disabilities act in connection with transportation of civil court houses in respect to accessible toilets and sinks various this detention cells now in pursuing these claims in district court plaintiffs litigated three motions a motion for pulmonary by such an entity and intentional discrimination at that and that the denial of discrimination was by reason of disability plaintiffs had the burden to show that the sheriff intentionally discriminated against them by reason for disability they did not meet that burden now the ninth circuit has held that the reasonableness of an accommodation at issue a title to claim is it presents a question effect we believe this court to play the same standard and the record here show the plaintiffs never established that they were entitled to judgment and their title to claims as to liability district court found the plane of submissions in support of their motion for summary judgment were inadequate and instead use findings of fact that the district court made i don't earlier motion ultimately entered a permanent injunction did he ever tell you at any point during that hearing what was it six days that he was in fact conducting a hearing on a permanent injunction your honor i was not there i don't believe so and that that these guys did get help they did get help there may have been isolated insists that mean that they weren't exposed to the dishes to the sheriff's nonobservance of the requirements of the act they were still taking their chances every time they showed up that somebody out of the goodness of his heart was going to help them like i don't there was no sheriff's policy i don't know so the sheriff did have a policy on that was to provide help if i could act whatever excess was needed what the sheriff the should that be custom the practice of the sheriff's office and the fact that with respect to these individual planets but for example maurice boston testified in the deposition i believe that he was pushed up there of the ranch each of the twenty times he went to the preview courthouse the evidence in the record the evidence we submitted in support of our motion for summary judgment and against plaintiffs is replete with that whenever this issue came up with for have to exception of an isolated incident or t o the sheriff provided assistance when needed the plaintiffs never did meet their burden when did the plaintiffs submit their motion for summary judgment the motion for summary back to the individual counties liable yeah the individuals i fifteen did you ever invite the court's attention to the fact that under the under beacon the against westover he was supposed to submit any matter that other than damages it seems to the district court may well have gotten off on the wrong foot when he turned this into a hearing on a permanent injunction your honor i don't think so i don't i don't find that record any place where you said hey wait a minute judge you can't do that you depriving me of my seventh amendment right to the writer of well we move for summary judgment and we oppose their motion for summary judgment as to liability and that was with an eye toward the trial and damages so i think we did your i think by doing that we through twenty three b to class the definition of this class is initially point out as indefinite all persons confined to the jail from august fourth two thousand and twelve to the date of entry of judgment who have been or will be classified by jail fishes requiring a wheelchair whether classification should have been a grant in the first place we say it should not have been initially there were there the in the past representatives were not adequate mr lacy was released from the department of corrections as was sent to the illinois department of corrections you had a situation where there were no real sort it was no access being given a no you know no attempt to comply with the a b a i think that be a common issue but here the record shows that each of these plaintiffs were being assisted pre meal in case of the go back to liability against the sheriff no i think there could be common issues and i think to the county could be met i just don't think it was not here i mean you're in the class i'm sorry i mean you were in a class yes how many  population that that the department of corrections alluded the number in the class would change from time to time i mean she's not sure the exact number was ever determined in the record you know i know what your exposure what is your practical exposure in this case you don't seem terribly worried about the permanent injunction  s and you don't and you've got a six hundred dollars judgment against you with respect to one of the name clash so i guess your real exposure here is to other members of the class and what they may be able to develop is that right well i think it's two things it's stuff that there was a finding of liability in a finding that sheriff engaging discrimination right a finding we challenge vigorously challenge but it's also the ability to keep coming in and to seek injunctive relief which is the standards provides and readers from their brief clearance around a water closet should be fifty six inches minimum measured perpendicular from the rear wall now it's fifty four and a half inches plaintiffs argued it your argument is based on a that provision in light of the overall remedial purposes of the a t a s permissive and if you look at the injunction that was honored what ended up happening was the plainest and that proved that the fifty four and a half inches caused anyone any meaningful or denied anyone any meaningful reasonable access to a bathroom facility they didn't prove that all they said showed was it was fifty four and a half inches we shade should be six just record essentially appl a strict liability standard for circuit and bacon which we cited projected that we think that right the purpose of the a b s to ensure the reasonable access is provided it's not there so you know so someone could come in and say well fifty four and a half should be fifty six let's rip up character barriers and tear down walls that's expensive that you know takes away facilities that are needed for a legitimate government purpose if they denied access that the one thing the plaintiffs should have the burden of proving that they didn't have the burden here of district court didn't make them sustain that burden and they didn't sustain effort so for what it is that is that distance supposed to be there the ability do turn the wheel right back up and move forward and right now we're not exactly sold were the injunction is up one and a half inches everyone agrees it's fifty four and a half they're saying what should the fifty six and that's fine if in fact they can prove that fifty six was necessary for the tradition of reasonable access but that wasn't proven and we don't think it can be proven you're this what you think would cost twenty thousand dollars to correct i believe that's correct right yes it was in the record so so for those it th injunction order regarding the maid holding cells all be reversed thank you may please the court my name is patrick horsey and i'm one of the attorneys for the plaintiffs the police in this case in august of two thousand and fourteen several wheelchair users cook county jail filed suit against the sheriff of cook county  fourteen explaining that point this application for permanent relief and move forward and that was during the hearing your honor was two days after the hearing started the hearing started on december sixteenth of two thousand and fourteen in continued all the way to february twenty seventh of two thousand and sixteen now at that point during any point there after did the defendant's object to proceeding with the hearing on the injunction in the district court interim findings of fact after that water was entered i do not believe so your honor and the district court held hearings over the course of three months a few days each month to address barriers that were wheelchair users were all facing when they attended court five suburban court houses in cook county all had ramps that were steeped in law each holding cell in the suburban court houses  that's correct your honor they were all in the basement of the courthouse once the wheelchair user ascended the wreck and there were there was nothing that complied with the aviation actual standards at the time they mention mr boston mr boston initially was two holding cells on the upper level of neighborhood which was not used for wheelchair users because as i said they were all held in the basement mr marshall if we could stop their shoes for a moment when that is there a violation of the eight when the prisoner is exposed to and or confronted with non complying equipment or when he actually has a need for the use of the equipment and it's not there for a prisoner is not bothered by that simply because somebody steps forward to help him or because he manages in the way if this is framed in the context of a class the class takes on its own separate existence and i believe when he wheelchair user is faced with barriers and the court supreme court to address this and tennessee first laying about the butt wheelchair user having to crawl up the stairs teresa second floor of the courtroom or court reporter not being able to perform work because she doesn't have the ability to move that's an easier explanation of an obvious a day violation but i believe it's similar when a wheelchair user has to go up a ramp that's too steep and it causes him pain him or her pain or they have the on comfort or discomfort of having to go through barriers that shouldn't be there because congress explained that there should be uniform standards for people in this category i don't know how about the prisoner who has to hope that a kind guard will step forward and help i don't believe a prisoner  stepha hope the a da in tennessee first line in the regulations that the a d f is implemented under say that when there are structural barriers the government entity under title two has an obligation to come forward and relocate services so that the disabled person can access it so it's the can come from tasia with the barrier that creates the violation in your view i think so and there's also some heightened scrutiny under tennessee first plane when it's some elemental feature in our society like going to court you know i don't believe wheelchair users should have to attend court and in cook county they go from the cook county jail to suburban courthouses in there are there all day you have to face the barriers of not agreed that a reasonable accommodation for this barrier is not an immediate compliance barrier is for the sheriff's employees to push people up and down the right and that has full support in the a b a regulations it has support from tennessee first  and it was not consistently followed up until march first of twenty eighteen the district judge after reviewing several motions about noncompliance with the permanent injunction that was entered back in october excuse me it was the language was crafted in january of this of twenty sixteen the sheriff to not implement this language required by the district judge insult august first of twenty seventeen and after this language was answered you were instances w wheelchair user still went up and down the plane ramp on the system and by agreement of the parties the sheriff in the county agreed that the district judge should enter an order that provides a team of wheelchair users team of officers working at the lane courthouse should push people up and down there should be signs clearly explaining the government's obligation to move these wheelchair users up and down and it was ready to roll call to provide further explanation that this is something that's important so this is how you explain the zero verdict i guess for some of these individuals in other words they were confronted with a barrier if so it just so happens that the jury didn't think they suffered a heart a specific harm that was compensable because that's true your honor to do plaintiffs recover no damages for violations of the ramp and go into the bathroom there was was found to have suffered damages under the for the violations and speaking about mr lacy there's no dispute that he went up and down this ramp on a system it was in the summary judgment papers that he went up and down by himself he didn't have to hope whether an officer pushed him up he asked for help and he was told by an officer there's not going to be any help for you to go up and down the ramp we can't touch you you know he went to court on the seventh floor of the wayne courthouse to this day has no e t a compliance bathrooms when he went to court there was a holding cell he was placed in most the times he went from it was from april or may of two thousand and fourteen over to september of and fourteen and there was a gate that separated the holding area from the toilet area and he couldn't make the passageway was not large enough for his wheelchair if it so he had was denied the access of toileting he didn't have any accidents but he experienced discomfort from this experience and they had a policy that was implemented by the sheriff prior to mr lacy incarceration and it was on it was on april nineteenth of two thousand and fourteen the chief of the lane courthouse mr banks issued a memorandum to employees that work at the sheriff's office explaining there are no a t f compliant toilets at the lane courthouse for inmates the procedure in the event of an emergency is the inmate should request assistance by a correctional officer to be moved over to a public bathroom how often  how often is there a wheelchair prisoner that encounters this they can't be every day at that waiting criminal court house there is between ten and fifteen wheelchair users who attend court each week how many ten to fifteen wheelchair users who attend court each week and that was a statement agreed to by the parties that summer goes well that's it inches one question so it is it is something that could be a daily  t and is it an apparently wind that prisoner arrives on the docket or are the label them if they're not isn't automatically somebody when i envision a ramp i'm not sure about how much effort it takes to go up and push yourself up what i envision is when someone loses control of it and it rules going up or down that may be naive i don't know that it seems to me that would be the  maybe would you already explored that way automatically when there's a wheelchair that person gets extra attention without any question it was the purpose of this case rather and district judge entered a permanent injunction requiring for this type of movement and now because of the order that was entered on march first two thousand and eighteen the sheriff has a team he had what there was a in order pointis filed a motion for a rule to show cause because there's evidence all this information is on video there was evidence in the plaintiff's uncovered that show that wheelchair users even after this are george the district judges injunction was entered the sheriff still did not push people up and down the ramp and march first two thousand and eighteen the sheriff of cook county agreed to an additional water by the district court that a team of officers would be stationed at this ramp area with the sole purpose of pushing people up and down so now the court's concern about the time you know if wheelchair users it's been resolved in this case there's certainly now that wheelchair users will be addressed with this barrier when they can attend court you hadn't answered judgment question about the late courthouse but how about a suburban court houses how often do they encounter wheelchair less frequently under the there's about sixty wheelchair users at the cook county jail any given time waiting it sixty six zero six zero six zero or on or the end it's a transient population it fluctuates the good news about the suburban five suburban courthouses is that the reps have all been run of it in response to this litigation so wheelchair users now don't have this common barrier that they face they say the sheriff in the county addressed the holding cell issue because either two or three holding cells in the lower level now have for the most part e t a compliant features so wheelchair users at the suburban courthouses now do not have the same barriers that is continued to be experienced by wheelchair users that late late in the county government agreed to spend a significant amount of money to remed agreed to spend money to renovate all the secured side of the courthouse it was supposed to be completed about two or three years after the district court entered the permanent injunction as we explain partners the accommodation that the sheriff agrees is reasonable to push people up is satisfied and addressing mr lacey's toilet access issue the procedure the emergency procedure that they had in place when he was in custody was to request an officer and in the event the officer would then if was practical move him to a public bathroom the chief of the courthouse testified at the injunction hearing before the district court and explain from the issuance of that memorandum in april of two thousand and fourteen until the time he testified at before the district judge at the injunction hearing he was not aware anybody using that emergency procedure and that was the emergency procedure that mr lacey experienced when he attended cork that was the basis for the district work finding that the toilet access in the reasonable accommodation offered by the defendants in this case did not satisfy the obligations imposed by title two because this reason was combination that was proposed by the defendants was not in fact followed and that was a basis for finding mr lacy was deprived the benefit of the toilet access you know if you went up and down the ramp without assistance and that was the under title two of the idea and i believe the parties agree the standard for deliberate indifference it's knowing the harm to a federally protected right is substantially likely and the government failing to act upon that they hired a access to areas the county government agreed to renovate the ramps the general public had to go up and down they'd read to renovate the bathroom facilities that the public had access to but they did not extend over to the secure side of the building and that was the principal reason why the district court found intentional discrimination because they limited to this to the publicly accessed arius in addition there was other evidence in the summary judgment record that the district judge will light on in finding intentional discrimination there was a case in two thousand and eight called stips versus sheriff of cook county relating to wheelchair users who attended who were incarcerated at the cook county jail and that was a class action ruling to toilet access for real child users and because of that litigation the sheriff of cook county in the county renovated areas in the cook county jail so that people in wheelchairs and who had disabilities could actually use the toilets what about the court room some cells court rooms and selves the the aviate excuse me the public the county government address the court rooms with that one nine hundred ninety eight accessibility study so the county government made the courtrooms e t a compliant but they limited it to the public areas like we're here today they did not move in make this assessment behind the bench and the areas where the inmates and people in custody are generally a site about the witness areas that sort of thing i believe i've seen some court rooms that perhaps are not complying with the a t f standards so i can't speak to that i would assume that that was portion of the county government's assessment but i'm speculate on that portion the judge also district judge also consider this memo by chief banks on april nineteenth of this assessment in regional plans call for moving this privacy screen back and that's what they didn't every other courthouse every other lower level courthouse and move that privacy screen to create the floor space and the argument defendants pursue now is that it's not technically feasible but that's not correct because for ten thousand dollars for each olding cell the county government could make the correction to transcript core reviewed videos in the district court found at the state of the current renovations and they would they were nice in general sense but they're too small for real cheaters and when you're talking about a class action some people obviously could use could use the toilets but in the sense of what the wall requires in the obligations imposed by the government when they pursued these renovations they should have followed the regulations required by the a in the toilet area so even if that is the two and a half inches from a practical standpoint you can get by on that it's the absolute technical violation of the law that seems to be the reason why this way this is a violation your honor in addition to the not following what the regulations explain the district judge made a factual finding that should be reviewed by clear error that they were too small to use and made little sense to go forward and spend sixty thousand dollars for two holding cells but neglect to spend the extra twenty thousand dollars  injunction be considered permanent but it was never clear that it was that district court did not make it clear what would have entered it from an injunction did you end did you object we did when the permanent junction was it was not clear what actually not the original order was that clear it was not clear to us whether it was meant to be permanent or pulmonary so we found the cruel fifty nine emotion at that point was we're told it was a permanent injunction and we did object so on what grounds there's never been proof that the sheriff engage in intentional discrimination mr boston came up again he testified there was or he in his deposition so there was never an instance when he was not provided assistance we needed to use the bathroom mr lacy said the same thing he said that when he needed to use the bathroom he would ask an officer would then immediately scored into a bullpen to use the bathroom so the record just doesn't back up plaintiff's claims when help was needed it was given there may have been an isolated instance but it was not it was not common practice in the certainly was not a pattern of intentional discrimination just to finish and the on the injunction to me would courthouse one five one five c three to reach shall there is mandatory the reverence permissive if players could commit would commence and provide evidence to show the reasonable and meaningful access was not given then they would have a claim but they didn't do that marcy a judge ripple has a question you'd like to ask mr marcy i would just like to know what do you agree with the representation that was just made to us back the parties were not made aware that the district modify the procedures in the district court gave the county and the sheriff every opportunity to move forward with making these changes thank you if you look at the court refused the memorandum and you know on the injunction you have any response or all sorts of answers short to go back to your original point i made there was conflation of different motions and it was not always clear what was being what was being litigated and that was a problem permeated this case up till today so