his case raises questions critical and for answers about the limitations on correctional institutions ability to curtail detainees constitutional rights cook county jails inmate information handbook sets forth that detainees are prohibited from possessing more than three total books and or magazines that are not deemed to be religious but the evidence in this case reveals that the jail does not use this policy to promote the safety and sanitation needs that is forth justified rather the jail has given correctional person now unfettered discretion to enforce or not enforce the policy whenever and however they see fit and this leads to arbitrary and standardless seizure and destruction of detainees reading material what how does this differ from any statute or rule which isn't forced or not that's a monday an observation i just don't understand what that has to do with the constitution well here are the jail has said that the policy is justified under turner for two principal reasons one that it can be used as a behavioral management or behavioral modification that is the jail doesn't enforce the policy to promote good behavior or enforces the policy to punish us here and the reason for felon in possession was used to prevent felons from having guns but it doesn't mean the prosecutors prosecute every violation prosecutors throw most cases back i just don't understand what that has to do with a constitutional claim the the issue here is that everyone who is detained at the jail including mr kolker is given the impression that books are legitimate pieces of personal property they are the you can't have more than three here the inconsistency invites abuse everyone who is detained in the jail according to their own thirty six dollars witnesses the vast majority up to ninety five percent of people have more than three books or magazines but then the evidence is that at the will of correctional officials those books can be seized and destroyed and the problem with that under turner not is that not at the will of congress  corrections of if you have more than the allowed number they can be she's there's no contention in this case that she had three or fewer right it's a time was for a determination of what the policy was with regard to what happens to books that are seized pursuant to the jail's policy and that was clarified when we were sent back down and the testimony of the jail's on thirty six witness was that the books are destroyed most likely thrown in the garbage and the district court deemed that fact to be irrelevant to a determination of whether the policy was constitutionally permissible and that was an error one because this is already instructed the lower court that that was immaterial question but more broadly it goes to the policies legitimacy under turner namely that this is a greatly exaggerated response to the legitimate security concerns that the jail has put forth to justify the policy there is no reason given why the books that are seized from between you should be treated the same as the jail treats weapons drugs or other forms of contraband so it was an error for the district court to deem evidence of what happen to the plaintiff's box as irrelevant to the determination here and i think where the district court really went to iraq district court said among other things that no due process argument has been made complaint i'm not asking about the complaint i'm asking about the whole process of litigation yes i think that the ultimate disposition of what happened to plaintiffs box is deeply intertwined with the policy not asking whether something is deeply intertwined with something else i'm asking in concrete question was it due process argument made in the district court we did not initially character judgment because i've got to due process claim and here it is that was not the argument that was made a lot however defendants the district court and this co all treated the jail's policy as involving due process concerns and in fact that was the basis for the district court's st summary judgment decision wise as this part probably recall that the plane could claim for the destruction of his box was the plaintiff does not make a due process argument that's a standard forfeiture well on remand we certainly did raise that so then why did you answer my question by saying it was not raised in the district court i apologize your honor so in complaint if she thought that was necessary for us to bring forth a due process claim about the destruction of the plaintiff's box that was denied but then we also argued to the court that the due process concern should be taken into account remand because what happens to be just how the books are disposed of is simply part and parcel of the policy that has been challenged here and the due process considerations are intertwined all of his books so for the st several months that he was in the cook county jail he was regularly permitted to possess more than three blocks however a few weeks before his release the policy was in force throughout the jack that housed on and his books were seized and disposed up and he never received them back but now at this point he is out of prison are out of the cook county jail and he seeks i'm a declaratory judgment that the policy is unconstitutional and damages for the loss of his st amendment freedoms and his books and as a result of the policies application to hand so yes to judge mr brooks question the due  process issues that this court highlighted were brought up with the district court on re man and the district court drew a very stark line finding that we could not bring forth those arguments or that legal characterization of the policy as it had been applied to the plane death and that the disposition of the books was irrelevant to her analysis of the summary judgment motion and that was in direct contradiction of what this court had directed the district court to do one remain  that whether you see this as a st amendment turner test question or a jew process question the destruction of the books really calls into question the constitutionality of the policy as it was applied to mr process issue to be resolved need to plead law they plead grievances the grievance is i had these books and they were taken away from me what the theories are whether they're called st amendment or due process or taking needn't be in the complaint any insistence that the theory be in the complaint which the magistrate judge said it had to be is just flatly inconsistent with the decisions of the supreme court so if this is going to be defended it has to be defended on some other and i would begin by saying that the the court denied the i'm sorry i begin by saying that while you're correct that legal theories do not need to be let in complaints throughout the course of litigation the plaintiff not only played the st amendment claim but repeatedly denied the flu not plead law and you had plead grievances the grievance is my books were too late and the new york giant have to plead law in compliance and therefore you don't have to amend the complaint to plead law and i don't know how many other ways that proposition before and johnson it was a summary reversal of the court of appeals we don't set ourselves up for summary reversal it's really straightforward and you do need some other argument and turning to the  the cook county jail handbook clearly defines any books more than three as being contraband and again that's that's what we need to return in this case to being that they are contraband in the cell let's draw a parallel as i've already done with ms nicholas to firearms somebody who's been convicted of a felony cannot possess firearms or firearms in his hands they are contraband in his hands but they're not contraband generally it follow from the fact that the convicted felon can't possess firearms that the police officer who sees a firearm out of his hands can't take it and just put it in a crush immediately without going through any form of legal process your are the contraband policy is not a part of this record however the cook county jail does have a contraband with you address my question please i ask you what the police officer could do with a firearm seized from somebody who has a felony conviction you need to answer that question and your i don't know the answer to that question i would imagine there is an answer to that question in this circuit we said it's contraband only in his hands there is still a property interest if they can be given away transferred sold the felon can't contain have actual or constructive possession but he has a property right in them and could sell them say to a dealer who promise not to give them back to why isn't that equally true of books in this case honor plaintiff's own testimony was that he was aware of the log or has told the search i am i'm not asking about plaintiff's testimony i'm asking a legal question why a principle already established with respect to firearms that are contraband in the hands of jones but not in the hands of smith why that principle doesn't apply to books which are contraband in the cell but not contraband in society at large that's a legal question and it can't be answered by pointing to the plaintiff's testimony and i i'm not sure it would your honor and i think cook county jails policy allows for that and that's part of what makes the policy cost you just suit contends that the policy that the handbook is silent and that the policy is to just take everything and destroy them the plaintiffs said i would like to contest that and the district court said that's not even relevant it's not even relevant whether they're all destroyed well if the same principle that applies to contraband firearms applies to contraband books it is certainly relevant that's why i'm asking the question whether there is some principle of law which would distinguish the book situation from the firearms that you and two things your honor st in this case detainees are allowed to give away their access books to other individuals on the tier they're allowed to mail them home to family and friends they are allowed to dispose of those access books so if they know they're about to go over the three book limit they are allowed to get rid of them there is a process in place you went there and you didn't listen to my question i gave you the case of a felon who is caught red handed with a he was caught in his home he hadn't given them away or sold them we whole normal laughs that he has a property interest in them and that he could do that you can't distinguish a case like that by saying our plan if didn't give the books a way before the shakedown that's why i'm trying to figure out whether there is some difference between books and firearms for the purpose of thinking about what the property interest in them might be maybe there is no such difference but we need to decide that in this case and i would honor i would offer that they've a contraband policy a cook county jail in the case of for example drugs or once guns are taken out of the hands of the convicted felon they are just gone it's their property you can't rest you can't end this case by saying there are contraband in the  because if that were an ending the firearm case had to have come out the other way that's why i'm asking you to deal with the fact that the firearm case came out the way it did and to address the question whether books are materially different contest takings and noni though the lawsuit contends that there is no such process and when the plaintiff wanted to prove that the magistrate judge said it is irrelevant whether there is such a process you can't come to the court of appeals and say we are right therefore the plaintiff must be denied his opportunity to show that we are wrong litigation doesn't work that way and you're i think part of the problem part of why the district court denied the leave to amend the complaint for the rd time was that the opportunity to work those facts up and put those in the record had existed for two years during the course of litigation and plaintiff was not pursuing that theory and did not those facts to present those facts that in fact books are simply destroyed there is some testimony that that's what happened but likewise there is there are policies that indicate other thing should happen that's not in the record plaintiff did not carry its burden issue is the st issue is the st factor under turner is whether or not the policy relates to a valid p logical and the record is replete with instances of books being misused books or magazines   locks books and magazines to create various difficulties in a prison setting and that's why the policy exists to limit the number of books and magazines can have access to the nd turner factor books to whether or not detainees have alternative means of exercising their right and in this case they clearly do the book limit is three books in a cell at a time and detainees are permitted to obtain more books the very next day as long as they give away or smale home or send to other people the books they have that would be in excess of that limit and the policy is that the chaney's if they know they're about to hit up against that limit have that ability to get rid of the excess books now the rd turner factor then turns to the impact the accommodation would have on president ministration and here again we see that if detainees are permitted to have more d books and magazines in their cells it will take longer to search it creates more opportunities for contraband like shanks or drugs or other material to be missed and hi in their forty's leave more opportunity to detainees to injure themselves or the property facility itself and in the th term a factor looks to whether or not this is an exaggerated response a nd again the test under turner is not whether there is some other alternative that can laid out it's not a least restrictive alternative test the question is whether or not the kind of jail response is an exaggerated response to the concerns and kind jails response of taking books that are more than three and destroying them is not an exaggerated response in this case the detainees kno the rule is there's a bright line rule and the response they know that they will lose their property if they exceed the number of books that there they have in their cell thanks have repeatedly called for this volume tell us that the property back alone is sufficient and the property bag alone is not sufficient volume while a good limit and while the volume limit achieve certain ends of limiting the clutter in the cells the point is that books need to be searched individually page by page it's not enough to just make sure everything is put away and guards can move on so the volume limit alone is not sufficient and again it's worth noting that plaintiffs have argued throughout that they only want have a little bit more than what's allowed and when the detainees should have a little bit more that becomes a question a line drawing that becomes a question of of reasonable us and it  books is unreasonable plaintiff has not met his birth and that the courts have repeatedly advised that courts should defer to the judgment of prison officials and not insert themselves into every single instance of prison so the contention that there was not sufficient evidence before the district court rule on that question just simply isn't true nd with regard to defendant's contention that there was some kind of adequate process for a person to the seizure of their box of course the grievance process is useless if your books have already been thrown in the garbage and there is no relief one could get by filing a grievance if the books have already been heard so the contention that there is a adequate process through the grievance process simply doesn't hold up turning to defendant's contentions about the turner caste council is right that turner is a deferential tast and this is the rare case where if you defer to what their own witnesses testified jail to what cook county jail employees testified to it supports plaintiff's theory their testimony is that this policy is almost never enforced and that the lack of enforcement of the policy has not compromised the security or an administration of the jail in fact the testimony was that it has caused no problem whatsoever even though the reciting of these reasons why books could be a problem i mean it's pretty long list yes and i don't know i guess maybe the northern district judge got into that are now saying this good bad or different or what you really should do with the books or something  so i think that the testimony of the jails officials about the real world on the ground practice and what really happens with regard to books within the jail is more important than their abstract speculation about what might be done or how books might be misused but there are testimony about the real world on the ground practice was that the presence of more than three  detainee has not caused problems in the jail and then finally there are so many exceptions to this rule unlimited religious folks unlimited in will or study unlimited legal materials that really imposing this content based regulation on secular books only books that are not deemed to be religious or recall simply doesn't satisfy the dictates of the trust so based on that we