plan that is been in place at the jail beginning as early as january of this year all of the as we've stated in our groups all of the relief that's contained in the elementary injunction order is largely has already been implemented has l that's correct but even as the district court recognized in this case the the sheriff's efforts here were were to the sheriff and me the district court accepted at the sheriff was doing everything that he said that he was doing and in fact frequently commended the sheriff for the the for the extensive and significant efforts that were taken to control the virus on a kind of comprehensive level and that these actions were taken in good faith and with the goal of protecting those nevertheless despite all of these findings by the district court if ultimately concluded that somehow the sheriff's conduct was unconstitutionally in an attic woods and mrs berry then district court left open for the sheriff to go back in and ask for additional relief if you could provide additional essentially acted appointed itself a super warden of the courts to keep the sheriff within its control by forcing this europe essentially to go back to the court every time there is maybe an issue or the unrest erupted in the city and resulted in mass arrests and many remains to the sheriff's custody that very well could have affected the sheriff's ability to comply with the injunction order and subjected to contempt proceedings because of the fact that the sheriff removed his discretion to operate in the moments as necessary to response is it is this type of broad discretion of the chief justice recognized must be must be deferred to by the courts and can't be nd guessed when it's the sheriff that has the expertise in judgment making these operational decisions where the court lacks that type of background and experience how does your draw the line of where do we draw a line between that stepping in a super wardens and giving the sheriff the authority to do what he needs to do to effectively run the jail and to protect individuals within there versus the concerns with culver that i don't need to tell you everybody knows that the impact of that and the potential consequences of cope it where it is where some line drawing well in this case as i said the district court accepted the sheriff's representation that everything that he had been doing to create and implement this comprehensive program virus response plan was actually being done and this was a plan that was constructed and implemented with the consultation and oversight of the chicago department of public  is the c d c s conclusion that it was the sheriff's early intervention and aggressive efforts to control the spread of the virus in a comprehensive way by using a multifaceted approach april th the complaint in this case was filed on people rd so in the middle of the execution of this pandemic response this lawsuit was filed but the sheriff's efforts hadn't had order ultimately was theft and whether that has does apply to each category response that the sheriff and his staff brought to bear on the cole problem in the jail and the social distancing aspect sanitation aspect  potential outbreak but also in consideration of the other operational decisions that the court has to balance in just operating the g on a daily basis but more specifically to the to the response putting it perhaps to illustrate a bit better the risk of harm in this case as alleged by plaintiffs and i think have we accepted universally is the risk of the consequential that this totality analysis that you're advocating or it's appropriate in the context of this particular risk element of a comprehensive response plan that is more important than others and plaintiffs experts also agree with that there is there is no testimony there is no evidence no opinions that social distancing by itself is the single most important or most ponselle thing controlling the spread in fact there are a plaintiff's experts as well as the c d c to recognize that it is the comprehensive nature of the dynamic approach to controlling the virus that is most responsible to your perhaps your concern being whether one element of a comprehensive plan could fall short in any balancing tasks certainly that is a possibility if for example the sheriff was executing them six put social distancing throughout the jail but was doing no testing whatsoever in that case sure i could that could tip the scales to make the entire response on reasonable because any reasonable jailer under the circumstances would be doing testing but even in this case looking at the efforts taken by the sheriff to implement social distancing were in the words of the c d c and it's been it's unprecedented and not likely to be executed at that level by any other jail not only did the sheriff partner with criminal justice partners to reduce the population of the jail and release teams and reduce the population of the jail by almost twenty five percent he opened for previously closed in now five previous we closed a business of the jail to expand the footprint of the jail to increase the amount of single cell housing in the jail by thirty the detainees abilities to source the spirit the sheriff had asked the district court for multiple exceptions and said that they could comply with social distancing within the jail and they were doing that  with these several exceptions the district court adopted all but two of those exceptions in light of that how is this objectively on reason well st i would say that the two preemptive security exception so that in the event there was a mass riot or an outbreak of a fight and there was a need to detain and in an emergency nature any detainees that were involved that kind of situation the sheriff was requesting an exception in the event that arose but that wasn't that wasn't happening at the time the only place they were double saltines at that time were within  sillies which were especially accepted from the a social distancing order the other exception that the district courts did not impose was the protection  for protective custody detainees and that is the one dorm that was referred to throughout the elementary injunction hearing as well that had an eighty one percent capacity in that the one for those particular detainees who needed to stay together  with the number one the sheriff's decision to seek that type of an exception certainly is legitimate we related to as related to a legitimate purpose in trying to protect those detainees but ultimately when the district court did not accept that exception the sheriff in acted what director miller described as this back pocket plan to swap entire fears of male and female detainees in order to make that so that in and of itself in our view doesn't outweigh all of the other social distancing activities that the would be satisfactory to the sheriff no your honor another fundamental issue with the district court entering this order at all is that you know it as as you note the vast majority of that social distancing order reflects activities that the sheriff already had in doing and by ordering the sheriff to do those things in the form of a mandatory interlock it's free and them in erie injunction  the district courts necessarily negates the predicate finding of a constitutional violation if this is what this year has been doing where is the constitutional violation that allows the district courts to then impose the same conduct that already had been done so in a fundamental level the imposition of the injunction itself was improper and seeking modifications unless the panel has additional questions for me that's fine thank you thank you grady whenever you are ready thank you chief judge sykes and may it please the court i'd like to begin with discussing some facts that weren't mentioned far in the argument at the time the district the largest known single source of infection in the nation the question in this appeal is whether the district court abused its discretion on april th when it entered a limited narrow when it entered a limited preliminary injunction based on the record before it saini you asked about the line that must be drawn between affording a sheriff or some other jailer deference to his interest in managing the jail with the constitutional rights of the detainee and from plaintiff's perspective that line is drawn exactly where judge you know he drew it he appropriate we recognized that he was required to accord deference to the sheriff and his interest in managing the jail but also simultaneously recognized as the supreme court held in brown against plata that the court must never the last not shrink from its responsibility to enforce the quick constitutional rights of all persons including people in custody and must not allow constitutional violations to continue simply because an inquiry into them would require would necessarily require inquiry into the operation of the jail and we know that judge kelly didn't just pay lip service to the doctrines that he accord the sheriff's a dress because he crafted a very narrow or luminary injunction it was based on the discretion that he was affording the sheriff it included exceptions that the sheriff had asked the district court to provide and it invited as judge say to you you indicated he invited this year to return if there were some legitimate basis or including or expanding the number of exception the share chose not to take him up on that offer and to date has offered no no explanation or indication as to as to why those need to be indicated to the contrary his admission that he was able to immediately comply with the terms of the women area junction suggests the opposite this greatly what changed in terms of the facts between the t r o and the preliminary injunction because in the t r o the district court to kline to impose the social distancing requirement and said that they in compliance with the c d c guidelines are effectively and essentially in compliance with them and declined and then at the preliminary injunction he imposed the social distancing requirements dropped a footnote in the order that he had a more fully developed record but on the facts it seems like a lot more social distancing had been accomplished at the jail from the time of the t r row to the time of the preliminary injunction which would cut against requiring more social distancing so i think two things changed certainly there was the addition of expert testimony from the plaintiffs about the necessity of social distancing  an infectious disease specialist at harvard for example submitted a report that talked about social distancing as being necessary and that the other measures that were the subject of the t r o were also necessary but not sufficient without social distancing so i do think that there was a more expansive record that the district court appropriately took into account in determining plaintiff's requests but in addition to that the record at the evidence cherry hearing made clear that the sheriff was deliberately choosing not to provide housing for socially distant i'm sorry let me try that again that but evidentiary hearing the evidence demonstrated that the sheriff was deliberately choosing not to house detainees at risk of sexual assault and detainees he considered disorderly in a way that they could socially distance that was a deliberate decision it was unexplained as the district court found and the district court therefore determined that that was objective le  reasonable he did so after acknowledging the steps that the sheriff had taken but i think it's also critical to note the steps the sheriff took occurred after the initiation of the lawsuit and that's relevant as well at the start at the time plaintiff filed their complaint more than half of the detainees at the jail were in that house in a setting that didn't permit social distancing they were in tears above fifty percent they were double cells and at the time of the t r o the district court declined i don't i don't believe that the district court found that the sheriff had complied with c d c guidelines that he found that the sheriff was continuing to increase social distancing but by the time of the evidence you're hearing of   permitting those folks to get distance in terms of their housing situation was necessary and the sheriff's decision not to do that with subjectively unreasonable does the fact that the sheriff continued to implement social measures after the t r o when the court declined to enter a t r o on that cut against your argument that a lot of these things were not put in place until after you filed the lawsuit so in other words the court did not mandate them but the sheriff nonetheless continued to move people into single cells to reduce the numbers in the dormitories to there were numerous in inmates who were released all of that continued to happen after the t r o even though they weren't under a mandate to do it so the answer is no and the reason is because the what the district court declined to issue in the temporary restraining order a mandate for social distancing and housing because the sheriff was insinuate to do so so i think that that that that told the sherif that the only way to avoid having that included it was to continue making that progress and the record demonstrates that at various hearings that the district court asked repeatedly the sheriff about the feasibility for additional social distancing and that plus our evidence which continued to establish as we submitted our renewed motion for the women our injunction the evidence established its necessity and i don't i don't think it's wholly irrelevant but i certainly don't think it has it cuts cuts against the district or its ability to have issues that within its discretion and there's a couple of other appellate courts that have grappled with this this summer the swain case the th circuit the wilson case the th circuit swain dealt with a case that was adjudicated on a deliberate indifference standard where the district court had fully credited all of the share all of the sheriff's evidence williams dealt with a pool of an area injunction that was ordering the release of detainees which is not the case here that requests from the plaintiffs in this case was denied and the swain case and and and the cameron case involved as as judge greg brennan as you mentioned involved preliminary injunction that were far broader accorded far less deference to the jailer or prison official who was who was at issue in cameron for example that preliminary injunction included a mandate that the jail i believe actually yes it was a right included a mandate that the jail respond to all emergency requests for medical care within an hour it mandated social distancing as did the preliminary injunction and swain without exceptions throughout the facility here we're dealing with area injunction that was far more narrow repeatedly and in the cut in terms of the women any injunction itself apart accorded far more deference to the sherif and also dealt with an objective reasonable discretion given the evidence sherry records it's undisputed nature and the fact that the sheriff's all the concedes that the measures at issue are in fact necessary is a public health matter so this case is far different in in swain for example the th circuit hinged its legal analysis on two things one was that the district court had failed to hold the the sherif to a standard of subjective deliberate indifference and had conflated an objective crossing with the subjective requirement so in that sense it's inexplicable to this case where the objective reasonable mistake hurry is is the inquiry here and that it also discussed the need for deference to the sheriff and so it's on that score that this this court may judge now it did accord that deference as we can see both from his opinions and also from the terms of the injunction itself and granted the sheriff's request for the stay of a preliminary injunction that required their sheriff to implement certain covert procedures should we read anything into that no your hon exception the same sort of emergency request for medical care must be responded to within the hour given that the decision in barnes which was five to four but given that that it was not explained i don't think that the court can rely on that or to read anything into that other than that the supreme court did did a balancing analysis with respect to how to treat the preliminary injunction while the case is proceeding through the court of  appeal i'd like to turn to an argument my colleague on the other side made about the fact that the sheriff had been doing the actions that were issue in the case both for the injunction i think that the record very clearly disputes that the sheriff's own evidence demonstrates that before the temporary restraining order there was no progress no policy that permitted it sufficient s detainees to wash their hands the cold and plant itself only advised detainees to perform frequent high hand hygiene when they were symptomatic that's at record forty dash one at eleven it was undisputed that masks were not being provided to expose that and the record remained at the time of the polygamy injunction hearing it's the district court pressley found that the decision had been made not to socially distance certain groups of detainees despite the fact that it was that it was should focus its its objective reasonableness and corey i think the answer is that both are true all of the things all of the circumstances that go into how the sheriff responded to the colgan one thousand dollars outbreak at the jail are relevant but they don't all have the same relevance and this court has repeatedly found that under a totality of the circumstance a totality of the circumstances inquiry some things have more relevance than others including the change a change in ineffective  violation in this case the testimony from plaintiff's experts was focused on certain public health measures and those those measures were not being taken by the share so while it may have while the sheriff's conduct in january had some relevance in the district court judge can only addressed those those actions that was not dispositive on the question of his objective reasonableness with respect to denying detainees masks with respect to denying detainees sufficient so to clean their hands with respect to denying certain groups of detainees the ability to be housed in an area that permits social distancing with their housing arrangements the district court was was permitted to take those things into account and understand report you know federal rule of evidence to a one discusses when a court can take judicial notice of something that was not before the district court and establishes that it can only when it involves a fact that's not subject to reasonable dispute because among other things the accuracy of the source cannot reasonably be question here we have no evidence in the record and no indication from the sheriff why he contends that report from the c d c to the contrary  place to raise that report and raise the arguments about the sheriff's compliance and his contention that he will continue to do this not withstanding now is standing anything else those are all appropriately raised to the district court by way of a motion for modification or terminations of the preliminary injunction the district court in this case judge can now express fully invited the sheriff to come and bring more evidence bring bring additional explanation if the terms of the policeman area injunction were incompatible with the sheriff's legitimate interest in managing the jail the sheriff opted not to do that and instead has tried to insert those arguments to this court on the st instance but that's that's not appropriate as a matter of a acted and appropriately recognized simultaneous role to a court deference to the sheriff and in managing the jail and its own responsibility to enforce the constitution and after in the end the district court determined that the evidence establish that a narrow set of additional public health measures was national stary to combat the imminent threat to the health and safety of plaintiffs at the jail that decision was not an abuse of discretion and this court should affirm that district  hearing that change that the plaintiff's expert dr venters agreed that the c d c guidelines were the appropriate standard to follow he did not provide any testimony to suggest that social distancing in an of primary opinion was that the sheriff should invite more officers in to enforce social distancing within the common areas of the jail but he did nothing to solidify this notion that this europe's conduct is what is the reasonable response to a never before seen people can demick within the confines of the jail and while those particular cases might have been decided under deliberate and different standards they're instructed here because it gives a sense of what a reasonable scenario under these circumstances with the same knowledge that the sheriff kevin this case and what they had done and in each one of those cases wilson cameron and swing they had  implemented all of the same activities that the share of care with control of people coming into the jail screening at intake or into an isolation enhanced cleaning protocols providing masks but in addition to all of that the sheriff also was for intervening detainees at intake women before they entered the general population they were the early one of the st places in the nation to implement a rapid test of course all of the social distancing extraordinary social