good morning runners may please the court my name is jonathan balled up and i represent the appellant donald herrick i would like to reserve the minutes rebuttal if i may mr herrick has two cases before the court today both regarding the constitutional rights of detainees especially pre trial civil detainees mr herrick necessarily retains more of his rights than a convicted prisoner would and his state has violated some rights the order granting summary judgment should be reversed and this case should be rounded for additional proceedings because genuine issues of material fact storming mr herrick is a prisoner and therefore turner is not directly on point and even under turner the arbitrary nature of the defendant's actions and policies violate mr herrick's constitutional rights to my first point second to the staff viewing of mr herrick's privileged legal mail and finally the policies either followed or not followed by the staff to violate those rights i'm simply there are issues of material fact regarding the fin its conduct and motives part of the order granting summary judgment also referred to sorry qualified immunity qualified immunity is not appropriate in this case for a number of reasons first it has long been established that even a prisoner's male absent a security interest and without appropriate institutional safeguards is a violation of a prisoner's first amendment rights mr herrick is not a prisoner is a civil detainee can i ask you a question and i'm going to have the same question across the board but it just seems to me that all of  the analogies being made to the civil detainee status are somewhat different in this case because get we know if nothing else that the nature of the facility he's in and he's detained and to taint a special type of facility we've also got a question one of them certainly security the institution and of the people who are living there for sure but this person was there for a very long time and that's typical in these cases awaiting adjudication and during that time my question is whether or not this person does or does not have a treatment plan i don't know off the top of my head right but be happy to supplement if well this is this is why so forth and we have in our record no treatment plan i don't think i couldn't find one but we have a debt to a treatment plan and i can't think that somebody is there for eight years without a treatment plan but i think but i again this is this extra record there's flavors of it in this case that there's a treatment plan and it's very common for a person in this circumstance awaiting  adjudication to not work that treatment plan advice of counsel prior to the hearing and i'm guessing that's what but it is a guess that that's the status that your client is in and the reason it matters is because that's the lens through which i'm going to be looking at the reasonable ness of all of these conditions  that so i can't speak to that i do i do recall that there was yes there was an amendment to the treatment plan but i don't know if there was a official treatment plan or how that has been going on ok going back kind of the issues regarding qualified immunity talks about clearly established you know rights and as a court knows there's no need to identify kind of a particular action going you know this destruction of the mail looking there it i think it's it can be said nearly there is a lack of evidence regarding professional qualifications of the decision makers in this case required by houghton and younger only want to tell we provided the information regarding her qualifications and was limited mostly to titles  apply these decisions none of that is in the rec and it should also be noted that professional judgment does not necessarily imply degrees and decades of experience but can simply mean you know this person is properly trained and is thoughtful in their job and how to prisoner's attorney or the framework or turner might be applicable in a very narrow sense and what i mean by that is that mr harris was issue and requires the state to justify what they're doing and their reasoning so the deference that turner gives in allows the court to say well you know i you haven't provided to me with evidence that makes sense and allows me to make sure this this decision doesn't argue that shouldn't be the case the state should explaining what they're doing and why they're doing it and that tracks with young very you know the looks of the due process clause in the fourteenth amendment in terms of like the civil case so put simply turner is not directly on point it should be more narrow because he is a civil detainee the facility there are no alternative means for mr herrick to exercise those rights there may be some costs associated with property dealing with the mail but frankly those are the costs of running a facility so the ripple effects in that situation limited right there was a policy change there have been many policy changes were guarding how the mails been handled and how it's going on and the way well doesn't that matter in terms of whether certain of these things are moot at this point you say there's factual issues but i don't know what that actually are the larger than we would have is that they're constantly these policies are constantly in flux there is no yes this is the policy that seems to kind of an ad to know that that's sort of penalizing the state for responding to a complaint basically you're saying well they change their policy but maybe they'll change it again is that your argument simply yes but i would look to the last five years the mr herrick experienced that kind of thing if there are these policies have changed have been in flux and yes i'm sure the state has been trying to put policies in place that preserve the mr harrison and the other residents constitutional rights but they haven't gotten there so far well what's missing at this point my understanding is that besides the kind of mail policy being in place i think that there is a  but the policy may have changed as it goes well that leads me nowhere because i don't know from looking at the record that that's a basis for reversing and what i'm looking at is the record the policy the state is and whether to a those policies or not may may have yes i don't have evidence in front of me i don't have a record of guarding and that would be without the evidence what are we supposed to  do i would look back again to the the fact that the there are a number of issues that are raised we don't have much in the way of evidence regarding that they have been changed so looking at the status quo as the case was  following jones be black as the counsel would be appointed if this case is remanded to help narrow the issues of discovery and help resolve some of the issues regarding the degree disagreements in discovery with that i'd like to reserve the rema malan property claims number two all defendants are entitled to qualified immunity given the current state of the law and number three the arguments that mr herrick does make on appeal or not present to the trial court and do not need to be considered by this this court could affirm on the basis of the clearly established prong of qualified immunity alone that's the most efficient way to resolve this appeal but if it were to consider can we go back to that for a  how these claims are best understood because i get your take on that sure certainly that the complaint is sort of scattershot in terms of what what constitutional rights are being asserted what's helpful to what may be helpful to the court is that turner doesn't talk about it's test being a portable only to the first minute right it is more concern from an institutional interest perspective i appreciate what turner does or doesn't do right i understand there's a question about which  step standard we're going to apply and i'm and i'm not sure it's going to matter to me i'm just trying to figure out how the state interprets these claims do you treat them as first amendment or fourteenth amendment claims or are you telling me you don't think it matters also really i don't think it matters  i read them as primarily first minute claims but given turner and the way that turner has been applied to subset of due process claims first minute claims fourth minute claims the court in turn it was very clear that  applies broadly regardless of the right that sedition case a one of these claims i think is that mr harris constitutional rights of riley which when he was transferred to the i am you following alleged assault you're not treating that as a personal claim are you well then that younger applies i think but i fully appreciate you think it doesn't matter to the outcome i'm just trying to make sure how you treat it certainly our position is that the turner test applies to the mail and property claim two but being in i am you is not the same thing as being on the older you know those are two different things ok think  emphasize the three reasons why this court should apply turner as the standard for claims brought by civil detainees in this context number one recognizing turner would be consistent with the supreme court's guidance that detention facilities are entitled to considerable deference whether they house criminal detainees as in the case of turner whether they house  bell or whether they haue civil detainee's as in the case of younger the common thread of all those cases is that the institution is entitled to deference in its decision making about how to run the institution but it's not unlimited do these people have treatment plans when they're i'm just struggling to imagine that someone is sitting waiting for eight years for a hearing without a treatment plan but if that's the position that that would be very helpful for me you know well it's optional whether pretrial civil detainees that special person or participate in treatment well they're free to and if they choose to do they will get that sort of fantasy i don't and i'm sure you can't force somebody to participate i'm just trying to figure it doesn't sound optional to me that whether the state provides one that certainly wouldn't be consistent with so as i understand it so it's important for me to know whether the states taking the position that these people don't the state doesn't have to provide treatment plans am i misunderstanding you i do not believe the state is required to i think there may be sort of pro forma documents that are created for these individuals that resemble that but it's certainly optional whether they want to participate in treatment are six other circuits at least that have recognized that turner should be the standard for these types of male and property claims as applied to civil detainees including a case involving a pretrial detainee if the distinction is important to the court further this court has also strongly suggested that turner should be the test and heidrick three hundred granted that was more of a qualified immunity case where there wasn't an explicit adoption of turner being the standard for first amendment claim but there was a strong approval stated in that case that turner should be recognized as a standard and it's also consistent with this court's pretrial criminal this engine cases there in multiple instances where this court has recognized that turner is the appropriate standard for reviewing male and property claims for that population as well if that's the case or can we talk about why these particular policies  is there is there a particular policy he'd like me to focus on your own telling he's only challenging three or four i'm just that seems to be your blanket response and i don't mean that pejoratively but i am just if you could apply them to these and explain to me why these policies are are required because of the nature of the facility in the security needs that would be helpful and certainly we can talk about the return address labeling requirement which incidentally is is no longer in effect the record reflects that up policy was changed well if it's not if it's no longer in effect and how about if we talk about one that is going to talk about a policy that remains in effect there are certainly restrictions that are placed on incoming property periodicals that sort of thing for clinical  reasons to maintain the therapeutic milieu of the institution of course when you're housing a population of approximately two hundred sexually violent predators and those awaiting trial for that purpose maintaining a therapeutic therapeutic no you is a paramount importance right so do we look for that in the declarations that were filed well there's nothing that really gets into that level of detail in the declarations that were filed by the state but i think it's ultimately the burden on the plaintiff to show that there's not a rational relationship between the asserted government interest and the policies that are at issue and i think it's eminently rational and reasonable for the f c c to exercise tight control over the materials that are coming into the facility and there's been no evidence introduced into the record to show to the contrary i want to pick up on i like to make sure that we get these policies on the table so the return mayo issue has had the policy changed correct that's correct and how about the scanning of the mayo even if the legal mail is disc has that policy been changed yes your honor that policy has been changed so that if the disc comes into the facility from the attorney it meets labeling requirements it is given to the resident without any sort of of scan or search so then is there any other policy that was challenge that has now been  changed not in the record i can answer off the record oh well that doesn't do it's too much good without some kind of supplemental citation then an opportunity to answer you know you are the only the only policy change that's shown in the record is the mail policy credentials in order to be entitled to qualified immunity besides the fact that argument was not made there are two other really fundamental problems with that position number one there is no authority to support the idea that younger applies to professional judgment standard has been extended to a case involving a first name a claim involving mail and property second and maybe even more fundamentally is the idea that defendants have to produce some sort of evidence in these cases to obtain summary judgment when they do not bear the burden of proof in these cases it's well established that plaintiffs must prove a violation of their constitutional rights i think of the ought to say that  defendants are obliged to show that plants constitutional rights were not violated that is consistent with this supreme court guidance in the pearson case and other decisions by this court that the plaintiff bears the burden of showing a so how would he go about doing that how would a hypothetical detainee go about doing that detainee could request discovery in the discovery process they could have asked for resumes of the  individuals that they're making a professional judgment claim against for example and test test the estates a certain interest and test the state's asserted interest that was a question that with that's what they would be doing right they would be testing whether there's a rational facility where the primary purpose is providing rehabilitation to a number of individuals and generally put the i'm just i'm not trying to be difficult i'm in forgive me for interrupting i'm just trying to ask whether the state's position is that that is only an institution wide analysis or whether there is also well where the state is would also be asserting an interest that is aimed at the therapeutic needs of a particular detainee oh i see  some sort of invasive treatment interesting that the f c c might try to force or any facility might try to force on an individual waiting civil detention trial that becomes more problematic  more again i think more it also does make clear that if you have a generally applicable policy that takes a treatment interest or rehabilitate interest as the legitimate state interest those policies are defensible even if they do apply generally to pretrial detainees as well court's decision in morrison the hall to require return labeling be present on incoming personal mail it's reasonable to require to leave legal mail labeling acquirements and it's reasonable according to turner to prevent resident resident correspondent i also take issue with how counsel generalized the qualified immunity analysis in this case i think it's important to bear in mind  qualified immunity needs to be reviewed based on the specific circumstances of each case and that the rights should not be defined at too high a level of generality and i think when you say things like a clearly established right to mail for instance that really doesn't capture the qualified immunity and else is appropriately and history looked at whether there is a clear present that shows any reasonable defendant would be on notice that what they're doing violates the constitution so i don't think the right can be defined that generally or that broadway and with that we would ask the court to determine that defendants are entitled to qualified immunity and affirmed the trial court thank you you have some a battle time if you're honest as to some of the arguments that were i surrendered  he was arguing as best he could he didn't you know he doesn't have access he's restricted from the start he's detained so he doesn't have access to an attorney or didn't have access attorney what would the court like me to provide a letter regarding to get into that level of detail we think is necessary i mean if mr herrick this any either record that is not there mr herrick seems to have been able to develop he was developing a rather lengthy record regarding information he had but there was plenty of information that only the state had in their control that he was not able to access and not able to get into that we believe would be able to help out his case and with that thank you well let me ask your question what i don't i don't think i'm clear on what you're asking us to do what may help policy challenging here so we were challenging to go to understanding that it's changed i think the but i don't see anything there that says he didn't consent i would argue your honor that consent with the under duress is not consent looking at three twenty three and three twenty four that's where i would be looking at with that i don't i don't think would be appropriate or a the proper policy for a state to say you're going to let us search your legal mail well they didn't search there with a what they said i think your body can see is that they didn't know how to handle disks so they looked at the file folders like you're mean and they're allowed to do that on paper basis but i don't believe that that's the limited a did the amount of time that was taken to look through these files suggests that they were doing more than just scanning through or flapping through they would be looking for contraband is taking quite some time and then you know kind of being held withheld from mr herrick while they were doing that what in our briefing really delve into that issue the concern that we would have is that it was clear maybe not made clear in the record but mr herrick was using those for his defense and that's what he was trying to coordinate with his attorney with those not using them for some security purposes you know escape or something like that and many of those g p s maps weren't of the immediate area at all they were of a different area in washington but you would agree that that that restriction pro bono assistance to the court i also think the attorney general's office for its argument the next case for argument then is herrick versus qui