ladies and gentleman before we begin our first case for this morning i want to take just a moment to welcome our newest colleague to the court of appeals for the seventh circuit judge barrett so we look forward to many many many many years of judge barrett's contributions here so our first case for today is hoffman against no bull or no bull and others and we are ready to hear from m and i know we have a new time system when you get to the point on the on the countdown clock where you've reached the rebuttal time you've reserved it is up to you to stop and save your rebuttal time disallowed my eighteen clients from arguing to a jury that their constitutional rights were violated the nature of this case concerns the indefinite incarcerations of drug for participants absent any due process in the jail as a sanction for violating a drug court rule these sanctions the jail lasted anywhere from six to two hundred twenty days time the district court accurately described the sanctions as at best unpredictable and almost always a no it was a wholly indefensible system unfortunately it was a defensible system for my clients because the appellee to fit in and successfully argued at the district court level that all fall was on one man just drug coby these forgotten souls of our society deserve and need these fundamental constitutional protections talking about in this case your honour's so what exactly maybe it would be helpful if you were to take the defendants by group because we have the sheriff for example who has one set of powers and responsibilities and perhaps another set of  obligations we've got the chief probation officer and bailiff so you know let's take the share for instance what was the sheriff supposed to do in the face of the judicial order to put somebody in jail once the judicial order came for a sation pending placement in jail the sheriff as in charge of the indiana jails was responsible for the legality of their custody the sheriff was the one that had to make sure that they had a initial hearing were all their due process rights were protected and the sheriff abdicated that responsibility but passing off all responsibility to the court system to make sure that these these individuals had any semblance of a due process here and before their liberty was taken say so should he have filed a motion to reconsider her or is there was there any appellate possibility to go beyond what judge jacoby was doing what i'm trying to make this concrete in my mind right if the if the sheriff could have done anything that we have argued are braces that he first off should have had some reliable means of communication between the inmates in the jail and the court system because what happened in this case is for the two plants that were incarcerated for long as this hoffman in mr o'connor they were only released because happenstance a jail officer decided to take a piece of in house mail to another judge in the clark county judicial system that told them hey i've been sitting here for you know two hundred days now what is going on with my case and so that was the jails fundamental failing was not having an adequate system of communication between the jail and the tiger system my clients testimony throughout all of their depositions was that they had absolutely no idea what the tiger system was the only method they knew as to communicate their plots to anyone outside of the jail was through in house may and i'm aware of the affidavit they have submitted saying that there's this tiger system and that there is one correction officer mr dodd who is in charge of sending grievances from the jail to the court system but  bottom line is in the practical sense the only system my clients knew about was in house mail and that did not work counsel do you think your grievances system is constitutionally required i do believe a gr constitutionally required what basis the courts case law and i believe armstrong held that a indiana jail had a constitutionally inadequate system of letting the inmates communicate with the courts well arms do the problem in armstrong was that for mr armstrong there was never any court order to detain correct for only eighteen of your clients there were court orders correct correct  that seems and i have to say this case looks a lot more like when we don't with him hernandez again sheehan where we express we rejected this notion that jail  correctional staff have an obligation to communicate between inmates and the courts about the legality of custody if you could address the hernandez case i would appreciate it issue is these people have never had an initial hearing or not dave but you that's not quite right of course i mean they're arrested for the various underlying fences the drug offenses there is an arraignment there's some sort of initial hearing at that point they get diverted into this alternative system which is the kind of system in general that many jurisdictions around the united states are experimenting with and they signs agreement and you know i don't really want to get into the agreement because i think the district court judge was you know prudent not to rely too much on it but in any event they've been arraigned and so now they're on this form of i want almost like supervised release they're on a type of release that is just trying to rehabilitate them work so i don't see this is detention without any process i just detention let's the best i can come up with for you is without the ability to continue to monitor whether the the process is going forward properly so they find themselves in jail but as i understand it none of them spend any more time in the jail than they would have if they'd actually been convicted we just don't have a conviction here  the criminal charge that led them into the drug court is one thing but then once they're in you know this quasi parole probation type of system and then in a sanction comes up where their liberty interest is or is threatened there has to be some kind of due process here and at that point that's i don't think anybody really disagrees with that counsel and i'll be surprised if you hear much defense for judge to kobe's management of the  system the problem is in allocating responsibility to individuals where your clients want damages from individuals and we've talked already a little bit about the sheriff we've got this staffing committee with two judges in three or four lawyers all of whom say saying this is basically fine what are probation officer supposed to do well the lawyers that were supposed to be there were not there so at the end of the day it was just these i'm not physically there or just not doing what they were supposed to do physically not present which is what all of this started about because there's not a defense attorney at the sanction release really cation does not necessarily have a sixth amendment right to counsel i don't know about the details of indiana law on this question indiana actually has a statute related to problem solving course the statute is thirty three twenty three sixteen of the drug court rules the judge shall conduct a hearing concerning the alleged violation of the condition with the following restrictions in place proof of the violation by preponderance of the evidence presented of evidence in open court entitlement of the fourteen point five thank you counsel can i ask you about the claims against sable and canal by what exactly do you allege the nature of the due process violation to be i mean as your central claim really every drug or participant that was set in the jail and that is clearly they weren't given procedural due process before they were sanctioned in jail but once that water comes from judge jacoby and he says you're sanctioned to jail pending placement it became josh people job and choosing to know whose job on placement and we've we submitted our briefs what exactly they did to find a place that's a different claim it seems to me that that claim is that they violated the due process rights of your clients because was alleged because that's what ultimately led to bestow hopping this would be going on today of josh people do not walk to judge carmichael's office who is the chief judge of the circuit court in clark county and say hey we've been saying people to jail without any due process what is going on but the fact that he did it that doesn't mean that he had a constitutional duty to report earlier in the district judge also said that below these arguments hadn't been fully developed about what can no bill and siebel should have done in terms of finding placement or arguments about their participation in the d t c process in the first place right changing your argument now from not always but i'm not changing the argument and if i didn't fully address it at the district court level i didn't fully address it but i thought i thought i did the bottom line is there's not a whole lot of case law concerning drug courts and the due process rights to go along with drug courts so my main argument was a sort of case from the eastern district of michigan where tud were a drug court case manager was have violated their constitutional rights to freedom of religion and that just wasn't enough to get over the fact according to judge parker that this wasn't clearly establish the stablished that these two drug court case managers had  to go above and beyond judge toby so so i want to pursue this a little bit too because when you get to know bill and siebold and i don't see much in this case at this point that's snelling so i think you can tell me if i'm wrong about that but you know we want to see what it is they should have done that they didn't do and i guess you've put on the table that they were very non diligent about trying to find placements or perhaps they should have been exploring options other than just tossing these people in jail whether it's some sort of electronic monitoring or what have you but anyway that non diligence i gathered that there were also claims that paperwork wasn't being done and in th proper way in a proper time that would have allowed the system to work a little bit better but i thought i would like to know exactly what it is they didn't do that they should have done and i also want you to talk a little bit more about what you've just now touched on which is why this is so clearly established that even qualified immunity would not protect siebold can oh well and wrote him for that matter on these on these due process amendment due process claims not for the rest ok and what's it what are you talking about the fifth amendment since this is the state instead of the fourteenth what is that if it had been made as applied by the fourteenth amendment to the states i don't understand failure of action within their power and authority was so egregious and so well established that we should find a fourteenth and a due process violation i presume procedural due process not substantive i would argue that would be substantive due process because the that you cannot confine people to jail without the authority to do so that's liberty without due process of law r that's procedural due process you don't need substantive due process here for a thing no it's not going to help him it's only going to complicate things so focus on if you could on one chief judge would question about what clearly elephant in the room here is as you started out by admitting judicial immunity after the supreme court's decision stump against sparkman it's entirely clear that judges can be doing some pretty awful things and still enjoy judicial immunity so we don't have to admire what judge jacoby was doing but he was doing it wearing a black robe more or less he was doing it as a judge and he may have been making many mistakes but the rest of these people are following his orders right i would say that would be correct up to an extent so once judge jacoby entered the order holding these people in jail pending placement an treatment at the halfway house it became defendant noble unseeable job to find placement in our theory is they didn't do that and then secondly for two participants the deeper the individuals that were detained for the longest amount of times the testimony was terminate would have tossed her right back into the regular criminal justice system i take it correct yeah what is the evidence that they took inadequate measures to try to find placements and what i thought was that they were only making one phone call a week i mean is there any evidence that there were beds available and canopus and siebel feared to fail to secure them there was testimony from a couple plan absolute that were incarcerated in jail that the only reason they were able to get out of jail was because their family or their friends place a phone call to some other treatment facility that mr siebel did not call for instance we had a pregnant participant that was confined in jail that needed to go to a hospital mr siebel was having a hard time finding a hospital that also served as a treatment facility i take it and she was only released as her mother arrange with the hospital and then coordinated with mr siebel that hey there's a better deal but such and such hospital and then the next day she's out of jail but is there evidence that he wasn't calling i mean maybe he missed a hospital and i mean i know that there are those allegations in the record maybe he missed a hospital or missed a bed but is there allegations that he was really doing nothing the evidence we have the evidence we presented to the district court was his is case manager knows which are basically just his weekly summaries of what he's done for each individual participant and we try to put those notes in front of this court to show that maybe he made a phone call once a week maybe made a phone call once every two weeks false arrests the primary argument that i understand your opponents are making is that even if the arresting officers were not authorized as a matter of indiana law why is there a federal fourth amendment violation here and i'd like you to explain that the district court cited a case i'm not sure how you pronounce it passed which first like horse preserve were at forest reserve officer made an arrest outside of his jurisdiction and the court in that case held that that fourth reserve officer although he violated state law in making the accurate extraterritorial seizure did not violate federal law but in making that and the court reasoning they said that the present case the fo violated the fourth amendment not only that but the fact that judge koby informed these two people mr snelling in this noble that he did not want them arresting people the fact that their own policy and procedure manual sit specifically said they did not have the authority to arrest people nor could they even transport them back to jail their own policy procedural manual said that these are any doubt about the validity of the arrest warrants for these three point  no so how are they hurt by having these people arrest them the harm to mock lines would be the fact that these people are not following the laws how were you how were your clients hurt they had valid arrest warrants against them and they wound up in custody that would be an argument i would have to make to a jury well why don't you make it to me well and to my colleagues this is a society of laws and so our theory would be that i can't go out and arrest chicago taxi driver because i'm citing why should these people pay money to your clients who had valid arrest warrants issued against them and who were then taken into custody apparently without any violence or physical injury because of the injury to their human dignity that they're being arrested by someone that doesn't have any arrest power but you can see that if a local police officer had had that arrest warrant an arrest would have been in order yes ok like it said my top you are welcome to save your time thank you thank you all right we have three apple lees so i welcome whoever wishes to go first are you mr smith yes your name please court my name is joseph jeremy snowing may have some additional comments on these issues and will also address the fourth member issues the issues as relate to your share of rawdon are distinct from the issues for the other defendants and jeff will be discussing those issues the district court was one hundred percent correct that the drug court staff members were not personally involved in any constitutional violations that may have been suffered by the plaintiffs in this case so here's what worries me about your theory it's very commonplace for somebody to be in a jail or for that matter in a prison pursuant to some kind of court order and yet it's it's also entirely possible to bring for instance a writ of habeas corpus against the custodian and say you know you're keeping me too long or you're keeping me under conditions that you know you've punish me for something that i shouldn't be punished for into keeping the and that sense too long longer than i thought so the fact that underlying the custody is some sort of valid court order in no way prevents either a conditions of confinement case or a duration of confinement case so why is your case different in principle the difference is who the case would be brought against in a baby as cases brought against the state for release of the incarcerated person well and so the these players i know it's not your client they did in fact bring the suit against the sheriff you know challenging the authority to keep them in custody in the way that the judge was so far as your client come of confinement claim the judge didn't and the whole program doesn't assume you're just going to put people in jail if you're just going to put people in jail you might as well just have the criminal proceeding and be done with it  which would at least give due process protections in your client that the allegation is by failing to explore outside placements as was his duty kept  confined to long but it's it is absolutely false that josh did not fulfill his duty in trying to seek the placement for these plaintiffs but that's a factual matter beyond where we are in this case right now i'm sure that that would be a defense that you would bring but there clearly are facts that are under dispute about how diligent he was if it was every two weeks and one desultory phone call and no follow up and we have evidence in the record the family members were finding placements where he wasn't i mean that's a dispute right now i don't believe there is a dispute there yonder  the so you think what suppose he had made one phone call a month with that be enough to fulfill his responsibilities and that is a very interesting question a question that has not been answered by any court in this country as far as as i can can tell what due process protections apply in these drug courts which are relatively new and there's your position that the answer is not you know there is definitely some due process protection so what what does it extend to due process if you think of even a general framework such as matthew's against eldridge looks at the interest that's at stake looks at the value of more procedures looks at the cost of more procedures looks at the public interest what do you think is required let's let's not lose sight of what the actual alleged constitutional injury is here constitutional injuries that they were detained too long without being told why they were being to be detained without having an opportunity to contest the alleged reason i assume that drug court personnel are no more infallible than anybody else in the human race so you know could be that there are things that these plaintiffs might have wanted to say if somebody had allowed to do so and those are those are procedural problems that absolutely were presen in this case with those those are procedural problems that judge jacoby was responsible for judge a co we set policies for the courts of procedures for the court no but i'm saying i mean i know that he's the source of the original confinement that we're talking about should have lasted a day a week a month two hundred fifty four days so there are more so so we're focusing on a more micro level of the procedures that are going on inside this county jail and the lack of an opportunity for the drug court participants the diversionary program participants to get a decision about whether the duration of their confinement is that later not they had that right through a petition which none of the plaintiffs in this case sought so you think they could have filed for habe use it was there any a is there any appeal in the indiana system from the decisions of the drug court judge i don't know the answer that question your honor that seems to be an important issue  you just sort of his own lay tossed same why that's a little troubling and there would be certainly there would be some right to appeal from a petition to terminate however the enemy at the intermediate sanctions which are designed to be short term although they didn't end up being that way because of the way judge orders orders whether there's a lot of orders to run police the books i looked at method like to follow up on that curious little bit because i mean obviously court staff are expected to follow court orders but i wonder if you would agree that there are any limits to that imagine for example a judge who orders a court reporter to fabricate a transcript or maybe a little more farfetched but a judge who orders that a detainee who's been contemptuous big whipt would  court staffer have immunity for complying with those directions from a judge a court staffer would have immunity for complying with those directions really the the you're paying for fabricating a transcript absolute immunity or unless the unless the seventh circuit is going to say that your community is not absolute then the the court staff member would be protected from monetary damages and  well beyond anything stump vs sparkman ever said even stump had limits on actions beyond the judge's jurisdiction is it correct above outside the judge jurisdiction a judge has jurisdiction to impose corporal punishment you know maybe the judge just orders execution you're kind of a pain in the neck so we're going to have you executed surely you don't want to go on judicial immunity for that that would that would be a due process issue clearly that there would be a violation of persons due process rights for that but very and so what judge hamilton is focusing on is forget the judge even the military will say there are limits to the quote following orders defense and i think that's really where judge hamilton stations are going and i'd like to ask a question about orders actually i mean it seems to me that table it's notes saying j s prepared order for transport for example is that something he drafted for judge she called the signature and what were the mechanics when he found placement did he then sign an order bring an order to the sheriff that released the person same thing that the judge parker granted summary judgment for defendant newton to the court clerk she was accused of doing the same thing but that she had immunity because she was drafting the order so at the the limit to judicial unity has been said i don't i have not seen a case where someone was ordered to execute someone at the direction of a judge so i i  can't say what the what the limit is but the limit certainly isn't within this case because josh was not ordered to whip anyone josh did not order to execute anyone josh was not ordered to torture anyone he was directed to find a place for these people to find treatment and he didn't do it you know cording to the allegations that's the problem but the but he did do it according to the record the record is clear that josh was doing exactly what he was supposed to  e communicating with the treatment fighters trying to find a place for these guys and finding is is that is misleading that's not what happened to what happened i'm sorry do you believe the federal constitution is what imposed a duty on mr fraud you know you could in fact just be put in jail indefinitely and if they decided to find you a placement that's great and if they didn't you would just stay in jail is supposed to be receiving the treatment in the rest that the program ostensibly promised so i disagree or the way that that these pending placement orders worked was the judge would order based upon recommendation of the treatment team  or at least getting him on a waiting list which is exactly what josh was doing and if he had trouble he went back to the team and said i can't get this person it specifically i believe nathan clifford is one one circumstance that is in the record where he went to the treatment team and said they're on the waiting list but they they're telling me that they have no idea when the beds going to be open so he stays in jail for ninety three days so he so he asked the judge what am i supposed to do the judge  says put him in this other facility in the course of the facility and get cement and the big problem is that this is all being done without any participation mr clifford's part but i think you know our chevy will we'll leave it here we certainly have your concerning this can noble mr snow be so after actually it can i just invert that for a minute because i am concerned about the the action of arresting without authority to do so because you know in a society that follows the rule of law having a policed having somebody arrest you with the authority of the state behind you is it is a major thing under your theory if i just decided to send my law clerks out and arrest somebody and they happen to find someone for whom there was also a valid arrest warrant that would be fine i think and in this case i don't think we even would need to reach that question because it could you answer that because these people knew that they had no free standing arrest authority this wasn't inside the courtroom right it was inside the building there's no free standing forty i think i think the district court's decision in the hendrick case which involved another drug court which if you were i think this would be a very close question under fourth amendment law versus its far as fall on one hand following the judge's instruction and then the other hand these these individuals acknowledging that they did not have arrest powers and the judge didn't tell them as i understand it he said i need them here but he wasn't saying and don't go to the local police for all the judge new i'm willing to believe when he says you need to get these people back in he means follow the correct procedures to get them back again so i don't think on this one you can rely on anything the judge said they just want out there with no basis in fact armed and arrested and transported people in person the locations and had their had their badges but as far as impersonating a police officer i don't think the record indicates that the court  there is an instruction that the court said find a way and then there is evidence also in the record that the judge did make an inquiry to the levy indiana judicial center or the attorney general's office your practice of finding these people and i think with this case comes back to is the qualified immunity in their reply brief they conceded that there were no that there were no cases on point and that would have informed miss kilgour mr snelling that this was a fourth amendment violation not that i'm not sure that's right about the arrests i understand your about about who's entitle to arrest somebody there were there were there have been laws but there have not been fourth amendment cases that has said that someone who someone who is a court employee is not a citizen just going out there and making arrests it's someone who says you know stop police you know we're arresting you but  is what the district court says noble and snelling arrived at the locations in unmarked county on cruiser wearing badges and carrying firearms snelling handcuffs them  so that's what the district court said but and but the district court also says that there is no fourth amendment jurisprudence that would tell them that what they did violated the the detainee or the plaintiff's fourth amendment rights in this case and as far as the folks were subject to going to jail at any time there were active arrest warrant out for them and so now we don't really have to our sponsors an active arrest warrant and anybody who wants to fix you up and brings you when you have no interest in how you actually got in that's your position a little bit like you talk against street and the ice i think in this in this particular case i mean it's the result the result would have been the same and they wouldn't in this they would have gone into jails instead of one because they were picked up in a neighboring county but there is no there is no case law that would have put put snelling on notice that they were that they had  violated the fourth amendment was the was the was it reasonable for these individuals to be taken into custody counsel i'd like to ask you about her failure to file the petitions to terminate why wasn't that a violation of their due process right i think that that claim as the district court found a state that wasn't developed in terms of argument and was waived but even aside from waiver that is a function of the co judicial function for which there would be judicial immunity regardless of labels what regardless of the the motive of the of this can overall or why she why she did what  she's this is a function of this drug treatment for hasn't procedure and sanctions and rules and for someone who doesn't participate successfully eventually a petition to terminate so she gets the clo judicial immunity even if she acts say contrary to what the judge monitors do and lies to the judge about whether she's done i don't think the record reflects that she lied to the judge the judge jacoby's testimony that they cite said he looked at some scheduling orders i believe or is words in there which that there's no evidence in the record that she was asked have you done this yes i have and said yes i have when she in fact had not but i think  s part of the functioning this is very similar to any omission for judicial immunity is absolute immunity in terms of functioning within the court process this is part of the drug court function which is a unique type of court not it's not a typical court this this is part of the court filing petitions to terminate and i think this would be something that was this would fall under judicial immunity if regardless of why the petition was not filed so the trouble with this traditional immunity argument is that the usual way in which  works is within the context of a judicial process where we have notice an opportunity to be heard in the defendant knows what's going on you seem to think judicial munity also applies when you know the judge just says you know put somebody in the black hole of calcutta you know for you know a year because i'm just tired of dealing with these drug court folks that'll teach them and you would say if the judge petition to terminate that is robert the reason the problem is we don't have a petition to terminate we wouldn't be here if we had a petition to terminate because indiana law has all sorts of as we just heard protections for somebody going through that process it's the limbo process that we're being asked to consider whether there are some procedural rights before you can be returned to jail so you know in some instances that i can think of you know even if there's no placement you have a right to come back you personally into the court every day or every two weeks to get an update on your status all of these everything that's happening here is happening outside the knowledge of these poor people who are sitting there languishing in jail because indiana decided not to tell them and i think that that goes back to the argument about the the  good that part is the judge's responsibility in terms of how this procedure what it says sheriff had adopted or the caseworkers had adopted a prior practice in these weekly meetings of saying oh it's been a week since we're two weeks since we were told to find a placement for you know ms hofmann let's say we haven't found one yet so we're going to bring this hofmann into court personally so that she's told the reason you're still in jail is because we can't find a placement for you maybe she can engage a lawyer to help her maybe she can get a family member to help or at least it puts her fate back in her own hands within the context of the system and i believe that would that would definitely be more constitutionally sound way to run the system but as far as where where our clients are responsible for having that procedure judge that judge  jacoby or the other presiding judges did not believe the due process required that while i understand what should we didn't think due process anything to do with this with this somewhat bizarre expression i don't know why there's a problem with the dog wagging the tail rather than the other way around but there are other people with responsibilities in the system and i was deliberately saying at these meetings if the case we want to bring in ms x i don't see that judge jacoby was saying yes no or maybe about that that was within the power of the people who were working in the system and they did not anyway take steps that would have provided the notice an opportunity to be heard that are really the basic building houses and i think that goes to are they constitutionally responsible for knowing that due process requires these people to be noticed in an opportunity to be heard how well established is that but is as far as non lawyers knowing that a procedure in court is does does or does not comport with due process the record is replete with debates among the lawyers involved in the drug treatment court do we are we doing enough for due process judge jacoby says that your honor noted with his interesting phrase yes we are and i don't think the non lawyer staff members were in a padded position to say wait a minute due process requires you to bring him in every two weeks we've been taking too long for miss hoffman we need you we need you to ok thank get to their court hearings that the that you're you get you're not keeping somebody longer than you're authorized to keep them there there are a lot of things that are duties that arise after that original judicial order putting you in and that's why i'm not sure that this all we're just doing whatever judge jacoby said idea is a complete answer to the problems here ok if i may the first point i'd like to make to that your honor is that there is no evidence in the record that any of these plaintiffs any of these eighty plaintiffs were held one day longer than they were ordered to be held by the court this was the situation but only because they were open ended orders i understand but this is a they could have been held for ten years on that been fine no it would have been fine because then that would have been an obligation for the court to do something about it the i'm not saying we're our position is not that any of these detentions were were that what jesse koby did was correct but what where some of the ones where the detainees were held pending staffing gave actually the dates of the staffing contracts correct and then schedule probably would not always include that such a person should be released after that staffing conference was held when that border said pending staffing and gave the date of the staffing conference did that play some up location and the sheriff to check i think if you'll see from the record and that's what i think we were sad was a pretty clear record in this case that whenever they were held a multitude of orders that say hold these people until this time well actually a lot of them i'm looking at three sample orders three orders from the record one of them is a pending standing order on five to thirteen  o follow up really because the same person is is then held until further order from the court same language with a different defendant joshua foley to be held until further order from the court with no outer limits at all on further order from the court but the problem we get into there is this is exactly what the channel two was talking about earlier which is with hernandez and sheehan what you're asking ron to do if you're asking him to evaluate those orders and determine whether they're proper or whether he has to get somebody out if you're requiring a an executive officer to evaluate the orders of the judiciary why i don't see myself as requiring that when i envision myself as saying is why doesn't the sheriff have to go back to the court and say you know i need further you know a new order to my continued detention is appropriate you know because we can make these hypothetical year three years five years twenty five years you know surely at some point the custodian needs to assure himself that what he's doing is compatible with what the court wants unless he goes back to the court the court itself will lack the information and he judges are busy for all i know judge jacoby wasn't worrying about what was happening to jesse hofmann every day you know that the sheriff's got to come back well and that's not inconsistent with the sheriff's role no one it's not a consistent but i think the evidence is that was in this case the chevron complied with that and the obligation that one of the obligations in other cases for a sheriff to do something to get somebody to court have been imposed by state statute or constitution state statute with regard to the forty eight hour rule states statue or go to the seventy two hour rule the supreme court's decisions in gerstein and city of riverside all establish that there is a constitutional obligation to do this in this case there is no state statute that requires share fraud in this circumstance to inquire as to whether this is constitutional or whether this person needs to go to the court in fact there is no case law and enters hernandez vs hsien specifically states there's no found anywhere that says that deals with durations of this long period of time and i understand that but so i mean doesn't that mean that the best you could do would be to say that there's a gross constitutional violation here but on the clearly established law branch you know you would be arguing that your client is still entitle to qualified immunity well we're only dealing with official crash the claim so we're not judge parker didn't find that we were entitled to summary judgment because we were qualified liam you so you found that there was a information that and that you think that it's that pending further order of the court means he can just wait for eternity for that order that's his policy that's his mono policy he's the top decision maker i affair to provide access to the courts complete this these people had access to the courts they could have found pro se motions destiny hoffman had six letters or drug court file that came from a court liaison the in house mail system to her drug court case manager typically in a district court case for a record case those get filed become part of the record the criminal record of the civil case record they didn't in this case mr o'connor had ten and is therefore their plaintiffs who had documents in their drug court case file that show that there were steps being taken to provide access to these plaintiffs to the courts this isn't a claim that they were denied access to the court this is a claim that they should provide better communication that's  apparently because i want to follow up on what judge would just ask because i mean at we i agree and as judge by percent below we can't impose upon share its responsibility to go back and check whether they were due process violations in the proceedings leading up to the entry of the order that's beyond i think what a shave can do but as judge wood is saying the sheriff's policy seems to be i will accept the facial validity of any order even if for example the orders had pending staffing on x date and then the next order basically said indefinite so if an order facially says something like lock this person up for the rest of their life is there any limit to what a sheriff should there's nothing that says that what you're saying is it is accurate there's nothing as i've seen that would impose an obligation on the sheriff to say i have to go back to the court and say is this a valid sentence do you don't require sheriffs or wardens of jails to go back to the court and say this and it seems every to me that's what you're requiring that's what you would be requiring if it was a life sentence out of this d t c i think again your honor that you would be requiring a warden or establishing precedent that would establish that a warden who gets a complaint from an end made saying my sentence is too long he has to go now to the court to figure that out that's not the analogy to the analogy is that what the inmate comes and says my sentence is completely open ended i don't know if it's a day a month a year the rest of my life i would like clarification the warden is duty bound to clarify exactly how long he or she is entitled to hold somebody and i through the my time is up there on a good thing at your question i think chevron provided that procedure i think with the court liaison the affidavit of london dod if you go back and look at the record and you'll see how many and it's actually you know ninety percent of the time it was used was that two percent of the time it was used on how many efforts were made and how many went through i think the record establishes how many were made and i think i don't think there's anybody there's no evidence that i'm aware of your honor from any of the plaintiffs that said i requested something from off her daughter who was a court liaison and i didn't get a response back in most of the time off her daughter's affidavit is that i went to court right check out of the system and this is what it said and fact with miss often he went and ask and they said the response that he received from the court and from the basement straighter was don't give up on us we're told we're not giving up on you and he provided that door to you mr lowe is it correct that you know if somebody is being held in custody on a civil contempt charge that's an open ended order until the contempt is purged yes you're on it and i can accept there's an outer limit that the supreme court has recognized because if the contempt isn't courage to after a night sticks in my mind two years i forget the case but in fact the supreme court has said despite the you hold the key to the jail in your own hands character civil contempt there comes a time that it simply has to be tested differently so whether we're there are no i guess we'll see thank you we thank you very much mr cyril anything further