it please the court my name is tory lewis and i represent the appellant kendricks story on this appeal joining me at counsel table is my partner rob schaefer the question for this court to consider today it's a fairly straightforward one why and was recording why were female guards watching and observing the search from the control room and why was mr story called a month during the search and harassed without unit transfer it appears now whether that was outside the security of the of the perimeter of the prison is really not evident from the face of the complaint without knowing more about the prison than the way the prison operate for instance here we don't know if there was particular contraband or materials that he received at the school that would justify a search as he returned to the prison or we think that that's yeah i guess that's kind of a question isn't that sort of presumptive that's a possibility and therefore it would be reasonable to search him as he's coming back to the primary facility that's the presumption that the state would like to make in this case but on the face of the complaint i would argue that we don't necessarily have those factor to allow us to make that presumption however even if the court is willing to treat this as a typical tina transfer or under conditions where there might be some special security threat particular to this to the facts of this case we still have additional factors here as far as the intrusiveness of the search that need to be addressed for instance one obvious question why were females observing the search in the control room and i will point out that in his statement of the case with respect to defendant love he say state when female guards were observing the cavity search  more than one one or more than one why was that necessary and why was it necessary for them to be in the control room and why watching the search so what's your solution that there should be no females hired for the job and no your honor we not just that at all but rather cross gender viewing in the context of the visual body cavity search is an added intrusion that this court has never approved that far and we would respectfully  that at least further fact finding be determined to see whether it's necessary to have females and particularly multiple females viewing the search also on the face of this complaint we don't know that they were simply monitoring the cameras we see that they are quote watching the search what is watching and and viewing the search versus just monitoring the cameras in the control room and i think that's a distinction that deserves further elaboration from the record if these female correctional officers are professional people working in the same capacity as the man what is it about their presence that makes you search on leads what is it about females versus males  instance the tenth circuit now why is that is my question why is it different why is it viewed as more intrusive well in the same way that a visual body cavity search is more intrusive than a pat down search would say that the crossed interviewing i more intrusive because there is within anyone's private person there's the desire to keep themselves clothed and keep themselves out of that kind of view and particularly away from that kind of view of the opposite sex and here we have that opposite sex viewing the ledge on the face of the complaint sure there may be employment interests on the other side that would weigh in favor of the state allowing women access to all areas of the prison but in these kinds of searches that are particularly intrusive visual body cavity searches the additional intrusion of someone of the opposite sex being present and watching and and viewing it it's about the effect that it has on that inmate also with respect to the cr interviewing i would know that this court has has never actually approved cross interviewing in a visual body cavity context outside of accident circumstances we had to kill the mckinley case where there was crossed interviewing and in fact cross gender searching but there were circumstances there she was being uncooperative with the search he was being violent but this court also said that it was unconstitutional that that crossed interviewing continued after the plaintiff in that case had been fully restrained and the exigent circumstances no longer existed in the tenth circuit in hayes the marriot there was an alleged search in front of a large group of people several of them were alleged to be female guards and the court said that that stated a fourth amendment claim similarly in the fifth  there was a visual body cavity search there heard at least in the presence of one female guard and the court said that that was sufficient to state a fourth amendment claim we also have within the eastern district of arkansas a district court case baumgartner in which one female guard was watching a visual body cavity search and that survived the one nine hundred fifteen a threshold that we have here and here we have this allegation of females plural and we're not sure why they were there or why they were watching where they simply monitoring cameras  not really watching the search or they actually watching as alleged on the face of the complaint and that question should get us to the next level if that were the only question we have here that would be one thing but we also have additional questions why was mr story harassed and called a monkey during the search this court has said in the context of a visual body cavity search which is incredibly intrusive it must be performed in a professional manner and inappropriate comments have no place under the fourth amendment harassing language or inappropriate comments that were made to the inmate and the court affirmed that injunction in other words granting the prisoner fourth amendment relief simply because some comments were made during the searches that were inappropriate and i think going back to judge college in question it goes to the intrusive nature of a visual body cavity search and what can be conducted during that particular intrusion we visited about intrusion with respect to the added intrusion of females but this would be the additional intrusion in for instance seltzer but baby della where this court addressed a circumstance in which there was a certain inappropriate sexual comments were being made and the consequence of that was that it was a violation of the fourth amendment but with respect to the them i think that the clay would be a little different there if we're to take it out of the current context i think it's understandable that crossed interviewing is different than viewing a nude person at the same gender so for instance we see locker rooms all the time where people are in a group and and there's no question about that but then you have across gender aspect of it that that that adds something inherently different but there's a cross gender viewing aspect there and courts have viewed it as different  as well additionally obviously here we also have the additional comment of being called a monkey which is verbal harassment that this court has already said is not appropriate in the fourth amendment context i would point out that the case that was  you know i think that probably would be a different case and needing medical care i think would prevent present to the obvious justification on the face of the complaint that lacked here well but if if if you could have a female physician treat  the female viewing of the patient he would need medical care yes perhaps the female there but there may be a legitimate justification why that would be so for instance the need for medical care your argument would imply that no they have to find a mal intrusive i think that would be determined by what the person could proffer as a legitimate justification for the search there if it's apparent on the face of the complaint that know that they that they have a female doctor for for instance and there aren't any male doctors that would be present to take care of treat that physician or that patient then that would be justified under those facts importantly i just don't think we know enough here about why t guards were in that room and what they were in fact doing in fact in the face of this complaint we cannot even see that they were necessarily serving any legitimate purpose they were watching the search from inside the control room we don't know that they were simply monitoring cameras and why would there be more than one monitoring cameras i would upon that at this stage we just have too many questions and not enough answers are there any cases that i hold a fourth amendment claim the solely on in other words that don't also involve a fourth amendment claim according to the lower court in this court of course insulter by there was the additional i think there was touching in that case actually which did make it a little distinct but at the end of the day on the face of mr story's complaint we just simply have too many questions and not enough answers and ultimately the state may be able to proffer legitimate justifications for the nature of the search that was conducted here but on this fact and i the president of this court i would urge the court to allow mr story to go on good morning may place the court names jail hal and as your honor just said i'm from arkansas attorney general's office here on behalf of the applebee's in this case and i'd like to start by trying to clear up some confusion seems to come up on page of the joint appendix under the plaintiff statement of the claim a few cents is down he states that the opposite gender was able to watch everything she was working in the master control room where the cameras are watch then further down towards the bottom talking about the cameras he says that the excuse me the log sheet he says the love sheet will prove that there was a female guard working in the master control room so it seems more likely than not that there was only one female  he identified every possible clane that was in the complaint even the ones that were clearly stated and went through one by one and explain why the wall just did not support a constitutional violation in each of those cases  all as it evolved the fourth amendment only prohibits unreasonable searches and to read a quote from the recent for its case with justice kennedy writing for the court he began by saying in addressing this type of constitutional claims courts must defer to the judgment of corrections of this will officials unless the record can paint substantial evidence showing that the policies are innocent necessary or unjustified response to problems in jail security i don't have enough record here to implement the sort of deference that was described in that case i think that this case is a good example of the judge taking the face of the complaint and applying the law that that applies just as the first question was why why was he searches because he was coming from another prison unit he had left the prison grounds and each warden is responsible for safety and security within his own perimeter fence there is no reason or no way for the officials at the randall williams unit to know what might have been going on at the pond  it's the school program whether or not there were freeworld people who were employed at that unit or people who are not as diligent in security as the people at the gates at randall williams is pretrial detainees can be strip searched when they're entering a general prison population in this court lay the groundwork for these cases in building walls wolfish  and in that case the court said that there is no precise or mechanical application of this reasonable this rule but you generally look to the where the how and why this court then first addressed the issue head on in gulf phoenix and in that the court noted that these types of cases cases carry a limited scope of judicial inquiry in that case the court specifically looked at  strip searches for prisoners of leaving and coming back in the units strip searches before and after contact there's a patient and even strip searches before and after going out to the exercise yard and i know that  removed from the bottom of one of the exercise be so that you know there are security interests imbedded in all of these cases and those are obvious to the court and it certainly was not an error for judge morsel to apply common sense  in this case and screening the matter what do you say about the female guard viewing even if it is just one although i know your references are to places where he says one but he does elsewhere hard the argument is ok so assuming you have the security interests that allows for strip searching removes from the school back to the prison it's not reasonable the have the women viewing in various states of undress and it also talked about the need for surveillance and in that case one of the components was the female guards raise the issue that well if we're not allowed to work in a prison there's an equal protection concern there and just simple staffing purposes the prisons have to be able to allow female employees and as your honor was asking the question a moment ago i was writing down a note to myself it does seem that some courts make a distinction between viewing across gender nudity in a context of medical professionals but there is somehow a line drawn between corrections professionals why that one is there is one sure but there seems to be at least in the courts that it a difference in this casual observation of females viewing males or males in females and actually being in that person's presence and inspecting that person conducting the search and that's clearly not what was happening here there was just a female in a control booth as this inmate said looking at the monitors for all the cameras whether or not she even solve this is unclear but frankly doesn't matter  that physically restrained a female who was being combative an unruly after she'd been arrested for public intoxication now the court did say that there was a bonding of a constitutional  case but it wasn't related to the officers first viewing the arrestee when she was in the padded cell it wasn't related to when the officers were physically escorting that female neck it down the hallway to the restraint and it wasn't them actually placing her neck it on the restraint ward the violation occurred when hours went by without her being afforded some modicum of dignity the facts were unclear but it appeared that she went about three and a half hours naked spread eagle strapped down on the table and only just before she was removed from that long after any danger had passed was she allowed to have  brief my for in says that this court has cautioned against blanket judgments well in florence the court threw out a blanket rule that without justification or reasonable suspicion or probable cause a correctional facility has justifiable reason to search even an arrestee when they're entering a prison population and if there are no more how about the active major for claims separately calling somebody a name saying installed even if it happened is a breach of professionalism but not a constitutional violation in the same way  that was the result of mr story saying that he couldn't bend over all the way because he had a back problem a reasonable security officer asking somebody to do routine strip search seeing that  ah can't bend over i can't comply with your order is going to immediately become suspicious so that they made him bend over a couple of times for the search is not unreasonable if a comment was said it was nothing more than a breach of professionalism and doesn't change the reasonable most of this search just like it doesn't affect the reasonable list of all the other searches that happened that day with the other inmates who are coming into the prison and if there are no more questions i'll there's no issue of qualified immunity this been raised here and by the state on the on appeal in defense of the order which strictly looking at a fourth amendment question are brief did not address qualified immunity but to the extent that it could be argued i think that it's clear from the state of the case all right now both the supreme court and the eighth circuit even if the and yes the department itself was not me if that's a better answer to your question well was or i forget was a request for any kind of relief injunctive relief against the institution i that there was a request for money phrase that i really like that modicum of dignity in reference to a search and i think that is sort of the crux of the case here as judge groner pointed out there was a harassing context a con comment made in the context of a very intr visual body cavity search and as judge college in addressed earlier there was crossed interviewing of a very intrusive visual body cavity search one search in which it's difficult to find a modicum of dignity to begin with and then when you add additional factors it makes it even more intrusive to go to judge college in question regarding the distinction between doctors in a prison facility and guards i think one distinction that could be drawn maybe from the case law that we see another circuit  is that there's this inclination that when you go to a doctor for health reasons voluntary these searches are anything but voluntary and that could be a distinction well i understand that and i thought you might say that originally but my usually in that case is recognizing their interest in going and complying with that search that would be conducted in in a physician's office for health reasons whereas they do not personally have an interest in a v b search being conducted of their  was constitutional in that instance in that case they were also dealing with and i think my time six fired you may continue we thank you i appreciate it your honor that there were windows in the cell and they in the court noted this court noted that it was only a requirement that the guards go by in view flash in the cell they were not watching they were not observing these inmates as they were standing nude or gauging in their activities the nudity they were simply observing flesh in the cells and so that was a distinction that c