circuit court of appeals to have one case to be presented today on a special oral argument for a motion for stay the case is it is of o'donnell versus good  heart just a couple of preliminary things as you may notice we have a we have a panel consisting of one judge from each of our three states it's not intentionally that way but that it works out nicely when that occurs and particularly nice to welcome judge col duncan who's fairly new to our court he's he's the newest arrival to our court though he's not the most junior member i won't take time to and i'm going to just in job for a minute to say that our court is particularly proud of judge graves it's just been announced that in september he will receive an honor as  good company judge graves and we're very happy to have you here as a member of the of the panel we have thirty minutes per side for argument and we we get on with  be this case has some history in this court and before i get to the merits i'd like to outline some of the features of that history that lever importance of the issue before the court the parties in this case previously appeared before the court just last october on our appeal of the district court's original preliminary injunction that original preliminary injunction required harris county to release virtually all mr minor arrestees who declare that they cannot pay money bail and to do so within twenty four hours the panel described the original injunction as quote amounting to an outright elimination of secured bail for indigent missed minor arrestees the court vacated that injunction  just last june finding that it was not narrowly tailored to the remedy it to remedy the person really procedural constitutional violations found by the district court and then it framed an extraordinary detailed modeling junction because that the court had found that the constitution deficiencies were were quote mechanical application by the county magistrates of the secured bill schedule without regard for the individual arrestees personal circumstances of the panel's model injunction required the purely procedural relief of an individualized hearing within forty eight hours of rest now we're back before you now on the revised injunction because on remand the district court again entered a sweeping release order in fact it entered to release orders i will focus primarily on one of them section seven unless i can have time to catch up to the other one but that requires that mr lien arrestees who cannot pay the amount of secured bail preset on the county's master bail schedule that they must quote be promptly released before an individual eyes hearing and on the same release schedule the same time frame of release that a misdemeanor arrestee who is able to pay the preset amount of money bail would receive the difficult home that this was necessary remedy to prevent discrimination based upon well off now before i get to that equal protection question on the merits i want to outline three reasons why the preliminary injunction simply doesn't get out of the starting blocks the first one is this court's mandate the district court repeatedly justified its release order under section seven on the ground that it does not actually order anyone to be released because the county has the option of detaining all arrestees both those who cannot pay the pre set amount of bail as well as those who can and want to and are willing to pay to to win their immediate release but under the district court all or nothing all or none equal protection theater theory whether section seven is understood as a mandatory release ordered or understood as a mandatory detained detention order the county's choice is still made under compulsion of the order so it is plainly substantive and not the procedural relief that this court ordered in it plaintiff's also take the position that this section seven relief is responsive to something that came up after the original remained from this court what is your position i got that right what is your position on that one week is that accurate or not well you honor we don't think that is accurate the way that the preset bail schedule works you did come up with a brand new twenty category bail schedule did you post the april twenty seventeen order actually that that was that bail reform schedule was put in place shortly before the original preliminary injunction hearing so it's not over when after it was before but well it was before the prelim injunction hearing but it never came into effect because the judge's original preliminary release order is it still not in effect no actually it has now gone into effect of essentially for the first time as a result of this co does not it is not distinguishable from the previous bail schedule in terms of how it operates on those people who can or cannot pay immediately the scheduled amount of bail well in other the the place that you fall within the twenty categories seven of which are eligible for our presumptively eligible for personal bond that isn't security money bail although people can pay secured bond and get out immediately that's why it's always work and it still works under this new met matrix but the where you fall on it is determined by an algorithm that takes into account nine different factors such as your previous criminal record whether you had previous violent felonies your previous failure to appear rates the nature of offense those kinds of things but if you fall within the seven categories where the payment of the preset bail is you are eligible  preset bail and get your immediate release the court's preliminary injunction it's section seven it now says no either those people who can and are willing to pay must be detained until the people who cannot pay have had a chance to have their hearing or everybody has to be released on unsecure sats that's the theory for why this isn't a release order but before getting to the flaws in that theory again the preliminary injunction is simply inconsistent with at least three features of this court tailored to cure the constitutional offenses deficiencies the district court properly identified again what were those constitutional deficiencies the the as i quoted earlier the mechanical application of the bail schedule without considering individual circumstances that was the that was the constitution efficiency previously found that and you to going to your question judge duncan as the district court at mid it had not previously identified this supposed constitutional deficiency and it could have your honor because for decades this bail schedule has operated to allow people who can pay the preset amount to immediately get their release so what what further tailoring do you suggest would be sufficient constitution your honor we we submitted to the district court on remained that it should simply enter as is this court's very  recommendation well i wasn't all that was my recommendation it's not one that was binding on the court but it was certainly safe as a course for the court to follow but but your honor nothing in what i'm submitting to you as the is that the court went so far beyond that model injunction that it actually violated the mandate this was substantive release order not a procedural procedural hearing requirement that this court identified as the complete remedy for the constitution deficiencies that have been found the court on remand found a new constitution deficiency that was introduced only on remained and recorded minute with the pleadings that we've gotten recently seem still to put in dispute the question whether substantive due process is it issue in the case is it your position that it still is or is not at issue here are we we continue to believe that the district court has said in it that there's been very clear both in the first preliminary injunction opinion and in the most recent  preliminary injunction opinions that substantive due process was not on the table at the preliminary injunction stage the plaintiffs believe that they had put it on the table but the court interpreted their pleadings otherwise and that's the posture of the case presents itself both to the previous panel and it presents itself again to this panel but but regardless your honor of what the fundamental bases are for the preliminary injunction of the court put it completely on equal protection mike my initial point here is that it can't be squared with the mandate that the district court was under this this was not miller narrowly tailored relief to deal with the purely procedural constitutional violations that have been found  the other point your honor is that this court's model injunction itself contemplated precisely the conditions that this that the district court on remand then declared unconstitutional it contemplated that the preset be a bail schedule would operate just as it always had and the people who on immediately after rest could and did make money bail they would be immediately released but that the people who could not were entitled to that individual as hearing within forty eight hours that was contemplated by the model injunction the district courts preliminary injunction now declares that unconstitutional the other irony in this case is that the courts of the original the district riginal preliminary injunction vacated as it was is being overbro it to contemplated precisely the operation of the preset bail schedule although it had a more compressed time frame of twenty four hours know there's a second reason why the equal protection merits argument doesn't on on this preliminary junction doesn't get out of the starting block that surprise or prize or very clearly holes your honors that hey this is the exclusive remedy in federal court for seeking release from physical confinement by the state well they say you waived it so what's your response to the way for us well first of all even if we accept your own of this is hard for us to do but even accepting that we waived it on the initial preliminary injunction new preliminary injunction and a sweeping release order with that we surely didn't wave that when that was put on the table we immediately said wait a second prize or for bids that the only way to get that release order is to go to federal in a federal court in a way is to bring a hevia scorpius to sion so your honor i certainly can't be taxed with a waiver as i stand before  now i would before i leave this point though i urge the court to if it concludes we did waive somehow our prize argument to release us burdens of that waiver we believe and we've set out in our papers the considerations that we believe just would justify that and most important of which is  we certainly can't be held to that waiver as we now go back and litigate the permanent injunction your honor it's one thing for us to have waived that at the preliminary stage we certainly aren't waiving it and  that the district court advanced that i want to outline here is that it doesn't apply when you're talking simply about transfer of custody from one form of custody to another form of custody of the same duration prize are itself made clear that that's not the case because it was dealing with transfer of physical custody the third stop sign if you will or at the threshold of this preliminary injunction revised preliminary junction and section seven is the eighth amendment itself that is the exclusive constitutional basis for relief for complaints about the quantum of bail and that's what at bottom this case is all about is just a question of some of the arrestees indigent arrestees cannot pay the quantum of bail whether it's set in a preset bail schedule before a hearing or whether it's set by a magistrate after hearing problem and it is inherent in the eighth amendment the member prohibits excessive bail it by definition contemplates as the district court recognized contemplate that some people will not be able to afford bail and others will that's inherent in the nature of it and beyond that your honor the supreme court's decision in graham against connor makes clear that the general prescriptions of the fourteenth amendment do not somehow overrule or trump the more specific limitation on bail and exclusive limitation on bail contained in the eighth amendment let me know very quickly proceed to the merits of the court's equal protection analysis and first your honor what is that issue well at bottom the question before you as our preset bail schedule is constitutional urine sample are we bound here by the previous panels determination that it's intermediate scrutiny that applies to the protection climb i  don't believe you are one well the court held there that the constitutional deficiency that the under the equal protection cla to consider individual circumstances so it was saying that the herrings that were before those magistrates were not bona fide they were actually searching for other considerations unique to the individual that might provide the sufficient surety is that under texas law would entitle them to pre pretrial release didn't panel also find that it was deliberate discrimination on the basis of indigen application of the bell system purposeful you know it was purposeful we would say this this application can't be viewed as purpose for your honor it is certainly it is disparate impact but it's not disparate treatment the same bail is applied to everybody rich or poor and yes it has a disparate impact as bail always does before or after a hearing but yes the panel did say it was purposeful  discrimination essentially because the magistrates we believe this is not factually accurate i'm bound to say but the magistrates in harris county were blinding themselves  bail it can't it can't be escaped and if and if that's unconstitutional it's i'm cust to show whether you play it before a hearing or after and so the real question before you even though it arises here in the context of before the individual has the hearing is whether or not money bail is prohibited by the election cause that's really that's what this case boils down to pure and simple  did preset bail master schedules your your initial time has expired unless you want to use some of your rebuttal time now that if i could just use another thirty seconds of that time your honor because i want to i want to make this point that the preliminary injunction before you section seven it nor is the practical reality that there is some irre period of time that simply can't be compressed any further before the state can give you that individual hearing and so and that the previous panel and the supreme court in mclaughlin said the constitution permits the states of already has forty eight hours to to have that hearing this county strives to do it in twenty four entry exceeds typically  seven also permits the county to require that those who are released it can require them to return for hearing and an individual has assessment and money bail may be imposed that that scenario that is true  that is true and so the question becomes is that a constitutionally required feature of the protection clause is it is it true that the equal protection clause requires the for that forty eight hours anyway for either those who can pay money bail and there who can provide the sufficient securities that the texas costs to sion says entitle them to be released then and there have to be gratuitously confined in order that there would be a individual hearing for those who cannot that's that's that's the bottom line question before  visit peel is very narrow it has to do with policy for treating arrestees prior to an individualized hearing the real dispute between us and the of helen's is are they permitted to discriminate on the basis of wealth for forty eight hours they want you to answer that question categorically based on the fourth amendment they want you to say you are permitted to detain the indigent for forty eight hours and also you're permitted to do whatever you want to re forty eight hours the logical implication of their argument which they make clear in their summary judgment briefing below is that they could do the same thing with women with men with the pork with people of a certain religion because if you have a safe harbor for forty eight hours whatever poli you put in your bail schedule so long as you get them to individualized hearing is constitutional that is precisely contrary to what the panel held for a couple of reasons that i want to be very clear about something to do you acknowledge though that that  that that's what the whole eight day trial was about the trial was about do they have good reasons that is to say do they have any evidence at all that secured money behind increases appearance or protect the public had they been able to show judge rosenthal that there was some benefit to it then they would have been able to meet their burden to show under heightened scrutiny that they can automatically apply to everybody for forty eight hours but the panel's opinion that is critical to this court and i think it's obscured some of the back and forth filing in this emergency appeal so i want to be absolutely crystal clear clear about it is the panel simply held you can discriminate on the basis of wealth you just have to justify it and that's why the the district courts factual findings which the panel said quote squarely rejected the argument that imposing secured bond serve the county's interests in ensuring court appearance of public safety in the in the motion for stay the poem make the following statement i'm going to read it and then you can evaluate and tell us where the vet is it appears in appear compared to only nine point eight five percent of arrestees who provided a secured money bond enough again that's a direct quote from from what they said in their motion absolutely not your honor and the district court in the fifth circuit that that that declaration was submitted to get the panel to do what they're asking you to do today to impose its revised injunction the panel rejected it judge clement and judge haynes sitting together because just prado had by that time departed and then we had our expert who the district court credited who did actual data analysis ensure that they were incorrect the district court in her state denial rejected the assertion because it's based on bond forfeitures which is that your court said is entirely useless that's the i understand here's your theory on that is that it's subject to too much manipulation or too much individual judgment is our right not only that your honor but but we know for a fact from looking at the data that it has been manipulated and that's a factual question for the district court that's going to be the big dispute at trial i think there's one part of their brief that is absolutely telling that i want to highlight for the court they say that the district court's factual findings are quote startlingly counter intuitive and  fourteen the reason they say that your honor is the cannot prevail in this day motion without this court rejecting the district court's core factual finding which the panel affirmed which is quote reams of empirical data suggest the opposite that is a critical factor for both the merits increase and the harm in cre let me talk about the merits just very briefly before you do that let me just ask you the same question i asked mr cooper and now i found the place where the district court in the district court's opinion sort of explaining the amended injunction page eight and nine she writes the plaintiffs point out the defendant's characterization of this provision meaning section seven is overbroad and that this section meaning section seven is narrowly aimed at addressing a problem that arose after the fifth circuit proceedings could you explain that to me in what way did the problem that is addressed by section seven arise after the fifth circuit proceedings all of the same beagle theories and issues were raised both before and after the junction what happened though mr core could have found an equal protection violation based on disparate treatment during the forty eight hour period the first time around not only that but she did yes could have yes the district she didn't she did find that your honor yes she did and instead of imposing the remedy that she imposed now will she you know in an effort to preserve a stable status quo she allowed them actually twenty four hours of this pretty well face treatment we objected to that strenuously your honor in the district court but in order to because it's a big system and in order to facilitate that introduction of these new affidavits she allowed them that twenty four hour period but then the issue was was really crystallized your honor by the bail schedule they passed in reaction to that which which automatically labeled thirteen categories for detention and then took seven categories that have the least risky at the least serious offenses and they chose to make those categories presumptively eligible and when did that happen in this case in this rather complex timeline i don't want to speak your honor but we'd be happy to provide post argument briefing just to answer that factual question it's in the record but i don't exactly know i don't  many of the same lawyers also represent dallas county in a similar lawsuit dallas county announced publicly last week that it is doing exactly what what mr cooper says would be anathema to the history of bail they are they are keeping every arrestee in custody and till an individualized bail hearing that's what the in that hearing they can impose monetary bail they can even impose monetary bail that a person can't afford there's nothing about our constitutional claims that suggest that a person can't under the federal constitution be given a bail amount they can't afford many of the representations that are being made in the state motion are just not accurate they're not accurate reflections of what the district court has carefully meticulously waded through let me and let me just make a very brief point about the merits on the basis of wealth or trigger intermediate scrutiny is that your position that's that's what the supreme court has said but i don't think it matters here you're on it for the following reason the district court and the court of appeals found that there was purposeful well face discrimination they have since passed a new bail schedule that does the same thing we don't even need to get into that disagreement but i think the argument from your friend on the other side is that the putative discrimination that's going on during the forty eight hour period is not purposeful discrimination it's disparate impact only what's your response to that it's just interactive in that they're intentionally passing a policy that says that anyone who can't afford to pay a monetary bail amount is subject to detention for up to forty eight hours that's what the fifth fifth circuit panel said automatic adherence to that policy is purposeful so i don't want to get into a disagreement about what the panel meant by its word purposeful because it doesn't matter and it doesn't matter because under bearden freight discourse opinion in frasier when you set amount of money whether it's a fine or a monetary bail and you know the person can't pay and they're going to be in jail whether you call it purposeful or inadvertent it has the triggers the same scrutiny and this is the point that i think is really key under the panel's decision they might be able and they're going to certainly try a trial to justify this period of wealth based discrimination the district courts factual finding precludes them from making that argument in this interloc appeal because the district court found that there is no benefit to secured money bail and in fact it actually increases failure to appears in the future and increases criminal activity they don't like that factual finding but it's in the record and there is no way for this court to rule in favor of their position on this demotion without rejecting that factual finding and i want it i think this is also related to a deep confusion in mr cooper's oral argument today in their briefs which is that this case involves somehow only procedural rights didn't our panel of this court that were bound by that no this is a procedural due process violation the equal protection that the relief has to be procedural did we not hold that i don't think so your honor and i think here is why they have seized on this stray sentence in the panel's opinion which suggested that some of the relief might be the same under both violations of course that's not what the panel's holding under the protection clause means the case is that it relied on we're all substantive cases and i think this is what they're they're hoping that they can confuse the court when we talk about substantive constitutional rights we're not just talking about something to do process rights a substantive constitutional right can be anything could be the second amendment the first amendment or in this case we're going versus georgia which is a substantive constitutional right under equal protection and due process i encourage the court because things have been rather rushed to take a look at our briefing in document number four sixty five at pages twelve sixteen and page twenty five and it document four o two we carefully in meticulously go through the supreme court's decision in washington versus harper which is for ninety four us to ten at twenty and twenty eight in washington versus harper the supreme court explains the difference between a substantive constitutional right and a perspectively procedural constitutional right so for example i have a constitutional right under the second amendment of the first amendment to possess a firearm and to publish a book if the government wants to tell me yet you can't possess that firearm in your home and you can't publish that book it has to meet a standard that set forth under federal law in other words pain scrutiny it has to it has to say there's a good reason for preventing me from having that gun and for publishing that book it wouldn't be sufficient if the government wanted to take away my gun or my right to publish a book for it to just provide a procedural right because we could go to a hearing and the government could say you've had an opportunity be heard we find there is no reason to block you from having a gun or to publish a book but nonetheless we are blocking you from having that obsessing a book it doesn't make any sense that the whole point as the supreme court said harper of having a substantive cust to tional right is that there's us federal substantive heightened scrutiny standard for removing that right from someone that's the key in this case what the fifth circuit panel held was a period of well faced attention under bearded under frazier this court's binding opinion under a whole line of cases it might be ok you might be able to jail someone because they can't make a payment all you have to do is show that you're serving some interest they had that chance we had an eight day hearing they hired experts we we we cross examined each other's experts we put in hundreds of thousands of cases we did statistical analyses we looked at evidence from all over the country and the district court found that there was no evidence to justify it it's the same thing as if they passed a newbie all schedule tomorrow that said all male arrestees are detained for forty eight hours and all female arrestees are released that might be ok but they'd have to show some reason for just detaining the men in their view in the district courts fact finding is any distinction made between the forty eight hour period before the required individualized hearing and thereafter i'm not sure i follow the question here well here we're talking about the forty eight out of the period between arrest in the forty eight hour period which at least arguably is a new aspect at least as with the district courts as a new aspect or the fact findings addressed to that period were just to bail in general i  dressed in general because both both theories were at issue at the preliminary injunction hearing but your honor i think this is a crucial point the problem with the district court's first injunction admittedly was that it said that even after an individualized hearing you can't detain someone because they can't afford money bill right that was based on the district courts with this court held wrong interpretation of texas law and of course federal courts can't issue injunctions even if you think that texas law doesn't let you to a misdemeanor the federal courts aren't allowed to enjoin people on that after penn hearst so admittedly that the initial injunction was broader than the constitutional theory federal constitutional theory that we raised but the revised injunction says something very different and the reason it's so much narrower is it says that an individual is hearing money bond money bond people can't afford all that it requires is before you set a money bond you have to have an individualized hearing because without that hearing you can't do an inquiry into ability to pay and so even and even so i think it's really really vital to just to bring this to close the loop on this point after the trial in this case if they are able to if this statistics that you asked about judge this proved true if forfeiture rates are good proxy for failure to appear and if they show that there is to appear skyrocketed and if they show that that security money bond is more effective than an unsecured bond or are non financial turned those they can even discriminate in the first forty eight hours they could then apply  because they will show they will have a reason that there will have a benefit they're getting a court appearance or public safety but that's not this universe the universe of facts that this panel has to look at the facts that have been affirmed by the other panel of this court or money one has no impact it's like we're in a world where they've tried to say that all men must be detained and the district court made a factual finding that they had no basis for that they want you to say that because the fourth amendment requires a probable cause finding  forty eight hours they can detain anyone they want for any reason in that forty eight hour period they could say all black arrestees are detained of course when i asked the question of the other side they're going to say we're not arguing that there of course there are of course they are because if they were arguing that we would say discrimination we all know that what we're talking about here at least if we're talking about the merits we're talking about whether heightened scrutiny applies and when as i understand your position it applies whenever there's any wealth based distinction even if it's purely disparate impact during the forty eight hour period or in this state into the holding just with one caveat your honor the holdings of the supreme court and of this court in frasier are not just that when there's any we distinctions it's only wealth based distinctions that result in detention it's a special category the supreme court has carved out a special category and in wealth base attention is involved i mean this is the holding of frasier which is binding on this court this is the holding of the panel heightened scrutiny applies to these distinctions i take your honour's point that we would be in a different world in the two worlds i just described with gender and race if he didn't apply if this court rejects the panel's decision that heightened  apply we'd be having a different argument that is something that they might be had actually argued it again in their summary judgment briefs this record going to rule on that but that's an argument they raised repeatedly in their merits briefing to the first panel and it was rejected their rushed briefing schedule reconsidering an issue that they've already briefed with most of the issues that they've raised is not the appropriate time to announce a new departure from circuit precedent that wealth based attention does not trigger well i mean we would you agree that we are bound by violation we have to follow that right i think yes you are you have to follow all prior circuit precedent what no clue to the panel because we're talking about the mandate rule here in part yes your honor i think if you look at the cases that that the panel cited and if you look at the cases that that are binding on this court like beard versus door i'm looking at rodriguez because the panel pretty specifically discussed rodriguez yes and in rodriguez itself the supreme court it carved out the tate williams butin line of cases  said the disparate impact holding does not apply to these cases that mean that's a supreme court holding if this court were to announce a new rule that you had to prove intent when in order to trigger heightened scrutiny when you're jailing someone because they can't pay bearden would have been wrongly decided me the supreme court didn't when that when the judge and bearden jailed the probationer because he couldn't afford to make a fine payment they didn't inquire into the judge's intent they didn't say was the judge away someone's liberty because they could make a payment is it also the case a nerd riggers that you have to not only a fine fine jailing because of the wealth distinction but also an absolute deprivation of the liberty supreme court distinguished tate williams and bearden line of cases was it said when you're being deprived of your physical liberty that's an apples absolute deprivation of your physical liberty so of course any time that i am put in a jail cell i've been given an absolute deprivation  of my liberty but here would be for a forty eight hour period so that an individualized hearing could then be held is that an absolute deprivation of liberty and justice you want to scream court has held repeatedly when you're talking about someone's physical property or their physical liberty even that even a temporary deprivation is an absolute one that's what went as versus shivan the seminal supreme court case was i mean if if if if the government takes my bank account over for two days or if the government puts me in a jail cell for two days it  absolutely deprived me of that liberty interest for for two days so i think what the question this court really has to grapple with is can the government for no reason at all or for any reason and once detain someone for a couple of days in a jail cell that that's  really the question that we're arguing about here today our position in the panels position is this need it's not the question the question is can they detain someone for a forty eight hour period well allowing someone else to go free because they could pay i could go free me with all of my background and all of my record this person i could go free if i paid a hundred dollars and what we showed at trial at the junction hearing was there is absolutely no basis to put me to that in that position and i think the question for this corps is given the factual record where there's zero basis for it are they allowed to do it to people knowing that it's going to taint the poor and look we all that we have serious disagreements that are being ironed out in summary judgment and this is an emergency appeal about an issue that has been litigated extensively before a meticulous district court there are factual findings and i think it's quite telling which to move very quickly to reparable arm you cannot find a reputable harm in this case without rejecting the court's factual findings because you will only assertion of report harm that they're making on the facts is that there's this giant increase in failure to appear that has been thoroughly debunked by two of the defendants themselves by the district attorney by expert analysis and by the district courts factual findings you have to reject that finding to find that they've suffered any harm and emergency stay appeal is not the time to be making these bold sweeping new arguments about the eight findings are wrong because under the district court's factual findings she her order has actually improved court appearance and improve public safety net is what we're seeing in the data now i get we disagree about what the data shows and they've submitted it a non expert declaration solely linked to bond forfeitures now mind you they have failure to appear data they didn't submit it to this court they submitted bond forfeiture data bond for richard for data is entirely in their control so i think i want to take a take a step back to also point  the district court in this case is experienced she has issued a number of orders throughout her career her findings in this case are meticulous they are carefully considered they were carefully calculated by an experienced district court judge who doesn't want to see harm to the public interest who doesn't want to see crime increases want to see failures to appear increase she looked at all the data in front of her and yes she will be different data a trial she may make a different factual finding at trial but she looked at all of the data in front of her and she said there is no basis for this distinction that they're drawing if it's ok with the court i would like to just address very very briefly the prize or argument unless the court has other questions on the merits what we've been discussing if we have other questions we'll let you know which you can go ahead district court issued a wide ranging release order they never raise prices or any of their nanny many filings ever raised in their answer to the complaint the first time they raised prize it was in an emergency state motion after the first injunction the mandate rule clearly covers this there's absolutely no way that given all of the same arguments apply that they can now come into court and say yeah we were we were we the panel held we had a waived it during their initial appeal but now that  district court has imposed a revised injunction pursuant to that mandate and that appeal we can somehow raise it all and do well the argument is and i want to hear your response to it is the section seven remedy is a new thing but it's this there in the district court says it's a new thing it's responsive to ilesa district courts responsive to something that arose after the fifth circuit now let's assume that's true why can't they raise a new argument in response to a new thing well it's a new bail schedule but it's but the prize or could have been should have been raised with the prior release order mr cooper's own argument is that there the first one was a resort and that was bad and so you should reject the second one because that's also a release order they could have made the same argument and they didn't they chose not to raise it they chose not to raise prices or prior to that so i think i think they're they're they're seizing on an ambiguity with the word new it's not a new set of constitutional arguments it's just the new bail schedule so that did this report was saying one of the reasons the fifth circuit gave me discretion is that  there's been some new tweaks to their bill processes and they'd have a new bail schedule that is quite responded to that as she certainly should have right but it doesn't mean that they can all of a sudden now bring in arguments that the waived but i don't think  linger long on the waiver question because they are going is clearly wrong nothing about a question of claims and you'll see this if you look at the summary judgment briefing nothing about our constitutional claims says that any arrestee has a right under the federal constitution to be released that's this a class action nine hundred eighty three lawsuit saying we're illegally in jail right now because you haven't given us a probable cause fighting the fact that they hoped that they would get out if they got a probable cause finding the fact that there's a substantive legal standard under the fourth amendment probable point the court to our merits briefing in the first appeal on the prize a question there's absolutely no way that one could read our constitutional federal constitutional claims that we're raising here in this court as saying that any arrest he has to be released from custody we acknowledge that if they make the right substantive findings and provide the right procedural safeguards they can detain any arrestee and they can set on affordable but let me ask you about section eight section eight as i'm paraphrasing but as i understand it requires the release of a misdemeanor arrest after forty eight hours to acquire the release in your mind does mclachlan city of riverside versus mclachlan does it require the release of in allowed that under exceptional circumstances a person can be detained longer had a finding of probable cause or the presumption shifts to the government after forty eight hours to demonstrate that there are extraordinary circumstances or some other exception and here they could have in the remote proceedings they could have said should what you should do is say after forty eight hours the government has to justify the detention under exceptional circumstances exception if the court wanted to three man with an instruction to include that in the in the order we would have no objection of i will note that they waived that by not raising it i mean now they're coming in to appeal and saying this is a court wasn't careful the district court included this this requirement which is country to mclaughlin but they had a chance to brief it the district court actually gave them all to pull rounds of briefing she was incredibly meticulous about this revised injunction order we briefed it so i don't understand why they would be allowed to come into this court and begin your argument but again we not have an objection to a remain and for a burden shifting  the critical part of this this i think all parties understand is section so then you couldn't i mean in light of what you just how could you argue irreparable harm if we decided to stay section eight to you he said he wouldn't object to you know revising section eight to have an exceptional circumstances requirement along the lines of mclachlan how could there be irreparable harm to your clients when your honor it's not an unlimited license it just detain people with no period so we would have concerns that very particular language be in to each arrestee by a neutral decision maker does that summarize everything that you're asking for in this case if if that sort of regime were to obtain here in harris county would that would that be enough case so so the answer is yes to your honor's question but at the bail hearing just like in federal court the government if they wanted to detain a person who's presumptively innocent prior to trial they can do so they just have to make a finding that there is no other alternative that could meet the government interest and if they can't show that they hate that that a less restrictive alternative doesn't meet their interest and no they can't detain a person so so in to answer your question more succinctly i hope what we are asking for in this case is individual ised bail proceedings at which certain procedural safeguards are met and at which a finding of necessity is made before person is to take that's what salerno held that's uncontroversial it's what every state supreme court to consider the issue is held it's not a controversial finding in our view and what this appeal deals with the judge smith is what policies apply prior to the individualized hearing before we have an individualized hearing are we allowed to discriminate on various bases and so the answer i think is yes you can discriminate even under the constitution on the basis of certain characteristics you just have to have good reasons and the eight day hearing show that they haven't shown good reasons yet but they might be able to show good reasons that's what the trial is for and so i think i  understand my my time is up but i would just say to your question it's a myth the trial will determine what happens in terms of those factual findings but for this proceeding the structural findings are the record were you able to speak to both clauses is the same the county must implement the constitution the necessary procedures to engage in a case by case evaluation of a given arrestees circumstances taking into account the various factors required by texas law only one of which is a ability to pale the court fortified that proposition that by saying only procedural relief is necessary and offering a detailed modeling junction that contained only procedural relief counsel suggests that somehow the question whether the criterion if you will in the bail  schedule context being wealth is no different from race or sex or religion and that we might as well be up here arguing that the city county of harris county can  detain whites instead of blacks or vice versa what possible theory is race or sex or any of these immutable characteristics relevant to the only question that bale tries to answer flight risk and safety of the community pending while the individuals at large that race has nothing to do with that but sure it tees does sufficient charities and since the magna car sufficient surety is at least when that surety is money bail up council suggests that the fact finding that there's no difference  in the incentives for an individual released on secured bail versus in a new vidual released on personal recognizance essentially to return the court is indeed a counter intuitive finding your honor that was based upon in wilbur's but this but this court has already upheld that finally it's upheld that finding is not clearly erroneous it was that finding was a based upon predictions we now have a year of actual experience we stand by the data that we submitted this court and it's in the record dispense admitted on remand in the district court we have to do we have to disagree with the district court's fact finding that the a large part as i understand it of your counsel opposite presentation is that in order to find for you on this day motion we have to overturn the district court's fact findings what's your response to that no no no not at all here your honor this is this this case focuses on pre hearing application of a preset bail schedule something that has been in place for decades  circuit something that was contemplated by the courts original pretty high that was contemplated by this court's model injunction and that this court and bank can read rainwater said is a good thing is a good thing now it's unconstitutional you know the harris county was under a federal decree to impose a master bond schedule where under decree to do that decree according to this new theory is is unconstitutional and what i want to go to your question judge duncan duncan about purposeful versus disparate impact disparate treatment versus  impact in order for it to be purposeful your honor the court in feeney the supreme court in feeney says it has to be imposed the cause of its impact its impact there veterans preferences as i recall it anyway on women here did that harris county does it impose bail be cause or in spite of the fact that it will actually require the detention for just a brief period of time that it takes for the county to pull itself together and give them a hearing no your honor that's not purposeful discrimination  counsel says all they're requiring is that you have to have a hearing before you can impose bail period so again this is a declaration that application of a master bond schedule is unconstitutional pure and simple notwithstanding this court's lauding master bond schedules again in rainwater as a speedy and convenient method to gain one's pretrial freedom for those who can take advantage of it and yes those are people who can afford to do so but keep this in mind that hearing that he says is a necessary prerequisite cannot take place as a practical matter earlier than the county it's in fact does it which is twenty four hours in the constitution permits forty eight which your honor brings me to section eight but before i get to that let me just say my time is expired you have thirty seconds to summarize whatever you'd like to summarize well i don't want to use that thirty seconds