J.K.J. v. Polk County, Wisconsin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18-1498, 18-1499, 18-2170 & 18-2177

J.K.J. and M.J.J.,

Plaintiffs-Appellees,

v.

POLK COUNTY and DARRYL L. CHRISTENSEN,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Western District of Wisconsin.

Nos. 3:15-cv-00428 & 3:15-cv-00433 — William M. Conley, Judge.

____________________

ARGUED DECEMBER 5, 2019 — DECIDED MAY 15, 2020

____________________

Before WOOD, Chief Judge, and BAUER, EASTERBROOK,

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

SCUDDER, and ST. EVE, Circuit Judges.

SCUDDER, Circuit Judge. While confined in the Polk County

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

sexual assaults at the hands of correctional officer Darryl

Christensen. The two women brought suit in federal court

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

jury heard evidence of Christensen’s horrific misconduct over

2 Nos. 18-1498, et al.

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

sexual contact between inmates and guards but failed to ad-

dress the prevention and detection of such conduct. Nor did

the County provide any meaningful training on the topic.

What is more, toward the beginning of the relevant period,

the County learned that another guard made predatory sex-

ual advances toward a different female inmate. The trial evi-

dence showed that the County imposed minor discipline on

the guard but from there took no institutional response—no

review of its policy, no training for guards, no communication

with inmates on how to report such abuse, no nothing. In the

end, the jury returned verdicts for J.K.J. and M.J.J.

The case against Christensen was open and shut. But a di-

vided panel of this court overturned the jury’s verdict against

Polk County, determining that the trial evidence failed to

meet the standard for municipal liability under Monell v. De-

partment of Social Services, 436 U.S. 658 (1978). We decided to

rehear the case en banc and now affirm the jury’s verdicts

against both Christensen and Polk County. While the stand-

ard for municipal liability is demanding—designed to ensure

that a municipality like Polk County is liable only for its own

constitutional torts and not those of employees like Christen-

sen—the evidence was sufficient to support the verdict

against the County.

I

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

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

Eighth and Fourteenth Amendments by acting with deliber-

ate indifference to a serious risk of harm to their safety and

well-being. They also brought a negligence claim under Wis-

consin law against the County. The district court consolidated

Nos. 18-1498, et al. 3

the cases for trial. The five-day trial ended with the jury find-

ing both defendants liable on all claims, and we recount the

facts in the light most favorable to that verdict. See Martin v.

Milwaukee County, 904 F.3d 544, 547 n.1 (7th Cir. 2018).

A

J.K.J. and M.J.J. suffered from addictions and committed

crimes that landed them in the Polk County Jail intermittently

between 2011 and 2014. Located in northwest Wisconsin, the

institution houses up to 160 inmates, including a small num-

ber of women, and employs about 27 correctional officers.

Christensen worked for 19 years as one of the guards tasked

with protecting the inmates—a duty he severely betrayed.

J.K.J. and M.J.J.’s experiences with Christensen were

unique but shared a basic pattern. Christensen began by com-

menting on their appearances—remarks like “nice ass” and

“you’re looking good”—with the verbal harassment then es-

calating to explicit sexual overtures. In time came physical

contact, which began with Christensen groping and kissing

the women and from there advanced to oral sex and digital

penetration and eventually to intercourse. J.K.J. could not pin-

point the total number of times Christensen assaulted her but,

by way of example, stated that, during a two-month period in

the summer of 2012, he insisted on sexual contact every time

he was on duty. For her part, M.J.J. estimated that Christensen

engaged in sexual contact with her 25 to 75 times. These

events spanned about three years.

Christensen took steps to conceal his misconduct within

the jail. While making inappropriate sexual comments in

front of others, he always made sure to take J.K.J. and M.J.J. to

hidden areas to engage in the physical contact. Christensen

4 Nos. 18-1498, et al.

also instructed both women not to tell anyone of the encoun-

ters because, if word got out, he would lose his job and family.

For the most part, the women heeded his admonishment and

kept the abuse to themselves during their incarceration. J.K.J.

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

victims of sexual harassment and assault—shame, doubt an-

yone would believe them, and fear of retaliation.

But the truth eventually came out. Another county’s inves-

tigator called Polk County to report an allegation that Chris-

tensen had sexual contact with an inmate. Polk County re-

sponded by commencing an internal investigation, and Chris-

tensen resigned upon being confronted. A criminal investiga-

tion followed and led the Wisconsin Department of Justice to

J.K.J. and M.J.J. After expressing initial reluctance to talk, both

women eventually felt safe enough to trust the investigators

with their stories. Christensen later pleaded guilty to criminal

charges and is now serving a 30-year sentence.

B

Christensen’s conduct was not the only evidence of sexual

misconduct at the Polk County Jail that the jury heard. In

2012, toward the beginning of Christensen’s assaults of J.K.J.

and M.J.J., complaints surfaced that correctional officer Allen

Jorgenson had an inappropriate relationship with a female in-

mate known as N.S. Sergeant Steven Schaefer brought the

complaints to Captain Scott Nargis, the day-to-day head (ef-

fectively the warden) of the jail. Schaefer reported that Jorgen-

son had touched N.S. on her waist and rear end, adding that

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

all heard complaints about [Jorgenson’s] inappropriate com-

ments to both inmates and staff.”

Nos. 18-1498, et al. 5

Captain Nargis responded by partnering with Deputy

Sheriff Steven Moe to investigate the contentions. Although

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

believed lines had been crossed. Indeed, the investigation re-

vealed that Jorgenson not only flirted with female inmates,

but also focused video cameras on the female housing pod for

an inordinate amount of time, and fostered an inappropriate

relationship with N.S. But Moe testified that he initially did

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

Based on those findings, Moe and Captain Nargis decided

that the right response was to issue a written reprimand to

Jorgenson. As part of doing so they assured Jorgenson that the

reprimand was not a “major deal” and he could move on from

it. “After having confronted Allen,” Moe testified, “we felt

that it was important that we recognize and support Allen’s

prior work history. He was a good employee. He was a go-to

employee. We appreciated his efforts and his work, so we

wanted to salvage him as an employee.”

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

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

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

M.J.J.’s trial, the district court admitted N.S.’s letter not for its

truth, but for the non-hearsay purpose of informing the jury

of allegations of sexual misconduct that Polk County received

during the relevant period.

N.S. began her letter by saying “I’m sorry for lying” and

“I would like to tell the truth about the allegations made

against Allen Jorgenson” because “[t]here are many things

[Jorgenson] has said & done that have been inappropriate in

a sexual manner towards me” and other inmates. Before de-

tailing her own account, N.S. emphasized that “I did not tell

6 Nos. 18-1498, et al.

the truth [earlier] because [Jorgenson] has told me to keep

quiet & said he didn’t wanna get in trouble.” From there N.S.

described the following misconduct that “started during my

last stay here from 10-27-10 til 7-6-11 & is continuing through

my incarceration now”:

 Jorgenson “always makes comments about see-

ing us in the shower. He always calls it [a] ‘nice

show.’”

 He has asked me “what the color of the day

was”—a question about the color of “my under-

clothes.”

 “He has told me he wants me to ride topless in

his boat, [and] he has wanted me to lift my shirt

for him while I’ve been here [in the jail] both

times.”

 “Many times he’s leaned over the cart to look

down my shirt.”

 “Recently he has started touching me.” “Every-

one knows he’s doing these things” and

“[w]hen he walks me back from the nurses of-

fice, visiting anywhere he shoves me & pushes

me” and “very recently … he grabbed me

around my waist & kept his hand there til the K-

Pod door opened then he slapped my butt.”

 “[W]hen giving me meds, he’ll look to see if the

camera is on us. If not he comes around the cart

& touches my back & butt as I go back in. One

time the camera was on our direction, he said

dam[n], I was gonna go in for the kill. Whatever

that meant.”

Nos. 18-1498, et al. 7

N.S. closed her letter by underscoring that “another reason

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

don’t want problems with [Jorgenson] or any of the other jail-

ers who will be mad @ me for confirming these accusations.”

She also explained that she was not candid with her fellow

inmates either because “I didn’t want Allen [Jorgenson] in

trouble or mad @ me, making it hell for me here.”

Upon receiving N.S.’s letter, Deputy Sheriff Moe and Cap-

tain Nargis reopened the prior investigation to take a fresh

look at Jorgenson’s conduct. Sergeant Schaefer also got in-

volved, spoke with N.S. to verify her report, and concluded

that she may have been telling the truth at that point. Moe,

too, acknowledged at trial that, upon receiving N.S.’s letter,

he found it “more likely” that Jorgenson had inappropriately

or even illegally touched her.

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

prior disciplinary decision and determined that Jorgenson’s

conduct still merited only the prior written reprimand. The

jail took no further action in response to N.S.’s new allega-

tions. Jorgenson later resigned after an unrelated investiga-

tion regarding his female co-workers.

Sexual harassment had appeared in the jail in other ways

too. Christensen testified that he witnessed at least two other

jailers, including Allen Jorgenson, make sexual comments to

inmates. And then there was the issue of “tier talk,” a term

that Captain Nargis agreed reflected “not necessarily flatter-

ing talk amongst co-workers in the tier.” By way of example,

Captain Nargis confirmed hearing that Christensen had made

inappropriate sexual comments about women in general and,

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

acknowledged that “on occasion” he too participated in tier

8 Nos. 18-1498, et al.

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

trusted leader of the officers.

C

What Polk County had done (and not done) to prevent the

sexual abuse of inmates was a key focus at trial. The County

established written policies against the sexual harassment

and assault of inmates. Policy I-100 of the jail’s Policy and Pro-

cedures Manual listed inmates’ rights and stated that they

were never to be subjected to “verbal, physical, emotional,

psychological or sexual harassment” by staff. Any harassing

officer was “subject to disciplinary charges and/or termina-

tion.”

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

that jail employees were prohibited from fraternizing with in-

mates, including “[b]eing in an intimate social or physical re-

lationship with a prisoner.” In July 2012, Polk County up-

dated the Manual to include some language from the Prison

Rape Elimination Act, a federal statute enacted in 2003 to de-

ter the sexual assault of prisoners. The new language in-

structed that any staff member or inmate “who knows or rea-

sonably suspects” sexual misconduct was to inform the “Jail

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

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

such reports would be handled. The section noted that “Wis-

consin State Statutes make it a criminal offense for correc-

tional staff members to have sexual intercourse or contact

with an individual confined in a correctional institution.” See

WIS. STAT. § 940.225(2)(h).

The 12-page Inmate’s Handbook also mentioned sexual

misconduct, providing: “[e]very inmate has the right to be

Nos. 18-1498, et al. 9

safe from sexual abuse and harassment. No one has the right

to pressure you to engage in sexual acts. If you are being pres-

sured[,] threatened, or extorted for sex, you should report this

to staff immediately.” As the plaintiffs’ expert would later de-

scribe it, however, this information appeared in “very small

font; one paragraph in the middle not even headlined, not

even with a title on it.” Inmates received the Handbook dur-

ing the intake process and were told to read it. At no point,

though, did the jail provide the inmates with any further in-

formation on how to report sexual misconduct.

Aside from these written policies, Polk County Jail staff

received no training (in any sense of the word) focused on the

sexual harassment or assault of female inmates. Few though

they are, the details are important. Consider Polk County’s

program that required officers to read a specified policy each

day from the jail’s Policy and Procedures Manual and then to

initial a piece of paper and write the policy’s title as proof they

did so. For his part, Christensen told the jury that most of the

time he just went through the motions of writing down a pol-

icy’s title and signing without reviewing anything. Even

more, the trial record contained no evidence showing that

Captain Nargis or anyone from the County dedicated any

portion of any live training session to reviewing the jail’s writ-

ten policies or underscoring the necessity of reporting any

known or suspected sexual misconduct.

Any in-person training that occurred was hidden among

the jail’s general training and completely silent on preventing

and detecting the sexual assault of female inmates. There was,

for example, a county-wide (but not jail-specific) training on

sexual harassment that addressed how employees should

maintain proper co-worker relationships but which Sergeant

10 Nos. 18-1498, et al.

Schaefer clarified was “not anything regarding inmates.” The

jury also heard evidence about the jailers’ training on the

vague topic of maintaining distance from inmates, with no

testimony to suggest that training ever touched the topic of

sexual assault. Sergeant Schaefer, who helped oversee the

training of new officers, expressly admitted that much. He re-

called being taught in “jail school” that he should not “be-

come too close” with inmates or share personal information

with them, though he explicitly denied any memory of being

told that it was improper for jail officers to have sexual rela-

tionships with inmates. Those vague cautions were repeated

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

when Sergeant Schaefer trained others, he gave the same ad-

monishments. While Schaefer agreed that having sex with an

inmate would qualify as being “too familiar,” he did not tes-

tify that he ever addressed this topic in any way, including in

any training session.

Beyond learning that training on sexual abuse was nearly

nonexistent, the jury heard affirmative evidence revealing the

County’s dismissive attitude about preventing and detecting

it. The prime example came in the “tizzy email.” On February

21, 2014, near the end of Christensen’s abuse of J.K.J. and

M.J.J., Captain Nargis sent an email to many staff members

summarizing the contents of a training held the day before,

which included the Prison Rape Elimination Act as one of its

several topics. Nargis wrote that it “[s]eems that everyone is

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

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

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

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

“[t]here is no requirement for [the jail] to be compliant with

Nos. 18-1498, et al. 11

everything that [PREA] calls for,” the training would “hit the

basics.”

For their part, J.K.J. and M.J.J. presented evidence on the

inadequacy of Polk County’s policies and training. They did

so through the testimony of Jeffrey Eiser, an expert on jail op-

erations. Eiser explained that Congress enacted PREA in re-

sponse to an “evident” and “prevalent” problem with sexual

assault and abuse in jails. He added that PREA’s threefold ob-

jectives are “to prevent sexual abuse and harassment, to de-

tect it, and then to respond to it.” But Eiser’s review of Polk

County’s policies left him of the conviction that the jail had

sufficiently covered only the third base—responding to sex-

ual abuse complaints—but otherwise inadequately addressed

prevention and detection.

Eiser did not stop there. He then offered concrete exam-

ples of ways Polk County could improve its policies. To pre-

vent abuse, a policy could make clear that the institution op-

erates under a zero-tolerance policy on sexual abuse and har-

assment. It likewise could designate a PREA coordinator,

train staff on what to look for and how to report abuse as well

as how to make inmates feel comfortable coming forward,

take added care with job assignments within the facility, and

ensure that all inmates understand their right to be free from

sexual abuse and harassment. Similarly, Eiser testified that, to

detect sexual misconduct, a policy could make sure that the

inmates understand what abuse entails, since they may come

from life experiences that have blurred the lines of abnormal

and normal relationships. Eiser added that a sound policy

also would provide a safe, confidential way for inmates to re-

port abuse (through, for example, the use of a locked drop-

box), instead of putting inmates in the position of having to

12 Nos. 18-1498, et al.

hand a grievance to an officer who may be friends with the

abuser. Polk County’s policy lacked all of these features.

D

The jury returned a verdict in favor of J.K.J. and M.J.J. on

their claims against both Christensen and Polk County. The

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

testimony about the impact the defendants’ conduct has had

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

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

and M.J.J. The jury further determined that Christensen’s con-

duct warranted his paying punitive damages of $3.75 million

to each woman.

Both defendants challenged the jury’s verdicts in post-trial

motions. They moved under Rule 59 for a new trial based on

errors that they contended the district court made. Polk

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

law, arguing that the trial evidence was legally insufficient to

prove J.K.J. and M.J.J.’s § 1983 claims and that it was immune

from liability on the state-law negligence claim. The district

court agreed on the latter point and dismissed the negligence

claim, but otherwise left intact the jury’s verdicts on the con-

stitutional claims and denied the request for a new trial.

Having presided over the trial, Judge Conley determined

that the evidence sufficed to allow the jury to find from the

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

and perhaps even fostered, a culture where inappropriate sex-

ual comments were accepted as the norm.” Highlighting the

showing J.K.J. and M.J.J. made of both Captain Nargis’s learn-

ing in 2012 of Allen Jorgenson’s sexual misconduct and his

dismissive handling of PREA training in February 2014, Judge

Nos. 18-1498, et al. 13

Conley explained that the jury had ample evidence from

which to conclude that the County “downplayed the im-

portance of preventing sexual assault and harassment within

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

the evidence supported the jury’s finding by a preponderance

of the evidence that “if the County had provided adequate

notice and training to correctional officers and inmates on

what constitutes sexual harassment and abuse, and how to re-

port it, plaintiffs [J.K.J. and M.J.J.] may not have been sexually

assaulted and harassed” from 2011 to 2014.

This appeal followed.

II

Christensen gives us no good reason to upset the jury’s

verdict against him. To establish that his conduct violated

their Eighth Amendment rights, J.K.J. and M.J.J. had to prove

that Christensen acted with deliberate indifference to an ex-

cessive risk to their health or safety. See Farmer v. Brennan, 511

U.S. 825, 837 (1994); Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir.

2018). It was more than reasonable for the jury to conclude

that the trial evidence met that standard. To say that the sex-

ual assaults he committed against J.K.J. and M.J.J. objectively

imposed serious risk to their safety would be an understate-

ment. And the evidence was equally sufficient to show that

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

that he knew he was putting the plaintiffs at risk and that his

conduct not only violated prison policy but was criminal.

Christensen’s only defense was to try to somehow per-

suade the jury that J.K.J. and M.J.J. consented to the sexual re-

lations. The effort failed and now on appeal he contends that

the district court erred in not giving the jury a special

14 Nos. 18-1498, et al.

instruction on his consent defense. Our review of the trial

transcript shows that the district court completely and accu-

rately instructed the jury on the elements of the Eighth

Amendment claim. No further explanation was necessary to

tell the jury how to consider the consent issue. If the jury had

bought Christensen’s story that J.K.J. and M.J.J. were willing

participants (and, for that matter, even capable of being will-

ing participants under the circumstances), it would have

found that the women had not met their evidentiary burdens

of proving that he acted with deliberate indifference to their

safety and well-being. But the jury reached no such conclu-

sion. The instructions were sufficient.

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

finds them problematic because the jury gave the same

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

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

County Jail from distinct lives and suffered their own per-

sonal tragedies. But that does not mean that they necessitated

different compensatory damages amounts, particularly given

the psychology expert’s recommendation of identical courses

of treatment for both women. Nor was the jury’s punitive

damages award so great as to be unreasonable or outside the

bounds of due process.

The judgment against Christensen is easily affirmed.

III

A

We now turn to the more difficult question of Polk

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

but only one merits discussion—whether the trial evidence

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

Nos. 18-1498, et al. 15

automatically on the hook for Christensen’s unconstitutional

acts just because it employed him. Under the familiar holding

of Monell v. Department of Social Services, local governments

like Polk County can be held responsible for constitutional vi-

olations only when they themselves cause the deprivation of

rights. 436 U.S. 658, 691–92 (1978). Time and again the Su-

preme Court has reinforced the strict prohibition against al-

lowing principles of vicarious liability to establish municipal

liability under § 1983. See id. at 694–95; see also Bd. of Comm’rs

of Bryan County v. Brown, 520 U.S. 397, 403 (1997) (collecting

cases and reinforcing that the doctrine of respondeat superior

does not apply under § 1983).

Monell liability is difficult to establish precisely because of

the care the law has taken to avoid holding a municipality re-

sponsible for an employee’s misconduct. A primary guardrail

is the threshold requirement of a plaintiff showing that a mu-

nicipal policy or custom caused the constitutional injury. See

Monell, 436 U.S. at 690–91. “Locating a ‘policy,’” the Supreme

Court has emphasized, “ensures that a municipality is held

liable only for those deprivations resulting from the decisions

of its duly constituted legislative body or of those officials

whose acts may fairly be said to be those of the municipality.”

Bryan County, 520 U.S. at 403–04; see also Glisson v. Indiana

Dep’t of Corrs., 849 F.3d 372, 381 (7th Cir. 2017) (“The critical

question under Monell remains this: is the action about which

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

merely one undertaken by a subordinate actor?”). A munici-

pal action can take the form of an express policy (embodied,

for example, in a policy statement, regulation, or decision of-

ficially adopted by municipal decisionmakers), an informal

but established municipal custom, or even the action of a

16 Nos. 18-1498, et al.

policymaker authorized to act for the municipality. See Glis-

son, 849 F.3d at 379.

More is required before Monell liability can attach, how-

ever. “The plaintiff must also demonstrate that, through its

deliberate conduct, the municipality was the ‘moving force’ be-

hind the injury alleged.” Bryan County, 520 U.S. at 404. The

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

taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal action

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

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

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

§ 1983).

The most straightforward Monell claims are those in which

a plaintiff alleges that an affirmative municipal action is itself

unconstitutional. See Bryan County, 520 U.S. at 404–05. In

those cases, inferences of culpability and causation are easy,

for they follow directly from the municipality’s intentional

decision to adopt the unconstitutional policy or custom or to

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

city with a policy authorizing its employees to take some un-

constitutional act in connection with traffic stops after mid-

night. Deliberate conduct is easily inferred from the inten-

tional adoption of the offending policy. And if a victim of the

unconstitutional act emerges as a Monell plaintiff, there will

be little doubt that it was the city’s express instruction—not

the employee’s independent choice—that caused the injury.

Here, however, J.K.J. and M.J.J. do not claim that Polk

County took affirmative action to harm them. To the contrary,

their theory of Monell liability roots itself in inaction—in gaps

in the County’s sexual abuse policy and its failure to properly

Nos. 18-1498, et al. 17

train the jailers in the face of obvious and known risks to fe-

male inmates. These failures to act, J.K.J. and M.J.J. contend,

were deliberate and together caused their constitutional inju-

ries. The Supreme Court has recognized that Monell liability

can arise from such decisions because a “city’s ‘policy of inac-

tion’ in light of notice that its program will cause constitu-

tional violations ‘is the functional equivalent of a decision by

the city itself to violate the Constitution.’” Connick v. Thomp-

son, 563 U.S. 61, 61–62 (2011) (quoting City of Canton v. Harris,

489 U.S. 378, 395 (1989) (O’Connor, J., concurring in part and

dissenting in part)); see also Glisson, 849 F.3d at 382 (“[I]n sit-

uations that call for procedures, rules or regulations, the fail-

ure to make policy itself may be actionable.”).

But the path to Monell liability based on inaction is steeper

because, unlike in a case of affirmative municipal action, a

failure to do something could be inadvertent and the connec-

tion between inaction and a resulting injury is more tenuous.

For these reasons, “[w]here a plaintiff claims that the munici-

pality has not directly inflicted an injury, but nonetheless has

caused an employee to do so, rigorous standards of culpabil-

ity and causation must be applied to ensure that the munici-

pality is not held liable solely for the actions of its employee.”

Bryan County, 520 U.S. at 405.

Rigorous though these standards may be, they are not in-

surmountable. The question before us is whether the evidence

presented to the jury was legally sufficient to support the ver-

dict against Polk County. The law affords great respect to jury

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

the evidentiary threshold necessary as a legal matter to meet

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

assess the credibility of any trial witness, or otherwise attempt

18 Nos. 18-1498, et al.

to usurp the jury’s role as factfinder. See Ruiz-Cortez v. City of

Chicago, 931 F.3d 592, 601 (7th Cir. 2019) (“In our Rule 50 re-

view, we give the nonmovant ‘the benefit of every inference’

while refraining from weighing for ourselves the credibility

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

unless there is “no legally sufficient evidentiary basis for a

reasonable jury to find for the non-moving party.” Woodward

v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004).

Against this standard of review, and ever mindful of Mo-

nell’s exacting liability requirements, we turn to the evidence

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

B

All agree that Polk County’s written policies categorically

prohibited sexual contact with inmates and required re-

sponses to alleged violations. But J.K.J. and M.J.J. presented

evidence that the policy contained material gaps. The jury

heard expert testimony from Jeffrey Eiser about the im-

portance of a policy that does not wait for reports of sexual

abuse to trigger an institutional response, but instead contains

measures both to prevent the wrongdoing in the first instance

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

that Polk County’s policy, although addressing incident re-

sponse, fell far short on prevention and detection.

Eiser then explained that any number of policy measures

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

Consider the need to detect sexual abuse. The importance of

a safe and confidential reporting channel—even something as

simple as a lockbox available to inmates—cannot be over-

stated. Under the County’s policy, an inmate seeking to report

abuse is left to inform one of 27 employees in a small jail that

Nos. 18-1498, et al. 19

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

Given the perceived comradery among the male guards and

acceptance of sexual harassment at the jail’s highest levels (in-

ferred perhaps foremost from the “tier talk”), the jury could

have found that this was not a viable reporting option and in-

deed reflected a meaningful policy gap. Put most simply, the

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

finding that Polk County’s policy deficiency affirmatively de-

terred the reporting and detection of sexual abuse of female

inmates.

The policy gaps only widen when the focus turns to the

County’s sexual abuse training. Training is important because

it can educate and sensitize guards as well as shape and rein-

force institutional values, bringing to life words that other-

wise exist only on paper. The trial evidence showed that the

County’s training on preventing and detecting the sexual har-

assment and abuse of inmates was all but nonexistent. The

training consisted almost exclusively of informing guards of

the easy and evident—that the jail’s policies prohibited sexual

contact with inmates. The only training even addressing the

sexual assault of inmates by guards came in a single session

on the Prison Rape Elimination Act in 2014, well after much

of Darryl Christensen’s abuse of J.K.J. and M.J.J. had occurred,

and which he did not even attend. And even then the jury—

ever mindful of Captain Nargis’s dismissive “tizzy email”—

could have found that the County itself hardly took the PREA

training seriously.

What was missing stands out. The jury heard no evidence

of the County informing guards of the inherent vulnerability

the confinement setting presents to female inmates, educating

jailers on the symptoms of an inmate suffering from the

20 Nos. 18-1498, et al.

trauma of abuse, requiring officers to report each other’s mis-

conduct, or taking any time to otherwise instruct guards on

matters of prevention and detection, whatever form that

might have taken.

The trial evidence makes the bottom line plain: the jury

could have found that Polk County’s sexual abuse prevention

program was entirely lacking. The policy stated nothing but

the obvious—do not sexually abuse inmates. The County then

exacerbated the gap by failing to use training as the means of

making the policy prohibition a reality (or, at the very least,

mitigating risk) within the institution. The jury could have tal-

lied these gaps as part of finding the conscious, deliberate mu-

nicipal inaction upon which to rest Monell liability.

C

Identifying municipal action—or, as it were, inaction—is

only part of the requisite inquiry under Monell. The Supreme

Court has made plain that a failure to act amounts to munici-

pal action for Monell purposes only if the County has notice

that its program will cause constitutional violations. See Con-

nick, 563 U.S. at 61–62. Demonstrating that notice is essential

to an ultimate finding and requires a “known or obvious” risk

that constitutional violations will occur. Bryan County, 520

U.S. at 410.

In many Monell cases notice requires proof of a prior pat-

tern of similar constitutional violations. See id. at 62. This case

presents no such pattern. The district court declined to in-

struct the jury on the theory because it found insufficient evi-

dence of previous instances of sexual assault known to the

County. In so concluding, however, the district court

Nos. 18-1498, et al. 21

recognized that J.K.J. and M.J.J. had available another path to

show Polk County had the requisite notice.

The alternative path to Monell liability comes from a door

the Supreme Court opened in City of Canton v. Harris, 489 U.S.

378 (1989). The Court observed that there may, as here, be cir-

cumstances in which “the need for more or different training

is so obvious, and the inadequacy so likely to result in the vi-

olation of constitutional rights” that a factfinder could find

deliberate indifference to the need for training. Id. at 390. “In

that event, the failure to provide proper training may fairly be

said to represent a policy for which the city is responsible, and

for which the city may be held liable if it actually causes in-

jury.” Id. Put another way, a risk of constitutional violations

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

municipality’s failure to act can reflect deliberate indifference

and allow an inference of institutional culpability, even in the

absence of a similar prior constitutional violation.

The Court did not leave the liability point in any way ab-

stract. To the contrary, it gave the express example of “city

policymakers [who] know to a moral certainty that their po-

lice officers will be required to arrest fleeing felons.” Id. at 390

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

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

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

need to train officers in the constitutional limitations on the

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

to do so could properly be characterized as ‘deliberate indif-

ference’ to constitutional rights.” Id. (internal citation omit-

ted).

Drawing upon this precise example from City of Canton,

the Court has since reinforced that this doorway to Monell

22 Nos. 18-1498, et al.

liability remains ajar. In Bryan County, the Court confirmed

that City of Canton “did not foreclose the possibility that evi-

dence of a single violation of federal rights, accompanied by

a showing that a municipality has failed to train its employees

to handle recurring situations presenting an obvious potential

for such a violation, could trigger municipal liability.” 520

F.3d at 409. The Court explained that “in a narrow range of

circumstances,” deliberate indifference could be found when

the violation of rights is a “highly predictable consequence”

of a failure to provide officers what they need to confront “re-

curring” situations. Id. And even more recently, in Connick v.

Thompson, the Court renewed its prior observations that City

of Canton “sought not to foreclose the possibility, however

rare, that the unconstitutional consequences of failing to train

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

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

563 U.S. at 64.

Though the Supreme Court has yet to confront a case that

presents a viable Monell claim based on a municipality’s fail-

ure to act in absence of a pattern, our court has done so twice.

Our en banc decision in Glisson v. Indiana Department of Cor-

rections relied upon City of Canton to hold that an institution

could be liable for failing to adopt protocols for the coordi-

nated and comprehensive treatment of chronically ill inmates.

See 849 F.3d at 382. The inaction came at a time when the in-

stitution “had notice of the problems posed by a total lack of

coordination,” but then “despite that knowledge, did nothing

for more than seven years to address that risk.” Id. In reason-

ing fully applicable here, we concluded that a jury could find

that the prison knew for certain that its health providers

“would be confronted with patients with chronic illnesses,

and that the need to establish protocols for the coordinated

Nos. 18-1498, et al. 23

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

police officers would encounter situations where they would

need protocols on the use of excessive force. Id.

And in Woodward v. Correctional Medical Services of Illinois,

Inc., we upheld a jury’s Monell verdict against a jail’s

healthcare provider for an inmate’s suicide. See 368 F.3d at

929. The training on suicide prevention—a requirement un-

der the Eighth Amendment—was so inadequate and so

widely ignored that the contractor was on notice that a con-

stitutional violation was a “highly predictable consequence of

[its] failure to act.” Id. at 929 (citing Bryan County, 520 U.S. at

409). The trial evidence allowed the jury to infer that policy-

makers “noticed what was going on and by failing to do any-

thing must have encouraged or at least condoned” the mis-

conduct that caused the inmate’s death. Id. at 927. It did not

matter that no one had been hurt before, as the law allowed

no “one free suicide” pass. Id. at 929.

These teachings from the Supreme Court and our court

make plain that Monell liability based on a failure to act, at its

core, follows from a showing of constitutional violations

caused by a municipality’s deliberate indifference to the risk

of such violations. Sometimes the notice will come from a pat-

tern of past similar violations; other times it will come from

evidence of a risk so obvious that it compels municipal action.

But at all times and in all Monell cases based on this theory,

the Supreme Court has directed the focus on the presence and

proof of “a known or obvious” risk.

D

The jury had ample evidence to find that Polk County’s

policy failures—both the prevention and detection gaps in its

24 Nos. 18-1498, et al.

written policies and the absence of training—occurred in the

face of an obvious and known risk that its male guards would

sexually assault female inmates.

Start with the County’s affirmative obligation to protect its

inmates: “[W]hen the State takes a person into its custody and

holds [her] there against [her] will, the Constitution imposes

upon it a corresponding duty to assume some responsibility

for [her] safety and general well-being.” DeShaney v. Winne-

bago County Depʹt of Soc. Servs., 489 U.S. 189, 199–200 (1989).

Just as the healthcare contractor in Woodward shouldered a

constitutional duty to protect inmates from suicide, Polk

County bore the constitutional responsibility to protect its in-

mates from sexual assault. This requirement comes from the

Eighth Amendment, because “[b]eing violently assaulted in

prison is simply not part of the penalty that criminal offenders

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

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

were confined in circumstances where they depended on

male guards for nearly everything in their lives—their safety

as well as their access to food, medical care, recreation, and

even contact with family members. With this authority and

control for the guards came power and, in turn, access and

opportunity to abuse it. It is difficult to conceive of any setting

where the power dynamic could be more imbalanced than

that between a male guard and a female inmate. The jury

knew that from common sense—the reality was as obvious as

obvious could be—and they heard the point reinforced and

underscored through the testimony of J.K.J., M.J.J., and their

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

“there’s a male figure standing in front of me in a uniform

Nos. 18-1498, et al. 25

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

me.” The confinement setting is a tinderbox for sexual abuse.

But there was more. J.K.J. and M.J.J. presented evidence

that the County was aware of sexual misconduct happening

within its jail, rendering the risk to female inmates far from

hypothetical. The jury learned that Captain Nargis knew of

sexual comments male guards made about female inmates.

This was especially consequential because Nargis was respon-

sible for creating and implementing the jail’s policies and

standards, and his actions therefore could be attributed to the

County for the purpose of Monell liability. See Gernetzke v. Ke-

nosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001)

(“The question is whether the promulgator, or the actor, as

the case may be—in other words, the decisionmaker—was at

the apex of authority for the action in question.”); see also

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (employ-

ing similar reasoning). Captain Nargis even admitted to him-

self participating in “tier talk,” jailhouse chatter that the jury

easily could have found amounted to sexually inappropriate

banter—in a word, harassment. The tier talk bespoke volumes

about the jail’s culture—the exact point the district court un-

derscored as part of rejecting Polk County’s Rule 50 motion

challenging the jury’s verdict. A reasonable jury could have

viewed the jail’s denigrating culture as confirming the unde-

niable risk that a guard would grow too comfortable, lose his

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

County’s written policies.

If the County had looked the other way until this point,

the notice became undeniable when Captain Nargis learned

of Allen Jorgenson’s sexual misconduct against inmate N.S.

Recall the timing. Nargis learned of Jorgenson’s reported

26 Nos. 18-1498, et al.

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

wrote her letter explaining the predatory and escalating na-

ture of Jorgenson’s sexual pursuit of her within the jail. Recall,

too, the details: N.S. informed Nargis that Jorgenson’s con-

duct began with watching her (and other female inmates)

shower, grew to requests to expose her body for him, and in

time intensified to forcibly touching her in a sexual manner—

all the while ordering her to “keep quiet.”

A reasonable jury could have viewed the County’s learn-

ing of Jorgenson’s sexual exploitation of N.S. as sounding an

institutional alarm, making it “highly predictable,” if not cer-

tain, that a male guard would sexually assault a female in-

mate if the County did not act. Bryan County, 520 U.S. at 409.

By that point the risk was not only obvious, but blatantly so.

To be certain, the accusations of Jorgenson’s reprehensible

conduct fell short of rape. But it would be naive in the extreme

to dismiss the misconduct as no more than boorish behavior

or, more to it, providing no incremental notice of an obvious

risk.

The jury was not compelled to see Jorgenson’s conduct as

jailhouse horseplay, as guards somehow just being guards, or

anything of the sort. The evidence allowed the opposite con-

clusion: the jury was entitled to conclude that, separate and

apart from whatever discipline should befall Jorgenson, the

County had a plain example of predatory sexual behavior

staring it in the face. It took no imagination for the jury to see

parallels between Jorgenson’s escalating actions, cut short as

they were, and Christensen’s early abuse of J.K.J. and M.J.J.

See Cash v. County of Erie, 654 F.3d 324, 337 (2d Cir. 2011) (up-

holding a Monell jury verdict because “knowledge that an es-

tablished practice has proved insufficient to deter lesser

Nos. 18-1498, et al. 27

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

practice is also insufficient to deter more egregious miscon-

duct”). That Jorgenson’s grooming of N.S. did not end with

rape is no liability shield; it was good fortune. See Woodward,

368 F.3d at 929 (“That no one in the past committed suicide

simply shows that [the jail’s healthcare contractor] was fortu-

nate, not that it wasn’t deliberately indifferent.”).

And with red lights flashing, Polk County chose the one

unavailable option—doing nothing. It did not change its sex-

ual abuse policy, institute a training, inquire of female in-

mates, or even call a staff meeting. With the writing on the

wall, Polk County deliberately chose to stand still, or at least

a reasonable jury could have so concluded.

Having taken no action despite the obvious and known

risk of sexual assaults in its jail, Polk County could not claim

a lack of notice, much less surprise, upon learning that Chris-

tensen sexually assaulted J.K.J. and M.J.J. The County’s writ-

ten policies were lacking and its training on the topic was

barely existent. Even if the County somehow harbored a dif-

ferent perspective, that view became untenable upon learning

of Jorgenson’s misconduct. The jury could have viewed the

allegations of Jorgenson’s wrongdoing as exposing as false

any belief the County may have had that its barebones written

policy and training were enough to protect its female inmates

from sexual abuse. The County’s inaction following

knowledge that the existing program was not working—

Jorgenson’s sexual misconduct underscored that reality—was

sufficient to demonstrate deliberate indifference. Or, as the

Supreme Court put the same point in City of Canton, the ne-

cessity to act, whether by different training or new preventa-

tive measures, was “so obvious” and “the [existing]

28 Nos. 18-1498, et al.

inadequacy so likely to result in a violation of constitutional

rights” that a deliberate choice to stay the course could be

seen as a policy for which Polk County bears legal responsi-

bility. 489 U.S. at 390. We likewise reasoned in Glisson that

“the key is whether there is a conscious decision not to take

action” and the record allowed a reasonable jury to so find

because “the existence of the INDOC Guidelines [addressing

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

prison’s healthcare provider] was admittedly familiar, is evi-

dence that could persuade a trier of fact that Corizon con-

sciously chose the approach that it took”—“not to adopt the

recommended polices—not for Glisson, not for anyone.” 849

F.3d at 380, 381.

All of this is doubly true when coupled with other evi-

dence of Polk County’s deliberate indifference to sexual

abuse. Remember that the County’s investigation of Jorgen-

son ended with the considered conclusion that a reprimand

was adequate discipline. But even the reprimand came with

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

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

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

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

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

earning the confidence of the guards under his supervision—

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

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

338 (holding the jury could infer deliberate indifference to the

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

one-page memorandum was a “token response” to a prior in-

stance of lesser sexual misconduct).

Nos. 18-1498, et al. 29

Viewing this evidence all together, the jury could have

found that Polk County did little to reinforce the dignity and

respect owed female (and indeed all) inmates and instead

seemed to enable a culture that condoned the sexual objectifi-

cation of the women in its custody. Through this lens, Chris-

tensen’s repeated sexual assaults of J.K.J. and M.J.J. were not

the result of a “single instance of flawed conduct” but rather

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

safety … as well as a culture that permitted and condoned vi-

olations of policies that were designed to protect inmates.”

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

the confinement setting and power dynamic between male

guards and female inmates) was fully on display (following

the Jorgenson incident) within an institution that scoffed at

PREA, denigrated female inmates, and devoted not a word of

its policies or a minute of any training session to concrete

measures to prevent, detect, and respond to sexual assault.

The jury stood on solid evidentiary ground seeing the

County’s dormancy as more than oversight, but instead as de-

liberate inaction.

We recognize that policies can always be more robust, and

training can always be more thorough. PREA is not a consti-

tutional standard, and jails are not required to adopt it. Our

federal structure leaves the choices to state and local authori-

ties.

Our conclusion is more limited: the risks to female inmates

in the confinement setting are obvious—indeed, PREA owes

its very existence to that reality—and N.S.’s report of Jorgen-

son’s misconduct reinforced for Polk County that the risks

were real and acute in the jail. Faced with that notice, the

County had a legal obligation to act—to take reasonable steps

30 Nos. 18-1498, et al.

to reduce the obvious and known risks of assaults on inmates.

See Farmer, 511 U.S. at 844–45; Ortiz v. Jordan, 562 U.S. 180, 190

(2011) (reinforcing Farmer’s requirement of a reasonable re-

sponse). Just as a municipality cannot issue firearms to new

police academy graduates, wish them Godspeed on the

streets, and hope the new officers exercise sound judgment

when deciding whether circumstances warrant the use of le-

thal force—the precise example the Supreme Court provided

in City of Canton—Polk County could not, knowing all that it

did about the risk within its jailhouse walls, dispatch male

guards to stand watch over its female inmates equipped with

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

to abuse those under their care. The jury had enough to con-

clude that Polk County deliberately chose a path of inaction

when that option was off the table.

E

Much of the same evidence proving Polk County deliber-

ately indifferent to the constitutional consequences of its inac-

tion likewise illustrates that its indifference was the moving

force behind J.K.J. and M.J.J.’s injuries. “The high degree of

predictability” that constitutes notice, the Supreme Court has

emphasized, “may also support an inference of causation—

that the municipality’s indifference led directly to the very

consequence that was so predictable.” Bryan County, 520 U.S.

at 409–10. Having established that the jury could conclude

that the risk of constitutional injury—here, the sexual as-

saults—was obvious, it took but a small inferential step for the

jury to find causation. And inferences were required, for find-

ing causation is not a mechanical exercise like working a math

problem and getting an answer, but instead requires jurors to

view evidence in its totality, draw on their life experiences

Nos. 18-1498, et al. 31

and common sense, and then reach reasonable conclusions

about the effects of particular action and inaction.

The circumstantial evidence paved multiple roads for the

jury to travel to find that Polk County’s inaction caused J.K.J.

and M.J.J.’s constitutional injuries. The assaults did not end

until Christensen was reported, giving rise to an eminently

reasonable inference that if the County had put in place some

of Eiser’s proposed policies and training to prevent but espe-

cially detect sexual abuse, Christensen’s conduct would have

been exposed sooner, perhaps by one of his fellow guards. Or

it may have been reported by another inmate or even by the

victims themselves. J.K.J. and M.J.J. testified that they did not

feel comfortable reporting the abuse while they were still

within the jail. N.S. similarly waited before revealing the full

extent of Jorgenson’s conduct because she worried he would

make it “hell” for her there. If Polk County had different pol-

icies or training, its culture would have changed, including its

dismissive and flippant attitude toward sexual assault, and

these women or someone else may have felt able to report the

abuse at some point during the three-year period of Christen-

sen’s conduct.

Because any of these inferences from the evidence would

have been reasonable, the jury was entitled to conclude that if

Polk County had taken action in response to the glaring risk

that its female inmates’ health and safety were in danger,

J.K.J. and M.J.J.’s assaults would have stopped sooner, or

never happened at all.

The County presses a different view. It sees a guard’s sex-

ual abuse of an inmate as so patently wrong and so plainly

prohibited by Wisconsin law and the jail’s policy that no

amount of training and no enhancements to the institution’s

32 Nos. 18-1498, et al.

code of conduct could have made any difference. And this is

especially so, the County urges, given the lengths to which

Christensen went to hide his conduct. Put most bluntly, no

amount of training, no policy, no monitoring—nothing, liter-

ally nothing—could have prevented or detected what he did

to J.K.J. and M.J.J., or so the County would have it.

The County’s narrow fixation on Christensen exposes its

error. Monell liability did not hinge on predictions about

whether Christensen would have brought himself to stop

abusing J.K.J. and M.J.J. Maybe more robust policies could

have fostered a zero-tolerance culture in which Christensen

would not have felt free to openly harass female inmates,

thereby opening the door to his escalating abuse. Or they

could have caused Christensen to curb his conduct because of

a greater risk of detection—whether from closer monitoring,

more frequent guard rotations, or a policy preventing male

officers from being alone with female inmates. But maybe not.

The point need not detain us because the evidence allowed

the jury to conclude that the County’s acting to institute more

robust policies—foremost addressing prevention and detec-

tion—and then training on those policies would have resulted

in another correctional officer, an inmate, or even J.K.J. and

M.J.J. taking some step to stop Christensen’s sexual assaults.

The evidence did not require the jury to accept as inevita-

ble that Christensen’s conduct was unpreventable, undetect-

able, and incapable of giving rise to Monell liability. Admit-

tedly, “[p]redicting how a hypothetically well-trained officer

would have acted under the circumstances may not be an easy

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

the jury compelled to conclude that the sexual abuse suffered

by J.K.J. and M.J.J. had one and only one cause. See Whitlock

Nos. 18-1498, et al. 33

v. Brueggemann, 682 F.3d 567, 583 (7th Cir. 2012) (“[T]here is

no rule demanding that every case have only one proximate

cause.”). The law allowed the jury to consider the evidence in

its entirety, use its common sense, and draw inferences as part

of deciding for itself. Indeed, the Supreme Court envisioned

precisely that approach in City of Canton, observing that the

causation inquiry often will be complicated but emphasizing

that “judge and jury, doing their respective jobs, will be ade-

quate to the task.” 489 U.S. at 391.

* * *

Darryl Christensen’s long-term abuse of J.K.J. and M.J.J.

more than justified the jury’s verdict against him. And the

jury was furnished with sufficient evidence to hold Polk

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

but rather the County’s own deliberate choice to stand idly by

while the female inmates under its care were exposed to an

unmistakable risk that they would be sexually assaulted—a

choice that was the moving force behind the harm inflicted on

J.K.J. and M.J.J. The jury so concluded, and we AFFIRM.

34 Nos. 18-1498, et al.

HAMILTON, Circuit Judge, concurring. I join Judge Scud-

der’s opinion for the court. In light of comments in the dis-

senting opinions, it is worth emphasizing that the Monell

claims against the county are based on much more than

whether guards knew right from wrong or knew that it was a

crime to have sex with inmates. The Monell claims are also

based on the county’s failure to monitor its guards and its fail-

ure to provide effective channels for complaints so as to dis-

courage such abuse.

To illustrate the point, consider an analogy involving only

greed, rather than lust and a guard’s horrific abuse of power

over inmates. Any bank will train its tellers that they should

not steal and that theft is a crime. All tellers know that

whether they receive the training or not. Suppose, though,

that a bank’s managers fail to conduct regular audits of tellers’

cash drawers. Most tellers are honest despite the lack of over-

sight, but one gives in to temptation. Managers later discover

that the one teller has been stealing money for years. The risk

of embezzlement, even by tellers who know the law and the

rules, is obvious. So is the need for audits. The risk and need

are so obvious that the bank’s stockholders could easily find

that its managers (i.e., its policymakers) were not merely neg-

ligent but deliberately indifferent (i.e., reckless) toward this

obvious and known risk, even if only one teller gave in to the

temptation. The same logic applies here to Christensen, who

repeatedly gave in to the temptation to abuse his power over

inmates.

Nos. 18-1498, et al. 35

EASTERBROOK, Circuit Judge, dissenting in part. I agree

with the majority that the verdict against Christensen is

sound and with Judge Brennan that the verdict against Polk

County is not. Because this appeal has occasioned so much

ink, and my assessment differs somewhat from that of my

colleagues, I have concluded that it would be helpful to state

briefly why I find the claim against the County lacking.

The majority recognizes that the County’s stated policy—

no sexual contact between guards and inmates—satisfies the

Constitution. It faults the County for failing to train guards

about that policy. Yet the Constitution does not require

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

does the Constitution require every municipality to imple-

ment current understandings of best practices, such as the

Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301–09

(PREA). The duty is to avoid unconstitutional policies. We

are supposed to assess the validity of the policies—that is to

say, the policymakers’ decisions—not how well subordinates

implement those policies.

Connick is the only decision in which the Justices assessed

on the merits a contention that a unit of government violated

the Constitution by inadequate training that failed to avert

one particular bad outcome. It rejected the claim. The rea-

sons the Court gave are true of the Jail as well. Christensen is

the one and only rapist among the guards; no prior, similar

incidents notified the County about looming problems. And

as soon as supervisors learned of Christensen’s misconduct,

the County ended his employment and put him in prison

himself. See slip op. 4. This could well have avoided liability

for an employer under Title VII of the Civil Rights Act of

1964, a statute that unlike 42 U.S.C. §1983 allows vicarious

36 Nos. 18-1498, et al.

liability. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). Liability

under Monell v. New York City Department of Social Services,

436 U.S. 658 (1978), is supposed to be harder and depend on

the validity of the policy.

One major reason why Connick (and every other decision

by the Supreme Court in which failure to train was ad-

vanced as a theory of liability) found no municipal liability is

that the Court sees knowledge as the proper goal of training.

Canton v. Harris, 489 U.S. 378, 390 n.10 (1989), observed:

[C]ity policymakers know to a moral certainty

that their police officers will be required to ar-

rest fleeing felons. The city has armed its offic-

ers with firearms, in part to allow them to ac-

complish this task. Thus, the need to train of-

ficers in the constitutional limitations on the

use of deadly force, see Tennessee v. Garner, 471

U.S. 1 (1985), can be said to be “so obvious,”

that failure to do so could properly be charac-

terized as “deliberate indifference” to constitu-

tional rights.

In other words, a policy such as “comply with the Fourth

Amendment” is useless to non-lawyers without information

about what compliance entails. Is it lawful to shoot a fleeing

felon? If the answer depends on ongoing danger, how much

danger justifies deadly force? A city that stops with “obey

the Constitution” lacks a genuine policy.

Contrast that with Polk County. One statewide rule, re-

flected in a criminal law, forbids sexual intercourse or con-

tact between guards and prisoners. Wis. Stat. §940.225(2)(h).

Nos. 18-1498, et al. 37

The Jail reinforces this by forbidding “an intimate social or

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

policies says:

under no circumstances will any inmate be the

object of verbal, physical, emotional, psycho-

logical, or sexual harassment by facility staff.

Any officer engaged in such actions is subject

to disciplinary charges and/or termination.

I can see a need for explication about “emotional” or “psy-

chological” harassment, but anyone can understand the rule

against intimate physical relations between guards and in-

mates. The Jail made sure that every guard knew about this

rule. What training is required to get guards to grasp it? The

problem is not a want of comprehension (as in Canton’s hypo-

thetical) but a want of compliance. Yet subordinate employ-

ees’ failure to comply with a valid policy is not a ground of

liability against a municipality.

The difference between comprehension and compliance

is vital to understanding when training is required. Plaintiffs

do not argue that training is essential to guards’ comprehen-

sion. It ought to follow that the County is not liable.

I could imagine the possibility of liability—under a theo-

ry that a policy is irrelevant if it is nothing but a paper

tiger—when evidence shows that training makes all the dif-

ference between a policy that works and a policy that does

not. But plaintiffs have not made such an argument. Consid-

er two possibilities that might have been relevant if the goal

were to expand liability beyond anything the Supreme Court

has yet recognized.

38 Nos. 18-1498, et al.

First, was Polk County Jail rife with sexual crimes com-

mitted by guards? Plaintiffs concede that the answer is no.

They acknowledge that there had not been an instance of

improper sexual contact before Christensen. Plaintiffs also

acknowledge that the Polk County Jail was no worse on re-

lated subjects than other institutions, some of which used the

training programs that the Jail did not. Plaintiffs’ expert tes-

tified that the Jail had a “good” record overall. My col-

leagues in the majority refer to “the jail’s broken culture”

(slip op. 28) but do not compare the Jail with the results

achieved by other institutions that require guards to spend

more time in training. If training does not improve out-

comes, its absence cannot spoil an otherwise valid policy.

Second, does the social science literature, or any expert

evidence in this record, show that more training achieves

better compliance with simple rules such as “no intimate

contact between guards and inmates”? The plaintiffs did not

offer any such evidence, their expert conceded that there is

none, and my search through scholarly sources did not turn

any up. Unless evidence shows that more training markedly

decreases the prevalence of sexual misconduct by guards (or

by employees at private firms), liability based on the lack of

such training is just vicarious liability by another name.

Law schools must offer courses in legal ethics, because

education can be vital to understand complex doctrines such

as the attorney-client privilege and the rules against conflict

of interest. But law schools do not try to “train” law students

not to steal from clients’ trust funds or rape people who

come to them in search of advice. Implementing rules

against theft and rape does not depend on imparting infor-

Nos. 18-1498, et al. 39

mation to would-be lawyers, so training is not how to

achieve compliance.

Threats of criminal prosecution or losing one’s livelihood

offer better prospects of deterring malicious conduct. Polk

County threatened guards with both kinds of punishment,

and it carried through against Christensen. Those steps

show vividly that the Jail does not tolerate sexual abuse of

prisoners—that the policy is not just a cynical attempt to de-

flect liability. I do not see anything in the Constitution that

prevents a county from electing deterrence and incapacita-

tion as the means of enforcing its policies.

A belief that people can be trained (or perhaps condi-

tioned) not to commit crimes underlies the rehabilitation

model of criminal punishment. But many years of scholarly

study failed to produce support for that model, which has

been abandoned. Today punishment for the purpose of re-

habilitation is forbidden, at least in the national courts. See

18 U.S.C. §3582(a); Tapia v. United States, 564 U.S. 319 (2011).

Faith in the power of training to reduce crime is no more ap-

propriate when applied to suits under §1983.

In sum, plaintiffs have not tried to show that the rule

against guards’ intimate contact with prisoners is hard to

understand (in general, or for the Jail’s guards in particular).

That leaves nothing for a jury to consider. The suit fails for

legal reasons.

Evidence that earlier violations of the Jail’s policy were

tolerated by slaps on the wrist would be better proof that the

“real policy” differed from the written one, but only if the

toleration were attributable to the County rather than to

subordinates. If policymakers create a valid rule that is sabo-

40 Nos. 18-1498, et al.

taged by persons lower in the hierarchy, liability is supposed

to fall on those persons rather than the governmental entity.

That is how Monell differs from respondeat superior.

At all events, in a case based on a theory of single-

incident liability, which is how my colleagues treat this suit,

evidence about laxity concerning less-serious matters is ir-

relevant. Consider Connick once again: The Justices recog-

nized that the prosecutor’s office in Orleans Parish had vio-

lated the Brady doctrine repeatedly but held that this did not

show a toleration of wrongdoing. If that was not enough in

Connick, the Jail’s failure to control lewd talk or do more in

response to one guard’s sexual harassment is categorically

insufficient to make the County liable for a different guard’s

rapes.

The question under Monell is not whether the County

could have done better at inducing compliance with its

rules. With the benefit of hindsight, that’s always possible.

The question is whether the County had a constitutional pol-

icy. If Monell is to be overruled, and vicarious liability estab-

lished, that should be done forthrightly (and by the Supreme

Court), rather than via the roundabout route the majority

has devised.

Nos. 18-1498, et al. 41

BRENNAN, Circuit Judge, with whom BAUER and SYKES, Cir-

cuit Judges, join, dissenting in part.

The majority opinion holds a municipal employer liable

under § 1983 for a failure to train and a failure to supplement

policies because its employee did what those policies and

training expressly forbade him to do.

Liability is based on the single-incident theory hypothe-

sized in City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10

(1989). The “rare” and “narrow circumstances” under which

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

U.S. 51, 63, 64 (2011). Nor does this case meet the stringent

fault and causation requirements set by the Supreme Court to

prove § 1983 liability.

The majority opinion upholds a jury verdict finding a

county liable for a jail guard’s repeated rapes of two inmates.

It does so without any evidence that Polk County actually and

directly caused the plaintiffs’ terrible injuries, and no affirm-

ative link between the County’s policies and the guard’s

crimes.

It is undisputed that these horrible crimes were perpe-

trated without the County’s knowledge. It is also undisputed

that no pattern of similar violations put the County on notice

of a need for specific training that would have prevented

these sexual assaults. Yet the majority opinion concludes the

same evidence that failed to show notice under pattern liabil-

ity shows notice under single incident liability, as well as cau-

sation.

This court’s decision stands alone, unaided by precedent.

The Supreme Court has never ruled that a Monell claim based

on a municipality’s failure to act is viable in the absence of a

42 Nos. 18-1498, et al.

pattern. No federal appellate court has extended the single-

incident exception to the sexual assault context. Nor has a fed-

eral appellate court applied that exception when the

employee’s compliance with the municipality’s policy and

training would have prevented the injuries. And no federal

appellate court has held that specialized training is required

for an employee to know that rape is wrong.

Because the legally deficient constitutional claim against

the County never should have gone to the jury, I respectfully

dissent in part.1

I. Background

The facts as I understand them are described below, re-

counting the evidence in a light most favorable to the verdict

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

Cir. 2019), and noting disagreement with how some facts are

set forth in the majority opinion.

M.J.J. and J.K.J. were female inmates at Polk County Jail at

various times between 2011 and 2014, and guard Darryl

Christensen admits he covertly and repeatedly sexually as-

saulted them. Plaintiffs suffered serious injustices and trau-

matic injuries because of Christensen. The question is

whether Polk County bears legal responsibility for Christen-

sen’s actions.

A. Trial Evidence

Plaintiffs made four principal allegations against the

County at trial: (1) the jail’s sexual assault policies and train-

ing were inadequate; (2) the jail tolerated sexually offensive

1The majority opinion is correct that Christensen’s appeal fails, and this

dissent is limited to the question of the County’s liability.

Nos. 18-1498, et al. 43

comments by guards; (3) a former guard’s alleged misconduct

shows the jail’s sexual assault policy was deficient; and (4) the

jail underutilized recommendations under the Prison Rape

Elimination Act, 34 U.S.C. §§ 30301–09. After considering the

evidence in support of these allegations, the jury reached a

verdict against the County.

1. Policies and training

The jury considered several County policies prohibiting

sexual contact between guards and inmates. Two stand out.

Policy I-100 forbids any mistreatment or harassment of in-

mates, explains inmates’ rights, and instructs staff that it is

never acceptable for “any inmate [to] be the object of verbal,

physical, emotional, psychological, or sexual harassment by

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

such actions is subject to disciplinary charges and/or termina-

tion.” Similarly, policy C-202 prohibits any “intimate social or

physical relationship with a prisoner.” That policy also in-

forms jail staff that sexual contact with any inmate is a crimi-

nal offense under Wisconsin law and any officer that suspects

such conduct has a duty to report it. See Wis. Stat.

§ 940.225(2)(h) (categorizing sexual contact and sexual inter-

course by a correctional staff member with an inmate as a

Class C felony).

In language consistent with these policies, inmates are

provided a handbook upon arrival at the jail that says:

Every inmate has the right to be safe from sex-

ual abuse and harassment. No one has the right

to pressure you to engage in sexual acts. If you

are being pressured threatened, or extorted for

sex, you should report this to staff immediately.

44 Nos. 18-1498, et al.

Plaintiffs’ opinion witness on prison training standards,

Jeffrey Eiser, testified that the jail’s policies prohibited sexual

contact between inmates and guards. Eiser also corroborated

that the County trained Christensen that sexual contact with

inmates was a felony and against jail policy. Christensen said

the same. At trial he acknowledged the jail trained him that

sexual contact with inmates is against jail policies and a fel-

ony. Specifically, Christensen testified:

 He knew his assaults violated jail policy;

 He was trained his assaults were a crime;

 He knew he was putting plaintiffs at risk;

 He never forgot that sex with inmates was a crime; and

 He did not require more training to know his assaults

were a crime.

The jail’s onboarding and continuing education programs

also instruct employees that sexual contact with prisoners is a

crime and never permitted. The Wisconsin Department of

Corrections annually approved these programs, requiring: (1)

eight to ten weeks of “field training,” during which a new cor-

rections officer shadows an experienced officer to learn jail

policies and procedures; (2) completion of a 160-hour jail

training program to become a certified corrections officer; (3)

24 hours of continuing education each year to be recertified;

and (4) daily training, which includes specific training on the

jail’s prohibition against fraternizing with inmates.

The majority opinion expresses concern that “the trial rec-

ord … contained no evidence showing that … anyone from

the County dedicated any portion of any training session to

reviewing the jail’s written policies.” Majority op. at p. 9. But

Sergeant Steven Schaefer of the Polk County’s Sheriff’s de-

Nos. 18-1498, et al. 45

partment, who worked at the jail from 2002 until 2015, testi-

fied that “[o]ne of the methods of training within [the] jail was

to have jail staff review policies on a routine basis.” “[T]rain-

ing on policies related to improper sexual relations or im-

proper relationships with inmates,” Schaefer continued, were

part of that “routine training,” including policies I-100 and

C-202. Despite Schaefer’s testimony to the contrary, plaintiffs’

counsel told the jury during closing argument: “You heard

Sergeant Schaefer say, ‘We never trained on it. We never

trained on it. We never trained on it.’” Plaintiffs’ counsel con-

tinued that misrepresentation in their appeal brief which de-

clares: “Sergeant Steven Schaefer also testified to never receiv-

ing any training regarding sexual assault”; and Schaefer

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

time.” Appellees’ Br. at 13.

In addition to the training above, Schaefer testified “[cor-

rectional officers] were all required to attend” countywide

training on sexual harassment, and he provided the training

to new employees from time to time. This training, according

to Schaefer, instructed guards on the jail’s numerous prohibi-

tions on conduct between staff and inmates, including im-

proper comments, becoming too close or too familiar, sharing

personal information, sexual relationships, and sexual as-

saults. Schaefer agreed that improper relationships between

inmates and guards was “something that the jail as a whole

took very seriously.” Consistent with that concern, Schaefer

testified that “Christensen had dishonored and disgraced eve-

rything the sheriff’s department was about” and that

Christensen’s behavior was “a betrayal of the [jail’s] ethical

standards.”

46 Nos. 18-1498, et al.

The majority opinion describes the County’s training as

“vague cautions” and “nearly nonexistent.” Majority op. at p.

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

maintaining distance from inmates, but “no testimony to sug-

gest that training touched the topic of sexual assault” and that

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

Schaefer “denied any memory of being told that it was im-

proper for jail officers to have sexual relationships with in-

mates.” Id.

Schaefer testified differently than that. He stated when he

trained new jail officers, he trained them not to engage in too

familiar relationships with inmates, and that “too familiar”

would include an officer having sex with an inmate. He also

agreed the jail’s training included training on policies about

“improper sexual relations or improper relationships with in-

mates.” Schaefer also attested he received training on Polk

County Jail’s policies including C-202 (fraternization with in-

mates) and specifically those provisions prohibiting physical

relationships with prisoners.

2. Inappropriate speech

Plaintiffs alleged that jail staff routinely made sexually in-

appropriate comments about female inmates. They pointed to

Captain Scott Nargis, who oversaw daily operations of the

jail. During Nargis’s adverse examination at trial, plaintiffs’

counsel asked if he ever “engaged in tier talk which is not nec-

essarily flattering talk amongst co-workers,” and Nargis re-

sponded “yes.” Nargis also agreed that he participated in tier

talk “on occasion” to establish trust among subordinate offic-

ers. When Nargis admitted to “tier talk,” he did so within

plaintiffs’ definition (“not necessarily flattering talk”). Plain-

tiffs did not present evidence that tier talk connoted “sexual

Nos. 18-1498, et al. 47

talk,” that Nargis’s “tier talk” was sexually explicit, or that

Nargis made comments sexual in nature with, about, or

around inmates or guards. The only reference at trial to “tier

talk” occurred during plaintiffs’ cross-examination of

Nargis.2

The majority opinion accepts plaintiffs’ new, sexually-

charged definition of “tier talk.” Majority op. at p. 19 (finding

that “tier talk” implied “acceptance of sexual harassment at

the jail’s highest levels”).3 While this court views the facts in

the light most favorable to the jury’s verdict, it need not draw

unreasonable inferences, see Tindle v. Pulte Home Corp., 607

F.3d 494, 496 (7th Cir. 2010), or define terms differently than

they were used at trial.

The evidence at trial of sexually inappropriate remarks by

jail staff was as follows: (1) J.K.J. testified two officers over-

heard Christensen making flirtatious comments to inmates;

(2) Christensen testified he overheard three guards make sex-

ual comments to inmates; and (3) Nargis testified that over a

twelve-year period Christensen made one sexually inappro-

priate comment and “it could have happened” that Christen-

sen made another.

2 Plaintiffs’ counsel in their appeal brief were less than candid with this

court when they wrote: “Captain Nargis routinely engaged in sexually ex-

plicit ‘tier talk.’” Appellees’ Br. at 14.

3 The district court’s order on the County’s Rule 50 motion also assumes

“tier talk” had a sexual implication despite the lack of any trial evidence

or definition that “tier talk” included a sexual component. See Opinion

and Order at 8–9, J.K.J. v. Polk Cty., No. 15-CV-428 (W.D. Wis. Feb. 5, 2018),

ECF No. 279.

48 Nos. 18-1498, et al.

The specifics of these comments are as follows: The flirta-

tious comments overheard by J.K.J. and Christensen were

unreported, unspecific, and undated. Neither J.K.J. nor Chris-

tensen offered details on the alleged comments or the

timeframe in which they occurred, and there was no evidence

the County had notice of these comments. Nargis testified

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

not recall but “it could have happened” that Christensen com-

mented on a female’s “rear end.” Nargis also recalled being

told that Christensen once remarked about an inmate’s

breasts. The majority opinion extrapolates from these two in-

stances when it states: “Captain Nargis confirmed hearing

that Christensen had made inappropriate sexual comments

about women in general.” Majority op. at p. 7.

3. Investigation of former guard

No one disputes that Christensen’s assaults were unprec-

edented and hidden from jail officials. Apart from Christen-

sen, the jail’s history contains only one other allegation of

sexual contact between a jail guard and an inmate: another

inmate saw guard Allen Jorgeson put his arm around inmate

N.S.’s waist and “pat her on the butt.” This occurred in 2012,

two years before Christensen’s assaults were discovered.4

Schaefer reported these allegations to Nargis, who in turn

questioned Jorgenson and N.S. individually. Each denied any

improper relationship or contact. Despite these denials,

Nargis requested the assistance of Chief Deputy Sheriff Ste-

ven Moe to further investigate Jorgenson.

4 Christensen’s assaults began in 2011, and the County first learned of

them on October 29, 2014.

Nos. 18-1498, et al. 49

The findings of that investigation revealed that another in-

mate believed Jorgenson and N.S. had an “inappropriate re-

lationship” but “no physical relationship,” and that Jorgenson

allegedly misused a jail camera to focus on female inmates

longer than necessary. Nargis and Moe did not limit their in-

vestigation to internal inquiries, reaching out to former in-

mates as part of their review. Because of inconsistent witness

accounts, including N.S.’s denial, Nargis and Moe could not

confirm that Jorgenson engaged in any sexual contact with

N.S. They did conclude that Jorgenson’s affiliation with N.S.

violated jail policy. As a result, Jorgenson was issued a writ-

ten reprimand. Up until this point, N.S. continued to deny

Jorgenson acted improperly.

Days after Jorgenson’s reprimand, N.S. recanted her deni-

als in a letter to Nargis. N.S.’s letter stated that Jorgenson

made sexually harassing gestures and indecent remarks, and

said Jorgenson put his arm around N.S.’s waist and touched

her ”back and butt.” As a result of this letter Nargis and Moe

reopened the investigation “to take a whole fresh look at the

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

could not confirm N.S.’s allegations and decided the repri-

mand of Jorgenson remained the proper level of discipline. At

trial, no evidence was submitted that Nargis or Moe erred in

the Jorgenson investigation or performed their inquiries in

bad faith.

Jorgenson made sexually inappropriate comments to fe-

male coworkers, which the County does not dispute. When

staff first notified jail authorities of Jorgenson’s behavior to-

wards coworkers, an investigation ensued, leading to Jorgen-

son’s resignation. It is undisputed that Jorgenson’s comments

to staff went unreported until the N.S. investigation. It is also

50 Nos. 18-1498, et al.

undisputed that in the nine years preceding trial, 14,100 in-

mates came though the jail, and the Jorgenson circumstance

was the only known allegation of an improper relationship

between a guard and an inmate.

The majority opinion recounts N.S.’s letter in detail. The

letter was admitted, however, only for the limited, non-hear-

say purpose of notice. The letter could not be considered on

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

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

end with rape is no liability shield; it was good fortune.”).

On Schaefer’s testimony about Jorgenson, the majority

opinion states “Schaefer reported that Jorgensen had touched

N.S. on her waist and rear end, adding that the complaints did

not come as a surprise because ‘[w]e have all heard com-

plaints about [Jorgenson’s] inappropriate comments to both

inmates and staff.’” Majority op. at p. 4. But Schaefer’s quoted

testimony spoke of improper comments, not improper touch-

ing. As to those comments, Schaefer could not recall an exam-

ple of Jorgenson making an improper comment to an inmate.

Schaefer also testified that none of the Jorgenson comments to

staff or inmates that he knew of rose to a level requiring dis-

cipline.

4. Prison Rape Elimination Act (PREA)

PREA played a large role in plaintiffs’ case. They argued

the jail failed to implement its policy recommendations,

showing a lack of concern for preventing and detecting sexual

assaults. Plaintiffs claimed Nargis openly “deni-

grated … PREA standards.” For this assertion, plaintiffs cited

a 2014 email from Nargis to jail staff which stated:

Nos. 18-1498, et al. 51

Seems to be that everyone is in a tizzy to train

their staff on PREA. There is no requirement for

use [sic] to be compliant with everything that

the law calls for, but nevertheless it is federal

law. So we’ll hit the basics of PREA training.

At trial plaintiffs called this the “tizzy” email. Plaintiffs ar-

gued Nargis’s choice of the word “tizzy” was “mocking” of

PREA and “indicat[ed] that he disliked PREA.” Plaintiffs also

claimed the email never discussed any specific PREA

measures, but merely restated the jail’s current anti-sexual as-

sault policies. Plaintiffs argued the “tizzy” email proves that

Nargis and the jail “consciously disregarded” PREA stand-

ards and thus disregarded the risk of sexual assaults at the

jail.

Plaintiffs’ opinion witness Eiser grounded his testimony

on PREA’s recommendations, opining that the jail’s sexual as-

sault policies and training were inadequate because they did

not fully adopt several components of PREA. Eiser also testi-

fied there is no empirical data that compliance with PREA

yields better results. And he conceded that PREA-compliance

is not mandatory for county jails in Wisconsin, and that its

standards are better viewed as “best practices.” Eiser agreed

the County had a good record on sexual assaults—even fac-

toring in Jorgenson’s misconduct—because of the lack of inci-

dents of sexual contact between guards and inmates, much

less criminal sexual assaults like Christensen’s.

Plaintiffs agreed that state law, not PREA, governs county

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

sexual assault policies or training fell below state legal or ad-

ministrative standards. As for compliance with state law, the

County presented evidence that the Wisconsin Department of

52 Nos. 18-1498, et al.

Corrections annually reviews the jail’s policies, including its

policy prohibiting fraternization with inmates. In each year of

plaintiffs’ incarcerations, that Department found the jail to be

in full compliance with all applicable Wisconsin statutes and

regulations. Language addressing PREA was added to the

jail’s anti-fraternization policy in 2012, with an accompanying

PREA training in 2014.

II. Municipal Liability and the Law of Monell

Municipal liability under § 1983 as set by the Supreme

Court has traveled a winding route. But that route has a con-

stant beacon to courts: each case examines what federal power

may be exercised over state and municipal governments and

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

structural limits of federalism. These precedents are disposi-

tive here and warrant detailed review before their applica-

tion. They prescribe a different outcome than reached by my

colleagues in the majority.

The first is Rizzo v. Goode, 423 U.S. 362, 365–66 (1976), in

which the Court struck down a district court order requiring

police training reforms for violating federalism principles.

The Court held “there was no affirmative link between the oc-

currence of the various incidents of police misconduct and the

adoption of any plan or policy by petitioners … showing their

authorization or approval of such misconduct.” Id. at 371. The

Court also dismissed plaintiffs’ argument that “even without

a showing of direct responsibility for the actions of a small

percentage of the police force,” the local government’s failure

to act in the face of a pattern is actionable. Id. at 375–76. The

Court distinguished the mere failure to act in the face of a pat-

tern of incidents from “active conduct,” rejecting the argu-

ment that a pattern alone creates a “constitutional duty” to

Nos. 18-1498, et al. 53

develop preventative procedures to deter speculative abuses.

Id. at 372, 375–76, 378. The Court also rejected “invocation of

the word ‘pattern’ in a case where … the defendants are not

causally linked to it.” Id. at 375–76.

Federalism, the Court made clear in Rizzo, governed its

holding. Id. at 377–80. The district court’s injunctive relief, the

Court ruled, had “departed from the[] precepts” of federalism

“[w]hen it injected itself … into the internal disciplinary af-

fairs of this state agency.” Id. at 380. “[T]he principles of fed-

eralism,” the Court admonished, “play such an important

part in governing the relationship between federal courts and

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

relief is sought against local governments. Id.

Rizzo formulated the heightened causation requirement

between a policy and a constitutional violation now integral

to all § 1983 claims. See Polk Cty. v. Dodson, 454 U.S. 312, 326

(1981) (citing Rizzo, 423 U.S. at 370–77, for the proposition that

an official policy “must be the moving force” of the constitu-

tional violation). It also constrained federal courts from “sec-

ond-guessing municipal employee-training programs” to

avoid “implicat[ing] serious questions of federalism.” Canton,

489 U.S. at 392 (citing Rizzo, 423 U.S. at 378–80).

In Monell v. New York City Dept. of Social Servs., 436 U.S. 658

(1978), the Court adopted Rizzo’s federalism-influenced

requirements and set parameters for establishing municipal

liability. In Monell, the Court considered “[w]hether local gov-

ernmental officials and/or local independent school boards

are ‘persons’ within the meaning of 42 U.S.C. § 1983.” Id. at

662. Based on “[a] fresh analysis of the debate on the Civil

Rights Act of 1871,”id. at 665, the Court held that the Act

54 Nos. 18-1498, et al.

“compell[ed] the conclusion that Congress did intend munic-

ipalities and other local government units to be included

among those persons to whom § 1983 applies.” Id. at 690. So

local governments could properly be sued as “persons”

within the meaning of § 1983.

Although Monell exposed municipalities to § 1983 law-

suits, the Court circumscribed how that statute applied to

them. In particular, the Court limited claims against munici-

palities in two ways by holding that liability under § 1983 can-

not be predicated on a theory of respondeat superior, and that a

municipality’s own policy or custom must be the “moving

force” behind the constitutional violation. Id. 691–92. The

Court interpreted the statute’s use of the verbs “subject[s], or

causes to be subjected” as requiring a municipality’s direct in-

volvement, as opposed to liability on a vicarious basis. Id. at

692. Thus, the court ruled that the “mere right to control with-

out any control or direction being exercised” cannot support

§ 1983 liability. Id. (citing Rizzo, 423 U.S. at 370–71). For those

reasons, a local government is liable under § 1983 only “when

execution of a government’s policy or custom … inflicts the

injury.” Id. at 694. The policy or custom must be the “moving

force” behind, or actual cause of, the constitutional injury. Id.

The municipality in Monell officially adopted an unconsti-

tutional policy, so the municipality itself “unquestionably”

caused the constitutional violation. Id. at 690, 694–95. Monell

left unanswered whether plaintiffs could establish municipal

liability by alleging unofficial policies, especially those of mu-

nicipal inaction or inadequate training, such as here. Over

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

the Court has set the requirements to establish municipal lia-

bility for failure to train, liability has become more difficult to

Nos. 18-1498, et al. 55

find. These decisions always steer clear of respondeat superior.

Underlying those decisions, and the requirements they im-

pose, are the federalism principles articulated in Rizzo and the

Court’s intent to harmonize § 1983 with those principles.

First of the municipal training cases was City of Oklahoma

City v. Tuttle, 471 U.S. 808 (1985). In Tuttle, seven Justices re-

jected an instruction that permitted the jury to infer liability

attributable to inadequate training from a single incident of

unconstitutional activity by a non-policymaking employee.

Id. at 821 (plurality opinion) (“We think this inference unwar-

ranted … [because it] allows a § 1983 plaintiff to establish mu-

nicipal liability without submitting proof of a single action

taken by a municipal policymaker.”); id. at 830 (Brennan, J.,

concurring in part and concurring in the judgment) (“Under

the instruction in question, the jury could have found the city

liable solely because [the officer]’s actions on the night in

question were so excessive and out of the ordinary. A jury

finding of liability based on this theory would unduly

threaten petitioner's immunity from respondeat superior liabil-

ity.”).

Four years later, the Court further shaped the contours of

inadequate training liability in Canton. There, the plaintiff

sued the city for failing to adequately train its police when to

summon medical care for injured detainees. 489 U.S. at 381.

On the question of fault, the Court held that a claim of inade-

quate training triggers municipal liability “only where the

failure to train amounts to deliberate indifference to the rights

of persons with whom [municipal employees] come into con-

tact.” Id. at 388. A municipality can be liable under § 1983

“[o]nly where a failure to train reflects a ‘deliberate’ or ‘con-

scious’ choice” not to fully train employees. Id. at 389. Such a

56 Nos. 18-1498, et al.

deliberate choice could be shown when “in light of the duties

assigned to specific officers or employees the need for more

or different training is so obvious, and the inadequacy so likely

to result in the violation of constitutional rights, that the poli-

cymakers of the city can reasonably be said to have been de-

liberately indifferent to the need.” Id. at 390 (emphasis

added).

Canton offered two examples of what “so obvious” means.

First, police may “so often violate constitutional rights that

the need for further training must have been plainly obvious

to the city policymakers.” Id. at 390 n.10.5 In the second exam-

ple, the Court left open the possibility—now known as the

“single-incident theory”—that a pattern of similar violations

might not be necessary to show deliberate indifference. To

prevail under this theory, a plaintiff must prove that munici-

pal “policymakers know to a moral certainty” that its employ-

ees will confront a given situation and fail to train for it. Id.

To illustrate a single incident scenario, the Court posed the

hypothetical of a city that arms its police force with guns and

deploys those officers into the public without training. As the

5 Expounding on this principle, and foreshadowing the Court’s holdings

in Bryan Cty., Okl. v. Brown, 520 U.S. 397, 407–08 (1997), and Connick v.

Thompson, 563 U.S. 51, 62 (2011), Justice O’Connor wrote in concurrence:

“[M]unicipal liability for failure to train may be proper where it can be

shown that policymakers were aware of, and acquiesced in, a pattern of

constitutional violations … .” City of Canton, Ohio v. Harris, 489 U.S. 378,

397 (1989) (O’Connor, J., concurring in part and dissenting in part). “Al-

lowing an inadequate training claim” without proof of a pattern “to go to

the jury based upon a single incident,” Justice O’Connor continued,

“would only invite jury nullification of Monell.” Id. at 399.

Nos. 18-1498, et al. 57

Court explained, given the known frequency with which po-

lice encounter fleeing felons plus the “predictability that an

officer will lack specific tools to handle those situations,” “the

need to train officers in the constitutional limitations on the

use of deadly force … can be said to be ‘so obvious’ that the

failure to do so could properly be characterized as ‘deliberate

indifference’ to constitutional rights.” Id. at 390 n.10; see also

Connick, 563 U.S. at 63 (explaining same) (quoting Bryan Cty.,

520 U.S. at 409).

But in either scenario, a plaintiff cannot establish that a

municipality acted with deliberate indifference for failing to

train employees for rare or unforeseen events. Relying on

Rizzo, the Court in Canton stressed the need for a rigorous

fault standard because:

[A] lesser standard of fault would result in de

facto respondeat superior liability on municipali-

ties … . It would also engage federal courts in

an endless exercise of second-guessing munici-

pal employee-training programs. This is an ex-

ercise we believe the federal courts are ill suited

to undertake, as well as one that would impli-

cate serious questions of federalism.

Id. at 392 (citing Rizzo, 423 U.S. at 378–80).

As for causation, Canton cautioned that just because “a

particular officer may be unsatisfactorily trained will not

alone suffice to fasten liability on the city, for the officer’s

shortcomings may have resulted from factors other than a

faulty training program.” Id. at 390–91 (citations omitted).

“And plainly, adequately trained officers occasionally make

mistakes; the fact that they do says little about the training

58 Nos. 18-1498, et al.

program or the legal basis for holding the city liable.” Id. at

391. “Neither will it suffice,” the Court stated, “to prove that

an injury or accident could have been avoided if an officer had

had better or more training, sufficient to equip him to avoid

the particular injury-causing conduct.” Id. Only when a plain-

tiff “prove[s] that the deficiency in training actually caused

the [employee]’s indifference” can liability attach. Id. Even

more, “the identified deficiency in a city’s training program

must be closely related to the ultimate injury.” Id. at 391.

In Canton, the Court gave reasons for this stringent causa-

tion standard. A failure-to-train claim “could be made about

almost any encounter resulting in injury, yet not condemn the

adequacy of the program to enable officers to respond

properly to the usual and recurring situations with which

they must deal.” Id. And “[i]n virtually every instance where

a person has had his or her constitutional rights violated by a

city employee, a § 1983 plaintiff will be able to point to some-

thing the city ‘could have done’ to prevent the unfortunate

incident.” Id. at 392 (quoting Tuttle, 471 U.S. at 823 (plurality

opinion)).

Eight years later, the Court imported Canton’s failure-to-

train principles into the hiring context in Bd. of Cty. Comm’rs

of Bryan Cty. v. Brown, 520 U.S. 397 (1997). There a deputy

sheriff who caused the plaintiff’s injury had received no train-

ing in proper pursuit and arrest techniques. Id. at 400–02. The

Court addressed whether the county’s decision to hire the of-

fending deputy sheriff triggered liability under Monell:

“Where a plaintiff claims … the municipality has not directly

inflicted an injury, but nonetheless has caused an employee to

do so, rigorous standards of culpability and causation must

be applied to ensure that the municipality is not held liable

Nos. 18-1498, et al. 59

solely for the actions of its employee.” Id. at 405 (citing Canton

489 U.S. at 391–92, and Tuttle, 471 U.S. at 824 (plurality opin-

ion)). And “[w]here a court fails to adhere to rigorous require-

ments of culpability and causation, municipal liability

collapses into respondeat superior liability.” Id. at 415.

“Canton makes clear,” the Court explained in Bryan

County, that “deliberate indifference is a stringent standard of

fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Id. at 410 (in-

ternal quotation marks omitted). A “plaintiff must demon-

strate that a municipal decision reflects deliberate indiffer-

ence to the risk that a violation of a particular constitutional or

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

added). In other words, the deprivation of a federally pro-

tected right must be the “plainly obvious consequence” of the

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

focus on the particular constitutional violation that occurred,

not constitutional violations in general.

Subject to this particularity requirement, Bryan County

identified three ways a municipality could be liable for

inadequate training. First, “[i]f a program does not prevent

constitutional violations, municipal decisionmakers may

eventually be put on notice that a new program is called for.”

Id. at 407. Second, “the existence of a pattern of tortious con-

duct by inadequately trained employees may tend to show

that the lack of proper training, rather than a one-time negli-

gent administration of the program or factors peculiar to the

officer involved in a particular incident, is the ‘moving force’

behind the plaintiff's injury.” Id. at 407–08. And third, the sin-

gle-incident theory as laid out in Canton, 489 U.S. at 390 n.10:

in a “narrow range of circumstances, a violation of federal

60 Nos. 18-1498, et al.

rights may be a highly predictable consequence of a failure to

equip law enforcement officers with specific tools to handle

recurring situations.” Bryan Cty., 520 U.S. at 409. In this third

scenario, liability hinges on the likelihood that “a violation of

a specific constitutional or statutory right” will recur and “the

predictability that an officer lacking specific tools to handle

that situation will violate citizens’ rights.” Id. at 409.

Finally, we come to Connick v. Thompson, 563 U.S. 51

(2011). There, the plaintiff spent 18 years in prison, including

14 years on death row, because an assistant district attorney

willfully suppressed blood evidence that exculpated plaintiff.

Id. at 55–56. The plaintiff alleged that violation was caused by

the district attorney’s deliberate indifference to an obvious

need to train prosecutors to avoid violations of Brady v.

Maryland, 373 U.S. 83, 87 (1963), to disclose evidence favorable

to the defense. The jury agreed, awarding plaintiff $14 million

in damages, and the district court added more than $1 million

in attorney’s fees and costs. 563 U.S. at 57.

The Supreme Court reversed the jury verdict in Connick.

In fact, in each of the post-Monell cases discussed—Tuttle,

Canton, Bryan County, and Connick—the Court reversed a jury

verdict for the plaintiff.

Connick reflects the Court’s most recent and most exhaus-

tive assessment of inadequate training liability. Because such

a claim treads so closely to vicarious liability, the Court ad-

monished: “A municipality’s culpability for a deprivation of

rights is at its most tenuous where a claim turns on a failure

to train.” Id. at 61 (citing Tuttle, 471 U.S. at 822–23). The Court

recognized two types of inadequate training claims: those that

require a pattern of similar constitutional violations, and

Nos. 18-1498, et al. 61

those that may succeed without a pattern under single-inci-

dent theory. Id. at 71–72.

Per Connick, to prevail under a pattern theory a plaintiff

must prove “[a] pattern of similar constitutional violations by

untrained employees.” Id. at 62. “[C]ontemporaneous or sub-

sequent conduct cannot establish a pattern of violations that

would provide ‘notice to the cit[y] and the opportunity to con-

form to constitutional dictates … .’” Id. at 63 n.7 (quoting

Canton, 489 U.S. at 395). A pattern of constitutional violations

means prior violations “similar to” the “specific” violation

suffered by the plaintiff. Id. at 62–63, 63 n.7, 67. In Connick,

despite at least four prior Brady violations in the same district

attorney’s office, and that up to four prosecutors may have

been responsible for the nondisclosure of favorable evidence

that exculpated plaintiff, the Court held that the plaintiff had

failed to establish a pattern of similar violations.

Because the plaintiff in Connick could not rely on a pattern

of similar Brady violations, the Court addressed whether he

could prevail under the “single-incident” theory hypothe-

sized in Canton. Id. at 63–71. In Connick, the Court set three

requirements to establish liability under Canton’s single-inci-

dent hypothetical:

First, single-incident liability applies only when dealing

with “untrained employees.” Id. at 61–62, 67; see also id. at 91

(Ginsburg, J., dissenting) (agreeing with majority on this re-

quirement).

Second, once it is established that the offending employee

was untrained, a plaintiff alleging single-incident liability

must prove “police officers have no knowledge at all” of the

required constitutional standards. Id. at 67. That means “in

62 Nos. 18-1498, et al.

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

officers to obtain the legal knowledge they require.” Id. A

plaintiff meets this requirement when there is “no reason to

assume” the officer is “familiar with the constitutional con-

straints” of the prohibited conduct. Id. at 64. That a policy has

“gray areas,” the Court cautioned, does not mean an em-

ployee “will so obviously make wrong decisions that failing

to train them amounts to ‘a decision by the city itself to violate

the Constitution.’” Id. at 71 (quoting Canton, 489 U.S. at 395

(O’Connor, J., concurring in part and dissenting in part)). In

those situations, a plaintiff must show it was “highly predict-

able” that employees would be confounded by those gray ar-

eas and make incorrect decisions as a result. Id.

Third, an absence of formal or specialized training does

not show deliberate indifference because “failure-to-train lia-

bility is concerned with the substance of the training, not the

particular instructional format.” Id. at 68. Put more simply,

under the single-incident theory there is not inquiry into the

subtleties of training. Instead, the key question to qualify un-

der Canton’s hypothetical is whether the municipal employee

is “equipped with the tools to interpret and apply legal prin-

ciples.” Id. at 64; Bryan County, 520 U.S. at 409. The question is

not whether better or more training might have prevented the

violation.

“[S]howing merely that additional training would have

been helpful in making difficult decisions does not establish

municipal liability.” Connick, 563 U.S. at 68; see also id. at 73–

74 (Scalia, J., concurring) (rejecting liability “under the rubric

of failure to train simply because the municipality does not

have a professional educational program covering the specific

violation in sufficient depth”). Said another way, “’proving

Nos. 18-1498, et al. 63

that an injury or accident could have been avoided if an em-

ployee had had better or more training, sufficient to equip

him to avoid the particular injury-causing conduct’ will not

suffice.” Id. (quoting Canton, 489 U.S. at 391).

Applying these three requirements, the Court in Connick

contrasted Canton’s hypothetical with an attorney asked to

make a Brady determination. In the absence of a pattern of

similar Brady violations, a district attorney “is entitled to rely”

on prosecutors’ law school or bar exam training, ethical obli-

gations, and on-the-job experience, to deal with Brady deci-

sions. Id. at 66-67. “In light of this regime of legal training and

professional responsibility, recurring constitutional viola-

tions are not the ‘obvious consequence’ of failing to provide

prosecutors with formal in-house training about how to obey

the law.” Id. at 66. The Court therefore concluded in Connick

that “this case does not fall within the narrow range of ‘single-

incident’ liability hypothesized in Canton.” Id. at 71–72.

These precedents control the consideration of this case.

The Supreme Court has never held a municipality liable for a

failure to act in the absence of a pattern of prior similar viola-

tions. See Majority op. at p. 22 (recognizing same). This case

does not present such a claim either, for the reasons that fol-

low.

III. Theories of Liability

The majority opinion holds the County employer liable for

the crimes of its employee Christensen under the single-inci-

dent theory hypothesized in Canton, specifically for failure to

train and for failure to supplement County policies. Majority

op. at 18-23. Those holdings rest on three conclusions:

64 Nos. 18-1498, et al.

1. In the absence of a pattern of prior similar sexual as-

saults at the jail, the rapes of J.K.J. and M.J.J. by Christensen

pose one of those “rare” and “narrow range of circumstances”

(Connick, 563 U.S. at 64, 71–72) the Court hypothesized in

Canton’s footnote 10, in which the need for training in consti-

tutional requirements is “so obvious ex ante” (Id. at 72) (con-

currence). Majority op. at pp. 20–30.

2. The jail’s omission of sexual assault prevention and de-

tection measures in its written policies amounted to unconsti-

tutional inaction under Monell. Majority op. at pp. 18–20.

3. The failure to train about sexual assault prevention and

detection measures, or the omission of such measures from

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

30-33.

In reaching these conclusions, the majority opinion de-

parts from the Supreme Court’s requirements in Canton,

Bryan County, and Connick and oversteps the culpability and

causation rules governing § 1983 claims, resulting in re-

spondeat superior liability, an outcome forbidden since Monell.

A. Failure to Train

1. Single-incident theory

For a failure-to-train claim the standard of municipal fault

is deliberate indifference. Connick, 563 U.S. at 61 (labeling this

“a stringent standard of fault”); Canton, 489 U.S. at 388–89.

Only when a municipality has “actual or constructive notice

that a particular omission in their training program causes

city employees to violate citizens’ constitutional rights” may

the municipality be deemed deliberately indifferent for re-

taining that program. Connick, 563 U.S. at 61. “Without notice

Nos. 18-1498, et al. 65

that a course of training is deficient in a particular respect, de-

cisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional

rights.” Id. at 62 (emphasis added).

The Court has recognized two ways to establish notice.

The first requires a prior pattern of similar constitutional vio-

lations to prove deliberate indifference, the second does not.

See Connick, 563 U.S. at 62–63. Per Connick, the second—the

“single-incident theory”—is distinct from and serves as an ex-

ception to the pattern theory. Id. at 62–63; 71–72. These two

theories share the same objective of discerning whether “the

need for further training” was “so obvious.” Canton, 489 U.S.

at 390 n.10. Bryan County phrased this question as whether “a

municipal actor disregarded a known or obvious conse-

quence of his action.” 520 U.S. at 410 (describing Canton’s

standard of fault); see also Connick, 563 U.S. at 61 (quoting

same). Either way, the key term is “obvious.” See Farmer v.

Brennan, 511 U.S. 825, 841 (1994) (describing Canton’s applica-

tion of deliberate indifference as an “obviousness test”).

Under the pattern theory, the obviousness of a risk is de-

termined from “[a] pattern of similar constitutional violations

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

single-incident theory, the question is whether the risk is “ob-

vious in the abstract.” Bryan County, 520 U.S. at 410 (applying

Canton’s standard of fault) (internal quotation marks omit-

ted). The majority opinion says “[t]he Court did not leave the

[single-incident] liability point in any way abstract.” Majority

op. at p. 21. The Court in Bryan County said the opposite.

When evaluating “the risk from a particular glaring omission

in a training regimen” the question is whether the risk is “ob-

vious in the abstract.” Bryan County, 520 U.S. at 410 (internal

66 Nos. 18-1498, et al.

quotation marks omitted). Under either theory an objective

test is applied. Farmer, 511 U.S. at 841 (“It would be hard to

describe the Canton understanding of deliberate indifference,

permitting liability to be premised on obviousness or con-

structive notice, as anything but objective.”).

The majority opinion recognizes that this case does not

present a pattern of misconduct which gave notice to the

County that its training program would cause constitutional

violations. Majority op. at p. 20. Nevertheless, it concludes the

need to supplement the County’s sexual assault training was

“so obvious” that the failure to do so amounted to deliberate

indifference under Canton’s single-incident theory. Majority

op. at p. 27. I respectfully part ways with my colleagues in the

majority that the requirements to establish single-incident li-

ability have been met here.

As noted above, to illustrate “so obvious” notice of a need

for training under the single-incident theory, Canton hypoth-

esized a city deploying armed officers, untrained on the con-

stitutional limits of the use of deadly force, to capture fleeing

felons. 489 U.S. at 390 n.10. In Connick, the Court distilled

Canton’s hypothetical into three single-incident liability re-

quirements. None of these are met here.

First, single-incident liability applies only when dealing

with “untrained employees.” Connick, 563 U.S. at 61–62, 67; id.

at 91 (Ginsburg, J., dissenting) (agreeing with the majority

that failure-to-train liability attaches “only when the failure”

involves “untrained employees”). It is undisputed that the jail

trained Christensen that sexual contact with inmates was

against jail policies and a felony, so this prerequisite is not

met.

Nos. 18-1498, et al. 67

To meet Connick’s second requirement there must be “no

reason to assume” the County’s jail guards were “familiar

with the constitutional constraints” of the prohibited conduct.

Connick, 563 U.S. at 64. But Christensen testified to five ways

he was familiar with the policy prohibiting sexual contact: (1)

he knew his conduct violated jail policy; (2) he was trained his

conduct was a crime; (3) he knew he was putting plaintiffs at

risk; (4) he never forgot that sex with inmates was a crime;

and (5) he did not require more training to know his conduct

was a crime. Unlike the nuanced and compound legal stand-

ards imposed by deadly force limits (Canton) and Brady’s

evidentiary obligations (Connick), even the majority opinion

recognizes this requirement cannot be met, as it characterizes

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

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

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

record does not show that County guards, let alone Christen-

sen, had “no knowledge at all” of the relevant constitutional

standard. Connick, 563 U.S. at 67.

On this second requirement, plaintiffs must prove the

County’s jail guards “ha[d] no knowledge at all” of the rele-

vant constitutional standard, id. at 67, here, a blanket prohibi-

tion against sexual assault. That means a court must find there

is “no way for novice [guards] to obtain the legal knowledge

they require” unless they are trained. Id. at 64. The majority

opinion concludes that without training “male guards would

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

conclusion assumes that jails present an “opportunity to

abuse” and male guards will “obvious[ly]” exploit that op-

portunity unless trained otherwise. Id. As the majority opin-

ion puts it: “It is difficult to conceive of any setting where the

power dynamic could be more imbalanced than that between

68 Nos. 18-1498, et al.

a male guard and female inmate,” so it is “obvious as obvious

could be” that male guards will “sexual[ly] abuse” female in-

mates. Id.6

An opportunity in which abuse may be committed does

not establish deliberate indifference. At most it establishes

negligence, which “will not suffice” to establish § 1983 liabil-

ity. Bryan County, 520 U.S. at 407. The record does not support

the assumption that, unless trained to refrain from sexual as-

saults, every male guard at Polk County Jail posed a risk to

the bodily integrity of female inmates. Nor can it be assumed

that absent training, male guards would have “obviously” vi-

olated behavioral norms and commit sex crimes.7 For these

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

6 The majority opinion’s conclusion that the “power dynamic” of confine-

ment places municipalities on notice of the risk of sexual assaults is un-

likely to prove workable for district courts. If the unalterable nature of

confinement places municipalities on perpetual notice sufficient to estab-

lish § 1983 liability, how do courts determine if a municipality failed to act

in the face of that obviousness?

7 The majority opinion’s conclusion of obviousness also rests on a theory

rejected by other federal appellate courts. Whitson v. Stone Cty. Jail, 602

F.3d 920, 927 (8th Cir. 2010) (“We … could scarcely hold as a matter of

course that every male guard is a risk to the bodily integrity of a female

inmate whenever the two are left alone. Absent evidence to the contrary,

we assume that jailers will not violate models of social decorum or other-

wise commit a punishable offense.”); Barney v. Pulsipher, 143 F.3d 1299,

1310–11 (10th Cir. 1998) (refusing to find that the defendants knew of a

substantial risk of assault based on the proposition that every male guard

is a risk to the bodily integrity of a female inmate whenever the two are

left alone because in the record there was no evidence of sexual miscon-

duct in the offending jailer’s background nor was there evidence of previ-

ous incidents of sexual misconduct by jailers generally); Hovater v.

Nos. 18-1498, et al. 69

Third, “failure-to-train liability is concerned with the sub-

stance of the training, not the particular instructional format.”

Id. at 68. Under Connick, this poses the question whether

Christensen was “equipped with the tools to interpret and ap-

ply legal principles.” Id. at 64. The majority opinion frames

the applicable principle as “do not sexually abuse inmates,”

calling it an “easy and evident” constraint. Majority op. at pp.

19–20. Christensen thought so too, testifying he knew his as-

saults were crimes that put plaintiffs at risk, and that more

training would not have altered that knowledge. Despite

Christensen’s avowals, the majority opinion holds the County

liable for Christensen’s conduct because its sexual assault

training failed to educate and sensitize guards to the follow-

ing:

 the dignity and respect owed female inmates;

 the inherent vulnerability the confinement set-

ting presents to female inmates;

 the symptoms of an inmate suffering from the

trauma of abuse;

 report[ing] each other’s misconduct; and

 matters of prevention and detection.

Majority op. at pp. 19–20, 28.

This scrutiny of existing policies and training goes too far,

violating the third requirement of Connick. The single-inci-

dent liability inquiry under Connick stops after the question of

whether Christensen knew his conduct was a crime. It does

not ask whether better or more training might have prevented

Robinson, 1 F.3d 1063, 1066–68 (10th Cir. 1993) (“[T]here is no evidence in

the present case of an obvious risk that male detention officers will sex-

ually assault female inmates if they are left alone.”).

70 Nos. 18-1498, et al.

his crimes. On this exact question the Court in Connick stated:

“’[P]rov[ing] that an injury … could have been avoided if an

[employee] had had better or more training, sufficient to

equip him to avoid the particular injury-causing conduct’ will

not suffice.” Id. at 68 (quoting Canton, 489 U.S. at 391). See also

Connick, 563 U.S. at 73–74 (Scalia, J., concurring) (rejecting lia-

bility “under the rubric of failure to train simply because the

municipality does not have a professional educational pro-

gram covering the specific violation in sufficient depth”); id.

at 78 (Scalia, J., concurring) (“[A] bad-faith, knowing viola-

tion, could not possibly be attributed to lack of training. …”)

This third requirement ends where it does for good rea-

sons. As the Court ruled in Canton, a municipality cannot act

with deliberate indifference for failing to train employees for

rare or unforeseen events. A less than rigorous fault standard

“result[s] in de facto respondeat superior liability on municipali-

ties—a result we rejected in Monell.” Canton, 489 U.S. at 392

(citing Monell, 436 U.S. at 693–94; Rizzo, 423 U.S. at 378–80).

That result also intrudes upon the federalism interests that the

Monell failure-to-train cases strongly reinforce. In Canton, the

Court noted how “[i]n virtually every instance where a per-

son has had his or her constitutional rights violated by a city

employee, a § 1983 plaintiff will be able to point to something

the city ‘could have done’ to prevent the unfortunate inci-

dent.” Id. at 392 (quoting Tuttle, 471 U.S. at 823 (plurality opin-

ion)). While the education and sensitization steps the majority

opinion lists fit into that category, the stringent fault require-

ments of Canton do not demand them.

None of the three requirements in Connick are met here to

satisfy Canton’s single-incident hypothetical.

Nos. 18-1498, et al. 71

The single-incident theory fails here for two other reasons.

Bryan County requires a “direct causal link” link between

Christensen’s crimes and an ineffective training regimen. 520

U.S. at 404. See also Tuttle, 471 U.S. at 823 (requiring “affirma-

tive link”); Rizzo, 423 U.S. at 371 (same). The record here

shows no such link. Before the discovery of Christensen’s

crimes, there were no prior instances of similar sexual as-

saults; Eiser agreed the jail, including the Jorgenson incident,

had a “good” record on sexual assaults. And Eiser testified

that no empirical data shows compliance with PREA would

have yielded a better result. These same facts, however, per-

suade a majority of my colleagues that the need for more or

better sexual assault training was “so obvious.” To the con-

trary, the record shows the County’s training “equipped

[Christensen] with the tools” to understand its uncomplicated

zero-tolerance assault policy, Connick’s third requirement. 563

U.S. at 64. Christensen chose repeatedly to disregard that pol-

icy and, hiding his actions, assault the plaintiffs.

To establish single incident liability, a plaintiff also must

prove that municipal “policymakers know to a moral cer-

tainty” that its employees will confront a given situation and

fail to train for it. Canton, 489 U.S. at 390 n.10. Here, the

County had not previously faced the circumstance of a guard

raping inmates. Even so, the jail had a zero-tolerance sexual

assault policy and trained its guards on it. In Connick, the

Court ruled that “[a] district attorney is entitled to rely on

prosecutors’ professional training and ethical obligations in

the absence of specific reason, such as a pattern of violations,

to believe that those tools are insufficient to prevent future

constitutional violations.” 563 U.S. at 67. Connick also requires

similarity among violations. See id. at 62–63. Following

Connick’s reasoning, the County was also entitled to rely on

72 Nos. 18-1498, et al.

its policies and training given the absence of any sexual as-

saults similar to Christensen’s at the jail. See Majority op. at p.

26. (“To be certain, the accusations of Jorgenson’s reprehensi-

ble conduct fell short of rape.”).

2. The “Obvious” Contradiction

All agree this case turns on notice. The majority opinion

states at p. 20: “The Supreme Court has made plain that a fail-

ure to act amounts to municipal action for Monell purposes

only if the County has notice that its program will cause con-

stitutional violations. See Connick, 563 U.S. at 61–62.” Canton

in footnote 10 provides that the need to train officers on con-

stitutional limits “can be said to be ‘so obvious’ that failure to

do so could properly be characterized as ‘deliberate indiffer-

ence’ to constitutional rights.” 489 U.S. at 390 n.10. The evi-

dence the majority opinion relies on to conclude notice falls

outside the sphere of single-incident liability.

The majority opinion concludes repeatedly and with cer-

tainty that the jail posed an obvious risk that male guards

would sexually assault female inmates. Majority op. at p. 24

(“obvious and known risk”), id. (“the reality was as obvious

as obvious can be”), id. at p. 27 (“obvious and known risk of

sexual assaults in its jail”), and id. at p. 30 (“the risk of consti-

tutional injury—here, the sexual assaults—was obvious”). In

support of this conclusion it reviews “evidence that the

County was aware of sexual misconduct happening within its

jail.” Id. at p. 25. That notice evidence falls into four categories:

(1) Nargis’s tier talk (Id. at pp. 19, 25, and 28); (2) the “tizzy”

email (id. at pp. 19 and 28); (3) infrequent, undated, and

mostly unreported inappropriate comments by four guards

over a twelve-year period (id. at p. 25); and (4) information

gleaned from the Jorgenson investigation (id. at pp. 25–28).

Nos. 18-1498, et al. 73

On this evidence the majority opinion holds that the County

disregarded obvious notice of risk and the need for “different

policies or training” and “more robust policies.” Id. at pp.

31-32.

But in its consideration of and conclusion based on this

evidence, the majority opinion embraces a contradiction. The

identical four categories of evidence served as plaintiffs’ evi-

dence of notice in the district court. As in every appeal, we are

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

plaintiffs failed to put forth sufficient evidence to support

finding a pattern of constitutional violations known to policy-

makers.” Opinion and Order at 7, J.K.J. v. Polk Cty., No. 15-

CV-428, 2018 WL 708390 (W.D. Wis. Feb. 5, 2018), ECF No.

279. And plaintiffs have not challenged that holding on ap-

peal. Appellees’ Br. at 45 n.10 (“Plaintiffs do not argue on ap-

peal that deliberate indifference is established here due to a

pattern of similar past incidents.”).

These four categories of evidence fail as “so obvious” no-

tice under a pattern theory, as found by the district court.

Nevertheless, in the majority opinion the same four categories

provide “so obvious” notice under a single-incident theory.

The majority opinion turns the single-incident theory on its

head, using the same facts to produce the opposite conclu-

sion. On this same record, the need for more training and bet-

ter policies is simultaneously “not at all obvious” and “so

obvious.” The lack of a pattern deprived the County of notice

of a need, but the same evidence now provides notice of such

a need. For example, the majority opinion allows Jorgenson’s

misconduct to provide “incremental notice of an obvious

74 Nos. 18-1498, et al.

risk.” Majority op. at p. 26. Unexplained is why—if four cate-

gories of evidence did not provide that notice, as the district

court held—one category could.8

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

for single-incident liability differs from the “so obvious” no-

tice for pattern liability, no authority so provides. Nor would

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

times, or in a different sense. Pattern and single incident the-

ories of liability differ in their requirements, but they share

the identical objective of notice. Under either theory, a munic-

ipality’s policymakers must have notice of omissions before

being deemed deliberately indifferent. Connick, 563 U.S. at

61-62; Bryan Cty., 520 U.S. at 410; Canton, 489 U.S. at 390 n.10.

Evidence that falls short under one theory falls short under

the other as well.

Do not construe my dissent as concluding that the four

categories of evidence listed above are always irrelevant.

Those categories would be relevant under other avenues of

liability, such as implied policy or pattern theories. But the

single-incident theory requires that the need for training be

obvious without consideration of prior violations. See

Connick, 563 U.S. at 63 n.7 (rejecting contemporaneous or sub-

sequent evidence to prove notice). When evaluating “the risk

from a particular glaring omission in a training regimen” the

question is whether the risk is “obvious in the abstract.” Bryan

County, 520 U.S. at 410 (internal quotation marks omitted).

8 Also unexplained is how notice of an “obvious risk” could be “incremen-

tal.” Incremental denotes gradual, or progressive, the opposite of a “so

obvious” need necessary for deliberate indifference under a “single inci-

dent” theory. Canton, 489 U.S. at 390 n.10.

Nos. 18-1498, et al. 75

That is for good reason. Single incident liability exists for a

limited circumstance in which a municipality faced no prior

instances of similar constitutional violations. See Connick, 563

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

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

however rare, … that a city could be liable under § 1983 with-

out proof of a preexisting pattern of violations”). The single-

incident theory is a way to show liability, without evidence of

past constitutional violations. Here, the district court

concluded that those same categories of evidence failed to

provide notice under a pattern theory, and an implied policy

theory of liability is not before us. So the four categories can-

not be considered here.

There is only one way out of this contradiction. If notice is

no longer required, what remains is liability without notice:

respondeat superior. Monell and Supreme Court precedents for-

bid that result. Because the “so obvious” standard from the

Canton footnote 10 hypothetical cannot be satisfied here, the

plaintiffs’ constitutional claim is legally deficient.

B. Failure to Supplement Policies

The second basis on which the majority opinion concludes

liability—that a failure to supplement County policies

amounted to unconstitutional inaction under Monell—also

relies on Canton’s single-incident theory. For a number of rea-

sons, that approach cannot be squared with the Court’s ad-

monitions in Canton, Bryan County, and Connick either.

Canton’s single-incident hypothetical expressly considers

only “the need to train” officers. 489 U.S. at 390 n.10. The

Court has never extended single-incident liability outside fail-

76 Nos. 18-1498, et al.

ure to train. See Connick, 563 U.S. at 64 (limiting single-inci-

dent theory to “the obvious need for specific … training”);

Bryan County, 520 U.S. at 410 (limiting single-incident theory

to “a particular glaring omission in a training regimen”). The

claim at issue involves something different—purported gaps

in the County’s sexual assault express policies—not failure to

train.

As just noted, the majority opinion’s unconstitutional in-

action holding relies exclusively on the same four categories

of evidence that failed to provide “obvious” notice of a need

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

“obvious” notice to establish single-incident liability); Bryan

County, 520 U.S. at 410 (same); Canton, 489 U.S. at 390 n.10 (re-

quiring “so obvious” and “plainly obvious” notice). So ap-

pears the contradiction: the same evidence the district court

found did not provide notice, a finding left unchallenged on

appeal, gives notice in the majority opinion of a need for more

action. The need for additional policies is simultaneously “not

at all obvious” and “so obvious.”

The majority opinion concludes that the County’s zero-tol-

erance sexual assault policies contained “material gaps”

because those policies did not include information about pre-

venting and detecting sexual assaults. Majority op. at pp.

18-19. To prove deliberate indifference, plaintiffs must show

it was “highly predictable” that, absent supplements to its

zero-tolerance assault policies, male Polk County Jail guards

would inflict the particular constitutional injuries suffered by

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

must show that those guards lacked the tools to know that

sexual assault is a crime and violated County policies. See id.

But as explained above, there were no prior instances of rape

Nos. 18-1498, et al. 77

at the jail and plaintiffs’ own opinion witness agreed the jail

had a “good” record on sexual assaults. As with all of its

guards, the County gave Christensen the tools to stop himself;

he chose not to.

The majority opinion instead grounds fault solely on three

generalized risks:

 That “[t]he confinement setting is a tinderbox

for sexual abuse.”

 That any “guard would grow too comfortable,

lose his better angels, and step over the clear

line marked in Polk County’s written policies.”

 That it was “’highly predictable,’ if not certain,

that a male guard would sexually assault a fe-

male inmate if the County did not act.”

Majority op. at pp. 24–26 (emphases added).9 Absent from

these generalizations is any mention of how purported gaps

in County policies amounted to deliberate indifference. Left

unexplained is specifically how the decision to rely on policies

that, until Christensen, produced “good” results on the par-

ticular risk of sexual assaults amounted to deliberate indiffer-

ence. It cannot be said a situation that has never occurred is

likely to recur. See Bryan County, 520 U.S. at 409 (basing pre-

dictability on “[t]he likelihood that the situation will recur“).

The deliberate indifference standard in Canton has an im-

portant corollary. Under the single incident theory, Canton

requires employers “know to a moral certainty” that their em-

ployees will face a “difficult choice of the sort that training or

9 If such a generalized risk suffices to trigger notice here, the same gener-

alized risk could apply for jail fights, medical attention, and other aspects

of confinement.

78 Nos. 18-1498, et al.

supervision will make less difficult.” Walker v. City of New

York, 974 F.2d 293, 297 (2d Cir. 1992) (citing Canton, 489 U.S.

at 390 n.10). Case law has referred to this as the “difficult de-

cision” or “difficult choice” requirement.

However phrased, it is not a “difficult choice” or a “diffi-

cult decision” for a guard not to rape an inmate. Such a deci-

sion is mandated by the law, written policies and training

here, as well as any moral code. Just so, Christensen had no

“difficult choice.” He was instructed by the written policies,

training, and the law not to sexually assault, but he willfully

and surreptitiously ignored that training and instruction. For

all these reasons, this case does not fit within the narrow and

rare single-incident exception to the pattern requirement for

municipal liability.

C. Causation

To recover from the County under § 1983, plaintiffs also

must prove “a direct causal link between the municipal action

and the deprivation of federal rights.” Bryan County, 520 U.S.

at 404. A municipality cannot be liable “unless deliberate action

attributable to the municipality directly caused a deprivation

of federal rights.” Id. at 415. Even if training or a policy omis-

sion was in some manner deficient, “the identified defi-

ciency … must be closely related to the ultimate injury” such

that “the deficiency … actually caused the police officers’ in-

difference.” Canton, 489 U.S. at 391. Said slightly differently,

“a municipality can be liable under § 1983 only where its pol-

icies are the moving force behind the constitutional viola-

tion.” Id. at 389 (citations, internal brackets, and quotation

marks omitted). These causation requirements are “stringent”

and “rigorous” to prevent expansions of constitutional tort li-

ability and the use of federal courts to restructure municipal

Nos. 18-1498, et al. 79

institutions. See Bryan County, 520 U.S. at 415 (holding a lesser

causation standard embroils “serious federalism concerns”

and permits “municipal liability [to] collapse[] into respondeat

superior liability.”).

This case presents a glaring causation problem: When

Christensen assaulted the plaintiffs, he knowingly and will-

fully acted in defiance of his training and County policies. No

evidence shows that Christensen decided to assault plaintiffs

for any reason related to inadequate training or policies. The

majority opinion cites no “affirmative link” between the oc-

currence of Christensen’s crimes and the County’s alleged in-

action. Tuttle, 471 U.S. at 823 (plurality opinion) (“At the very

least there must be an affirmative link between the policy and

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

U.S. at 371 (rejecting liability because “there was no affirma-

tive link between the occurrence of the various incidents of

police misconduct and the adoption of any plan or policy”).

Without an affirmative link, the causation requirement is not

met.

The majority opinion rests its conclusion of causation on

the obviousness of a risk: “’The high degree of predictability’

that constitutes notice … ‘may also support an inference of

causation …’” Majority op. at p. 30 (citing Bryan County, 520

U.S. at 409–10). Because the risk of constitutional injury was

obvious, the majority opinion decides, only a “small inferen-

tial step” therefrom is necessary to find causation. Majority

op. at p. 30. But there must be a foundation from which to take

that step. That is missing here.

First, Connick emphasizes the notice a municipality’s poli-

cymakers must have of the omissions in their training

program causing municipal employees to violate a citizen’s

80 Nos. 18-1498, et al.

constitutional rights before the municipality may be deemed

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

that a course of training is deficient in a particular respect, de-

cisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional

rights.” Id. at 62.

But the district court ruled, and it is unchallenged on

appeal, that the misconduct evidence did not constitute a pat-

tern of constitutional violations. The lack of a pattern de-

prived the County of notice of a need for additional training

and policies. Nevertheless, the majority opinion relies on that

same evidence to conclude obviousness and notice. But it can-

not be both ways; notice of a risk cannot simultaneously be

not present and present. Respect for the district court’s find-

ing on an issue not appealed should control, and not form the

foundation for a conclusion of causation.

Second is the type of causation found. Certainly, the ab-

sence of supplemental training and policies may increase the

likelihood that a guard might assault an inmate. The inquiry

here, though, is whether male Polk County Jail guards posed

a risk to female inmates such that reliance on the County’s

existing policies and training would result in guard-on-in-

mate rape. Bryan County, 520 U.S. at 411. The district court did

not perform this “legal inquiry,” id., for failure to train or un-

constitutional inaction liability, and what remains is just a

conclusion of potential causation.

But liability under § 1983 requires actual causation of an

injury. Bryan County, 520 U.S. at 404–05; Canton, 489 U.S. at

389; Monell, 436 U.S. at 692 (holding the “mere right to control

without any control or direction having been exercised” will

not support § 1983 liability (citing Rizzo, 423 U.S. at 370–71));

Nos. 18-1498, et al. 81

Rizzo, 423 U.S. at 372, 375–76, 378 (distinguishing the mere

failure to act from “active conduct”). “Proving that an injury

or accident could have been avoided if an employee had had

better or more training, sufficient to equip him to avoid the

particular injury-causing conduct will not suffice.” Connick,

563 U.S. at 68 (quoting Canton, 489 U.S. at 391 (internal quota-

tion marks and brackets omitted)). The question is not

whether the inaction potentially caused plaintiffs’ injuries; it

is whether the inaction “actually” (Canton, 489 U.S. at 391) and

“directly” (Bryan County, 520 U.S. at 415) caused the injuries.

Here, no evidence shows that County inaction actually and

directly caused plaintiffs’ injuries.

Third, the majority opinion permits a finding of liability in

jail and prison settings based not on proof of causation, but a

presumption of negligence. Male jail guards have exclusive

“authority and control” over “nearly everything in [inmates’]

lives.” Majority op. at p. 24. “With this authority and con-

trol … c[o]me[s] power and, in turn, access opportunity to

abuse it.” Id. Under this “delicate setting,” “the risk of consti-

tutional injury” “was as obvious as obvious could be.” Id. at

pp. 23, 28. “The jury knew that from common sense[,]” so “it

took but a small inferential step for the jury to find causation.”

Id. at 28.

Far from Monell’s “rigorous” causation requirements, the

majority opinion’s reasoning echoes res ipsa loquitur, presum-

ing negligence from Christensen’s crimes. See Tuttle, 471 U.S.

at 831 n.6 (Brennan, J., concurring) (admonishing application

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

ipsa loquitur applies when “the facts of the occurrence warrant

the inference of negligence” and “the defendant [has] exclu-

sive control of all the things used in an operation which might

82 Nos. 18-1498, et al.

probably have caused injury.” Jesionowski v. Bos. & M. R. R., 329

U.S. 452, 456 (1947) (emphases added) (citation and quotation

marks omitted). Compare the elements of res ipsa loquitur with

the majority opinion’s reasoning: The jail’s “authority and

control” through “male guards” over “nearly everything in

[inmates’] lives,” supports an inference of causation. Majority

op. at p. 24. Instead of causation or deliberate indifference,

negligence is presumed. Monell requires more: deliberate in-

difference and moving force causation, not “simple or even

heightened negligence.” Bryan County, 520 U.S. at 407.

Plaintiffs’ appalling injuries were not caused by a lack of

specific training and policy language about sexual assault

prevention and detection. They were caused by a miscreant

guard’s hidden, willful, and criminal defiance. There is no ev-

idence that Christensen made the decision to assault plaintiffs

for any reason related to inadequate training or policies. For

example, no evidence shows that Christensen calculatedly ex-

ploited training and policy gaps. Nor does any evidence show

that such gaps emboldened, let alone caused, Christensen to

commit rapes. The record shows that when Christensen as-

saulted plaintiffs he knew he was acting contrary to his train-

ing and in violation of County policies. From this undisputed

evidence, any reasonable fact finder would have to conclude

that Christensen’s bad-faith conduct, in conflicting with his

employer’s policies and training, caused plaintiffs’ injuries.

Christensen, not the County, was the “moving force” that

caused plaintiffs’ injuries. Monell, 436 U.S. at 691–92.

Nos. 18-1498, et al. 83

IV. Federalism

The majority opinion encroaches on the federalism princi-

ples that the Supreme Court’s Monell cases hold so essential.

Monell's policy requirement was intended to balance

§ 1983’s remedial purpose with the principle that the power

exercised by federal courts must not be so broad as to upend

the delicate balance of powers among federal, state, and local

governments. See Michael J. Gerhardt, The Monell Legacy: Bal-

ancing Federalism Concerns and Municipal Accountability under

Section 1983, 62 S. Cal. L. Rev. 539 (1989). The majority opinion

upsets that balance. It extends federal civil liability by

allowing a federal statute to dictate municipal liability, imper-

missibly infringing on state and local independence and self-

governance. It also defines notice of constitutional violations

so broadly that liability may now arise in any confinement

setting, without limit.

The Supreme Court has emphasized the important

federalism interests implicated by municipal liability cases in-

volving failure to train, like this one. Allowing § 1983 cases to

advance against municipalities for failure to train or inaction

“on a lesser standard of fault would result in de facto respondeat

superior liability on municipalities—a result [] rejected in

Monell.” Canton, 489 U.S. at 392 (citation omitted). “This is an

exercise … federal courts are ill suited to undertake, as well

as one that would implicate serious questions of federalism.”

Canton, 489 U.S. at 392 (citing Rizzo, 423 U.S. at 378–80).

The Court sounded the same warning in Bryan County:

Where a court fails to adhere to rigorous re-

quirements of culpability and causation, munic-

84 Nos. 18-1498, et al.

ipal liability collapses into respondeat superior li-

ability. As [] recognized in Monell and [] repeat-

edly reaffirmed [since], Congress did not intend

municipalities to be held liable unless deliberate

action attributable to the municipality directly

caused a deprivation of federal rights. A failure

to apply stringent culpability and causation re-

quirements raises serious federalism concerns,

in that it risks constitutionalizing … require-

ments that States have themselves elected not to

impose.

520 U.S. at 415 (citing Canton, 489 U.S. at 392).

Connick raised the same cautionary flag: “[Section 1983]

does not provide plaintiffs or courts carte blanche to mi-

cromanage local governments throughout the United States.”

536 U.S. at 68. While Justice Scalia joined the Connick opinion

in full, his concurrence explained that the dissent’s “theory of

deliberate indifference would repeal the law of Monell.” 536

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

[W]e do not have de facto respondeat superior lia-

bility, for each such violation under the rubric

of failure to train simply because the municipal-

ity does not have a professional educational

program covering the specific violation in suffi-

cient depth. …

These restrictions are indispensable because

without them, failure to train would become a

talismanic incantation producing municipal lia-

bility in virtually every instance where a person

has had his or her constitutional rights violated

Nos. 18-1498, et al. 85

by a city employee—which is what Monell re-

jects. Worse, it would engage the federal courts

in an endless exercise of second-guessing mu-

nicipal employee-training programs, thereby

diminishing the autonomy of state and local

governments.

Id at 73–74 (quotes, citations, and footnotes omitted).

This case presents the infringement warned of in Canton,

Bryan County, and Connick by allowing a federal statute to dic-

tate a municipality’s liability without proof of fault or causa-

tion.

The majority opinion declares the County was deficient in

preventing and detecting sexual assaults. This standard is

drawn directly from the trial testimony of plaintiff’s opinion

witness, Eiser, that the jail had inadequately addressed the

prevention and detection of sexual assaults of inmates. Eiser

testified PREA “set[s] the standard for jails very clearly.” Ac-

cording to Eiser, the PREA standard has three components:

prevention, detection, and training. The prevention and de-

tection components are lifted directly from the text of PREA.10

The changes he recommended to allow for easier reporting of

sexual assaults—including the lockbox for inmate complaints

mentioned in the majority opinion—are all teachings of

PREA. Eiser further testified the jail had addressed only one

of the PREA components in its policy, and what should occur

if a facility cannot meet all the PREA components.

10At 34 U.S.C. § 30302 PREA provides: “The purposes of this chapter are

to—(6) increase the accountability of prison officials who fail to detect, pre-

vent, reduce, and punish prison rape.” (emphasis added).

86 Nos. 18-1498, et al.

Per the majority opinion “PREA is not a constitutional

standard, and jails are not required to adopt it.” Majority op.

at p. 29. Yet, it concludes that the county’s liability rests on

Eiser’s testimony that the municipality failed to prevent and

detect the sexual assaults by a guard of two inmates. Strik-

ingly, an opinion witness who advanced a standard the ma-

jority opinion says is not required now sets the fault standard

in this circuit, even though that witness agreed the County

had a “good” record on sexual assaults.

What type of action must municipalities take to satisfy this

new standard and avoid liability? The majority opinion says

“reasonable steps to reduce the obvious and known risks of

assaults on inmates.” Id. at p. 29. But what those reasonable

steps should be requires notice, which the County did not

have. Recall, the district court concluded that the four catego-

ries of evidence, including the Jorgenson incident, did not col-

lectively make a risk of rape known to the County. Per the

majority opinion, the only direction given to courts and mu-

nicipal policymakers on those reasonable steps are the detec-

tion and protection measures of PREA. If Wisconsin munici-

pal jails should be held to the PREA standard, that decision

should be made by the people of Wisconsin through their leg-

islature, or by the Wisconsin Department of Corrections

through administrative rulemaking. Instead, PREA’s adop-

tion effectively comes by way of this court.

This case presents another federalism concern: One of the

mechanisms by which the majority opinion concludes the jail

was on notice of policy and training gaps applies to all con-

finement settings. As the Court explained in Bryan County, es-

tablishing that a municipality acted with “deliberate indiffer-

ence … require[es] proof that a municipal actor disregarded a

Nos. 18-1498, et al. 87

known or obvious consequence of his action.” Id. at 410 (in-

ternal quotation marks omitted). The Court specifically re-

jected fault based on generalized risk. Id. But the majority

opinion permits fault based on such a generalized risk by de-

fining “obvious” so expansively as to render the term effec-

tively without meaning.

Because the majority finds the risk of sexual assault is “ob-

vious” in all confinement settings involving male guards and

female inmates, Majority op. at p. 24, and inaction in the face

of that “obvious” risk establishes deliberate indifference, any

municipality in the Seventh Circuit operating a confinement

setting with male guards and female inmates may now be

subject to liability and federal oversight if it does not enact

new policies or training. This formulation, founded on an in-

curable standard of notice, is unworkable. Regardless of what

steps a municipality takes, it is on notice of the risk of sexual

assaults so long as male guards supervise female inmates in a

confinement setting. And even if a municipality enacts poli-

cies to prevent sexual assaults and trains employees on those

policies (like Polk County), it is deliberately indifferent unless

it enacts additional policies and training programs.

This formulation also gives no guidance to district courts

or municipal policymakers as to what training is or is not re-

quired to avoid a constitutional deprivation. This creates lia-

bility potentially unlimited in scope; if it has limits, those con-

tours are ill-defined, and certain to confound and divide

courts and policymakers. And in creating potentially unlim-

ited liability, this court disregards each of the warnings and

cautions on this topic passed to us from the Supreme Court

and repeated above.

88 Nos. 18-1498, et al.

For these reasons, our law interpreting § 1983 should fol-

low the Court’s lead and avoid intrusion into an area of tradi-

tional state authority such as this. See, e.g., Fla. Dep’t of Revenue

v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 50 (2008) (holding the

“federalism canon … obliges us to construe [a statute]’s ex-

emption narrowly”); BFP v. Resolution Trust Corp., 511 U.S.

531, 544 (1994) (refusing to interpret a statute “[t]o displace

traditional state regulation” unless Congress’s intent to do so

was clear from the statute (citing Gregory v. Ashcroft, 501 U.S.

452, 460–61 (1991)); Gregory, 501 U.S. at 468 (“By its terms, the

Fourteenth Amendment contemplates interference with state

authority: ‘No State shall … deny to any person within its ju-

risdiction the equal protection of the laws.’ … But this Court

has never held that the Amendment may be applied in com-

pl

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