[00:22:40] Speaker 03:
No allegations of constitutional violations, no allegations of coercive sex, no allegations of sexual assault.

[00:22:48] Speaker 02:
It was a violation, though, of the zero tolerance policy.

[00:22:52] Speaker 02:
Yes, it was.

[00:22:54] Speaker 02:
And nothing was done about that?

[00:22:57] Speaker 03:
Correct.

[00:22:57] Speaker 03:
Nothing was done about the policy.

[00:22:59] Speaker 03:
But again, a policy violation is not a notice of constitutional violation.

[00:23:08] Speaker 03:
I wanted to address Mr. Smith's argument and Ms.

[00:23:13] Speaker 03:
Work's argument as well, that one of the customs that led to the alleged sexual assaults in the jail was single staffing.

[00:23:24] Speaker 03:
I would like to make clear that when Sheriff Hedgecock took over in November of 2016, he was aware that this had happened, that Jailer Nichols was actually in the jail herself because of the sexual contact with Mr. Smith.

[00:23:43] Speaker 03:
He was so intent on preventing something like this from happening again that he actually called the jail inspection division and requested an additional

[00:23:54] Speaker 03:
And what that clarified was that the only reason that single

[00:24:01] Speaker 03:
single jailer staffing had triggered any kind of violation of the Oklahoma jail standards was because they were also operating dispatch out of the jail at the same time.

[00:24:13] Speaker 03:
And once the dispatch was moved from the county jail to the Antlers Police Department, the jail was in line with Oklahoma jail standards.

[00:24:27] Speaker 00:
By having one person.

[00:24:28] Speaker 03:
Yes, by having one person.

[00:24:30] Speaker 03:
Because we've previously been instructed that we can't assume that having one jailer on staff, that having a single male jailer on

[00:24:47] Speaker 03:
on staff creates a risk of sexual assault to a female inmate.

[00:24:52] Speaker 03:
And it's not that... We've been instructed... Yes, in Hoverter v. Robinson, on page 1068 of that decision, the court stated that we cannot assume that every male guard is a risk of sexual assault to a female inmate.

[00:25:12] Speaker 03:
And in this case, we have, although

[00:25:17] Speaker 03:
Byers was the only jailer on staff.

[00:25:22] Speaker 03:
He was not the only person who could deal with female inmates.

[00:25:26] Speaker 03:
So we did not have a situation here where a male jailer was being forced to interact with female inmates against the jail standards or against jail policy.

[00:25:37] Speaker 03:
There were female deputies that were on call that were available to come in.

[00:25:40] Speaker 03:
There were female police officers at the Antlers Police Department that were also available to come in.

[00:25:47] Speaker 03:
and interact with female inmates as needed.

[00:25:51] Speaker 03:
So as far as plaintiffs' argument that staffing the jail with a single jailer led to a sexual assault,

[00:26:04] Speaker 03:
The evidence just isn't there, especially not in this case.

[00:26:08] Speaker 00:
And does that same line of reasoning as it relates to the evidence apply in the Duncan regime as well, or is that different?

[00:26:15] Speaker 03:
No, it would apply as well.

[00:26:17] Speaker 03:
We got the clarification from the jail inspection division on why the jail had been previously cited for having single staffing.

[00:26:27] Speaker 03:
So we got the clarification later, but the rationale

[00:26:31] Speaker 03:
is the same.

[00:26:33] Speaker 00:
That there is no automatic correlation between having a single jail or policy and the increased risk of sexual assault.

[00:26:44] Speaker 03:
Yes, that is correct.

[00:26:47] Speaker 03:
And I think what we have there is a

[00:26:52] Speaker 03:
a situation where it would be not enough staffing to cover the entire jail, a population issue where you have a jailer managing dispatch, you have a jailer managing everyone in the jail.

[00:27:06] Speaker 03:
That's a completely different issue.

[00:27:08] Speaker 03:
And for municipal liability to attach, there has to be a direct causal link between the policy, the custom,

[00:27:19] Speaker 03:
and the alleged constitutional violation.

[00:27:22] Speaker 03:
It has to be closely related to the claimed injury.

[00:27:26] Speaker 03:
And so I don't think the single jailer staffing, whether we're talking about works or whether we're talking about Smith, I don't think that's closely related to the injury here.

[00:27:44] Speaker 03:
I also want to address plaintiff's argument that

[00:27:49] Speaker 03:
you can go from sexual misconduct to sexual assault.

[00:27:55] Speaker 03:
I think that flies in the face of the other decisions that we have from the 10th Circuit.

[00:28:04] Speaker 03:
You have Graham versus Logan County, which established consensual sex does not violate constitutional rights, that there has to be some level of coercion or force required for it to be non-consensual.

[00:28:18] Speaker 03:
Then it was made clear in the qualified immunity appeal taken by buyers on work's claim that in the 10th Circuit, there's no presumption of non-consent.

[00:28:33] Speaker 03:
So when we're looking at the sheriff having known about consensual sex between inmates and nickels,

[00:28:45] Speaker 03:
If we cannot assume, if a court cannot assume a presumption of non-consent, how is the sheriff to assume a presumption of non-consent, especially

[00:28:59] Speaker 03:
if you're continuing the policy and the custom as it is, how can we assume that based only on consensual sex between jailers and inmates that we would then move to non-consensual sexual assaults?

[00:29:15] Speaker 02:
I guess they assume it because they have a zero tolerance policy.

[00:29:19] Speaker 02:
That's why they assume it.

[00:29:21] Speaker 02:
They have a zero tolerance policy.

[00:29:24] Speaker 02:
But at the same time... That's because you don't really want to have to try to decide whether, you know, an inmate's sex with an officer is consensual.

[00:29:32] Speaker 02:
I mean, zero tolerance takes care of that.

[00:29:35] Speaker 03:
Yes.

[00:29:36] Speaker 02:
I mean, there's circuits that have, that the case law says there is a presumption.

[00:29:41] Speaker 02:
We do not.

[00:29:41] Speaker 02:
We say you have to have overwhelming evidence that it was non-consensual.

[00:29:46] Speaker 02:
And I don't believe there's been a case of that in this circuit.

[00:29:53] Speaker 02:
Even the very nature of the relationship is non-consensual.

[00:30:01] Speaker 03:
I think that goes against the very nature of the relationship being non-consensual.

[00:30:06] Speaker 03:
I think that adds a power dynamic into the equation that I don't think that the gram

[00:30:19] Speaker 02:
Well, Brown v. Flowers came after Graham, and that's where we outlined what you have to have to show it's non-consensual and it's overwhelming evidence because of that power relationship.

[00:30:33] Speaker 02:
Because of it.

[00:30:34] Speaker 02:
We stopped short, of course, saying there's presumption it's non-consensual, but some, of course, have.

[00:30:40] Speaker 02:
Right.

[00:30:40] Speaker 02:
And because of that power relationship.

[00:30:44] Speaker 02:
Right.

[00:30:46] Speaker 03:
Regardless of whether that policy was actually enforced or not, what it comes down to is Nichols was trained.

[00:30:57] Speaker 03:
on the policy.

[00:30:58] Speaker 03:
And we have a very strange situation here where the plaintiff himself, Mr. Smith, was deposed and admitted that he knew that Nichols had been trained on the policy, he knew that other staff had been trained on the policy, and it occurred anyway.

[00:31:16] Speaker 03:
So we have, when we're looking at the failure to train claim, we also have the

[00:31:21] Speaker 03:
lack of direct causal link between any alleged failure to train and the sexual assault that's been claimed by Mr. Smith.

[00:31:34] Speaker 03:
And I think that's especially true in the works case.

[00:31:39] Speaker 00:
Is there a failure to train claim here?

[00:31:41] Speaker 00:
I thought there was a failure to staff and failure to supervise.

[00:31:44] Speaker 03:
Yes, there's a failure to train claim as well.

[00:31:48] Speaker 03:
Um, and then when we're looking at, at training on the works claim, especially, uh, once, once, um, Sheriff Hedgecock came in.

[00:31:58] Speaker 03:
everything was overhauled.

[00:32:00] Speaker 03:
He cleaned house, so to speak, new jail administrators, new undersheriffs, new policies and procedures, new training, and the evidence in that... The policy and procedure, as far as this is concerned, didn't change.

[00:32:13] Speaker 02:
It was still zero tolerance.

[00:32:15] Speaker 02:
Yes, it was a different... He enforced it.

[00:32:18] Speaker 03:
Yes, it was a different policy with different verbiage, but

[00:32:22] Speaker 03:
Yes, it was zero tolerance policy and he demonstrated that he absolutely enforced it.

[00:32:31] Speaker 03:
He took over in November of 2016 and this would be the first.

[00:32:37] Speaker 02:
Would you say that these two instances certainly put you on notice that there have been sexual assaults in the prison?

[00:32:49] Speaker 03:
Yes, I would say after works would be an incident.

[00:32:54] Speaker 02:
Both of them, really.

[00:32:55] Speaker 02:
You're now on notice.

[00:32:59] Speaker 02:
Yes.

[00:32:59] Speaker 02:
So if someone comes along, they're going to point to these assaults as having put you on notice.

[00:33:06] Speaker 02:
Yes.

[00:33:06] Speaker 02:
And why is that different than the

[00:33:09] Speaker 02:
than with the conduct with Little Jeff and Nichols conduct with Little Jeff and Bell.

[00:33:18] Speaker 02:
I'm still failing to understand why those didn't put you on notice because you're making the same argument right here today that these instances were non-consensual.

[00:33:29] Speaker 02:
And you're labeling them non-consensual.

[00:33:31] Speaker 02:
So I think what you're telling us is, if I'm understanding correctly, as long as you label something or the sheriff labels something as non-consensual, you're not on notice of a problem.

[00:33:43] Speaker 02:
It's not a sexual assault.

[00:33:44] Speaker 02:
All you got to do is label it.

[00:33:46] Speaker 02:
But to me, that's a fact question, particularly considering you're calling these assaults non-consensual.

[00:33:52] Speaker 02:
That's a fact question.

[00:33:54] Speaker 02:
And certainly shouldn't be the deciding factor.

[00:33:59] Speaker 02:
You shouldn't be able to label something as non-consensual and then say you don't have notice of any sexual assaults going on.

[00:34:08] Speaker 03:
Well, I am well over my time if I could address that.

[00:34:11] Speaker 00:
Please answer the question.

[00:34:12] Speaker 03:
OK.

[00:34:13] Speaker 03:
It's not a matter of the sheriff or the administration labeling it consensual or versus non-consensual.

[00:34:21] Speaker 03:
It was the fact that no inmate

[00:34:24] Speaker 03:
prior to the Smith and Works lawsuit being filed had ever labeled it as non-consensual.

[00:34:31] Speaker 02:
All right, so if there's, let's say there's clearly non-consensual sexual assaults going on.

[00:34:40] Speaker 02:
But nobody's complaining about it, but they know about it.

[00:34:43] Speaker 02:
That OK?

[00:34:44] Speaker 03:
No, that would not be OK.

[00:34:46] Speaker 03:
Then they have notice.

[00:34:47] Speaker 03:
No, and that's not what occurred here.

[00:34:49] Speaker 02:
So if nobody complains and nobody files any kind of action, then that's the problem.

[00:34:55] Speaker 03:
If nobody has complained and if there is no evidence that the sheriff knew of non-consensual sex between jailers and inmates.

[00:35:03] Speaker 02:
What the sheriff has labeled non-consensual sex.

[00:35:06] Speaker 02:
Well, again, that goes back to

[00:35:10] Speaker 02:
I'm just saying your label here is also consensual.

[00:35:13] Speaker 02:
And that's problematic, because that's a fact issue that's been resolved against you, at least with one of these.

[00:35:19] Speaker 02:
And I'm just saying, I wonder about saying it makes it so.

[00:35:25] Speaker 03:
Well, the two incidents that are in the record are with Bell and McCarran.

[00:35:28] Speaker 03:
And McCarran was deposed, and there was no claims that it was non-consensual.

[00:35:37] Speaker 02:
Okay.

[00:35:38] Speaker 02:
Again, it's all about the label that people put on it.

[00:35:42] Speaker 03:
That the alleged victims of the inmates would put on it.

[00:35:46] Speaker 03:
Okay.

[00:35:48] Speaker 00:
Thank you, counsel.

[00:35:49] Speaker 03:
Thank you for your time.

[00:35:50] Speaker 03:
I'd ask that you affirm the district court's grant of summary judgments.

[00:35:55] Speaker 00:
Try to balance the books a little bit, Mr. Blakemore.

[00:35:59] Speaker 00:
You have six minutes.

[00:36:01] Speaker 00:
You certainly do not need to use them all, but you have them.

[00:36:04] Speaker 01:
Maybe just make one more.

[00:36:05] Speaker 00:
Okay.

[00:36:10] Speaker 01:
specifically with respect to the argument on Sheriff Hedgecock that he basically fixed the problem by moving the dispatcher out to the Antler's Police Department.

[00:36:32] Speaker 01:
I don't understand that.

[00:36:34] Speaker 01:
I really don't.

[00:36:37] Speaker 01:
The evidence is, again, that you have one

[00:36:40] Speaker 01:
one jailer supervising the jail, and that was the policy all the way through.

[00:36:49] Speaker 00:
Yes, but what I understood to be counsel's position was that when they were cited by the Oklahoma authorities about that, what they were citing them for was having that same jailer do dispatch authority, that one jailer does not necessarily correlate to a substantial risk of sexual assault.

[00:37:07] Speaker 01:
I think, well, no, it doesn't unless you have notice that there's an excessive risk, which they did here.

[00:37:14] Speaker 00:
And that goes back to this question of what one is responsible to do in labels.

[00:37:20] Speaker 00:
I mean, the bottom line is it was your burden as plaintiff to put forward evidence to show that those prior sexual assaults were non-consensual.

[00:37:29] Speaker 00:
And there was no evidence to that effect, right?

[00:37:31] Speaker 00:
And I'm talking about the ones related to little Joe and the other person.

[00:37:35] Speaker 00:
There was no evidence that they were non-consensual.

[00:37:37] Speaker 01:
There's evidence, again, going back to what I said before, is that it was completely out of control.

[00:37:44] Speaker 00:
That's not answering my question.

[00:37:46] Speaker 00:
My question is, was there any evidence related to either one of those people or otherwise to indicate that that conduct between Officer Nichols and those people was non-consensual?

[00:37:58] Speaker 01:
I think it was coercive.

[00:38:03] Speaker 00:
Well, that's a separate question, because Graham made it a separate question.

[00:38:08] Speaker 00:
Whether intuitively that makes sense or not, I don't know.

[00:38:11] Speaker 00:
But Graham, as I understand it, suggested we draw a line between consensual and non-consensual

[00:38:18] Speaker 00:
irrespective of whether Oklahoma law says, as a matter of law, because of the disparity of power, it can't be consensual.

[00:38:27] Speaker 00:
Get that.

[00:38:27] Speaker 00:
Understand that.

[00:38:28] Speaker 00:
Agree with it.

[00:38:29] Speaker 00:
But that doesn't go to this question, right?

[00:38:32] Speaker 00:
Graham draws a line between consensual and non-consensual.

[00:38:36] Speaker 01:
Yeah.

[00:38:36] Speaker 01:
But again, the ultimate question is whether they were on notice of an excessive risk

[00:38:43] Speaker 00:
of non-consensual sex.

[00:38:46] Speaker 00:
And what I'm asking you, all right, tell me why based upon two instances in which apparently it was consensual sex.

[00:38:54] Speaker 00:
Do you have any evidence to the contrary in the record that those two prior instances were non-consensual?

[00:39:02] Speaker 01:
No.

[00:39:02] Speaker 01:
I think they were coercive.

[00:39:04] Speaker 01:
And it was excessive.

[00:39:07] Speaker 01:
I mean, you've got, again, it's going on all the time to the point where

[00:39:14] Speaker 01:
She became pregnant with twins with this.

[00:39:17] Speaker 01:
I mean, if that doesn't put you on notice of an excessive risk of sexual abuse, I don't know what would.

[00:39:27] Speaker 01:
It clearly does.

[00:39:29] Speaker 02:
Well, how does a zero tolerance policy play into this?

[00:39:32] Speaker 02:
Isn't that the point of a zero tolerance policy is you don't make those kind of determinations because it's really hard to make in this instance?

[00:39:40] Speaker 02:
I mean, isn't that the whole point?

[00:39:42] Speaker 01:
Yeah, because the drawing the line between what's coercive and what isn't coercive in the power dynamic, the fact that this is going on to the extent that it was creates an excessive risk that there will be constitutional violations.

[00:39:59] Speaker 01:
And yes, the repeated violations of the zero tolerance policy, the sheriff knew it and did nothing.

[00:40:10] Speaker 01:
And then the next sheriff,

[00:40:12] Speaker 01:
continues this policy of staffing the jail with one jailer.

[00:40:19] Speaker 01:
And although the district court found that there was the availability of Antler's police and deputies to provide backup, there's really no evidence that that was happening.

[00:40:32] Speaker 01:
Again, Byers was all by himself with no supervision, and that's because of the

[00:40:40] Speaker 01:
one jailer, one shift policy that was continued.

[00:40:43] Speaker 01:
And after notice that there was an excessive risk of constitutional violations, unless you have any other questions.

[00:40:54] Speaker 00:
No, thank you, counsel.

[00:40:55] Speaker 01:
Thank you.

[00:40:56] Speaker 00:
The case is submitted.

[00:40:58] Speaker 00:
The court will be in recess until 9 a.m.

[00:41:00] Speaker 00:
tomorrow.