the next case for today is two thousand and seventeen sixty eight zero five united states versus the county of lauderdale it all morning morning may please the court my name is christine montoya and i represent the united states in this appeal the statutory phrase any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles necessarily encompasses state juvenile courts in our country state juvenile courts where the principal responsibility for the administration of juvenile justice they hold the hearings to determine whether there's probable cause to detain and arrest a juvenile pending trial they hold the trial to adjudicate the guilt of juveniles accused of a crime they determine the sentence or disposition of juveniles found guilty in that trial which can include probation or incarceration they hold probation revocation hearings to adjudicate claims that a juvenile has violated the terms of his probation which can also result in incarceration and in many states although not in mississippi the probation services themselves are a function of the state juvenile court probation officers are court employee use and they work under the direction of the state juvenile judge can you can look you can so can you point to any case from any court where the word united states versus bramblett in one nine hundred fifty five and that's an important point here that judges are relying heavily on hubbard versus united states which construed the term agency narrowly in the context of the criminal statute but hubbard was not on the hubbard was not in existence of the time congress enacts this statute at the time congress and acted section twelve six zero one the governing precedent for forty years since bramblett was that the supreme court had construed the phrase department or agen broadly to include all three branches of government where a narrower interpretation would have been violence to congressional purpose that is the backdrop on which congress was legislating but then once congress knew that the courts were not treating it that in another case they didn't go back and say we need to make sure we button this up if you're talking about post hubbard well congress went back and amended hubbard or amended the federal false statements and i bet they direct fixed it so that it would be ok but they didn't go back and say we need to do an audit of these things because we really do mean to cover course your honor i don't i don't think that congress at that point would have been necessarily thinking about all of the various statutes in which you used the term agency congress has define agency to include courts in some statutes doesn't that actually cut against the fact that it meant to define agency to include courts here i don't think so and i would point the court to the supreme court's decision and robinson versus shell oil that's the case involving the interpretation of whether the word employee in title seven is entire retaliation provision included former employees and just as here the court recognized in that case first of all that on first blush the term employee would seem to apply only to current employees and secondly that congress had in many other statutes actually defined the term employee to include former employees and what the court said in that opinion was that only shows that the court can use the undefined unqualified term employee in a narrower sense it doesn't mean that that's what the court did that's what congress meant to do in that particular case in the same would apply here i would also note your honor talking about the backdrop of existing law i think it's relevant that eleven years after the supreme court decided bramblett in one thousand nine hundred sixty six congress an act of the administrative procedures act that cited both in our brief and in our police brief and in that statute congress felt the explicit need to state that the term agency did not include congress and did not include courts which i think demonstrates that in light of bramblett congress would have understood that the authority but there's an argument that hubbard then supersedes that and then as my colleague just mentioned then congress did a fix that said ok we'll use three branches so if ultimately we feel bound by or agree with justice stevens is comment that it would be strange indeed to describe a court as an agency do you lose and that what i'm getting at is i don't see why the government is or isn't arguing here that the exact language of twelve six zero one would but it seemed to me your argument to us is judges in all capacities are comprehended i think that's right your honor and our position we certainly recognize and we cited in our opening brief that in ordinary parlance the word agency in the abstract is thought to refer only to executive branch agencies but the first of all the court can't construe that word in isolation or in the abstract but i'm just asking you to assume that for the set reasons i said we don't see the judges in their adjudicatory capacity state judges were contemplated i don't i am wondering whether the government is making an argument that alternatively state judges who are not acting as judges doing all these administrative executive roles would still be covered but you haven't given us much insight into well i think that i mean i think the court could go in that direction but the statu says that it applies to officials or employees of any governmental agency and so i don't know that there would be a textual basis to parse out a court as an agency in some functions but not an agency in another supreme court and hubbard i'm sure you know it very well in the footnote three do exactly that the courts comprehend agencies inside them and they listed that there can be agency reason why our immense responsibilities assigned very clearly in mississippi law to the that i think that we would rely on two things one is again the fact that what i what i've already alluded to we put the breeze which is at the time that congress wrote the statute covered was not in existence that congress would have contemplated that the term agency could be more encompassing the second point that i would point your honor to is in the text of the statute itself we see first of all that congress use the term any not executive so it's not thinking only about executive agencies but after the term agency we see the types of bodies and actors that congress intended to come within the scope of the stuff  constituents not promises of campaigns and that sort of thing but but they're only responsive to follow the rule of law and they're independent they are not of the state in the same way their executive agencies or any other type of a legislative agency is if they had well your honor i think that they are agents of the state in so far as they are doing the administration of juvenile justice in the state just because a judge does it ministre the duties for example the federal courts deal with the probate supervised probation officer and things and in various capacities in the court room and asked for certain executive branch and they're not either and there's no denying that here on our but i again i think that our point is that at the time the congress an act of this statute the term an agency congress would have understood could bear a broader meaning i want to make an important point that related to your honor's point that i don't want to get lost here which is this court should recognize that there's just a vast amount of variation and how juvenile systems are structured from state to state so while in many states such as mississippi many of these functions that both of your honor's are referring to are parsed out into separate agencies that are independent of the judges and independent of the court in other states those functions are subsumed within the court so for example in mississippi we know that there's a state executive agency that handles probation but if you go right next door in louisiana probation officers are defined by state statu court employees the same is true in my home state of ohio probation officers or court employees that work under the direction of the juvenile judge the same is true in if you go to missouri where we have our memorandum of agreement with st louis would be hart do that your honor i think to the extent there's precedent for that sort of person the court can do that but again i think looking at the text of the statute the text says it applies to officials or employees of any governmental agency if the court is going to construe the statute the way defendants want you to which is to say that juvenile courts are just not agencies within the meaning of the statute and that would exclude not only judges but that would exclude any official or employee of a court which can include court reporters which can they've written in their brief it looks like it would cover prosecutors jailors probation supervisors they're acknowledging that those people wouldn't be actors are employees of the court and in those states if this court is to construe the statute as not encompassing juvenile courts then you would be excluding from the statues purview purview those actors and constitutional violations that those actors might be but we're only dealing with this date in this case well your honor we're not deciding this for once and for all for every configuration that this could possibly be your honor and so we i mean if they if they have made a concession and will have to ask them that jailers and probation officers are subject to it then then that the prize in this we look at this case that we treat them differently your honor this court's opinion is going to have binding precedent on all of the states i know texas mississippi and louisiana and it will also have significant persuasive value across the country because this is the first circuit court to actually address you that if you did this is just what i'm sort of them babies twelve six or one school hasn't been litigated can you point to anything in the this is the first case addressing the juvenile prong that has reached litigation but we don't always lump even on three states the same  way if the different concessions are made in litigation or different approaches are made we have different cases ongoing and other issues regarding court systems even right now i can think of between two different states that are preach proceeding on their own path juvenile courts but intermediate and even the supreme court to the extent that they are case law is dictating treatment of juveniles so is the government's what you have is a limiting principle and does it include apparently in mississippi that  your honor i don't i have been authorized to take a position on that exam are it is very obvious under if i'm right about mississippi all the juvenile court decisions get appealed to the supreme court does your interpretation of twelve six zero one had findings that there was a pattern or practice in the case yes in the case law i don't think that the case law would come within the terms of the statute we're talking about the responsibility for administering juvenile justice again it's back to my distinction if you're complaining about whether or not an initial appearance occurs quickly enough and there's supreme court law in texas says within forty eight hours is that within the scope or not within the scope of your all the juvenile courts are doing is following case supreme court cases on the state and yet you perceive a pattern in practice of violations following that law your honor our claim with regard to our we're bringing procedural claims  wouldn't embrace judicial why adjudicatory behavior no and i'm so i'm sorry that i didn't i think either misunderstood the question or i just didn't make that clear all of our claims and all of the relief that we're seeking are procedural claims we're seeking simple non discretionary procedural mechanisms like you have to hold probable cause hearings within forty eight hours as county riverside requires you have to actually make probable cause finding got to come up with a limiting principle or tell me that the scope of twelve six zero one doesn't extend to higher courts so i'm sorry you're suggesting that if mississippi supreme court law says they can go beyond the forty eight hours or are seeking to vindicate federal constitutional law and the challenges that we're raising the claims that we're raising are that the practices of the lauderdale county youth court are not complying with the federal constitutional requirements under county of riverside we're not we're not making any claims about the constitutionality of state law either statutory law or or case law our concerns are the practices and the policies of the lauderdale county youth court and that the children passing through that court are receiving the constitutional procedural protections to which they're entitled ok well i don't understand the forty eight hour right rule and whether or not a hearing is consistent with due process or both adjudicatory things and so isn't it so let me address that in two ways for your honour's referring to various pieces of relief that we yes i mean it's right here number four page thirty six of your complaint right so so a couple of points first of all your honor the question about potential scope of relief is really a question for down the road at the remedial stage we're at the threshold stage about can this case move forward our youth court within the scope of this that right well if you're asking for things that they would be wrapped up in  h the the the law that deals with whether or not you can get into a pin being an ongoing state court case then it seems to me that you once i look i have to look at what are you seeking to determine whether or not you're going to get it mixed up in that so and i do think that deciding whether someone did the policies for expungement are appropriate or not does you have to first have finish the state court proceeding where they get to try to get expungement and you have to say well they failed to get it and then you say you know you can't get into these ongoing state proceedings your honor our complaint did  potential remedy based on the fact that that has occurred in previous civil rights cases i think the government counsel below emphasized first of all that it would be defendant's setting the criteria for that second of all it's not the primary relief we're seeking third of all what relief would be appropriate or the scope of that relief would be within the discretion of the district court and that is again a question for down the road the only question before the court right now is can the case move forward on the pleadings and again we are not seeking to review individual decision making by these judges we're not seeking to review probable cause determination is or adjudications of guilt what we are seeking is to ensure that there are procedural safeguards in place like the probable cause hearing is being on time that they're actually making a shallow cause findings that they're appointing counsel to juveniles facing incarceration that they're holding probation revocation hearings before revoking a child's probation and before incarcerating them that they're actually making findings that the juvenile has violated probation those are all procedural and forward thinking systemic issues case are you automatically entitled to a hearing and that sort of thing your honor our men answer i'm sure police all of these things that i've just mentioned are required by federal constitutional law this is a statute designed to ensure on a systemic level that the federal constitution is being complied with defendants haven't really other than that issue about the forty eight hours haven't challenge that all of these principles are required by the federal constitution but again even if they want to challenge that that's a question for down the road at this point the only question before the court is are lauderdale county youth courts within the scope of the statute and if they are and if the court honors the defendant's concession that the judges are not absolutely immune th this case should move forward from the pleadings ok so are you does this not get into ricker feldman at all why doesn't this get why aren't those questions we there we're looking to see i mean are we trying to decide if this is a complaint that can be brought against we don't have to rule in the same way the district court did to well well defendants of waived any argument on appeal that the court should affirm on the alternative grounds and for our young didn't we have a case with whether we can consider even if the parties don't whether or not the parties raise it that wish or whether we should consider that isn't that an an issue that you know i think this court recently and a kid school kids called gets versus train with which i think both of your honors were on recognize that younger abstention can be waived and the judges have we have to that here they haven't made any argument on appeal that this court should affirm on alternative grounds of abstention their arguments on immunity limited to the arguments that they can only be they can't be held liable for two narrow claims in our complaint which are not which are meritless arguments but even if they had merit would not be a basis for throwing out the entire case on the pleadings ok i think you've absolutely saved your time for rebuttal it's not being charged against you we do have this is an important case and we have lots of questions for each side so we're not being quite as  we want to make sure everybody has a fair chance and has equal time but we want to make sure we get the questions answered so thank you a court is valid agency and that the conclusion that a court is not an agency in x rable we believe just justice stevens was right when he said those words the government makes the remarkable claim that bram said and this is left out of the quote in the government's brief is that department as used in this context was meant to describe the executive judicial and legislati the word department that was construed in bramlett and in the cases that followed bramlett not the word agency you know even though you are questions i mean the syntactical points are good but but courts have congress must have known it's true across the country the juvenile courts where lots of happens they do lots of non judicial things i don't see why the aspects of courts that do nontraditional things would somehow then fall out of twelve six  are you makes up that you may be defending your clients as to their adjudicatory role but to the extent that the supreme court of mississippi in that tour and in the law says that juvenile courts also designate prosecute or are responsible for detention facilities yes they are the your argument is not that that then means those executive branch are now removed so what is it i believe that the way those those entity should be approached yet a concept called co employment that has been and is used in the judicial arena where a judge was accused and the question was was that the person who worked for the judge an employee of the county and court said there's an issue of call employment they remanded to determine whether under federal law that person was regarded as an employee of the county even though the judge did well this very responsive just on your feet and it's very reassuring to me if we're trying to harmonize those defenses that are settling out and of course the committee the comp the vastly important purpose to rein in executive or administrative branch officials that are committing patterns in practice would that be something that you would recommend that we have a remained of some sort to assess using exactly the paradigm you describe various court officials that in fact  by the way what about prosecutors i'm sorry this is extremely helpful to me because this looks like the supreme court of appeals interpret mister bickley say the judges appoint prosecutors and the intake units in the juvenile courts file petitions alleging delinquency would those be executive branch had they charged them with a pattern or practice they could be covered if they're considered if they're considered employed by the county yes but what if they're employed by  don't understand the court's question it was the it is obviously a logical distinction because the courts of appeal after bramlett went that way in it of course and hubbard the spring court said we can't go there we ethically be judging the performance of these people even though the judges you know appoint up but that case says is that the cost to ssion conservation claim goes against the against the guardian ad li the government says well the word agency was in federal statute outright it was in a federal statute to refer to any administration or authority yet it still didn't cover courts so there's no there is no  case that says it in this case there is of course the division of new services which was settled the settlement in twenty fifth need you know the settlement of twenty fifteen was so successful that the school district people got invited to the white house to speak to president obama when you know when the city endos with the school district and the city and it department is services settled you know there was a big celebration because the judges didn't have to be part of it the school to prison pipeline thing was solved without him and it is very important your honor not cots are public elected public officials county elected public officials and if to any description of claims against them in this litigation it should be limited to what the complaint says and what the department said in the court below what the complaint says in paragraph is only in paragraph three and it says two things one is a pattern or practice of authorizing the repeated incarceration of children to be out there on us and due process such as a timely hearing and meaningful representation of an attorney that hour rule the forty eight hour rule was written by on this city in two thousand and eight to get federal money from the juvenile justice division of the department of justice ok what we have in this case is a civil rights division claiming that a rule written for the juvenile justice division is unconstitutional and it makes no sense and what does that also tell us that also tells us that you don't have to sue judges to get the rules of the road in mississippi written when the rules are being written pursuant to the juvenile justice divisions  work with the department of public safety yet another state agency that's involved in this case do we need to change the caption of the case because these are in official capacity claims and i think judge now go ahead the claims of paragraph three or this forty eight hour rule and then this thing about probation services should be about revoking probation what had to do with the contract and that was resolved by the settlement the perceiving here was very unusual you have a complaint which has no specifics in it whatsoever no claim these judges are individually doing and then you had a hearing about it your hearing these judges testified before judge of october twenty seventh twenty sixth that begins at fourteen forty three or belts telephone conference oh well i'm just asking do you have an eye for where i can find their testimony their testimony begins  practice of doing x which violates the fourth amendment of the fifth amendment or whatever amendment of the sixth amendment and this it in it's a and they have a pattern and practice it doesn't say people makes a lot of claims that are supported by the complaint so what is before us are you the only issue before us about whether agency applies or is whether or not this is proper fails or doesn't fail where you could sort of if the complaint fails for other reasons are we not allowed to look at those or if you wave them officially the court certainly can look at paragraph three of the complaint which is the only specific language about the judges oh and decide to those functions or judicial not administrative and affirm on that basis all i want to point out that nowhere in the claims for relief paragraphs one sixty three to one ninety one is there any mention of the judges or used court other than in the caption that paragraph one night he alleges a pattern of practice by the city the county and vision of you services and doesn't mention the judges the government says or that it says in its brief that the judges fail to appoint juveniles that counsel for critical hearings but if you look at pages forty eight to fifty of the record there is no such allegation against the judges the government says the judges failed to permit juveniles to present witnesses on their behalf but if you look again at forty eight to fifty there's no allegation against a judge just on that basis the government says they are not the judges don't afford a hearing before  that's not what not that paragraph one twenty five does it say the judges are responsible for that as opposed to the informal judge in just what but it isn't mentioned in paragraph one through thirty three or the settlement which is for judge youth in court and i can't find anything that comes close to it while twamley other than paragraph three and then when we get when they had the hearing and the government started briefing you know what they were complaining about are the only things they mentioned it was that the they really went into was that they didn't think the public defender was paid enough and this forty eight hour group and  abuse or neglect or could be lack of supervision then there is this forty eight hour period with weakens and hold is accepted and at the end of that there is a probable cause hearing with counsel and you know the whole hold to you ok the district court interpreted twelve six zero one is applicable only to police departments and other branches of law enforcement police pattern or practice at all according to the way you're talking about it we could just say that agency is not included because the judges are not included but if we released reach police pattern or practice as a gloss on that there significant i think it goes to what congress was thinking about the title is also important in one particular way which is that are you if you go to the chaps title of chuck subchapter eight state and local law enforcement do you find a basis for excluding federal officials or judges from the statute especially don't so state you have to go to the title to get state  we're not claiming federal coverage but that's an interesting point i think the  as a form of immunity we have argued that the specific things that they're complained about are not things are things they can't sue about because you can't sue judges for their employees and you can't sue jail if the court should disagree with our position on the statute you know it might be appropriate to remain so we can go back to extension because there are grounds for  he relied on to not abstain was a unit b case that involved pull an abstention not younger abstention and we think given the fact that the rules are being written pursue it to the supervision and even audit of the juvenile justice division of the department of justice would be a very good reason for the record not to make a huge court judge in lauderdale county that those are consistent with your brief those rules even if they're under the orbit of the judiciary the court could still be proper defendants could be within the scope i think the way to reserve that issue would be to say that they could be construed to be employed by the county is i'm the governmental authority would go to another governmental authority under federal definition of employment rather then try to figure out whether what's an administrative function and what's a judicial function so that i think that would be more practical and could be reserved for other decisions for you know for future cases this you know have one good that's why the delicate very appropriate candor in your brief a twenty one which is that it could cover all those roles those are classically executive but yes so they have to be any supplemental authority to respond to that counsel for the government you may have seven days after that ok but you don't i'm not required to file and you think supplement i'm just giving you the opportunity so that they each side has the same opportunity  just a few points your honor first mr mumford repeatedly said that we shouldn't be suing the judges and i just want to clarify this case isn't about who can be sued under the statute it's not about who's a proper defendant under the statute this case is about whose conduct falls within the scope of the statute so both defendants have said that you've courts officials and employees of youth courts are not within the scope of just i don't understand the point you're making because if they can't be sued then it doesn't matter whether or not they are involved in the conduct you're on it's a separate point the point is that our position is that their conduct the conduct of employees and officials of youth courts are within the scope of the statute there's a separate question about who should be sued for that whether you should sue the judges in their official capacity with you should we have that right now can you sue the judges in their official capacity for that that is before us right the second your hon obviously our position is that you can the text of the statute specifically says you can sue any governmental authority or anything but again my point is the question before the court by the way for you know stick with that exact text language the you're saying the government authority here is the court which therefore has to be shown to engage in a pattern or practice but it goes on to say done by and then it lists officials right and no one's disputing of course with officials yet on his concession law enforcement happens to be employed by the courts you've heard that what i thought was very helpful it is not an all win or lose of twelve six zero one it really may be that the proper defendants would be the whole host of people doing executive functions as opposed to judges quiet judges your honor i think i have two responses to that one is that a number of the people that are the types of employees that defendants have mentioned could be in many states actually court employees defined as court employees and a family not worried about that definition that would be covered in this analysis i don't think it would if the court concludes that courts if they are court employees and i know what i think we're past this just again just even says it a broad level we are conceptually i don't even not even sure we have freedom to just say courts can be agencies given the language of harvard you've made that argument crystal clear i'm asking do you are you able to shift and consider his argument that title seven would answer a lot of my concerns that many relevant actors in a court system would still be subject to appropriate correction to twelve six zero one do embrace that or not the only way that they would be is if they are considered employees not of the court if they are considered employees of the court and on the plain text of the statute i construes courts to be outside the scope of the statute then they wouldn't be covered and you know i don't know whether this sort of whether you want to call them adjudicated functions or administrative functions this court for example in a recent case and o'donnell versus harris county was just affirmed an injunction against the harris county texas judges for their pretrial bail practices and the court sort of said well in in the functions of their pretrial bail they're sort of acting as policy makers for the county the court could consider the judges in this case that way like i said we're not one nine hundred eighty three language person no problem that sure my only point is that i don't i sort of don't know that it's it's a helpful distinction to talk about adjudicate two versus administrative functions because again the types of the types of time's running out and he says that if we look at your complaint all that exists as to the name defendant judges is in paragraph three i don't know i don't really know what that where they got that idea why don't you tell me if you look where it describes the conduct of sure judges are wa our way fifty three the u s court does not regularly hold hearings on probation violations down here and the complaint this is on the complaint page twenty four of the complaint are way fifty three the youth court does not regularly hold revocation hearing later it says the detention hearing for a child on probation is not a hearing on the substantive violations but rather a dispositional hearing earlier on page forty eight the youth court holds detention hearings this is the probably loose would be violative of current existing mississippi law attorneys write it requires them to make probable cause findings are human is that in practice based on our investigation they're not complying with and any individual juvenile would be able to overturn the delinquency of a duty cation because you're telling me in fact they are complying with the law your honor and individual juvenile might be able to bring an appeal in his individual case but this is a statute that allows the united states to sue for systemic relief and to seek reforms on the stand and then does get me back to my first question to you what and maybe you thought of it what's the limiting principle that would mean under your logic it excludes higher court rulings that are approving practices that you say are unconstitutional well your honor ok so for example i think that to the extent that a higher court would be considered and body that is responsible for the administration of juvenile justice if a higher court for example is refusing to hear juvenile cases that would be an across the board systemic problem where we don't think that statute would apply to higher court like decisions in an individual case that this particular decision disposing of a juveniles appeal runs contrary to the constitution and that's not those are the types of claims that we're bringing in these twelve six zero one cases the types of claims we're bringing are across the board systemic problems that may or may not comply with state law but are our allegation is that they do not comply with the u s federal constitution and that's what the statute allows us to pursue and i have three questions how do you distinguish chrissy emma is the first one yes your honor defendants raise crissy f in the concept context of  their immunity argument that they can't be held liable for the our allegations with respect to the systemic deficiencies in the indigent defense system right they did give you just because you hire the the defense attorney  i mean that you authorize their hiring that you are then responsible for their behavior right so we're not seeking to hold the judges responsible for the behavior public defenders before them the claim that had to do with  deficiencies in the indigent defense system really went more toward that's not against the judges it's more towards the county because the county is the body that contracts with the public defenders that provides the funding in the resources so that serves to the county ok deck action and you only have one relief or dec action yes if the if the court concludes agrees with us that the u s courts are within the scope of the statute and this actually on section b of the statute plainly allows us to seek declaratory or equitable really those cases stand for the proposition that you can't sue judges there's no article three standing to sue judges if you're challenging the constitutionality of a state law and as i said in my opening presentation we're not challenging the constitutionality of any state law we're challenging the practices that are not in line with the federal constitution a i'm still really struggling with this like maybe you can try one last time if the state law says you can do weekend  holidays differently and they are complying with the state law and still they believe they're doing a forty eight hour world but they're doing it in compliance with the state law that extent it on under special circumstances aren't you saying the state law is unconstitutional no were not your honor the same exact type of statute existed in california and county riverside versus mclaughlin it excluded holidays and weekends but the supreme court still said county riverside practice of complying with excluding holidays and weekends a state while committed is not in line with the constitution if the county were to come into compliance with county of riverside vs mclachlan and hold hearings within forty eight hours which may include a weekend or a holiday that would not cause them to come into conflict with the state still it would it would cause a judge in an individual case to have to say i know the state statute says this but of i've been told in this lawsuit that the federal constitution is in conflict with it and therefore i have to i don't know what i'm supposed to do because i've sworn to uphold the rule of law  mean it's just it's not the county and their policies it's the judge and the rulings your honor the state statute does not prohibit the holding of hearings on weekends and holidays it would not it would not be violating state law to come into compliance with riverside permits it but it would could they would have to determine whether the county or some other individual complied that's how it would come up that they didn't they weren't brought for their hearing in time or whatever your honor was some other person in the system would be the person who the claim would be made again what we're alleging is that lauderdale county through its youth core is not providing timely probable cause hearings they're not providing hearings within forty eight hours as county of riverside requires so as as a matter of course if a juvenile is arrested on a thursday or a friday they may be held in detention until the following monday or tuesday longer than i c certainly individual individual juveniles could raise we're not suggesting that they couldn't raise claims under county riverside but we've as one of the myriad allegations in this case is that the county is systematically not complying with the fourth amendment as required under the riverside and also as required under burstein one of the allegations is they're not actually even making probable cause findings that the probable cause hearing last question does the county rise or fall with the judge's whatever we do with one we do with the other or do you pull them apart in any way your honor we haven't made it an independent argument on appeal for keeping the county in that case i would say that if if the court for example were to agree with us that u courts are within the scope of the statute but somehow determine on the immunity issue that the judges are not proper defendants then i think that the case could proceed against the county what we were doing it hypothetically what if we were to determine the contr that they're not within that the judges are not within the scope if the court concludes that the u s court is not within the scope of the statute and we haven't presented an independent basis for keeping the count so we should let the county go to correct ok thank you