nonetheless rejected his bail challenge he filed the tavi as action under section twenty two forty one c three a statute the purpose of which is to permit federal courts to grant pretrial relief to stay prisoners held in violation of the constitution every day that passes he suffers irreparable loss of this fundamental right to liberty and if you cannot obtain relief before trial you will never be able to vindicate that right that is reason enough to decide this case but beyond that the district court's decision to abstain under younger was wrong because youngers prerequisites are not met in the words of this court and bank decision in gilbertson abstention is not warranted because his bail claim is wholly unrelated to the pending prosecution under younger abstention is permitted only where the relief sought would enjoying or have the practical effect of enjoining ongoing state proceedings that is not the case here the relief that cannot prevent our enjoying or interfere with ongoing bail proceedings because there are not he exhausted and i cannot interfere with the prosecution because it is totally collateral to the issues involved in the prosecution indeed the supreme court's specifically consideration of ability to pay consideration of non monetary alternatives and the determination made on clear and convincing evidence rather than by a preponderance of evidence i've seen  two yesterday which seem just suggest that in a very short time this case is going to be moved i don't think that seem that way i don't think i certainly credit the intuition and the concern that this court may have about stepping in at this time when the court of appeal in california has issued this humphrey decision effectively reaching the same legal conclusions that are requested in this hideous case but  that does not moot this case out there there are there are legal and practical considerations going on here the first is the legal consideration which is that there is no obligation for us to go to state court now and really exhaust under intervening decision and we lot of that effect in our twenty a j letter a few days ago but the practical reality is also that there's no certainty of relief ever or promptly in state court under humfrey that decision is not binding yet it's not binding until the twenty fourth of february the initial indications that i have received from defense counsel on the ground in california are that california state judges are not abiding by humphry at all or in a consistent way for under humfrey if he can't get the relief quickly he will never be able to vindicate that right and it is a serious problem to have constitutional rights it cannot be vindicated quickly when there is a statutory mechanism for precisely this circumstance twenty two forty one c three so if he can't get that relief he suffers a serious irreparable harm that is an independent basis to not abstain under younger but at the prerequisite stage those records are not met and braden is clear about this under th circumstance here and in britain where the claim that's presented was exhausted in state court and it is collateral to the merits of the ongoing prosecution it's not a defense to the prosecution and it's not asserted to dismiss or otherwise abort the prosecution there are no legitimate federalism interests that are raised by the federal hate b s action that's what braden concluded and it applies equally here so we have an unpublished decision as you know lazarus which goes the other way i realize it's not binding on us but do you distinguish that case or do you think it's just wrongly decided i think primarily it's just wrongly decided the it didn't consider two  key issues one was that the issue there was collateral to the prosecution and the other is that the interference that the court didn't identify is not cognize able interference under younger what the court said was that there possibility of nonappearance at trial that is not in joining or having the effect of enjoining the prosecution that's the ordinary risk in every pretrial release on conditions there's always some possibility but there's a  continuance to find him but it doesn't have the effect of you know in gilberts in this court walks through the kinds of decisions that have the effect that younger recognizes and is concerned about preventing it's an injunction it's a declar tory judgment on an issue that is part of the case in chief for defense to the merits of the ongoing action is a damages action that turns on the constitutionality of the ongoing proceeding none of those are implicated by the possibility that on simply asked think you're asking for a constitutionally sufficient bail hearing that is correct and with three what they say so so if that being the case and i guess because i think you've covered that in fairness and i appreciate the clarification it's not that apparent from that out well from a younger standpoint certainly not because younger is evaluate at the time that the fifth federal action is initiated and gilberts and so states practically i still think that there are significant concerns about whether he get relief promptly or at all in state court under humfrey for the reasons i was mentioning earlier it's not binding yet state judges don't seem to be following it we don't know what will happen there's also a large situational that goes to something that's a little trickier than i think you might be acknowledging there there are there's cases like this where double jeopardy is implicated and that's a case that's a circumstance where we say well that right is truly lost if it's not been indicated right and i put that sort of in one category and then there's other cases  constitutional rights are at stake like speedy trial and we don't necessarily intervene there right if there's those cases those cases are bisected into two different categories depending on whether someone's asserting as an affirmative defense or just say asking to please please order the trial and hold the trial is something that has to be that right has to be vindicated promptly before trial promptly otherwise it will be lost if the delay happened continues the right is lost and bail is the same way even more so  stack allowed interlocutory appeal under the collateral order doctrine because that right is affectively lost if you cannot appeal it before vindicated before the trial is concluded and that's why there's so much pressure to decide this case quickly without waiting to see what may or may not happen in state court in light of humphrey there's also importance attritional interest here we have district courts that have now diverge to within the circuit within this district on whether younger prevents or requires abstention on a petition this posture and there is this lazarus case which is not binding but it's out there in the district court here of course followed it so i think that there's a there's an imperative for this court to clarify when younger good morning your honor sir may please the court katie stowe from the california attorney general's office for respondent appellee when a criminal defendant challenges a pretrial state court bail determination he because of all of the risks that it poses to the ongoing criminal prosecution would that mean all the risk that poses it doesn't pose any risk that a bell decision person bail that would be an entirely different case in my view my understanding is they're asking for the writ to be granted to require a constitutionally adequate bail hearing and he may well be denied bail it's my understanding so i i would point the court to page sixty six of the excerpts of record which is the petition itself which does seek release but from right that's what i mean there are three possibilities one we are to release two we say conditional re back i think the third option is unavailable in a hey b s case i think actually it has to be the second option which is he's ordered to be released unless the constitutionally adequate bail hearing is held because the federal district court can't actually order the state on on the fact just which is the prison for the sake of argument that we were to order a constitutionally adequate bail hearing what's the risk to the prosecution of that i think the example that  illustrates that is what's happening in the northern district of california in the case in which the court declined to abstain and that's the remove versus had his reputation and so we've now had three state court bail hearings we've been back in district court at least twice there been several rounds of supplemental briefing because the exact contours of a constitutionally adequate bail hearing depend on the facts that are presented at that hearing whether or not  court is hearing is rehearing continually mr remes bail hearings upon the directions and at the request of the federal court because otherwise they say it's our constitutional right correct yeah absolutely and can you tell me why you think he's a flight risk he's facing a very serious length of time in custody i believe it's seven years to life on the attempted murder and right and so it was you know which would you have on the hearing and the record is that he was the public safety assessment was that he was not a flight risk that he had always appeared in court right that's on the record that's my understanding is that there were no no failures to argued and that detention would be perfectly appropriate even if it's solely related to the public safety risks the victim safety risk so you intend to oppose release or what do you what's the state's position of if there is a hearing or do you or you can you commit at this point yes detention would absolutely be sought in the state court because what what sort of bond would you impose seek in the attorney general's view it should not be a monetary bond because this individual is a not able to post financial conditions of release and so the decision instead should be made are there conditions of release that would meet the state's interests in ensuring public safety and ensuring appearance at trial or is detention the least restrictive means to meet those interests as that inquiry happened it has not been and that's why we can see error in this case so what we have on the record of this case correct me if i'm wrong you have a public safety assessment that says he's not a flight risk and that it's he's always appeared and that he's not dangerous to the public right i don't really yes i says a gave him the lowest rating i don't believe the safety assessment addressed whether or not he was a risk to public safety and i'd be surprised if that was the case given the attempted murder and child endangerment and domestic violence charge and he said that his attorney said in the petition that correct the other point i'd like to make in response to the state's questions is that there is in response to the court's question there are many decisions addressing this kind of intake moment in the bail process by federal court supervision of individual bail determinations prior to trial and that's clearly prohibited by john or what's your position about whether or not the humphreys decision does or not does not change this calculation we view younger copulation sorry yes we we view humphrey is related to the extraordinary circumstances exception to younger abstention that petitioner has invoked in this case and one one case that i would point the court to is hoffman vs pursue limited that the supreme court case in which an intervening decision came down from a state court after the federal petition had been filed and the courts observed that that could affect the irreparable injury calculus and in that case the supreme court reminded to the district court for consideration of how that would affect the claimed argument that counsel is making there's no requirement and certainly in the twenty two fifty four cases that counsel cites there's no requirement to reexamine lost every time there's a new state court decision but the question here is is he going to be  space irreparable injury that is sufficiently great and immediate to warrant an extraordinary circumstances exception to younger abstention and humphrey i think complicates that question you didn't raise the younger abstention on the well you didn't just immediately proceed and we agreed with the merits this right and so that's pretty extraordinary so what do we do with that we think that it would be more helpful to have a rule that applies to the category of pretrial bail litigation claims being brought in federal court then just to rule on the as you said unique circumstances of waiver in this case but i think there's a very helpful  supreme court authority and there's certainly nothing cited that says that a waiver could not potentially be revoked when the court raises the issue of super spy on tape within six days of the alleged waiver so i just don't think that their support to the district court can't permit such a revocation of the waiver if that argument had been made in the district court we could have amended our answer as of right of center for fifteen we could have amended the answer would  so my question is do you think that makes it this this case will be moot at that time or is there some exception to this is a place of this case we do think the case will be moot at that time one way in which it would be mooted is that if he is convicted he will obtain custody credits for every day that he spent in pretrial detention that will be taken off of any ultimate sentence but that assumes that he's going to be convicted but which we do not assume but that is again one of the pathways of movements would be conceivably a repair to the europe supposedly irreparable injury well but the brew up to judge point irreparable injury is the right to be free all that's being pretrial pre conviction so what what's your next argument well we don't we don't concede that he it does have the right to be free really has a right to a constitutional commission will be able here exactly and i and i i guess i'm speaking in shorthand but i think you know what i'm talking about this is pre conviction it seems to me there's this mootness question the judge has to to see my has and for the state to say well that's ok he's he's not going to lose his right because we're going to give him credit for those days in jail right works if he's convicted and you know his my my interjection yes i think you can assume he's going to be convicted so what's your next argument so mootness is often contemplated by application of the younger doctrine  federal courts are federal district courts are often never able to reach constitutional claims because they were mooted out over the course of a state court prosecution because in a civil case issue preclu applies so the courts deference in favor of state court civil proceeding in ways that rare case but we step in it's really the rare case and that's why we look to for example the double jeopardy right because that really is lost if not vindicated and i and i will grant you this is a very narrow sliver but defense counsel's argument is petitioners argument is that this is a kin to that because the right to have a constitutional legitimate  determination about his pretrial release is indeed lost if not vindicated what is your a best response to i think double jeopardy is unusual in many ways and one of which is as a practical matter it's a binary decision either the state is allowed to try the person or not and in this case the continuing entanglement of were the conditions of release that were imposed actually the least restrictive condition because what he's asking us to get done into the weeds about were the conditions permissible or not was the bail set too high or not and that's why i've been sort of a broken record on that point i think what he's looking for reasonably looking for a best case scenario to give him the benefit of doubt is  order just requiring the constitutionally permissible bare bail hearing and he may he may or may not get bail act and the federal court will be called upon to resolve the challenges to the subsequent correct in the district court so even so i would point the court to this court's decision and jury versus cox which was a challenge to the determination of proof of probable cause that was made at a preliminary hearing and this court said we absolutely are not going to review that pretrial that claim will necessarily moot out because the person either be convicted or acquitted but the it did not justify interference under younger my question there with that exam there's and because there's always the right to challenge the probable cause determination on appeal with the state court proceeding there's all kinds of reasons they wouldn't step into that well again that had the state ability to challenge it in state court as unresolved at it we don't know exactly how that timeline would map onto this timeline it's why it's as a kid going to take more than ninety days to you know to even get the petition on the calendar  you know the question of whether bill putting that that kind of proceeding that it's the injury is legit injury is capable of repetition yet review because of the shortness of time in which to consider you think that exception would apply to this doctor here the supreme court has held that it does not and petitioner in this case has conceded subsequent cases the sixth circuit said so in the act in this case as well i don't think it's a controversial principle that the claim becomes moot once there's a trial because it is a pretrial liberty interest at stake the second point is about humphrey we're not just making an exhaustion point we're you know not in the offing because of humphrey that's it that's irrelevant it's a term at the time of filing a nation we think that it's not even it's far from clear that he would get the relief that he seeks in state court now is standing humphrey the third point is o'shea o'shea and such when cases have not held that bail challenge is threatened state prosecutions the up to this court and courthouse news indeed ng o'shea was very clear every order that a federal court issues has the possibility for further litigation back in that court for compliance or enforcement purposes that's not enough to create an o'shea problem what created the o'shea problem was a two tiered structure that was unusual and and doesn't come up in very many he is about him up and o'shea the first order as a seventh circuit described it when it conceived the order was that the initial decree would set out the general tone of rights basically don't discriminate on the basis of race in conducting law enforcement and just just as activities and then it would allow defendants in all future cases in the jurisdiction to go immediately to federal court any time they had any objection to a state action that could in the abstract be deemed to violate that principle and assert a claim to be determined ob initio without exhaustion in state court while state proceedings were ongoing understands that had never been articulated to ask the court to articulate the specific standards in the first instance in that follow on case in other words i was using compliance as a pretext to develop a promise system of effective superintendents of the state justice system and courthouse news discusses that and it distinguishes other cases that this court has heard l a county bar on the one hand  the other where that difference is really dispositive of o'shea's it just a general order that the district court is using as a crowbar to get in and supervise all ongoing state proceedings or is it a specific relief that's being requested specific standards mr r volodos requesting specific standards be imposed and tellingly o'shea is part of the no has never been applied in a hideous case because he does not implicate the kind of concerns that the order