Legal Case Summary

to either have it on vibrato that you cut it out. It might be dire consequences if the cell phone should go off, but hopefully that won't be the case. So if you have any doubt, check it now and put it on vibrato or shut it off. The court is advised that both council have waived the uninterrupted period. The only other item in this is just please keep your voice up. In the mic, don't stray away from it. In addition to our hearing it, the argument is recorded for later use. So please stay in the mic while you're there. And by all means, as the court is asking you questions, please answer the court's questions. The red light will not save you from answering the court's questions. With that, we call first to the podium. Mr. Goodwin. May it please the court. Good morning. My name is Tommy Goodwin. I'm from the Mississippi Attorney General's office. And I represent the defendant, a pellant, Sharon Hampton in this case. This is an appeal from a jury's verdict in the northern district of Mississippi finding that Sharon Hampton was deliberately indifferent to the plaintiffs, thereby causing their injuries. As the chief judge has said, I welcome any questions from the court and have waved my right to an uninterrupted argument for the first half of my time. The first issue that I would like to discuss is the fact that there was insufficient evidence that trial to support the jury's finding that defendant, a pellant, Sharon Hampton, was deliberately indifferent to the safety of the plaintiffs on the day in question. In this case, there was a general evidence, so there was evidence of a general history of violence at the prison where this attack occurred, this attack occurred at the Mississippi State Penitentiary and Unit 32b is in Bravo in July of 2007. Are there any factual disputes that a jury had to resolve all of the ultimate legal conclusion of deliberate indifference? No, your Honor. And why is it a jury question? If there are no factual disputes far under resolve, and the only question is whether undisputed facts amount to deliberate indifference wasn't that a legal question that done belong to the jury? It's a good question, Your Honor. Well, I know I wouldn't have asked you, Your Honor. But I mean, I want an equally good answer. Thank you, Your Honor. Well, the jury, the question is a legal one, whether or not there was deliberate indifference. And the jury was free to make that determination based on the jury instructions they were given. But as the court has pointed out, there was no dispute about the facts in this case. So what's left in the jury? The jury made the incorrect determination that there was deliberate indifference. You know, I've made a legal determination, is it what I'm suggesting to you? Yes, yes, Your Honor. That's right. You can suggest otherwise, tell me why I'm wrong. Now the jury, the jury at that point could not make a legal determination about deliberate indifference. You did move for role 50, right? Yes, Your Honor

. Well, so then, I meant you believed there was no triumal fact issue. Correct, Your Honor. In this case, there was evidence of a general history of violence, there was testimony that's undisputed that that Christopher Epps said this facility was a dangerous place and it was dangerous because on the day in question, the state of Mississippi housed its most dangerous inmates in this facility. They, like every other state, has to make a determination of where to house and how to house their most dangerous inmates. In this case, this unit housed mostly gang members and inmates that were bent on committing acts of violence against each other. And there was evidence of that at trial. However, there was no specific evidence at trial of any specific acts of violence in particular at the exercise pens where this attack occurred. And the issue that I think is most important in this case is what guidance does a general history of violence give to a correctional officer, a light-sharing hampton. On the day in question, when she handed the block gun to Lieutenant Taylor and went inside to obtain a form, what did she know? She knew and assuming you impute knowledge of this to her, she knew she worked in a dangerous place with lots of dangerous men who had been on committing acts of violence. But what guidance does that give her? In this case, the only guidance that gives her is, don't ever make a mistake because you work in a dangerous facility. I'm not saying that it creates a strict liability situation, but it certainly creates a situation where negligence becomes actionable. Constructions. But, Council, wasn't the jury given an instruction that said that mere negligence is not a sufficient basis upon which plaintiff may recover damages against the defendant. But despite what you say about mere negligence, they were instructed that they couldn't hold reliable from mere negligence. In negligence. That's correct, Your Honor. They were. But negligence is a legal question, indeed. Well, whether or not it was an underlying facts or could be factual issues, but when they would be talking negligence, you're talking about the law. Not about facts. Unless they were disputed. That's correct. The, in this case, as I stated earlier, she hands the block going to Taylor and goes inside. And there was absolutely nothing going on on the yard that morning prior to that she was aware of, that anyone was aware of, any of the correctional officers were aware of, that would give her a pause to say, wait a minute, there's a risk of harm present here. And yes, the United States Supreme Court and former V. Brennan said that subjective knowledge can be proven with circumstantial evidence that violence was longstanding and pervasive, but the facts and farmer, in the facts in this case, are very different. And farmer, you had a preoperative transexual who had a very youthful and feminine appearance. He was, who did not want to be moved to a prison where there was a longstanding history of rape. In that case, prison officials have a very clear risk that's apparent to them. One that in that case, there was evidence that they actually drew the inference that there might be a problem. They drew the inference that this person was vulnerable. And so they had a very clear risk that they were being faced with and they had a... One of the facts in this

... Didn't the commission attest to five that Unit 32 was designed to house the worst of the work? Yes, Your Honor. He said that they testified that Unit 32 held the most dangerous inmates in the system. Separate in a part from just a regular general prison population. That's what Unit 32 was designed for the worst of the work. The most violent, the mentally ill, the members of gangs. Leaders of gangs in particular, yes, Your Honor. And there was further testimony that there was gang warfare going on as among the gangs that were housed in Unit 32. Yes, Your Honor. In fact, the testimony was that they had basically been at war for some period of time, that that's just the nature of gangs. They're attempting to impose their will on each other on a constant basis. But what farmers say about that though is that you don't get to incarcerate people and then just because they are violent, anti-social criminals, farmers say, you don't get to just let nature take its course. Isn't that what farmers say? Absolutely, Your Honor. Absolutely. And in this case, but when you're talking about the difference between former prison officials faced with a clear risk that if we place this young, transsexual in a prison where rape is longstanding and pervasive, there's a good chance he's going to be raped and they recognize that. In this case, what it happened to know when she handed the block gun to Lieutenant Taylor, she knew she worked in a dangerous place and nothing more. There was nothing in it. Wait, Counsel. Excuse me. It seems to me that Commissioner Epstein said a little more than that. He's talking specifically about the pins. And you're familiar with testimony in the brief. The reason you check them in these pins is because the inmates and then he says the pins are on a concrete slab. And what they will do, they will take and make a shank out of the wire in the fence. They will, I mean, they could tear it up. And then he goes on and talks about the dangerousness. It seems to me, suggesting by this, even the dangerousness in the pins. There is no evidence that there had been a break out in the pins once Unit 32 was moved into these pins. I'm not just into open exercise. But there was apparently evidence of destruction within the pins, checking within the pins to see what shanks had been developed. So it seems to me your point is that until they had been a break out in the pins, despite the violence otherwise and the efforts to tear apart the pins, there could not be deliberate in their fence. You need a first incident. I mean, I'm not trying to be in any way catch you on something. I want you to help me understand what you think the law is in this area

. Yes, Your Honor. That's correct. It's testimony that you cited and it's absolutely undisputed that they were taking pieces of the fencing. The inmates had taken pieces of the fencing, sharpened it against the concrete slab floor and that to make shanks. I would submit to the court that inmates and plan a expert even alluded to this or testified that inmates are creative. And he wasn't talking about parchment. He was talking about it in his experience. Inmates are creative and can create issues and avoid security and do things in an violation of protocols. And that is a fact of life in prison, whether it's in the pins or it's in their cells or it's in their job in the kitchen. They will fashion weapons wherever and however they can. However, the fact that they're fashioning weapons doesn't mean that they're using, doesn't mean they're committing acts of violence with those weapons. How did they break out? They didn't break out with a shank. No, Your Honor. The evidence is undisputed in this case that you had two inmates, Hayes and I believe Nash were the inmates, that escaped by kicking on and sawing on. These pins are 180 square feet with a concrete slab and metal fencing walls. And there are single person pins, one inmate goes in by himself. And at the bottom where the door and the slab meet, the Department of Crations had welded a metal plate there too because there was a little gap between the slab and the door. They had welded a metal plate there to prevent people from escaping underneath the door, sliding out. These inmates had sawed the plate and kicked on it enough. They actually got that loose and slid out from on. And sorry, Miss Hampton had no way of knowing that. It's undisputed that she had no knowledge. What's so ever that anything was going on at the pins when she went inside? That's true. It kind of sounds like the count of Monte Cristo, how long did it take him to sock through a well? There was some dispute as to how long it took, I believe, the testimony was that they, there was some testimony that they did it in a matter of minutes but I believe the ones that actually did it so they'd been working on it for some time. They go out to these pins on a daily basis to exercise. Construing the evidence in the light most favorable to the verdict, is there evidence in this record that she did not go for one to two minutes and she was not going to get a form at all because she didn't testify at the trial about the form and it was in the document and because she was gone for much more than one to two minutes, that the jury could disbelieve her explanation that she went in to get a form because there was some inconsistency. Is that possible on this record or can you clarify that for me? It's not possible and yes, you're on I can clarify that. I believe that the plaintiff discussed that in their supplemental brief and it trial attempted to impeach Miss Hampton about that and they said, well, you said it, she testified a trial that she went in to get a form for one of the inmates, Samuel Williams, who's a plaintiff and because he was refusing to leave his pin and was holding up yard call until he got the form. So she ran inside to get it. That was her testimony and that's why she ran inside. When she was interviewed by the MDOC, the Department of Corrections Investigators, right after this incident, she told them that she ran inside and I don't believe there was, she didn't give more detail to them and I don't believe they asked. And so the plaintiffs attempted to try to say, well, that's a contradiction that you didn't fully explain why you went inside and there were a couple of instances where the plaintiffs had tried, attempted to create a contradiction where there was not one. She simply provided more detail as to why she did something in trial. And so the jury is free to make reasonable inferences absolutely but they can't make unreasonable ones that amount to mere conjecture or speculation and that's what that would fall into the category of your honor. Speaking about mere conjecture or speculation, can you address your causation point please? Yes, your honor

. In this case, she hands the block on to let a tenant tailor her supervisor, she goes inside, while she's inside, two inmates escape and this attack occurs. The evidence is undisputed at trial, Samuel Williams, one of the plaintiffs, said he was in a pen right next to a tenant tailor when it happened and they were actually carrying on a conversation, casually went and occurred. These two inmate attackers run up, he's sitting down, when he stands up to face these attackers, he drops the keys to the pins. And that's a very important point and we'll get to that in a second. He levels the gun, the block gun, on these two attackers and these guys are within a matter of feet from him. The testimony at trial was, Samuel Williams said, well they were no more than from me to my attorney who was questioning him so it was just a matter of 10, maybe 15 feet at most. He levels the gun, there's this moment where they confront each other, they stare at each other, nobody moves and then he flees for the inside. There was absolutely no testimony whatsoever that he attempted to fire the gun, that he seemed frustrated with the gun, that he said anything about the ammunition, that he checked it, all that is known is that he ran without pulling the trigger or without even attempting to fire it. And so any inference drawn that he didn't fire because he knew the gun was unloaded, there's no testimony or evidence whatsoever that he knew anything about that gun. It'd be much more plausible to say that he thought it was loaded, he'd been out on the yard with it himself during the day and he checked it out. In fact, that's another important point in this is that it was undisputed that the person who checked out the block gun at the beginning of the day was responsible for loading the block gun. And that during the day, during yard call, the officers were not to open the block gun and check it because it's like a single shot shotgun. If you break it down to check it, you can't fire it until you put it back together. And the training that they've been provided on the block gun is you cannot break it open during yard call because if you do, then you're vulnerable to attack from an inmate. And so everyone's operating under the assumption that day that Lieutenant Taylor who checked the block gun out and he was first out there on yard call had loaded the gun when he checked it out from inventory. And so you have Sharon Hampton believing herself that it's loaded because her supervisor checked it out and handed it to her and it would have been against protocol for her to even check it. And then you've got Taylor with the gun. There was no evidence that he knew the gun was unloaded and he just runs. Yeah, well you mentioned protocol, wasn't protocol also that she would have two extra bullets for that gun. Is that right? That was protocol. Yes, Sharon. She had those bullets. Yes, Sharon. Then when she handed off the gun to Taylor, she considered, she thought about the fact that she had those bullets and then she decided not to hand them over. Isn't that correct? That's correct. The testimony is under-speeding that there was... Does that indicate... Oh, I'm sorry. I'll make it very brief. That's correct, Your Honor. She made, she testified, it was under-speeded

. I thought I would go inside for a minute or two and get this form and come right back and I could do so without incident. The difference is, and it was a conscious decision, but in many cases where we're talking about deliberate indifference, conscious acts are still no more than negligence. That certainly weighs into the discussion that it was conscious rather than completely unconscious. But at the end of the day, it's still negligence because she didn't have notice that anything was about to happen. She had no notice of any kind of risk on the yard that morning. All she knew was she worked in a dangerous place. One thing that's always troubled me about... There's Charlie had a follow-up, I think, on the... No, go ahead. Go ahead. One thing that's always troubled me about this, even had Taylor have the extra T-volot in his pocket. He was attacked by two in May, if he'd shot the block gun and if it were loaded, there wasn't time based on the way the block gun works to shoot the second guy or... That's always troubled me that... Miss Hampton never realized that risk. I mean, of multiple people breaking out of the pen and rushing the guards and it doesn't seem to be the block gun was designed to stop more than one person rushing a guard at a time. I mean, was there evidence on that point? Yes, Your Honor. There was extensive talk about the block gun, about how it was loaded, that it was a non-lethal device, that it was just like a single shot shotgun, that you had to break it down and then to put in an extra pellet, bring it back together. And the testimony, as I mentioned earlier, was that these attackers were just a matter of... From this podium to the court, from the officer. And so, we had a single shot weapon and two men with homemade knives in their hands, who wanted to kill him. And there's just no way that he could... I mean, he was at best gonna be able to shoot one and then the other was gonna stab him. The other was gonna be on him and he was gonna have to fight him off hand to hand

. No, Your Honor. You said they wanted to kill him? Was there evidence that they wanted to kill Taylor? No, Your Honor, but they were rushing at him. I mean, they ended up taking Williams and Reed and Bonamau and stabbing them, isn't that correct? Other inmates? That's true. No, and I'm sorry for any confusion. Taylor was not there and all be all target, but he stood in their way of achieving their goal, which was to kill the plaintiffs, because he was on security with the block gun when they escaped. He didn't stay there long. He got out of there in his testimony that's in the record, said that he thought they were coming at him to kill him. And he dropped the keys, had no eye near an intention of shooting him, he just got the heck out of there. And that's what he said in all the speculation about what his motive was, is nothing but pure speculation that is belied by his own statement, which is the only evidence in the record that represents what his thought and mentality was about leading. That's correct, Your Honor. And nobody's mentioned that. Not you, in your briefs, or anybody, it dug into the record enough to get his actual testimony that is in the record as to why he did not file the gun or why he left. Then they came to the door, they started beating on the door, threatening to kill the guard that was in the door. So no, they were not benign, his judge graves might suggest, benign people looking for him. Yes, Your Honor. The one thing that is perplexing for me in your argument is that I think I'm correct that you accept former, your opponent accepts former, the deliberate indifference instruction was given, no one's opposing it. When I read this whole trial record, especially Miss Hampton's cross examination, and then the intense closing arguments, it seemed to be that your response to Judge Jolly's first question is difficult because she insisted throughout it was a mistake. The cross examination was, no, it's not. She said, well, if anybody's had fault that's who ten it tailored, then it closing argument, same issue, the full closing argument battle in front of the jury. As jury, you've got to decide, is this negligence or is this criminal recklessness? And then this would be my question for you, as I read it, the expert for the plaintiffs, I'm not sure how you pronounce his name, I fell thee. I believe it's Lawrence, I fell thee. I fell thee. He specifically opines on the ultimate issue of center. This was deliberate indifference, and there's no objection. You tried to keep him out, but he ends up testifying, and it's not an issue on appeal. So what's the point of the trial, if the position now is this could never even have been a disputed fact? Well, certainly, you're correct, there was no objection. The attempt was made to exclude him as an expert, and there was no objection to that testimony, I don't believe, I believe you're only correct on that. However, there was also testimony by the defense expert, just the opposite. Right. Certainly, the jury can make a determination about that. But your position has to be the jury can't make it. That's got to be, I mean, I don't want to put words in your mouth, but the whole trial was about exactly this center question, as I read it. I'm not sure that I completely agree with you, Your Honor. I believe that there was insufficient evidence to prove it, but I don't believe that the jury, I just believe there was insufficient evidence to support the verdict on that point. Once the evidence is in, you've got to play it as it lays, right? Correct, Your Honor

. And again, we have a prison that is, and every state has to make a determination about where to house their most dangerous inmates. And does this create, or what an affirmance of this verdict create a situation where the most dangerous facility in Texas, the most dangerous facility in Louisiana, where suddenly they would be almost strict liability for the correctional officers working in those facilities. Because when Christopher Epps said on the stand, it was a dangerous place at that time that he was speaking the truth. And I believe any prison official or superintendent or commissioner in Texas and Louisiana when talking about the unit where they keep their most dangerous inmates, would have to admit the same thing. But that doesn't mean... Finish your sentence, thank you, Your Honor. But that doesn't mean that there's a specific enough threat or there's knowledge given to the people that are running that prison sufficient to take in mag decisions to avoid a risk. It creates a situation where negligence becomes axed more under 1983. All right, thank you, Mr. Goon. You've reserved for both time to come back up. Yes, Your Honor. Thank you. Thank you. You're now, Mr. Cleetus. Is that correct? Good morning, Your Honors. May it please the court. My name is Victor Flate, that's from Tupelo, Mississippi. I'm here on behalf of the plaintiffs, Appalise in this case. After a long and hotly disputed trial in which practically every question that arose during the course of the testimony was disputed, during which time the jury and the judge had the opportunity to gauge the credibility of the witnesses, whether or not those witnesses had been impeached, whether or not those witnesses recollection was strong or not. A jury who was properly instructed, there was absolutely no objections. This case presents an absolutely clean issue of properly instructed jury on the proper standard, deliberated for several hours and concluded, based on interrogatories, that Sharon Hampton was deliberately indifferent on July 27th of 2007 at Unit 32B Impartement. That conclusion by the jury is supported by more than just a mere centilla of evidence. There was sufficient evidence in this record, a hotly disputed record from which that jury could make the conclusion static drew and so fond. What would not? Yes, Your Honor. Can you explain to me and why I'm incorrect? And saying that ultimately, deliberate indifference upon undisputed facts is a legal question, admitted that it's a legal fact question up to a point, but ultimately it becomes a legal question. Only where facts are absolutely undisputed. What are the disputed facts? The disputed facts here that I think that do raise a fact question are the factual issues regarding Sharon Hampton's subjective awareness of the risk. And what exactly was the risk presented by her taking the two pellets inside with it? What was her, what risk did she perceive precisely? She perceived the risk that there would be something happening, there'd be no ammunition to protect a cold worker or another inmate. That is the specific risk that she took and that she was aware of when she went into the bedroom to retrieve that form. Was there any evidence of any specific information that would have led someone to think that more than likely something's going to happen today or tomorrow or this week, any specific other than just a general history of violence? Do we have anything specific that would have put the guards on alert that something's going to happen? Separate it aside from the general conditions of violence in Unit 32, which is a heightened level of violence from anywhere else I would suggest. And probably at that time anywhere in the country, Commissioner Epps testified specifically

. This attack was going to happen to your clients, either on the yard, in the cells, walking to and fro. He described the attack on the plaintiffs as not a possibility, but as an inevitability. At some point in the future, indefinite. He said, the dangerous prison, you're going to have, that's what he said. He was specific about the fact that this was going to happen to your clients, either out on the pants or somewhere. And I understand he didn't say this is going to happen tomorrow and I understand he didn't say it might not be a week from now. There was also testimony from Ricky Scott. Where are you at? Good I said, there's no testimony that Sharon Hampton would have known that, that these plaintiffs were at a particular risk, or even the Chris Epps knew it at the time. And what is there, it's one thing looking back at it and saying the gang fights are going on and these particular people were at it. But what does Sharon Hampton know at the time is what we need to focus on. What is there to support that? Well, I think what's there to support is her admission. That yeah, I went in there with the ammunition, leaving an empty block gun, and I knew I shouldn't have. But I didn't think I would be long. Uh oh, let's stay in order. Finish up on the question with Judge Safer and then we'll follow. But I'm trying to tie what she knew about what you said just a moment ago in response to another question that the injuries to these plaintiffs were bound to happen. Is there any evidence that she knew that level of specificity at the time? Or even the Chris Epps knew it at the time? No, she wouldn't have known specifically targeted to those three individuals. And I think Epps's testimony goes to every inmate out there in those pens, given the fact that security threat group officer Scott, who testified, said, aside from the fact of everything else, there was an ongoing, separate from the fact you've got violent gang members here. There was specifically a gang war going on at that time and testimony from Commissioner Epps that a loaded semi-automatic pistol was found in unit 32B within a week prior to this incident taking place. And I believe Commissioner Epps stated he felt it was connected somehow to this incident. Well, the only point I was going to make is that it's a misstatement as contained in the opinion as well that she had knowledge that the gun was unloaded. There is no evidence at all, and it's a conceded fact in the court that there was no evidence that she knew the gun was unloading. There is no direct evidence or admission from Sharon Hampton that she knew the weapon was... There is no evidence of any kind. I believe that there is... Unless you can tell. The jury isn't hodl to draw the inference that you have. How to ban A? I don't think so. Out of the fact that there were two rounds into gun was empty and that she had a standing post-order obligation to make that weapon. Her refusal to check it constitutes willful blindness. Where was the third pill? There was no third pill at your honor

. Unfortunately, it's not part of the record, but Sharon Hampton in her deposition said we had gone from three to two pellets. And she already... It's unclear to understand that there have been several shifts on duty that day. And at some point, she relieved Taylor, right? Her supervisor, right? I dispute the fact. In fact, he was not her immediate supervisor. He was a lieutenant supervisor, but she was answering to I believe... Okay, but he had a higher rank than she did. He did? That's correct. Well, let me ask you just a practical question. Yes, ma'am. Obviously, Taylor is the person who dropped the keys. He did? Without which access to these victims would not have been possible. So, why didn't you took a default judgment against Taylor? Is that right? I can spell it out for the court, Your Honor. There were a series of what we would constitute were delivered in different acts by various defendants, including Johnson and Lieutenant Taylor. And a bunch of them were dismissed. So, Taylor was your the natural target. So, I guess you took a default and he's judgment proof or not fine, you can't find him or something like that. The Department of Corrections made a decision to not tender him a defense and is going to assert that they have no duty to indemnify him, but that's an issue for a later date. So, basically, the, okay, so basically, it's a Mississippi that would pay for Hampton's verdict. Pursuing to our Torc claims act, yes, the judgment would have to be authorized by the legislature. They would have to pass a special bill in order to fund any judgment in this case. Why don't you go after whoever was supposed to inspect those wells? Those were, that was Mr. Davenport. We did bring Mr. Davenport to trial and Mr. Davenport was dismissed on a rule 50 motion. We did take him to trial, your honor. He was dismissed by Judge A. Cock on a rule 50 motion. And it's not appealed. We did not appealed, no, your honor

. That seems very strange to me because you can't even have an incident without a breakout. But... Let me ask you a question. Yes, your honor. You acknowledge that the pivotal point here is the awareness, the conscious disregard, the state of mind, the subjective element of Lieutenant Hampton, correct? Yes, your honor. All right. I've read the examination of Ms. Hampton across, back and forth, et cetera. My impression she may have been combative, she didn't remember what was in the deputies, et cetera. But I don't see where you queried her about what her awareness was, about the condition of the prison, the specifics of the pen, et cetera. The breadth of this testimony goes back and forth about the block gun, you know, the one pellet. Why did you go inside, et cetera? It just goes on diagnosing him, really. And so given that that's a critical piece here, you're not dispositive, but a critical and subjective element, is it your argument that the expert can supply the mental status of Ms. Hampton through his testimony on the ultimate issue, when there is no testimony, it listed from her, about her state of mind on this issue. You follow my question? The testimony developed, the line of questioning developed by the state was, this was just a mistake. No, no, no, no, no, no, no, I want you to answer the question I asked. Yes, Your Honor. Not some other question. Lawrence, please. Stay with me, stay with me. I'm saying you've acknowledged we're pivoted on the subject of development. My question is, this is her testimony, back front otherwise. And I'm saying in the questioning, there is no question by anybody, the least that I saw, about what's in her head, about the state of the prison, the pain, the whole nine yards. I don't see that. So I'm asking, given as to, thinking some ask that your expert testified on the ultimate issue, about objection, I'm asking is it your theory of our firminess, that the expert can supply, i.e., the dangerousness of the prison, et cetera, et cetera, for the jury, something that she was not questioned about. Before I'm saying, can you prove that up indirectly through the expert testifying on the ultimate issue, something that was not elicit about what she knew and when she knew it. You absolutely can, Your Honor, through the testimony of Lawrence, hatefully, not just about the general conditions, the testimony of commissioner, Epps regarding the inevitability and extreme violence there. And from Lawrence, hatefully's testimony on the stand, which was not objected to, that officer Hampton said she knew, she shouldn't have gone in there with those. But that is my question. What, how would that be appropriate for the expert to a pine on her state of mind on the ultimate issue? The way that he was able to... What's the authority that allows that to supply the delivered indivference? You have a case? No, the... Well, because in all the interrupts then, because the, in the appellance for a pli brief, they cite heavily our Adams versus Parisi decision. Yes. But in your supplemental, you didn't mention it. And that case is overturning a jury verdict on very similar circumstances. So even if I'm sort of... You anguish that this looked like it was exactly what the jury was being presented. We've got powerful precedent that would be contrary to the position you're urging. I think that the panel decision and can to be Jones, Your Honor, would be the appropriate measure for what the standard is for this court on a pellet. But what's your opinion on Adams versus Parisi? Parisi. Is that what's pronounced? Thank you. I'm sorry, Adams? Adams versus Parisi, which... Yes, yes. How would you distinguish that case? Because all the district courts that follow it say, it's got to be a known, a very actual knowledge known, extreme risk, and then you walk away from it. And... Well, I believe that the expert testimony here, by hatefully, the testimony presented by EBS, let's be clear, the state, the Department of Corrections defended Hampton by saying, this is such an extremely violent environment. It is so inevitable. This is their trial strategy. It is so inevitable that you can't blame office or Hampton because these total absolute criminals... That was their closing argument, yeah. Okay. ..

.. What's the authority that allows that to supply the delivered indivference? You have a case? No, the... Well, because in all the interrupts then, because the, in the appellance for a pli brief, they cite heavily our Adams versus Parisi decision. Yes. But in your supplemental, you didn't mention it. And that case is overturning a jury verdict on very similar circumstances. So even if I'm sort of... You anguish that this looked like it was exactly what the jury was being presented. We've got powerful precedent that would be contrary to the position you're urging. I think that the panel decision and can to be Jones, Your Honor, would be the appropriate measure for what the standard is for this court on a pellet. But what's your opinion on Adams versus Parisi? Parisi. Is that what's pronounced? Thank you. I'm sorry, Adams? Adams versus Parisi, which... Yes, yes. How would you distinguish that case? Because all the district courts that follow it say, it's got to be a known, a very actual knowledge known, extreme risk, and then you walk away from it. And... Well, I believe that the expert testimony here, by hatefully, the testimony presented by EBS, let's be clear, the state, the Department of Corrections defended Hampton by saying, this is such an extremely violent environment. It is so inevitable. This is their trial strategy. It is so inevitable that you can't blame office or Hampton because these total absolute criminals... That was their closing argument, yeah. Okay. ...have done this. So they set the standard and showed the excessiveness of the day. Just said she made a mistake. And they defended by saying, this is just a mistake, nothing to see here. And the jury having heard all of the testimony, from hatefully, from their expert witness, all of the testimony said, she's not believable. We don't believe her. You can't work at parchment eight years. You can't have post-orders that say, don't do exactly what you did. Why didn't you ask her about that? I mean, I know it's dangerous to ask a white question, but I mean, you had her. I mean, I'm not necessarily suggesting it's fatal, but it just struck me and reading it because she's asked about all kinds of things, but she does not ask about that issue. We wouldn't have to indirectly get there to what she know. Did you have a strategy to not answer it or is it the 101? Don't ask the question. You don't know the answer to it. Your Honor, I will answer that question and say this. After having read the examination of Hampton, she was a very combative witness. There were numerous times she was impeached. She didn't come across as credible. I could look at that jury and see that they probably didn't believe a word she was saying. There was a bench conference after an objection by Mr. Irvin, trial counsel, in this case, along with Mr. Goodwin, where Judge A. Koch basically said, look, we can be here all day. I think the jury's got it. I think they see what she's saying, what she has said before. We can be here all day. But this is my point. I get that, but you ask her nine times about the bullet. And so if she's that combative, it seems to me she's playing right into your hands. So if you ask her once and she goes over, in terms of it, you've got to end the record. You impeached her on her deposition. It's not clear to me that in the deposition, she was asked about. It's just a curiosity that a pivotal piece of her awareness is not asked in the deposition, not asked when she's on the stand, not on redirect to where she's confronted with. Once you had her, I mean, it's clear to me from the testimony. She was a difficult witness, et cetera. Maybe that's why the jury came down

.have done this. So they set the standard and showed the excessiveness of the day. Just said she made a mistake. And they defended by saying, this is just a mistake, nothing to see here. And the jury having heard all of the testimony, from hatefully, from their expert witness, all of the testimony said, she's not believable. We don't believe her. You can't work at parchment eight years. You can't have post-orders that say, don't do exactly what you did. Why didn't you ask her about that? I mean, I know it's dangerous to ask a white question, but I mean, you had her. I mean, I'm not necessarily suggesting it's fatal, but it just struck me and reading it because she's asked about all kinds of things, but she does not ask about that issue. We wouldn't have to indirectly get there to what she know. Did you have a strategy to not answer it or is it the 101? Don't ask the question. You don't know the answer to it. Your Honor, I will answer that question and say this. After having read the examination of Hampton, she was a very combative witness. There were numerous times she was impeached. She didn't come across as credible. I could look at that jury and see that they probably didn't believe a word she was saying. There was a bench conference after an objection by Mr. Irvin, trial counsel, in this case, along with Mr. Goodwin, where Judge A. Koch basically said, look, we can be here all day. I think the jury's got it. I think they see what she's saying, what she has said before. We can be here all day. But this is my point. I get that, but you ask her nine times about the bullet. And so if she's that combative, it seems to me she's playing right into your hands. So if you ask her once and she goes over, in terms of it, you've got to end the record. You impeached her on her deposition. It's not clear to me that in the deposition, she was asked about. It's just a curiosity that a pivotal piece of her awareness is not asked in the deposition, not asked when she's on the stand, not on redirect to where she's confronted with. Once you had her, I mean, it's clear to me from the testimony. She was a difficult witness, et cetera. Maybe that's why the jury came down. But I just want to understand how you get there. And I guess your answer to me is that you had the expert testimony. So you just, you didn't go there. And what your argument is that the jury and the court could find that the experts applied what you did not ask. Is that? We had apps. We had, hopefully, we had Hampton and considered that sufficient. There's a fine line you draw when you're in front of a jury between being seen as beating up a witness and letting some things. And up in North Mississippi, the manners thing matters. And how you come across in your treatment of a witness matters. And at some point, it could prove to be detrimental to beat up on a witness. It could develop sympathy. That's probably not limited in North Mississippi. I, you're correct, Your Honor. But I know that we hold it very highly up there. And it's always a consideration of what we do. I've been there. Yes, Your Honor. Certainly you have. Council back to Davenport. And you can correct me if I'm wrong. I thought the judge in dismissing Davenport from the lawsuit made a determination that he had done an inspection, but that it was so remote in time from the incident. And further that he had no responsibility for doing daily or weekly inspections. Wasn't that the basis for her determination that he ought to be dismissed? It was. His inspection was approximately 45 days prior to this incident. To address the issue of the pens, the testimony from inmate house, which is in the record was that the pens were not hard to get out of. That is in the record. His testimony was this wasn't hard to get out of. It didn't take much to get out of these pens. And I think that corroborates what Commissioner Epps understood was that, yes, we've got these pens, but really they don't make that much of a difference. Mr. Flake, what's in the evidence of how long these pens had been used? Is it substitute for a more open outdoor period? And whether anybody had broken out of them before? There is nothing in the record. The pens were erected sometime after a consent decree was entered into by the Department of Corrections at Unit 32. It was supposed to be a palliative measure, but we don't have specific information to attacks out on the pens. We do not. The testimony of Sharon Hampton was, I've got to be careful out there on the yard all the time because inmates are always going to try to grab stuff from me

. But I just want to understand how you get there. And I guess your answer to me is that you had the expert testimony. So you just, you didn't go there. And what your argument is that the jury and the court could find that the experts applied what you did not ask. Is that? We had apps. We had, hopefully, we had Hampton and considered that sufficient. There's a fine line you draw when you're in front of a jury between being seen as beating up a witness and letting some things. And up in North Mississippi, the manners thing matters. And how you come across in your treatment of a witness matters. And at some point, it could prove to be detrimental to beat up on a witness. It could develop sympathy. That's probably not limited in North Mississippi. I, you're correct, Your Honor. But I know that we hold it very highly up there. And it's always a consideration of what we do. I've been there. Yes, Your Honor. Certainly you have. Council back to Davenport. And you can correct me if I'm wrong. I thought the judge in dismissing Davenport from the lawsuit made a determination that he had done an inspection, but that it was so remote in time from the incident. And further that he had no responsibility for doing daily or weekly inspections. Wasn't that the basis for her determination that he ought to be dismissed? It was. His inspection was approximately 45 days prior to this incident. To address the issue of the pens, the testimony from inmate house, which is in the record was that the pens were not hard to get out of. That is in the record. His testimony was this wasn't hard to get out of. It didn't take much to get out of these pens. And I think that corroborates what Commissioner Epps understood was that, yes, we've got these pens, but really they don't make that much of a difference. Mr. Flake, what's in the evidence of how long these pens had been used? Is it substitute for a more open outdoor period? And whether anybody had broken out of them before? There is nothing in the record. The pens were erected sometime after a consent decree was entered into by the Department of Corrections at Unit 32. It was supposed to be a palliative measure, but we don't have specific information to attacks out on the pens. We do not. The testimony of Sharon Hampton was, I've got to be careful out there on the yard all the time because inmates are always going to try to grab stuff from me. So clearly there was a knowledge on her part that out on the yard with these pens are not, I've got to be, I've got to have sort of cat-like awareness of any potential danger that may be out there. Is that pellet gun is going to help against somebody who's charging at you immediately? A pellet gun is classified as a non-lethal weapon, your honor. One of the inmates, I think, boldly and brashly testified, well it doesn't hurt that much. Actually, there was a, you can be killed by a shot from a 37 millimeter pellet gun, but it stopped them. It did stop them. They hid behind the pens and held them. What do you say about what Judge Jolly pointed out about Taylor that he just fled? We could probably call Taylor a coward. We could probably say Taylor was a man. You don't disagree that that's in the evidence. What? No, I don't. I think the exhibit for the report that was admitted into evidence that Judge Jolly is referencing does indicate that Taylor testified that he panicked. I think there was, I didn't know how many guys were out there. As I looked at the pens, I saw Lester Nash and Derek Hayes running toward me carrying homemade weapons. Inmate Nash and Inmate Hayes told me they were going to kill me. I raised the block gun and pointed it in the direction of both inmates. Inmate Nash and Inmate Hayes hesitated and I, not knowing how many inmates who were out there, decided to run inside the building. That's correct. I admit our panic and somehow dropped the keys to the exercise pens. It wasn't a matter of speculating what motivated him. That's the only evidence that clearly indicates that the bullets had absolutely zero to do with the ultimate ensign to occur. I wouldn't say that it was zero because we don't know whether or not he was aware of was unloaded. No, he didn't say that. He didn't even pull the trigger. Even if he had shot one, the other guy is still there too. Absolutely. He didn't know how many of them were out there. Well, the defendant's expert testified if the question is where is the causation here, then we go into number one. Causing is a very factually based inquiry. Number two, there was no superstition. It's a legal question though. Causing is another legal question. The question of there are questions perhaps that the defendant is attempting to raise on a PLS to superseding cause. That is perhaps Lieutenant Taylor's cowardice is the superseding cause. But there was nothing tender to the jury from which they could arrive at that verdict. Well, it's me

. So clearly there was a knowledge on her part that out on the yard with these pens are not, I've got to be, I've got to have sort of cat-like awareness of any potential danger that may be out there. Is that pellet gun is going to help against somebody who's charging at you immediately? A pellet gun is classified as a non-lethal weapon, your honor. One of the inmates, I think, boldly and brashly testified, well it doesn't hurt that much. Actually, there was a, you can be killed by a shot from a 37 millimeter pellet gun, but it stopped them. It did stop them. They hid behind the pens and held them. What do you say about what Judge Jolly pointed out about Taylor that he just fled? We could probably call Taylor a coward. We could probably say Taylor was a man. You don't disagree that that's in the evidence. What? No, I don't. I think the exhibit for the report that was admitted into evidence that Judge Jolly is referencing does indicate that Taylor testified that he panicked. I think there was, I didn't know how many guys were out there. As I looked at the pens, I saw Lester Nash and Derek Hayes running toward me carrying homemade weapons. Inmate Nash and Inmate Hayes told me they were going to kill me. I raised the block gun and pointed it in the direction of both inmates. Inmate Nash and Inmate Hayes hesitated and I, not knowing how many inmates who were out there, decided to run inside the building. That's correct. I admit our panic and somehow dropped the keys to the exercise pens. It wasn't a matter of speculating what motivated him. That's the only evidence that clearly indicates that the bullets had absolutely zero to do with the ultimate ensign to occur. I wouldn't say that it was zero because we don't know whether or not he was aware of was unloaded. No, he didn't say that. He didn't even pull the trigger. Even if he had shot one, the other guy is still there too. Absolutely. He didn't know how many of them were out there. Well, the defendant's expert testified if the question is where is the causation here, then we go into number one. Causing is a very factually based inquiry. Number two, there was no superstition. It's a legal question though. Causing is another legal question. The question of there are questions perhaps that the defendant is attempting to raise on a PLS to superseding cause. That is perhaps Lieutenant Taylor's cowardice is the superseding cause. But there was nothing tender to the jury from which they could arrive at that verdict. Well, it's me. It goes to the rest that Hampton perceived. Was there any evidence that Taylor could have shot, had the gun been loaded, shot one of the rushing prisoners reloaded and shot the other in time to save himself as well as the other prisoners. Any evidence at all that he could have done? Yes, that had he had two more pellets, had the gun been loaded. These two guys were rushing him. They were in close proximity with weapons. That had he shot one, he would have had time to reload and shot the other. And thereby prevented, I mean, I'm trying to get what Hampton thought the risk was when she took the pellets in. I can see her might be thinking I'm leaving Taylor in a vulnerable position. But I don't see how she thought that without these two extra pellets, two prisoners could escape and rush Taylor and he's going to drop the gun and they're going to get the keys and let the inmates out. I mean, there's no, I don't see what Major think through that risk. I don't know that she's required to have spun this yarn out that far before she made a conscious decision to take the only ammunition for the block gun. What is the evidence that Taylor would have had time to shoot one, reload and shoot the other that were rushing him? In this trial, none. Taylor was a party in default and the issue. Well, was there expert testimony that yes, that guard, a guard standing there could have shot one of them and reloaded and shot the other when they were both rushing him? Neither the defendant or the plaintiff's tendered expert testimony regarding the role of Lieutenant Hampton. Lieutenant Taylor. That thought there was undisputed evidence about how long it took to break down the gun once it had been fired and reloaded and that the policy was not to break down the gun. The policy was to not open up the weapon and the presence of inmates. And that is because. And that is because, of course, testimony, they will try to grab the weapon from you while it's in an unloaded state. So it's been shot. You can only shoot one at a time. You shoot one guy, you break it down to put in the other. Where can the jury draw infer from that that there would have been time to shoot once, break it down, put another pellet in and shoot the second guy? I don't know that the jury could have drawn that inference. To the inference that the jury drew was that the absence of any ammunition in the block thumb was causally related to the harm caused to these plaintiffs. But there's evidence that Miss Hampton knew the gun was unloaded. I think the jury was free to draw that inference from the evidence that was produced at trial. I took the two rounds in with me. I didn't think it would take me very long. The record evidence shows she'd already been in there five or six minutes at the time that the attack occurred. I can put two pellets. What about what evidence is there she knew the gun was unloaded. Not about the two pellets, but the gun was unloaded. Direct evidence that she knew the gun was unloaded. No direct evidence that she knew the gun. No admission from her

. It goes to the rest that Hampton perceived. Was there any evidence that Taylor could have shot, had the gun been loaded, shot one of the rushing prisoners reloaded and shot the other in time to save himself as well as the other prisoners. Any evidence at all that he could have done? Yes, that had he had two more pellets, had the gun been loaded. These two guys were rushing him. They were in close proximity with weapons. That had he shot one, he would have had time to reload and shot the other. And thereby prevented, I mean, I'm trying to get what Hampton thought the risk was when she took the pellets in. I can see her might be thinking I'm leaving Taylor in a vulnerable position. But I don't see how she thought that without these two extra pellets, two prisoners could escape and rush Taylor and he's going to drop the gun and they're going to get the keys and let the inmates out. I mean, there's no, I don't see what Major think through that risk. I don't know that she's required to have spun this yarn out that far before she made a conscious decision to take the only ammunition for the block gun. What is the evidence that Taylor would have had time to shoot one, reload and shoot the other that were rushing him? In this trial, none. Taylor was a party in default and the issue. Well, was there expert testimony that yes, that guard, a guard standing there could have shot one of them and reloaded and shot the other when they were both rushing him? Neither the defendant or the plaintiff's tendered expert testimony regarding the role of Lieutenant Hampton. Lieutenant Taylor. That thought there was undisputed evidence about how long it took to break down the gun once it had been fired and reloaded and that the policy was not to break down the gun. The policy was to not open up the weapon and the presence of inmates. And that is because. And that is because, of course, testimony, they will try to grab the weapon from you while it's in an unloaded state. So it's been shot. You can only shoot one at a time. You shoot one guy, you break it down to put in the other. Where can the jury draw infer from that that there would have been time to shoot once, break it down, put another pellet in and shoot the second guy? I don't know that the jury could have drawn that inference. To the inference that the jury drew was that the absence of any ammunition in the block thumb was causally related to the harm caused to these plaintiffs. But there's evidence that Miss Hampton knew the gun was unloaded. I think the jury was free to draw that inference from the evidence that was produced at trial. I took the two rounds in with me. I didn't think it would take me very long. The record evidence shows she'd already been in there five or six minutes at the time that the attack occurred. I can put two pellets. What about what evidence is there she knew the gun was unloaded. Not about the two pellets, but the gun was unloaded. Direct evidence that she knew the gun was unloaded. No direct evidence that she knew the gun. No admission from her. There is none. She did not have any. Is there anybody else who says? I mean, wasn't Taylor the one who originally checked it out and should have checked it? That's a disputed issue. How long she was out on the yard that day was hotly disputed. She testified that she was the yard officer. She testified that she was only out there a small while. Her report to her superiors and corrections was I was out there virtually all day. Let me come at it this way. Other than the evidence that the gun actually was unloaded, was there any other evidence of any kind, surf-stanched direct, anything that she knew it was unloaded? I believe her statement where she directly admitted. I took the two rounds with me thinking I would be right back. How does that show the gun was unloaded? It doesn't directly show, but I think a jury engaging her testimony and her saying that and knowing that the gun was unloaded could draw the inference that she was taking a risk and aware that the gun was unloaded. Again, we're talking about reasonable inferences to be drawn from the facts. I don't understand how the inference that she has two extra bullets in her pocket tells us the gun was unloaded. I'm just not getting that, but if that's it, that's all I need to know. But I'm not getting that inference. I understand, and I don't know that I could clarify it any more for the court. One of the practices to have three rounds? It was not testified to it trial. Actually, in her deposition, she testified that we had gone from a three-round system to a two-round system. And that's borne out by the fact that there were only two, there were only ever two rounds. I have a question about causation. Yes, ma'am. Is there only one motion for judgment as a matter of law with regard to Ms. Hampton? And that motion seems to address only the deliberate indifference to the safety. So I'm wondering if there is a rule 50 motion about causation. But if there is not, I'm wondering if you've waived any objection there too, because your second heading of your brief says the district court properly overruled the defendant Hampton's motion for judgment as a matter of law in light of ample evidence that her axon omissions caused injury. So can you answer those questions? I remember correctly. There was a rule 50 motion filed of conclusions that plaintiffs case on behalf of Hampton causation was one of the questions. It was raised post trial. But it's a different motion than I'm reading from right now that only mentions the deliberate indifference. Is there a separate one on causation? I believe it was addressed in the court's opinion, Your Honor. The question of causation and it was raised on the question of qualified immunity was not, was we would argue, waived, but I believe the causation issue was properly before the court. And was argued, yes, Your Honor. Councillor, would a post order, did the post order require her to check the gun? The post order required her to check the weapon upon its receipt and relinquishment according to her varying testimony because she testified several ways about this. She either got the weapon once from Taylor or got the weapon twice from Taylor that day. And the post order was specific

. There is none. She did not have any. Is there anybody else who says? I mean, wasn't Taylor the one who originally checked it out and should have checked it? That's a disputed issue. How long she was out on the yard that day was hotly disputed. She testified that she was the yard officer. She testified that she was only out there a small while. Her report to her superiors and corrections was I was out there virtually all day. Let me come at it this way. Other than the evidence that the gun actually was unloaded, was there any other evidence of any kind, surf-stanched direct, anything that she knew it was unloaded? I believe her statement where she directly admitted. I took the two rounds with me thinking I would be right back. How does that show the gun was unloaded? It doesn't directly show, but I think a jury engaging her testimony and her saying that and knowing that the gun was unloaded could draw the inference that she was taking a risk and aware that the gun was unloaded. Again, we're talking about reasonable inferences to be drawn from the facts. I don't understand how the inference that she has two extra bullets in her pocket tells us the gun was unloaded. I'm just not getting that, but if that's it, that's all I need to know. But I'm not getting that inference. I understand, and I don't know that I could clarify it any more for the court. One of the practices to have three rounds? It was not testified to it trial. Actually, in her deposition, she testified that we had gone from a three-round system to a two-round system. And that's borne out by the fact that there were only two, there were only ever two rounds. I have a question about causation. Yes, ma'am. Is there only one motion for judgment as a matter of law with regard to Ms. Hampton? And that motion seems to address only the deliberate indifference to the safety. So I'm wondering if there is a rule 50 motion about causation. But if there is not, I'm wondering if you've waived any objection there too, because your second heading of your brief says the district court properly overruled the defendant Hampton's motion for judgment as a matter of law in light of ample evidence that her axon omissions caused injury. So can you answer those questions? I remember correctly. There was a rule 50 motion filed of conclusions that plaintiffs case on behalf of Hampton causation was one of the questions. It was raised post trial. But it's a different motion than I'm reading from right now that only mentions the deliberate indifference. Is there a separate one on causation? I believe it was addressed in the court's opinion, Your Honor. The question of causation and it was raised on the question of qualified immunity was not, was we would argue, waived, but I believe the causation issue was properly before the court. And was argued, yes, Your Honor. Councillor, would a post order, did the post order require her to check the gun? The post order required her to check the weapon upon its receipt and relinquishment according to her varying testimony because she testified several ways about this. She either got the weapon once from Taylor or got the weapon twice from Taylor that day. And the post order was specific. You must check the weapon when you receive it to make certain that it's loaded. And you must give the ammunition in your possession to your fellow correctional officer whenever you receive or the weapon is relinquished. But Taylor did not check it. Taylor did not check it all. He was obligated to do it and that's one of the reasons that he was disciplined or whatever happened to him. As was Sharon Hampton, correct you. Those duties extended to both of them fully and equally irrespective of their status as supervisors or anything else. Were you supposed to check it if you were on the yard? You were supposed to check it as soon as there wasn't an inmate in proximity to you being transported. When they're in their pens and Lieutenant Hampton testified, I was out there all day. I was the yard officer. They're in their pens. You had a duty as long as there wasn't an inmate, a chained inmate being walked past you to pop that open, take a look inside of it. And if it's not loaded, push around in there, close it back up and do your duty. And that's what she failed to do. How many inmates have been in and out during that period of time? They go by tears. There were 28 pens. I do not know if every pen was loaded. I do know that they just don't have inmates constantly being brought in and out because they go in tears. So once you get one tear in and they're all locked up and you're sitting there for several hours, you pop the bad boy open, you take a look, you do your job. And when you don't do your job like that, the post-order tells us people may be killed. And Sharon Hampton realized that people might be killed if she didn't do her job. The post-order doesn't set the standard, but it does speak to her subjective awareness of the risk of harm. If you got 16 seconds, you can use them, Elizabeth. Your Honor, I would respectfully request that this court affirm the verdict of the jury in all respects. All right, thank you, Council. For your briefing and argument, the vote on Mr. Goodwin, you've got five minutes. Thank you, Your Honor. Council office said earlier in response to the Adams v. Perez case that, well, he did not address that directly, but said, well, Cantu is controlling in this case. Cantu is a very similar case and is very instructive in this case. Cantu is very factually different. In fact, in the Cantu case, this is court is where the allegations were that the prison officials actually orchestrated the attack. It went far beyond just delivered indifference to inmate on inmate violence. The claim was, yes, an inmate attacked me, but he attacked me because the prison officials themselves orchestrated the attack using him to get back to the court

. You must check the weapon when you receive it to make certain that it's loaded. And you must give the ammunition in your possession to your fellow correctional officer whenever you receive or the weapon is relinquished. But Taylor did not check it. Taylor did not check it all. He was obligated to do it and that's one of the reasons that he was disciplined or whatever happened to him. As was Sharon Hampton, correct you. Those duties extended to both of them fully and equally irrespective of their status as supervisors or anything else. Were you supposed to check it if you were on the yard? You were supposed to check it as soon as there wasn't an inmate in proximity to you being transported. When they're in their pens and Lieutenant Hampton testified, I was out there all day. I was the yard officer. They're in their pens. You had a duty as long as there wasn't an inmate, a chained inmate being walked past you to pop that open, take a look inside of it. And if it's not loaded, push around in there, close it back up and do your duty. And that's what she failed to do. How many inmates have been in and out during that period of time? They go by tears. There were 28 pens. I do not know if every pen was loaded. I do know that they just don't have inmates constantly being brought in and out because they go in tears. So once you get one tear in and they're all locked up and you're sitting there for several hours, you pop the bad boy open, you take a look, you do your job. And when you don't do your job like that, the post-order tells us people may be killed. And Sharon Hampton realized that people might be killed if she didn't do her job. The post-order doesn't set the standard, but it does speak to her subjective awareness of the risk of harm. If you got 16 seconds, you can use them, Elizabeth. Your Honor, I would respectfully request that this court affirm the verdict of the jury in all respects. All right, thank you, Council. For your briefing and argument, the vote on Mr. Goodwin, you've got five minutes. Thank you, Your Honor. Council office said earlier in response to the Adams v. Perez case that, well, he did not address that directly, but said, well, Cantu is controlling in this case. Cantu is a very similar case and is very instructive in this case. Cantu is very factually different. In fact, in the Cantu case, this is court is where the allegations were that the prison officials actually orchestrated the attack. It went far beyond just delivered indifference to inmate on inmate violence. The claim was, yes, an inmate attacked me, but he attacked me because the prison officials themselves orchestrated the attack using him to get back to the court. What we had in Perez was three different correctional officers that the court made very specific findings as regards all three and all those findings had to do with what they knew about inmate on inmate violence. And then as regards one of the officers who had received some emails, the determination was that he had no basis based on those emails to draw an inference that these particular inmates was in some kind of danger. So, factually, we're talking about something different, aren't we? That's based on what they need. But in the case in Cantu though, that he is citing, it went far beyond the delivered indifference. It was an orchestrated attack according to the plaintiff in that case. Adams E. Perez is very similar to this case. That's certainly something I've cited in my brief. Except you didn't make any hay in this case about what Sharon Hampton didn't know, did you? Oh certainly, we've said that she did not. Well, did you ask her on direct examination to tell us that she didn't know about unit 32? It's history of violence, the danger of inmate on inmate violence. Did you ask her to say she didn't know about that? I did not examine Miss Hampton, but the questions were not asked. I don't believe. I've read the record a few times. There were no questions about that. But it might have been the fact that there's no case that's ever held that inmate dangerousness alone can substitute for. You have a question? No, I was just your honor. How can Judge Gray's that? Yes, your honor. Of course. I would also like to address your honor that there was testimony that EPS said, well, these attacks were inevitable. These attacks were inevitable. And the testimony is clear when you read his entire testimony, that he was speaking about gang violence in general, that gang, he said, blood in, blood out. These gangs are constantly trying to attack each other. Well, but on the blood in, blood out, that's where if you're trying to get out of a gang or you're announced your gang affiliation, then other gang members decide that they should kill you. Isn't that what he meant when he was talking about blood in, blood out? He did not explain exactly what he meant. Well, in their evidence, in this case, that Williams and Bina, had renounced their gang affiliation and had participated in a program at the prison of renunciation program. That's what they testified to, yes, Your Honor. All right. Would you suppose Ms. Hampton was supposed to have had some tear gas in addition to this pellet gun? And she didn't have her tear gas. We did have the one bullet in the gun which Taylor dropped. Would she be liable because she didn't have her tear gas? No, Your Honor. It would have been a violation of policy. Or if Taylor didn't have his tear gas, whoever was there. No, Your Honor. It would have been a violation of policy assuming the policy said you had to have your tear gas on you at all times and use it in certain circumstances

. What we had in Perez was three different correctional officers that the court made very specific findings as regards all three and all those findings had to do with what they knew about inmate on inmate violence. And then as regards one of the officers who had received some emails, the determination was that he had no basis based on those emails to draw an inference that these particular inmates was in some kind of danger. So, factually, we're talking about something different, aren't we? That's based on what they need. But in the case in Cantu though, that he is citing, it went far beyond the delivered indifference. It was an orchestrated attack according to the plaintiff in that case. Adams E. Perez is very similar to this case. That's certainly something I've cited in my brief. Except you didn't make any hay in this case about what Sharon Hampton didn't know, did you? Oh certainly, we've said that she did not. Well, did you ask her on direct examination to tell us that she didn't know about unit 32? It's history of violence, the danger of inmate on inmate violence. Did you ask her to say she didn't know about that? I did not examine Miss Hampton, but the questions were not asked. I don't believe. I've read the record a few times. There were no questions about that. But it might have been the fact that there's no case that's ever held that inmate dangerousness alone can substitute for. You have a question? No, I was just your honor. How can Judge Gray's that? Yes, your honor. Of course. I would also like to address your honor that there was testimony that EPS said, well, these attacks were inevitable. These attacks were inevitable. And the testimony is clear when you read his entire testimony, that he was speaking about gang violence in general, that gang, he said, blood in, blood out. These gangs are constantly trying to attack each other. Well, but on the blood in, blood out, that's where if you're trying to get out of a gang or you're announced your gang affiliation, then other gang members decide that they should kill you. Isn't that what he meant when he was talking about blood in, blood out? He did not explain exactly what he meant. Well, in their evidence, in this case, that Williams and Bina, had renounced their gang affiliation and had participated in a program at the prison of renunciation program. That's what they testified to, yes, Your Honor. All right. Would you suppose Ms. Hampton was supposed to have had some tear gas in addition to this pellet gun? And she didn't have her tear gas. We did have the one bullet in the gun which Taylor dropped. Would she be liable because she didn't have her tear gas? No, Your Honor. It would have been a violation of policy. Or if Taylor didn't have his tear gas, whoever was there. No, Your Honor. It would have been a violation of policy assuming the policy said you had to have your tear gas on you at all times and use it in certain circumstances. The violation of policy isn't an proof that there's a deliberate inflection of punishment under the Eighth Amendment. Absolutely, Your Honor. And that's why we're here today, I believe. Is that... There's a lot of focus on the bullets sort of falling off from that. If she had taken the block on itself in, deliberately without adding word and different to it, deliberately, took in knowingly, doesn't that change the case to leave him out there with no weapon at all? That's certainly a hypothetical that it would make her actions more egregious. But I think you still do not reach deliberate indifference without some indication, some indication to her, that there was a risk that inmates were going to escape those pens and attack some more. And, and, and, and, and, Lannis Council has admitted there was simply no evidence of that that she simply knew she worked in a dangerous facility. What, it, was a testimony about her obligation to check the gun on the, you heard Kansas say that? Your Honor, I'm out of time. I would love to respond to that question. And you, as I say, red light doesn't say please respond to Judge Lawrence. Thank you. Your Honor, the plaintiffs attempted to, again, show that there was a contradiction somehow in what she had stated to the investigators versus what she testified to. She stated to the investigators and was, it was put in the report that she said, I had been, it was not clear admittedly, but she said, I had been on yard call since I believe early that morning or something that fact, since early that morning. She did not say, I was the first one out there. She did not say that she'd been on, you know, it was just, I had been out there since early. It was undisputed that yard call was ongoing when she arrived to work that morning. And Lieutenant Taylor was already on the yard with the block gun providing security. And when she was told, originally, she was told it would go be a tear officer. And then those were the reasons they said, no, go to yard call and help with yard call. You get to answer a question that you don't get, you know. Yes, your Honor. Somewhere I was waiting on a period of, I'm sorry, I'm sorry. We've all been living with this case for so long. It's hard to stop talking about it. Thank you, Your Honor. We appreciate the briefing and argument of Council in the case. This concludes your argument. The past few minutes.

to either have it on vibrato that you cut it out. It might be dire consequences if the cell phone should go off, but hopefully that won't be the case. So if you have any doubt, check it now and put it on vibrato or shut it off. The court is advised that both council have waived the uninterrupted period. The only other item in this is just please keep your voice up. In the mic, don't stray away from it. In addition to our hearing it, the argument is recorded for later use. So please stay in the mic while you're there. And by all means, as the court is asking you questions, please answer the court's questions. The red light will not save you from answering the court's questions. With that, we call first to the podium. Mr. Goodwin. May it please the court. Good morning. My name is Tommy Goodwin. I'm from the Mississippi Attorney General's office. And I represent the defendant, a pellant, Sharon Hampton in this case. This is an appeal from a jury's verdict in the northern district of Mississippi finding that Sharon Hampton was deliberately indifferent to the plaintiffs, thereby causing their injuries. As the chief judge has said, I welcome any questions from the court and have waved my right to an uninterrupted argument for the first half of my time. The first issue that I would like to discuss is the fact that there was insufficient evidence that trial to support the jury's finding that defendant, a pellant, Sharon Hampton, was deliberately indifferent to the safety of the plaintiffs on the day in question. In this case, there was a general evidence, so there was evidence of a general history of violence at the prison where this attack occurred, this attack occurred at the Mississippi State Penitentiary and Unit 32b is in Bravo in July of 2007. Are there any factual disputes that a jury had to resolve all of the ultimate legal conclusion of deliberate indifference? No, your Honor. And why is it a jury question? If there are no factual disputes far under resolve, and the only question is whether undisputed facts amount to deliberate indifference wasn't that a legal question that done belong to the jury? It's a good question, Your Honor. Well, I know I wouldn't have asked you, Your Honor. But I mean, I want an equally good answer. Thank you, Your Honor. Well, the jury, the question is a legal one, whether or not there was deliberate indifference. And the jury was free to make that determination based on the jury instructions they were given. But as the court has pointed out, there was no dispute about the facts in this case. So what's left in the jury? The jury made the incorrect determination that there was deliberate indifference. You know, I've made a legal determination, is it what I'm suggesting to you? Yes, yes, Your Honor. That's right. You can suggest otherwise, tell me why I'm wrong. Now the jury, the jury at that point could not make a legal determination about deliberate indifference. You did move for role 50, right? Yes, Your Honor. Well, so then, I meant you believed there was no triumal fact issue. Correct, Your Honor. In this case, there was evidence of a general history of violence, there was testimony that's undisputed that that Christopher Epps said this facility was a dangerous place and it was dangerous because on the day in question, the state of Mississippi housed its most dangerous inmates in this facility. They, like every other state, has to make a determination of where to house and how to house their most dangerous inmates. In this case, this unit housed mostly gang members and inmates that were bent on committing acts of violence against each other. And there was evidence of that at trial. However, there was no specific evidence at trial of any specific acts of violence in particular at the exercise pens where this attack occurred. And the issue that I think is most important in this case is what guidance does a general history of violence give to a correctional officer, a light-sharing hampton. On the day in question, when she handed the block gun to Lieutenant Taylor and went inside to obtain a form, what did she know? She knew and assuming you impute knowledge of this to her, she knew she worked in a dangerous place with lots of dangerous men who had been on committing acts of violence. But what guidance does that give her? In this case, the only guidance that gives her is, don't ever make a mistake because you work in a dangerous facility. I'm not saying that it creates a strict liability situation, but it certainly creates a situation where negligence becomes actionable. Constructions. But, Council, wasn't the jury given an instruction that said that mere negligence is not a sufficient basis upon which plaintiff may recover damages against the defendant. But despite what you say about mere negligence, they were instructed that they couldn't hold reliable from mere negligence. In negligence. That's correct, Your Honor. They were. But negligence is a legal question, indeed. Well, whether or not it was an underlying facts or could be factual issues, but when they would be talking negligence, you're talking about the law. Not about facts. Unless they were disputed. That's correct. The, in this case, as I stated earlier, she hands the block going to Taylor and goes inside. And there was absolutely nothing going on on the yard that morning prior to that she was aware of, that anyone was aware of, any of the correctional officers were aware of, that would give her a pause to say, wait a minute, there's a risk of harm present here. And yes, the United States Supreme Court and former V. Brennan said that subjective knowledge can be proven with circumstantial evidence that violence was longstanding and pervasive, but the facts and farmer, in the facts in this case, are very different. And farmer, you had a preoperative transexual who had a very youthful and feminine appearance. He was, who did not want to be moved to a prison where there was a longstanding history of rape. In that case, prison officials have a very clear risk that's apparent to them. One that in that case, there was evidence that they actually drew the inference that there might be a problem. They drew the inference that this person was vulnerable. And so they had a very clear risk that they were being faced with and they had a... One of the facts in this... Didn't the commission attest to five that Unit 32 was designed to house the worst of the work? Yes, Your Honor. He said that they testified that Unit 32 held the most dangerous inmates in the system. Separate in a part from just a regular general prison population. That's what Unit 32 was designed for the worst of the work. The most violent, the mentally ill, the members of gangs. Leaders of gangs in particular, yes, Your Honor. And there was further testimony that there was gang warfare going on as among the gangs that were housed in Unit 32. Yes, Your Honor. In fact, the testimony was that they had basically been at war for some period of time, that that's just the nature of gangs. They're attempting to impose their will on each other on a constant basis. But what farmers say about that though is that you don't get to incarcerate people and then just because they are violent, anti-social criminals, farmers say, you don't get to just let nature take its course. Isn't that what farmers say? Absolutely, Your Honor. Absolutely. And in this case, but when you're talking about the difference between former prison officials faced with a clear risk that if we place this young, transsexual in a prison where rape is longstanding and pervasive, there's a good chance he's going to be raped and they recognize that. In this case, what it happened to know when she handed the block gun to Lieutenant Taylor, she knew she worked in a dangerous place and nothing more. There was nothing in it. Wait, Counsel. Excuse me. It seems to me that Commissioner Epstein said a little more than that. He's talking specifically about the pins. And you're familiar with testimony in the brief. The reason you check them in these pins is because the inmates and then he says the pins are on a concrete slab. And what they will do, they will take and make a shank out of the wire in the fence. They will, I mean, they could tear it up. And then he goes on and talks about the dangerousness. It seems to me, suggesting by this, even the dangerousness in the pins. There is no evidence that there had been a break out in the pins once Unit 32 was moved into these pins. I'm not just into open exercise. But there was apparently evidence of destruction within the pins, checking within the pins to see what shanks had been developed. So it seems to me your point is that until they had been a break out in the pins, despite the violence otherwise and the efforts to tear apart the pins, there could not be deliberate in their fence. You need a first incident. I mean, I'm not trying to be in any way catch you on something. I want you to help me understand what you think the law is in this area. Yes, Your Honor. That's correct. It's testimony that you cited and it's absolutely undisputed that they were taking pieces of the fencing. The inmates had taken pieces of the fencing, sharpened it against the concrete slab floor and that to make shanks. I would submit to the court that inmates and plan a expert even alluded to this or testified that inmates are creative. And he wasn't talking about parchment. He was talking about it in his experience. Inmates are creative and can create issues and avoid security and do things in an violation of protocols. And that is a fact of life in prison, whether it's in the pins or it's in their cells or it's in their job in the kitchen. They will fashion weapons wherever and however they can. However, the fact that they're fashioning weapons doesn't mean that they're using, doesn't mean they're committing acts of violence with those weapons. How did they break out? They didn't break out with a shank. No, Your Honor. The evidence is undisputed in this case that you had two inmates, Hayes and I believe Nash were the inmates, that escaped by kicking on and sawing on. These pins are 180 square feet with a concrete slab and metal fencing walls. And there are single person pins, one inmate goes in by himself. And at the bottom where the door and the slab meet, the Department of Crations had welded a metal plate there too because there was a little gap between the slab and the door. They had welded a metal plate there to prevent people from escaping underneath the door, sliding out. These inmates had sawed the plate and kicked on it enough. They actually got that loose and slid out from on. And sorry, Miss Hampton had no way of knowing that. It's undisputed that she had no knowledge. What's so ever that anything was going on at the pins when she went inside? That's true. It kind of sounds like the count of Monte Cristo, how long did it take him to sock through a well? There was some dispute as to how long it took, I believe, the testimony was that they, there was some testimony that they did it in a matter of minutes but I believe the ones that actually did it so they'd been working on it for some time. They go out to these pins on a daily basis to exercise. Construing the evidence in the light most favorable to the verdict, is there evidence in this record that she did not go for one to two minutes and she was not going to get a form at all because she didn't testify at the trial about the form and it was in the document and because she was gone for much more than one to two minutes, that the jury could disbelieve her explanation that she went in to get a form because there was some inconsistency. Is that possible on this record or can you clarify that for me? It's not possible and yes, you're on I can clarify that. I believe that the plaintiff discussed that in their supplemental brief and it trial attempted to impeach Miss Hampton about that and they said, well, you said it, she testified a trial that she went in to get a form for one of the inmates, Samuel Williams, who's a plaintiff and because he was refusing to leave his pin and was holding up yard call until he got the form. So she ran inside to get it. That was her testimony and that's why she ran inside. When she was interviewed by the MDOC, the Department of Corrections Investigators, right after this incident, she told them that she ran inside and I don't believe there was, she didn't give more detail to them and I don't believe they asked. And so the plaintiffs attempted to try to say, well, that's a contradiction that you didn't fully explain why you went inside and there were a couple of instances where the plaintiffs had tried, attempted to create a contradiction where there was not one. She simply provided more detail as to why she did something in trial. And so the jury is free to make reasonable inferences absolutely but they can't make unreasonable ones that amount to mere conjecture or speculation and that's what that would fall into the category of your honor. Speaking about mere conjecture or speculation, can you address your causation point please? Yes, your honor. In this case, she hands the block on to let a tenant tailor her supervisor, she goes inside, while she's inside, two inmates escape and this attack occurs. The evidence is undisputed at trial, Samuel Williams, one of the plaintiffs, said he was in a pen right next to a tenant tailor when it happened and they were actually carrying on a conversation, casually went and occurred. These two inmate attackers run up, he's sitting down, when he stands up to face these attackers, he drops the keys to the pins. And that's a very important point and we'll get to that in a second. He levels the gun, the block gun, on these two attackers and these guys are within a matter of feet from him. The testimony at trial was, Samuel Williams said, well they were no more than from me to my attorney who was questioning him so it was just a matter of 10, maybe 15 feet at most. He levels the gun, there's this moment where they confront each other, they stare at each other, nobody moves and then he flees for the inside. There was absolutely no testimony whatsoever that he attempted to fire the gun, that he seemed frustrated with the gun, that he said anything about the ammunition, that he checked it, all that is known is that he ran without pulling the trigger or without even attempting to fire it. And so any inference drawn that he didn't fire because he knew the gun was unloaded, there's no testimony or evidence whatsoever that he knew anything about that gun. It'd be much more plausible to say that he thought it was loaded, he'd been out on the yard with it himself during the day and he checked it out. In fact, that's another important point in this is that it was undisputed that the person who checked out the block gun at the beginning of the day was responsible for loading the block gun. And that during the day, during yard call, the officers were not to open the block gun and check it because it's like a single shot shotgun. If you break it down to check it, you can't fire it until you put it back together. And the training that they've been provided on the block gun is you cannot break it open during yard call because if you do, then you're vulnerable to attack from an inmate. And so everyone's operating under the assumption that day that Lieutenant Taylor who checked the block gun out and he was first out there on yard call had loaded the gun when he checked it out from inventory. And so you have Sharon Hampton believing herself that it's loaded because her supervisor checked it out and handed it to her and it would have been against protocol for her to even check it. And then you've got Taylor with the gun. There was no evidence that he knew the gun was unloaded and he just runs. Yeah, well you mentioned protocol, wasn't protocol also that she would have two extra bullets for that gun. Is that right? That was protocol. Yes, Sharon. She had those bullets. Yes, Sharon. Then when she handed off the gun to Taylor, she considered, she thought about the fact that she had those bullets and then she decided not to hand them over. Isn't that correct? That's correct. The testimony is under-speeding that there was... Does that indicate... Oh, I'm sorry. I'll make it very brief. That's correct, Your Honor. She made, she testified, it was under-speeded. I thought I would go inside for a minute or two and get this form and come right back and I could do so without incident. The difference is, and it was a conscious decision, but in many cases where we're talking about deliberate indifference, conscious acts are still no more than negligence. That certainly weighs into the discussion that it was conscious rather than completely unconscious. But at the end of the day, it's still negligence because she didn't have notice that anything was about to happen. She had no notice of any kind of risk on the yard that morning. All she knew was she worked in a dangerous place. One thing that's always troubled me about... There's Charlie had a follow-up, I think, on the... No, go ahead. Go ahead. One thing that's always troubled me about this, even had Taylor have the extra T-volot in his pocket. He was attacked by two in May, if he'd shot the block gun and if it were loaded, there wasn't time based on the way the block gun works to shoot the second guy or... That's always troubled me that... Miss Hampton never realized that risk. I mean, of multiple people breaking out of the pen and rushing the guards and it doesn't seem to be the block gun was designed to stop more than one person rushing a guard at a time. I mean, was there evidence on that point? Yes, Your Honor. There was extensive talk about the block gun, about how it was loaded, that it was a non-lethal device, that it was just like a single shot shotgun, that you had to break it down and then to put in an extra pellet, bring it back together. And the testimony, as I mentioned earlier, was that these attackers were just a matter of... From this podium to the court, from the officer. And so, we had a single shot weapon and two men with homemade knives in their hands, who wanted to kill him. And there's just no way that he could... I mean, he was at best gonna be able to shoot one and then the other was gonna stab him. The other was gonna be on him and he was gonna have to fight him off hand to hand. No, Your Honor. You said they wanted to kill him? Was there evidence that they wanted to kill Taylor? No, Your Honor, but they were rushing at him. I mean, they ended up taking Williams and Reed and Bonamau and stabbing them, isn't that correct? Other inmates? That's true. No, and I'm sorry for any confusion. Taylor was not there and all be all target, but he stood in their way of achieving their goal, which was to kill the plaintiffs, because he was on security with the block gun when they escaped. He didn't stay there long. He got out of there in his testimony that's in the record, said that he thought they were coming at him to kill him. And he dropped the keys, had no eye near an intention of shooting him, he just got the heck out of there. And that's what he said in all the speculation about what his motive was, is nothing but pure speculation that is belied by his own statement, which is the only evidence in the record that represents what his thought and mentality was about leading. That's correct, Your Honor. And nobody's mentioned that. Not you, in your briefs, or anybody, it dug into the record enough to get his actual testimony that is in the record as to why he did not file the gun or why he left. Then they came to the door, they started beating on the door, threatening to kill the guard that was in the door. So no, they were not benign, his judge graves might suggest, benign people looking for him. Yes, Your Honor. The one thing that is perplexing for me in your argument is that I think I'm correct that you accept former, your opponent accepts former, the deliberate indifference instruction was given, no one's opposing it. When I read this whole trial record, especially Miss Hampton's cross examination, and then the intense closing arguments, it seemed to be that your response to Judge Jolly's first question is difficult because she insisted throughout it was a mistake. The cross examination was, no, it's not. She said, well, if anybody's had fault that's who ten it tailored, then it closing argument, same issue, the full closing argument battle in front of the jury. As jury, you've got to decide, is this negligence or is this criminal recklessness? And then this would be my question for you, as I read it, the expert for the plaintiffs, I'm not sure how you pronounce his name, I fell thee. I believe it's Lawrence, I fell thee. I fell thee. He specifically opines on the ultimate issue of center. This was deliberate indifference, and there's no objection. You tried to keep him out, but he ends up testifying, and it's not an issue on appeal. So what's the point of the trial, if the position now is this could never even have been a disputed fact? Well, certainly, you're correct, there was no objection. The attempt was made to exclude him as an expert, and there was no objection to that testimony, I don't believe, I believe you're only correct on that. However, there was also testimony by the defense expert, just the opposite. Right. Certainly, the jury can make a determination about that. But your position has to be the jury can't make it. That's got to be, I mean, I don't want to put words in your mouth, but the whole trial was about exactly this center question, as I read it. I'm not sure that I completely agree with you, Your Honor. I believe that there was insufficient evidence to prove it, but I don't believe that the jury, I just believe there was insufficient evidence to support the verdict on that point. Once the evidence is in, you've got to play it as it lays, right? Correct, Your Honor. And again, we have a prison that is, and every state has to make a determination about where to house their most dangerous inmates. And does this create, or what an affirmance of this verdict create a situation where the most dangerous facility in Texas, the most dangerous facility in Louisiana, where suddenly they would be almost strict liability for the correctional officers working in those facilities. Because when Christopher Epps said on the stand, it was a dangerous place at that time that he was speaking the truth. And I believe any prison official or superintendent or commissioner in Texas and Louisiana when talking about the unit where they keep their most dangerous inmates, would have to admit the same thing. But that doesn't mean... Finish your sentence, thank you, Your Honor. But that doesn't mean that there's a specific enough threat or there's knowledge given to the people that are running that prison sufficient to take in mag decisions to avoid a risk. It creates a situation where negligence becomes axed more under 1983. All right, thank you, Mr. Goon. You've reserved for both time to come back up. Yes, Your Honor. Thank you. Thank you. You're now, Mr. Cleetus. Is that correct? Good morning, Your Honors. May it please the court. My name is Victor Flate, that's from Tupelo, Mississippi. I'm here on behalf of the plaintiffs, Appalise in this case. After a long and hotly disputed trial in which practically every question that arose during the course of the testimony was disputed, during which time the jury and the judge had the opportunity to gauge the credibility of the witnesses, whether or not those witnesses had been impeached, whether or not those witnesses recollection was strong or not. A jury who was properly instructed, there was absolutely no objections. This case presents an absolutely clean issue of properly instructed jury on the proper standard, deliberated for several hours and concluded, based on interrogatories, that Sharon Hampton was deliberately indifferent on July 27th of 2007 at Unit 32B Impartement. That conclusion by the jury is supported by more than just a mere centilla of evidence. There was sufficient evidence in this record, a hotly disputed record from which that jury could make the conclusion static drew and so fond. What would not? Yes, Your Honor. Can you explain to me and why I'm incorrect? And saying that ultimately, deliberate indifference upon undisputed facts is a legal question, admitted that it's a legal fact question up to a point, but ultimately it becomes a legal question. Only where facts are absolutely undisputed. What are the disputed facts? The disputed facts here that I think that do raise a fact question are the factual issues regarding Sharon Hampton's subjective awareness of the risk. And what exactly was the risk presented by her taking the two pellets inside with it? What was her, what risk did she perceive precisely? She perceived the risk that there would be something happening, there'd be no ammunition to protect a cold worker or another inmate. That is the specific risk that she took and that she was aware of when she went into the bedroom to retrieve that form. Was there any evidence of any specific information that would have led someone to think that more than likely something's going to happen today or tomorrow or this week, any specific other than just a general history of violence? Do we have anything specific that would have put the guards on alert that something's going to happen? Separate it aside from the general conditions of violence in Unit 32, which is a heightened level of violence from anywhere else I would suggest. And probably at that time anywhere in the country, Commissioner Epps testified specifically. This attack was going to happen to your clients, either on the yard, in the cells, walking to and fro. He described the attack on the plaintiffs as not a possibility, but as an inevitability. At some point in the future, indefinite. He said, the dangerous prison, you're going to have, that's what he said. He was specific about the fact that this was going to happen to your clients, either out on the pants or somewhere. And I understand he didn't say this is going to happen tomorrow and I understand he didn't say it might not be a week from now. There was also testimony from Ricky Scott. Where are you at? Good I said, there's no testimony that Sharon Hampton would have known that, that these plaintiffs were at a particular risk, or even the Chris Epps knew it at the time. And what is there, it's one thing looking back at it and saying the gang fights are going on and these particular people were at it. But what does Sharon Hampton know at the time is what we need to focus on. What is there to support that? Well, I think what's there to support is her admission. That yeah, I went in there with the ammunition, leaving an empty block gun, and I knew I shouldn't have. But I didn't think I would be long. Uh oh, let's stay in order. Finish up on the question with Judge Safer and then we'll follow. But I'm trying to tie what she knew about what you said just a moment ago in response to another question that the injuries to these plaintiffs were bound to happen. Is there any evidence that she knew that level of specificity at the time? Or even the Chris Epps knew it at the time? No, she wouldn't have known specifically targeted to those three individuals. And I think Epps's testimony goes to every inmate out there in those pens, given the fact that security threat group officer Scott, who testified, said, aside from the fact of everything else, there was an ongoing, separate from the fact you've got violent gang members here. There was specifically a gang war going on at that time and testimony from Commissioner Epps that a loaded semi-automatic pistol was found in unit 32B within a week prior to this incident taking place. And I believe Commissioner Epps stated he felt it was connected somehow to this incident. Well, the only point I was going to make is that it's a misstatement as contained in the opinion as well that she had knowledge that the gun was unloaded. There is no evidence at all, and it's a conceded fact in the court that there was no evidence that she knew the gun was unloading. There is no direct evidence or admission from Sharon Hampton that she knew the weapon was... There is no evidence of any kind. I believe that there is... Unless you can tell. The jury isn't hodl to draw the inference that you have. How to ban A? I don't think so. Out of the fact that there were two rounds into gun was empty and that she had a standing post-order obligation to make that weapon. Her refusal to check it constitutes willful blindness. Where was the third pill? There was no third pill at your honor. Unfortunately, it's not part of the record, but Sharon Hampton in her deposition said we had gone from three to two pellets. And she already... It's unclear to understand that there have been several shifts on duty that day. And at some point, she relieved Taylor, right? Her supervisor, right? I dispute the fact. In fact, he was not her immediate supervisor. He was a lieutenant supervisor, but she was answering to I believe... Okay, but he had a higher rank than she did. He did? That's correct. Well, let me ask you just a practical question. Yes, ma'am. Obviously, Taylor is the person who dropped the keys. He did? Without which access to these victims would not have been possible. So, why didn't you took a default judgment against Taylor? Is that right? I can spell it out for the court, Your Honor. There were a series of what we would constitute were delivered in different acts by various defendants, including Johnson and Lieutenant Taylor. And a bunch of them were dismissed. So, Taylor was your the natural target. So, I guess you took a default and he's judgment proof or not fine, you can't find him or something like that. The Department of Corrections made a decision to not tender him a defense and is going to assert that they have no duty to indemnify him, but that's an issue for a later date. So, basically, the, okay, so basically, it's a Mississippi that would pay for Hampton's verdict. Pursuing to our Torc claims act, yes, the judgment would have to be authorized by the legislature. They would have to pass a special bill in order to fund any judgment in this case. Why don't you go after whoever was supposed to inspect those wells? Those were, that was Mr. Davenport. We did bring Mr. Davenport to trial and Mr. Davenport was dismissed on a rule 50 motion. We did take him to trial, your honor. He was dismissed by Judge A. Cock on a rule 50 motion. And it's not appealed. We did not appealed, no, your honor. That seems very strange to me because you can't even have an incident without a breakout. But... Let me ask you a question. Yes, your honor. You acknowledge that the pivotal point here is the awareness, the conscious disregard, the state of mind, the subjective element of Lieutenant Hampton, correct? Yes, your honor. All right. I've read the examination of Ms. Hampton across, back and forth, et cetera. My impression she may have been combative, she didn't remember what was in the deputies, et cetera. But I don't see where you queried her about what her awareness was, about the condition of the prison, the specifics of the pen, et cetera. The breadth of this testimony goes back and forth about the block gun, you know, the one pellet. Why did you go inside, et cetera? It just goes on diagnosing him, really. And so given that that's a critical piece here, you're not dispositive, but a critical and subjective element, is it your argument that the expert can supply the mental status of Ms. Hampton through his testimony on the ultimate issue, when there is no testimony, it listed from her, about her state of mind on this issue. You follow my question? The testimony developed, the line of questioning developed by the state was, this was just a mistake. No, no, no, no, no, no, no, I want you to answer the question I asked. Yes, Your Honor. Not some other question. Lawrence, please. Stay with me, stay with me. I'm saying you've acknowledged we're pivoted on the subject of development. My question is, this is her testimony, back front otherwise. And I'm saying in the questioning, there is no question by anybody, the least that I saw, about what's in her head, about the state of the prison, the pain, the whole nine yards. I don't see that. So I'm asking, given as to, thinking some ask that your expert testified on the ultimate issue, about objection, I'm asking is it your theory of our firminess, that the expert can supply, i.e., the dangerousness of the prison, et cetera, et cetera, for the jury, something that she was not questioned about. Before I'm saying, can you prove that up indirectly through the expert testifying on the ultimate issue, something that was not elicit about what she knew and when she knew it. You absolutely can, Your Honor, through the testimony of Lawrence, hatefully, not just about the general conditions, the testimony of commissioner, Epps regarding the inevitability and extreme violence there. And from Lawrence, hatefully's testimony on the stand, which was not objected to, that officer Hampton said she knew, she shouldn't have gone in there with those. But that is my question. What, how would that be appropriate for the expert to a pine on her state of mind on the ultimate issue? The way that he was able to... What's the authority that allows that to supply the delivered indivference? You have a case? No, the... Well, because in all the interrupts then, because the, in the appellance for a pli brief, they cite heavily our Adams versus Parisi decision. Yes. But in your supplemental, you didn't mention it. And that case is overturning a jury verdict on very similar circumstances. So even if I'm sort of... You anguish that this looked like it was exactly what the jury was being presented. We've got powerful precedent that would be contrary to the position you're urging. I think that the panel decision and can to be Jones, Your Honor, would be the appropriate measure for what the standard is for this court on a pellet. But what's your opinion on Adams versus Parisi? Parisi. Is that what's pronounced? Thank you. I'm sorry, Adams? Adams versus Parisi, which... Yes, yes. How would you distinguish that case? Because all the district courts that follow it say, it's got to be a known, a very actual knowledge known, extreme risk, and then you walk away from it. And... Well, I believe that the expert testimony here, by hatefully, the testimony presented by EBS, let's be clear, the state, the Department of Corrections defended Hampton by saying, this is such an extremely violent environment. It is so inevitable. This is their trial strategy. It is so inevitable that you can't blame office or Hampton because these total absolute criminals... That was their closing argument, yeah. Okay. ...have done this. So they set the standard and showed the excessiveness of the day. Just said she made a mistake. And they defended by saying, this is just a mistake, nothing to see here. And the jury having heard all of the testimony, from hatefully, from their expert witness, all of the testimony said, she's not believable. We don't believe her. You can't work at parchment eight years. You can't have post-orders that say, don't do exactly what you did. Why didn't you ask her about that? I mean, I know it's dangerous to ask a white question, but I mean, you had her. I mean, I'm not necessarily suggesting it's fatal, but it just struck me and reading it because she's asked about all kinds of things, but she does not ask about that issue. We wouldn't have to indirectly get there to what she know. Did you have a strategy to not answer it or is it the 101? Don't ask the question. You don't know the answer to it. Your Honor, I will answer that question and say this. After having read the examination of Hampton, she was a very combative witness. There were numerous times she was impeached. She didn't come across as credible. I could look at that jury and see that they probably didn't believe a word she was saying. There was a bench conference after an objection by Mr. Irvin, trial counsel, in this case, along with Mr. Goodwin, where Judge A. Koch basically said, look, we can be here all day. I think the jury's got it. I think they see what she's saying, what she has said before. We can be here all day. But this is my point. I get that, but you ask her nine times about the bullet. And so if she's that combative, it seems to me she's playing right into your hands. So if you ask her once and she goes over, in terms of it, you've got to end the record. You impeached her on her deposition. It's not clear to me that in the deposition, she was asked about. It's just a curiosity that a pivotal piece of her awareness is not asked in the deposition, not asked when she's on the stand, not on redirect to where she's confronted with. Once you had her, I mean, it's clear to me from the testimony. She was a difficult witness, et cetera. Maybe that's why the jury came down. But I just want to understand how you get there. And I guess your answer to me is that you had the expert testimony. So you just, you didn't go there. And what your argument is that the jury and the court could find that the experts applied what you did not ask. Is that? We had apps. We had, hopefully, we had Hampton and considered that sufficient. There's a fine line you draw when you're in front of a jury between being seen as beating up a witness and letting some things. And up in North Mississippi, the manners thing matters. And how you come across in your treatment of a witness matters. And at some point, it could prove to be detrimental to beat up on a witness. It could develop sympathy. That's probably not limited in North Mississippi. I, you're correct, Your Honor. But I know that we hold it very highly up there. And it's always a consideration of what we do. I've been there. Yes, Your Honor. Certainly you have. Council back to Davenport. And you can correct me if I'm wrong. I thought the judge in dismissing Davenport from the lawsuit made a determination that he had done an inspection, but that it was so remote in time from the incident. And further that he had no responsibility for doing daily or weekly inspections. Wasn't that the basis for her determination that he ought to be dismissed? It was. His inspection was approximately 45 days prior to this incident. To address the issue of the pens, the testimony from inmate house, which is in the record was that the pens were not hard to get out of. That is in the record. His testimony was this wasn't hard to get out of. It didn't take much to get out of these pens. And I think that corroborates what Commissioner Epps understood was that, yes, we've got these pens, but really they don't make that much of a difference. Mr. Flake, what's in the evidence of how long these pens had been used? Is it substitute for a more open outdoor period? And whether anybody had broken out of them before? There is nothing in the record. The pens were erected sometime after a consent decree was entered into by the Department of Corrections at Unit 32. It was supposed to be a palliative measure, but we don't have specific information to attacks out on the pens. We do not. The testimony of Sharon Hampton was, I've got to be careful out there on the yard all the time because inmates are always going to try to grab stuff from me. So clearly there was a knowledge on her part that out on the yard with these pens are not, I've got to be, I've got to have sort of cat-like awareness of any potential danger that may be out there. Is that pellet gun is going to help against somebody who's charging at you immediately? A pellet gun is classified as a non-lethal weapon, your honor. One of the inmates, I think, boldly and brashly testified, well it doesn't hurt that much. Actually, there was a, you can be killed by a shot from a 37 millimeter pellet gun, but it stopped them. It did stop them. They hid behind the pens and held them. What do you say about what Judge Jolly pointed out about Taylor that he just fled? We could probably call Taylor a coward. We could probably say Taylor was a man. You don't disagree that that's in the evidence. What? No, I don't. I think the exhibit for the report that was admitted into evidence that Judge Jolly is referencing does indicate that Taylor testified that he panicked. I think there was, I didn't know how many guys were out there. As I looked at the pens, I saw Lester Nash and Derek Hayes running toward me carrying homemade weapons. Inmate Nash and Inmate Hayes told me they were going to kill me. I raised the block gun and pointed it in the direction of both inmates. Inmate Nash and Inmate Hayes hesitated and I, not knowing how many inmates who were out there, decided to run inside the building. That's correct. I admit our panic and somehow dropped the keys to the exercise pens. It wasn't a matter of speculating what motivated him. That's the only evidence that clearly indicates that the bullets had absolutely zero to do with the ultimate ensign to occur. I wouldn't say that it was zero because we don't know whether or not he was aware of was unloaded. No, he didn't say that. He didn't even pull the trigger. Even if he had shot one, the other guy is still there too. Absolutely. He didn't know how many of them were out there. Well, the defendant's expert testified if the question is where is the causation here, then we go into number one. Causing is a very factually based inquiry. Number two, there was no superstition. It's a legal question though. Causing is another legal question. The question of there are questions perhaps that the defendant is attempting to raise on a PLS to superseding cause. That is perhaps Lieutenant Taylor's cowardice is the superseding cause. But there was nothing tender to the jury from which they could arrive at that verdict. Well, it's me. It goes to the rest that Hampton perceived. Was there any evidence that Taylor could have shot, had the gun been loaded, shot one of the rushing prisoners reloaded and shot the other in time to save himself as well as the other prisoners. Any evidence at all that he could have done? Yes, that had he had two more pellets, had the gun been loaded. These two guys were rushing him. They were in close proximity with weapons. That had he shot one, he would have had time to reload and shot the other. And thereby prevented, I mean, I'm trying to get what Hampton thought the risk was when she took the pellets in. I can see her might be thinking I'm leaving Taylor in a vulnerable position. But I don't see how she thought that without these two extra pellets, two prisoners could escape and rush Taylor and he's going to drop the gun and they're going to get the keys and let the inmates out. I mean, there's no, I don't see what Major think through that risk. I don't know that she's required to have spun this yarn out that far before she made a conscious decision to take the only ammunition for the block gun. What is the evidence that Taylor would have had time to shoot one, reload and shoot the other that were rushing him? In this trial, none. Taylor was a party in default and the issue. Well, was there expert testimony that yes, that guard, a guard standing there could have shot one of them and reloaded and shot the other when they were both rushing him? Neither the defendant or the plaintiff's tendered expert testimony regarding the role of Lieutenant Hampton. Lieutenant Taylor. That thought there was undisputed evidence about how long it took to break down the gun once it had been fired and reloaded and that the policy was not to break down the gun. The policy was to not open up the weapon and the presence of inmates. And that is because. And that is because, of course, testimony, they will try to grab the weapon from you while it's in an unloaded state. So it's been shot. You can only shoot one at a time. You shoot one guy, you break it down to put in the other. Where can the jury draw infer from that that there would have been time to shoot once, break it down, put another pellet in and shoot the second guy? I don't know that the jury could have drawn that inference. To the inference that the jury drew was that the absence of any ammunition in the block thumb was causally related to the harm caused to these plaintiffs. But there's evidence that Miss Hampton knew the gun was unloaded. I think the jury was free to draw that inference from the evidence that was produced at trial. I took the two rounds in with me. I didn't think it would take me very long. The record evidence shows she'd already been in there five or six minutes at the time that the attack occurred. I can put two pellets. What about what evidence is there she knew the gun was unloaded. Not about the two pellets, but the gun was unloaded. Direct evidence that she knew the gun was unloaded. No direct evidence that she knew the gun. No admission from her. There is none. She did not have any. Is there anybody else who says? I mean, wasn't Taylor the one who originally checked it out and should have checked it? That's a disputed issue. How long she was out on the yard that day was hotly disputed. She testified that she was the yard officer. She testified that she was only out there a small while. Her report to her superiors and corrections was I was out there virtually all day. Let me come at it this way. Other than the evidence that the gun actually was unloaded, was there any other evidence of any kind, surf-stanched direct, anything that she knew it was unloaded? I believe her statement where she directly admitted. I took the two rounds with me thinking I would be right back. How does that show the gun was unloaded? It doesn't directly show, but I think a jury engaging her testimony and her saying that and knowing that the gun was unloaded could draw the inference that she was taking a risk and aware that the gun was unloaded. Again, we're talking about reasonable inferences to be drawn from the facts. I don't understand how the inference that she has two extra bullets in her pocket tells us the gun was unloaded. I'm just not getting that, but if that's it, that's all I need to know. But I'm not getting that inference. I understand, and I don't know that I could clarify it any more for the court. One of the practices to have three rounds? It was not testified to it trial. Actually, in her deposition, she testified that we had gone from a three-round system to a two-round system. And that's borne out by the fact that there were only two, there were only ever two rounds. I have a question about causation. Yes, ma'am. Is there only one motion for judgment as a matter of law with regard to Ms. Hampton? And that motion seems to address only the deliberate indifference to the safety. So I'm wondering if there is a rule 50 motion about causation. But if there is not, I'm wondering if you've waived any objection there too, because your second heading of your brief says the district court properly overruled the defendant Hampton's motion for judgment as a matter of law in light of ample evidence that her axon omissions caused injury. So can you answer those questions? I remember correctly. There was a rule 50 motion filed of conclusions that plaintiffs case on behalf of Hampton causation was one of the questions. It was raised post trial. But it's a different motion than I'm reading from right now that only mentions the deliberate indifference. Is there a separate one on causation? I believe it was addressed in the court's opinion, Your Honor. The question of causation and it was raised on the question of qualified immunity was not, was we would argue, waived, but I believe the causation issue was properly before the court. And was argued, yes, Your Honor. Councillor, would a post order, did the post order require her to check the gun? The post order required her to check the weapon upon its receipt and relinquishment according to her varying testimony because she testified several ways about this. She either got the weapon once from Taylor or got the weapon twice from Taylor that day. And the post order was specific. You must check the weapon when you receive it to make certain that it's loaded. And you must give the ammunition in your possession to your fellow correctional officer whenever you receive or the weapon is relinquished. But Taylor did not check it. Taylor did not check it all. He was obligated to do it and that's one of the reasons that he was disciplined or whatever happened to him. As was Sharon Hampton, correct you. Those duties extended to both of them fully and equally irrespective of their status as supervisors or anything else. Were you supposed to check it if you were on the yard? You were supposed to check it as soon as there wasn't an inmate in proximity to you being transported. When they're in their pens and Lieutenant Hampton testified, I was out there all day. I was the yard officer. They're in their pens. You had a duty as long as there wasn't an inmate, a chained inmate being walked past you to pop that open, take a look inside of it. And if it's not loaded, push around in there, close it back up and do your duty. And that's what she failed to do. How many inmates have been in and out during that period of time? They go by tears. There were 28 pens. I do not know if every pen was loaded. I do know that they just don't have inmates constantly being brought in and out because they go in tears. So once you get one tear in and they're all locked up and you're sitting there for several hours, you pop the bad boy open, you take a look, you do your job. And when you don't do your job like that, the post-order tells us people may be killed. And Sharon Hampton realized that people might be killed if she didn't do her job. The post-order doesn't set the standard, but it does speak to her subjective awareness of the risk of harm. If you got 16 seconds, you can use them, Elizabeth. Your Honor, I would respectfully request that this court affirm the verdict of the jury in all respects. All right, thank you, Council. For your briefing and argument, the vote on Mr. Goodwin, you've got five minutes. Thank you, Your Honor. Council office said earlier in response to the Adams v. Perez case that, well, he did not address that directly, but said, well, Cantu is controlling in this case. Cantu is a very similar case and is very instructive in this case. Cantu is very factually different. In fact, in the Cantu case, this is court is where the allegations were that the prison officials actually orchestrated the attack. It went far beyond just delivered indifference to inmate on inmate violence. The claim was, yes, an inmate attacked me, but he attacked me because the prison officials themselves orchestrated the attack using him to get back to the court. What we had in Perez was three different correctional officers that the court made very specific findings as regards all three and all those findings had to do with what they knew about inmate on inmate violence. And then as regards one of the officers who had received some emails, the determination was that he had no basis based on those emails to draw an inference that these particular inmates was in some kind of danger. So, factually, we're talking about something different, aren't we? That's based on what they need. But in the case in Cantu though, that he is citing, it went far beyond the delivered indifference. It was an orchestrated attack according to the plaintiff in that case. Adams E. Perez is very similar to this case. That's certainly something I've cited in my brief. Except you didn't make any hay in this case about what Sharon Hampton didn't know, did you? Oh certainly, we've said that she did not. Well, did you ask her on direct examination to tell us that she didn't know about unit 32? It's history of violence, the danger of inmate on inmate violence. Did you ask her to say she didn't know about that? I did not examine Miss Hampton, but the questions were not asked. I don't believe. I've read the record a few times. There were no questions about that. But it might have been the fact that there's no case that's ever held that inmate dangerousness alone can substitute for. You have a question? No, I was just your honor. How can Judge Gray's that? Yes, your honor. Of course. I would also like to address your honor that there was testimony that EPS said, well, these attacks were inevitable. These attacks were inevitable. And the testimony is clear when you read his entire testimony, that he was speaking about gang violence in general, that gang, he said, blood in, blood out. These gangs are constantly trying to attack each other. Well, but on the blood in, blood out, that's where if you're trying to get out of a gang or you're announced your gang affiliation, then other gang members decide that they should kill you. Isn't that what he meant when he was talking about blood in, blood out? He did not explain exactly what he meant. Well, in their evidence, in this case, that Williams and Bina, had renounced their gang affiliation and had participated in a program at the prison of renunciation program. That's what they testified to, yes, Your Honor. All right. Would you suppose Ms. Hampton was supposed to have had some tear gas in addition to this pellet gun? And she didn't have her tear gas. We did have the one bullet in the gun which Taylor dropped. Would she be liable because she didn't have her tear gas? No, Your Honor. It would have been a violation of policy. Or if Taylor didn't have his tear gas, whoever was there. No, Your Honor. It would have been a violation of policy assuming the policy said you had to have your tear gas on you at all times and use it in certain circumstances. The violation of policy isn't an proof that there's a deliberate inflection of punishment under the Eighth Amendment. Absolutely, Your Honor. And that's why we're here today, I believe. Is that... There's a lot of focus on the bullets sort of falling off from that. If she had taken the block on itself in, deliberately without adding word and different to it, deliberately, took in knowingly, doesn't that change the case to leave him out there with no weapon at all? That's certainly a hypothetical that it would make her actions more egregious. But I think you still do not reach deliberate indifference without some indication, some indication to her, that there was a risk that inmates were going to escape those pens and attack some more. And, and, and, and, and, Lannis Council has admitted there was simply no evidence of that that she simply knew she worked in a dangerous facility. What, it, was a testimony about her obligation to check the gun on the, you heard Kansas say that? Your Honor, I'm out of time. I would love to respond to that question. And you, as I say, red light doesn't say please respond to Judge Lawrence. Thank you. Your Honor, the plaintiffs attempted to, again, show that there was a contradiction somehow in what she had stated to the investigators versus what she testified to. She stated to the investigators and was, it was put in the report that she said, I had been, it was not clear admittedly, but she said, I had been on yard call since I believe early that morning or something that fact, since early that morning. She did not say, I was the first one out there. She did not say that she'd been on, you know, it was just, I had been out there since early. It was undisputed that yard call was ongoing when she arrived to work that morning. And Lieutenant Taylor was already on the yard with the block gun providing security. And when she was told, originally, she was told it would go be a tear officer. And then those were the reasons they said, no, go to yard call and help with yard call. You get to answer a question that you don't get, you know. Yes, your Honor. Somewhere I was waiting on a period of, I'm sorry, I'm sorry. We've all been living with this case for so long. It's hard to stop talking about it. Thank you, Your Honor. We appreciate the briefing and argument of Council in the case. This concludes your argument. The past few minutes