next case on for argument is williams versus corrine smith and  was michel martin i'm the executive director of lincoln square legal services counsel to appellant mr daniel williams with the court's permission i asked that katherine and boy skip see a rd year law student at fordham law my name is catherine and voice keep c i am a legal intern at lincoln square legal services and we represent mr danny williams without notice mr williams was punished with six months in solitary confinement for the possession of family photographs oral grass that he was permitted to process by more than a dozen correctional facilities in over ten years this court should vacate the district court's judgment for two reasons st new york state department of permissible materials no your honor there are there isn't an affair motif permit given to mr williams however the fact that he was transferred to pretty much every maximum security prison and that he's belongings were search regularly by every priest and when he was transferred and several times once he was there leases to conclude that it was on recent law to say that he's a long insolently doesn't seem to me to lead very persuasively to that conclusion i mean he had large numbers of photographs and you're you're asking us it seems to me to assume that that these were every photograph was inspected carefully to see whether somebody is holding his hand in in this position and that they saw exactly the things that led to the to the discipline in this case and saw them and said oh that's not a violation that is i don't know what reasoning it would be but these are permissible these are permissible and therefore he was able to rely on your honor we reliance was reasonable because the fact that he was permitted by mistake or not to carry these photos around for ten years in his mind and this goes to notice these photos were permissible the rule itself does not provide notice to mr williams that this photos could have been considered gang related material st the rule requires a two step inference about a rd party's interpretation of what gang party inmates opinion of these photographs i take it it's not what the corrections officer thinks it's whether it satisfies this rule the correction officer could be mistaken in thinking that this is what technical here but what you're saying is that the general standard of vagueness is that the rule has to be capable of being understood both by the person who who is subject to the rule and also by enforcing agents like police and courts and others but that's a separate that's a separate kind of question it all goes to the underlying question as to step inference thing just doesn't really seems a little theoretical the issue is does the in the rule give adequate notice to people of what is gang related and i take it your position is that because it asks what would the average prisoner interpret as gang related material that's what makes it a no you know that's part of it because what people's interpretations of what is a gathering is inherently informed by assumptions and biases this is not an objective test that an inmate could have noticed too and known as well as that's a separate vagueness right one vagueness is do we know that this particular material relates to gangs then you have a separate argument and that the definition of gang which is a group of individuals having a common identifying name sign symbol or callers who have individual who are collectively engaged in a pattern of lawlessness in one or more correctional facilities or that are generally recognized as having engage in such a pattern in the community as a whole that's the definition and you saying that bernie madoff and company have a common sign symbol or colors know you don't i mean if you do actually in the briefing you don't mean that and you use examples of how gang definitions have been used on the street but is there any indication in prisons that the area nation doesn't count this is only applied against black people or latinos i mean there are white gangs that are of considerable interest to prisons and prison authorities are there yes however mr williams cannot have that note is that he's family photographs would fall under the definition of gang merely be no no no wait wait no it's whether crips fall within the definition of gangs that's like gang vagueness issue then you have a separate issue about whether anyone would know that these photographs would make a typical inmate of a prison think the man who is having more displaying these photographs is a member of the crips those are two separate issues correct we do not dispute the crips would fall under this rule and that's where we're not challenged facial ok so the business about is not really relevant because you if you agree that whatever is or isn't a gang the crips gang and the crips are what the state says these pictures reflect so now we're just talking about what i think is indeed the main issue in the case is not about what's a gang and what's not a gang and how do we know what's a gang and what's not a gang it's about how do we know that these photographs which alas from the appendix i can't even see for sure that they all have people in them that these photographs depict something that would indicate crip allegiance to a must have that it's relevant to the determination now and a great there are all kinds of issues floating around this case not all of which are raised by the particular issues that you present in your brief but the relevance  whether he's a crap has to do with how this is going to be interpreted not how they know or think or why they believe that he's a member of the crips i think it's in the record as far as i know what is the basis for that belief and that's a problem exactly on or if it's not in the record and if this question hinges on whether mr williams is a member of the crips then that's a material fact that's at issue and thus needs to be remanded for a just that the material in question has was seized whether he is or is not a member of the crips leads to but somebody might think i was a member of the crips right that may be somewhat more that's gang related materials or i should talk about me on that they could draw an inference from that i'm a member and therefore that's a problem within the facility that may be so if the photograph is clear and that officers the only three officers who have challenged these photographs in ten years could agree on the fact that your honour's is using the c sign here not one officer could agree on what these pictures the peak that they kind of agree on on some of them whether some of these pictures the pick that hand signals at all and their testimonies are the recent one mr williams spent six months in solitary confinement this evidence is the vice of vagueness of the rule because it gave on cabin discretion to officers to use a formal graph and i respectfully ask your honor student and one of the difficulties excuse me that i had with the brief and the appendix taken together is that it was very difficult for me to trace through your argument that there is a matter of your making at this strongly that there is not a single picture that all three the number two is the thirty three men all wearing hats that's the one we're talking on the bottom the bottom one on one hundred and fifteen is that right yes  page one hundred and thirty one of the appendix he testified looks like a guy trying to spell a gang sign but don't know if it is a gang sign on the same for a graph officer cooper who testified on page one hundred and forty eight of the appendix said that this guy was flashing a c officer isabella on the same for a graph on page one hundred and seventy five dollars of the appendix testified looks like hundred and forty eight i am not confident enough to say i see any hand gestures looks like a bunch of kids at the birthday party but the one kid on the right looks like he has one hand up in the air  yes that's it that's all these officers said about this photograph on page one hundred and seventeen photograph related right or this one was yes this photograph where the evidence that was provided in the nd hearing that led to mr williams affirmation these or all of these in this section of plane were found to be gang related yes and you're saying that the bottom picture on one hundred and seventeen the only officer who mentioned it said he didn't see anything then well he's the one who can say i can't see anything wrong with the  a little girl wearing beads on her ponytail right to that photograph officer kober claims that this photo was gang related because and i quote she's got blue beads in her which i can even see well enough to tell what he is doing but i can see there is what looks like and well officer covert said again on page one hundred and fifty seven not confident enough to say there are hand gestures and officer healy on hunter on page one hundred and thirty three of the same photograph that nothing wrong with photograph point you might not be here if at the end of this hearing they said look fella these pictures send we're going to send them back to you because they can't be in the prison you wouldn't be here  mally that mr booker had noticed because he had been previously punished under this rule for similar photographs for a graph that the picked an adult inmates dressed from head to toe in the color red the color of the blo and he's argument was that they hand signals that were depicted in this photograph could also be considered cultural expressions we're saying here that mr williams did not have notice based on the language of the rule that his nephew's birthday challenges you're making the district court had said that on the question of whether the the the definitions of the of the forbidding rule are to veg the district court rejected that on the grounds that it is quite clear and i'm reading from the district court magistrate judge opinion and according to the rule that a gang sign is something that another inmate would recognize as creating an inference of a particular a gang affiliation  and that was that was in reference to the to the language in the in the note that says that if observed in the inmates possession this material could result in an inference being drawn about the inmates gang affiliation right that's right you know now that's what the court realized that that and this in forced is the rd i want to ask you a question about that something that you haven't raised in your argument which is that this definition this definition that the court relied on in order to conclude that there are limiting there are limiting aspects to two to gang to two printed or hand written gang gang related materials that narrow it to this is this concept of resulting in the inference being drawn about gang affiliation that applies only to written material written material at least arguably doesn't include photographs used in in in the book or case it was photographed and in this case it is photographed so it seems to me you have at least an argument available to you that the the provision that the court relied on in booker v mally the provision about narrowing it to materials that would support an inference of gang affiliation into court relied on for the conclusion that it's not to say that has no application to photographs because it applies only to written materials and photographs are not written materials that's correct and mr williams did raise that issue a brief that this photograph cannot even fall under the rule because it wasn't written material you have not argued it before us we believe it's part of the record in that and i believe  brief i haven't raised that today because you don't is the argument that it doesn't for a photograph don't fall under the rule or that the photographs are not subject to the limiting definition that the prior nd circuit panel relied on to say the rule was not they because the rule does say on its face is not limited to print printed or handwritten materials that says that an inmate shall not use possess distributor use gang insignia or materials which is not limited to written materials now that maybe they gurn because it's not subject to the limiting construction in the note which gets picked up by the prior panel i think that's the question that's truly are the language of this rule is unclear at various levels and for this i'm asking you is one of the things i'm asking you is that it's my impression that you have not raised this point that the that the language about about could result in an inference being drawn in that language which the mocker court relied on as for that as the basis of its rejection of the veg vagueness challenge that language that narrowing language doesn't apply to photographs it applies only to written materials well with respect to photographs the the the  to didn't he didn't confront the argument he didn't confront the argument that the argument that we're talking about right now that the that that that the note that that applies this this limiting requirement that it be the kind of thing that supports an inference of gang membership is not applicable to photographs so this is an argument that it seems to me is available to you to strengthen your  argument of of of of unconstitutional vagueness but i don't think you've made it at least to us you haven't made it you may be correct your honor i don't recall if it's specifically mentioned in the brief i recalled mr may please the court fair notice was provided here because of two basic propositions number one as there was no factual dispute below plaintiff's photos are fairly viewed as depicting cripps hand signals in some cases being made by people who are wearing crips colors no not all of them why are all of the c's well all of them were initially confiscated by  officer kober sixteen photos in all those were presented at the st hearing i believe eight of those were found to be gang related as the hearing officer found  if you look at the hearing officers decision that number forty five dash for at nine the hearing officer directs the return to mr williams of all of the other photos i think there might be some factual dispute as to whether the other photos actually did get returned there's an a problem if they didn't well i suppose it could be a not a vagueness problem but i suppose it could be a due process problem that these photos evidently were lost but that would leave you it's not a question of whether it's a due process problem or vagueness problem it's a question of is that challenged in this lawsuit at all in other words he could presumably have some kind of lawsuit state or federal to say my property was taken from me and judy k did not to be problematic even directed to be returned but it never was and so you owe me damages for that but that's not what's at issue in this lawsuit it's certainly not primarily issue although in fairness to the other side i think they do raise that issue somewhat but that was dealt with below the magistrate judge in footnote two of her opinion found that that particular mac opinion found that that particular claim was not exhaustive that was grieved to the at the superintendent level but it wasn't subsequently that's not before us in any way and there was no subsequent objection to that failure to exhaust findings so that's not preserved to the st hearing is one thing but of course the st hearing was reversed on procedural grounds and i thought that both sides had implicitly or explicitly agreed that whatever happened wrong at the st year or now mooted because there was a nd hearing became the operative validation as it were of six months  want to take some issue with the premise of your question i'm not sure the parties agree that what happened at the st hearing is moot for right now for vagueness in one thousand nine hundred and three purposes by the time of the nd hearing the six month sanction had already been served and the nd hearing did not add any new sanction it did preserve the guilty finding if you will but it was a time served sanction and then of course after the nd hearing that underlying guilty finding was itself expunged by doc sue a spontaneous so there's really no prejudice coming from the nd hearing itself i see i mean it's an interesting question what we are if we're reviewing anything they were not reviewing anything maybe we are dealing with in effect a kind as applied challengers to the regulation itself that and the hearing is only relevant summary judgment record and in terms of the pictures if you look not necessary and with sara lee plaintiff's appendix but in the actual summary judgment papers the pictures that are in there are ones that are numbered there's i think a living pictures in there sixteen are actually presented not all of them are in the record the numbering that is in the record is from the numbers from the st hearing not the numbers from the nd hearing so in terms of and not only that the  nd hearing numbers don't appear anywhere else in the in the record so playing that sort of mix in that sort of tracing exercise is going to be tough to do i will say i appreciate that and i  also appreciate that it's not certainly not clear to me what the implications are given you know about what could or should have been at the summary judgment stage but just in terms of understanding how the rule operates it would be very helpful to have some idea and you know what's like the clearest example here if such could be said and i recognize but by the time it gets to the district court both of those color versions have disappeared and what we have in the record are you know maybe maybe slightly better at some stage  generation black and white photo copies of either the original photos or the color photographs color reproductions i don't know and by the time they get into the appendix half of them you can't see anything at all but i want to you know i just want to understand you know show me a really good gang sign in here and that the people who testified said gang some of these descriptions are not unique they arguably fit a couple of photos if for illustrative purposes i don't know if this can be d n a tested to this particular photograph if you look at appendix one hundred and twenty one and appears as white was off to the side he can be seen making what both officer kober and teacher isabella separately testified it was the c's over b s sign which is elevating one of his hands left hand i believe yes that i think his yes his left hand is yes that's right in a seat posture and then sticking out the fingers of his other hand almost as if to make a b and positioning the c higher than the b to illustrate the crips dominance over their rival bloods now to be sure i do want to get back though to to the summary judgment posture of this case if plaintive had disputed below as a factual matter that his photos cannot be fairly viewed as dick depicting cripps hand signals i think we would be hard pressed to defend summary judgment ruling in our favor for all the reasons why this sort of traceability is exceedingly difficult to do but this is a summary judgment proceeding and we have that factual gap below in the underlying doc administrative proceedings the st proceeding and the nd perceiving and then again in the material specifically prepared for this federal case there is no factual dispute that as a factual ma at least a critical mass of these photographs can fairly be viewed as depicting crip signals so then the question is is it does an inmate who sees these photos which can so be can be so could he fairly infer that the plaintiff has some krips allegiance or another and yes he fairly could be i think when the judge paul was getting to it in his  my friend the thought is that hey this guy likes to keep photos depicting crips symbols so he must be a crypt supporter or backer or even member was it just a friend of lots of people who are c or something like that but that's true that is another inference that could be drawn the inference here doesn't have to be that it's a fall into the rule doesn't have to be an invariable inference doesn't have to be the inference subjectively intended by the person photographs or the people posing for the photographs i mean posture sees these photographs in plaintiff's possession plaintiff can only keep a limited amount of property and music is a prisoner every every photo is is would you look at page twenty five of your brief yes at the bottom result in the inference being drawn about the inmates gang affiliation now both of those the quotations are not quite accurate because of what they leave out and what that clause at the  end pertains to is not merely a gang or gang related material but it's the it's printed or handwritten gang on gang related material and then the note goes on to say printed or handwritten gang on gang related is defined it's defined in the note as as is a word that you left out there at the store just before material it's written material and then it goes on as you as you quote it is a photograph written material i don't think a photograph is written material but we but the definition the narrowing definition that you rely on here which was also relied on in book or pertains only to written material of that that which was relied on and which you rely on to say well it's not just gang on gang related material it's got to be material that supports the inference of affiliation with a gang but that definition simply doesn't apply as or the story you believe doesn't apply to photographs because it only applies to written material what about that well a few responses your honor number one i agree with your suggestion to my adversary the the sentence about gang or gang related material it says for purposes of this rule printed or hand written gang or gang related material is written material that blah blah blah blah blah so you've got a printed or written modifier before the phrase gang or gang related material and then you've got the written modifier before the clause that your honor just pointed out to me before that starts with material so you just subtract if you will the thing that refers to writing on either side and what you're left with is a gang or gang related material is material that if observed in the inma photograph of the sort printed matilda graph is certainly printed because when you go to the store with your if your purse and up to date like me who has a digital kind of camera and you have a little photo stick and you go to a store because you want a photograph to put up mantlepiece display because you want to show your gang allegiance or for some other reason and you ask them to give make you such a thing you call it a print that kind of photograph they print it for you and then you take it home and have it right yes it is certainly printed material i think are going to does they still the rule says printed or handwritten material is written material so it's  printed also means what i did in st grade before i learned cursive and that's another meaning of the word printed and here for whatever reason this is not a model of beautiful dress mention of the definitions as printed or hand written material is written material meaning that perhaps they mean block printed or cursive written material perhaps they do your honor but again one can extract from this definition i mean you've got adjectives on either side you know consider handwritten in written and so by necessary implication if you if you take out those adjectives the noun or the nominal phrases have to be equal if you will as well meaning that if you take them out i mean they're written into the rules so what is the logic that says you should take them out you're not understand the rule correctly you have to eliminate some of it's words you know that you want to you don't have to  particular instance of that material talks about printed or handwritten gang or gang related material but that does not mean that the stand alone phrase gang or gang related material has no meaning it does have a meaning and it has the meaning that follows the word written on the other side as well namely as you contemplated use this argument previously in writing your brief reason and we were aware of this argument this problem with the definition well we were aware that it was raised below i think we stopped contemplating it once we've saw the appellant's opening brief and didn't see this argument in there is i'm curious as to the mean you you  after after the word is within you prepared to give the definition you leave out the word just before material there with the word in the know it is written material and you left it out and so i'm sure is why you left it out all the more curious when you say you were aware of the argument at the time of writing the brief short your honor we left it out for the reason that that i but i'm trying and would love to keep trying to get across that we believe that sentence of the application note talks about printed it doesn't say gang or gang related material has to be printed or written it says printed or handwritten gang or gang related material is x it doesn't mean that gang or gang related material itself that a court nominal phrase doesn't have it was the clause about would result in an inference that could result in an inference clause has no relationship to this rule except with respect to written material that's the only relationship of those words your honor i respectfully have to disagree ike my clients don't read it that way we read it and as framing the it framing the definition of gang or gang related material though maybe when i read it as a framing the definition of what printed or and written gang or gang related material was i'm sorry your honor i don't think i understood your question don't you this is a no referring to the last line of the rule itself it says but not limited to printed or handwritten get syria right then it goes down to say what it or get yang or gang related material it isn't that is something that is written but it doesn't say it's it's not what gang related material is is not really is not limited to print or gang related i think that's absolutely right that's why the edge of the side has tension and i'm putting that as a question is that what you're trying to say that that is what i'm trying to say thank you so much for saying it that's why the adjective is there because otherwise just the phrase gang or gang related material which also has application here i mean if you look at the top if you look at the rule itself possessed by a block gang insignia or material so gang material is in there that has independent meaning and it's not be limited to the issue is not the issue if it's before us and before any court is not whether whether gang or gang related material that is with that's unconstitutional you know your honor that that that's not the issue as we see it as we see it the application note talks about printed or handwritten gang or gang related material because that is one type of gang or gang related material there also can just be gang or gang related material without that modifier it's like a blue car is a blue thing that drives on the story thing that  photographs the printed material that is photographed there are photographs does fall within that definition both because it is if if one thinks that the word printed is is somehow inherently bound up in the notion of gang or gang related material or at least a gang or gang related material that's the subject of the application note photographs are certainly printed certainly photographs that that petitioner had they were hard there print no question that yes they were there written they were not written again i think what the application note is doing and i do want to try one last time and and and maybe this analogy will make things more clear i hope if the application is supposed the application note said a blue car is a blue thing that has four wheels and a steering wheel etc well the import of that application note means that a car handwritten related material is written x but that also that the inference that we're making it certainly a reasonable one is a state agency construing our own regs is that gang or gang related material is specific definition in the application that makes up that phrase and defines it instead perhaps because of there is a specific definition of the phrase printed or to understand what counts as gang material and you're suggesting that one would look to the definition of the particular subset because there's nothing about that definition that is somehow conceptually applicable only to something that is writing or has been produced by some form of printing process yes exactly and if a  ahold of some poster paints and painted a picture of one of these supposed and signals and displayed it in his cell and we were asking is that gang related material or not i think the agency would be hard pressed to say if for some reason that did not meet that this definition it nevertheless is gang related material and it has to be something that would meet this definition to come within the yes that's absolutely right because we read that rule as addressing a particular subset and as one does with subsets you can extract certain things to the broader set and that's what we're doing exactly and that's what we're doing here and because there was no because it does not incorporate this definition as applied to the photographs to the contrary they are saying they are attacking that very definition and saying that is what is vague about it that it  gives rise to the so called double inference where you have to anticipate what a inmate another inmate is going to think of your painting photograph piece of a magazine article written material or whatever yes look that's what they're saying is and one of the things the two things i'm saying are unconstitutional in the definition of a gang in the st place and this is very definition which they seem to take as applicable to yes that's certainly how we read their opening brief i think all the more so given that the argument was made below so they knew about it seems like it was abandoned here not just not conceived of in the st instance and under that definition the question for the court is with no factual dispute that as a factual matter at least some of these photographs a critical mass of these photographs reflect can be fairly viewed as depicting crip suicide where  i think what i would say is exactly what you seem to suggest in your question to my friend to the other side which is that there was no affirmative approval there's no evidence of affirmative approval what they are talking about on the other side is routine searches search the level of invasiveness of that search if you look at the i'm not sure if it's in this record but there are docs directives that govern that right and and forms that the searchers have to fill out the forms actually don't ask for a catalog of all the details of say each photograph it really is more surface level how many photographs are there how many postage stamps are there it's with an inventory it's not a description here though what prompted the more intensive search and why there was an affirmative look at these photographs an affirmative look for gang material what prompted the search at that precipitated this case is a fight that plaintiff was involved in that was suspected of being gang related so it's quite different from one of these routine facility to facility transfer searches where it's certainly possible and perhaps likely that a fine tooth comb would not be taken looking at at the four corners of every single photograph also failing to demonstrate any sort of arbitrary enforcement or confusion is the fact that at the nd hearing three dots employees interpreted photo two what was labeled as photo two in the nd hearing differently what happened in that case in that hearing each dox employee identified a somewhat different cr sign but that doesn't show arbitrariness of the rule that might show that they have an eyesight problem that might show that they're focusing on different people in the photograph to show that the rule is being applied arbitrarily and is vague what you would need to show is that the witnesses all identified the same cripps something but disagreed as a legal matter as a disciplinary matter whether the rule was violated based upon that grips on them and we don't have any sort of evidence like that  the record here i do want to address and i think this goes back to the point that's being raised about hand signs and photographs and the like plaintiffs in their reply brief talks about a two thousand and one deputy commissioner memo addressing a prior version of the gang rule the gang paraphernalia gang material rule and it's true that the deputy commissioner in that memorandum said that we don't interpret the rules to cover gang signs and that was the predecessor rule but the predecessor rule had quite different language the predecessor rule did not have this inmate inference test and if you look at the new york state register the analog of the federal register for when the new rule the current rule that this case is being adjudicated under was promulgated some of the language in terms of why docs wanted to beef up the rule is to cast a broader net net to be sure that they didn't refer just to photograph or say that we want to catch hand signals that we weren't catching before but the new rule is an expansion of that rule not a retrenchment of it so that all points in the direction of parsing the rule as my clients do and as judge lynch helpfully offered that that one could do i do want to move on to the due process arguments that i think are somewhat separate from vagueness there's a witness refusal issue regarding the st hearing as i read reply brief at pages fifteen to sixteen plaintiffs concedes that that was barred by collateral  attacking only the due process violations that stem from the nd hearing but as i think i might have said before as an aside everything that happened at the nd hearing is harmless and certainly cannot give rise to a lawsuit for monetary damages under one thousand nine hundred and three the nd hearing resulted in no additional punishment and the underlying guilty finding even though it was affirmed if you will the nd hearing was subsequently expunged so there was no additional punishment no wrongfulness allegedly precipitated by the result of the of the nd hearing and what followed i think there's been some question as to again looking at the definition of gang material that the plaintiff is challenging on appeal whether it incorporates just an unbridled two step in france whether it's any inference that any hypothetical in make could make ever we think for the reasons explained in our brief that there's a reasonable miss test baked into the regulation we think that's what could infer fairly means but even if you disagree with me on that even if you think there is no reasonable n'est requirement baked into the rule the fact is that based upon the undisputed testimony below that plaintiff has again never in a factual way taken issue with his photos are fairly viewed as depicting cripps hand signals and as a result an inmate who sees the photos in plaintiff's possession reasonably could infer whether the inference has to be reasonable or not in fact he reasonably could infer at all events that plaintiff has some krips allegiance and that shows that plaintiff had the requisite reasonable opportunity to know that the photos were prohibited under the gang rule not worked up to where you would like this regulation to in a reasonable inference being drawn about inmates gang affiliation that's what you're saying it's properly interpreted to mean i think i can give a yes answer to both of those questions but i think at least in our view the sim saying at the words the words printed are written the words are printed or handwritten and then later written than all those words are just clutter and what you really mean is that is that is that you think it and gang gang related materials should be read in conjunction with material supporting an inference if found in the inmates possession a reasonable inference of gang affiliation yes to the what would be involved  obstacle would what obstacles would be involved in changing the rules so that it says what you wanted to see well preliminarily yes to the end of your of your question but no to the beginning we think we get there as i was discussing with judge lynch through the take a subset and extrapolate to what it means broader definition of blue cars that has bearing on what a definition of a car is but to be the directly respond to your question  these rules are rules that are promulgated by docs they can certainly be changed based upon a notice and comment procedure i think some types of the rules can even be changed that it be can be amended on less formal notice then that but this is how docs has applied the rule consistently again one of the reasons why constitutional requirements relate to what's written in the rules the constitutional requirements relate to they're supposed to be for the protection of people who are adversely affected right is supposed to be for the purpose of the people can know from by looking at a rule am i doing something primitive my doing something is going to be get me thrown into the show for six months and you're asking an awful lot if you're asking an inmate to go through the extraordinarily complicated mental processes that you described to us that are necessary to reach the definition that you want to be the definition of the rule just to say that that's the way it's been interpreted by by by the present administration authorities in the past how is the president supposed to know  as to how a general prisoner is supposed to know that he specific prison ok will exactly let's take plaintiff's plaintiff is supposed to know that because by his own testimony in his deposition he has been subject to the application of this rule for quote the exact same misbehavior as alleged here namely for things that are not exclusively written material that are photographs he says exact same misbehavior and  rules shouldn't he be on notice by by seeing what's written there as to whether whether he's in violation of a rule or not he out without needing to know what the history has been of of of when the administration is understand your argument that it wasn't raised on appeal and so forth but i'm talking about the future wouldn't it be desirable that somebody not have to go through the mental gymnastics that you argued to understand  yes it would absolutely be desirable i don't know whether or not prisoners go through mental gymnastics in trying to parse this rule as a general matter i think part of what the question implies or at least one  me is that if the attorney general has any influence over that one way of protecting your client from future ma suits particularly well whether or not this case is won or lost  one way of helping to clarify the rule would be to redraft it to say exactly what you say it implicitly means and that's at least one message that could be message is received and understood and i will take that back to albany i will say again just in closing i hope is in closing you'll tell me if it is or isn't is that in this as applied challenge when we look at the circumstances of this particular prisoner for the four corners of this case one thing we do have to consider with respect to the enforcement of the rule against him in two thousand and fourteen or two thousand and sixteen was his whenever was was the prior three prior infractions he had at least one of them was according to to his own testimony is that and is that in his deposition for the quote exact same misbehavior of the nature that happened here so i don't think the successful way to challenge that is this as applied challenge but i do take your point your honor and i i don't want to be seen as resisting that the rule could be more clearly drafted and it would certainly save the lawyers in th word materials but also as to what means gang related not just get the what gang related means in this case it meant the picture of a little girl with a ponytail with blue beads on her head counsel states that mr williams had violated this rule before however this file issue was not the exact same behavior he received a letter with a written word that was code allegedly for gang material that is fundamentally different from the family photos that he had possessed and without a notice that these photographs violated this rule somehow opposing counsel says that there's no way to narrow the meaning of this route in our brief we provided an example the violence gang the federal violence gang act this act it's in if it isn't page twenty six dollars of the appellant's brief however it defines the gang in a way that determines the criminal purpose it has minimum constituency it's bounded by a temporal element and it standardized the predicate it crimes if this is  honor however a picture of children at birthday parties cannot be considered gang really immature otherwise no inmate would be entitled to have family photos that somehow are assumed to be connected to a gang all these discussion is based on the assumption that mr williams is a member of the crime and nothing in the record supports that roone further use your photograph of children in a birthday party can't be gang related materials i mean it  may be a little bit farfetched but not all that far fetched i mean if somebody is in fact a member of the gang and that's a very important part of his life and he teaches children to make to make a gang sign like see over b and children at the birthday party they are told by their parents ok now make the sign for the camera and they take the picture of them why why isn't that photograph gang related material in the definition the fact that it's in the children's birthday party doesn't mean that it can't be done or if there is a birthday cake that has that has the gang sign on it and that birthday cake with the gang sign on it is plainly visible in the photograph why why can't it's hard to tell and then officer kovar in the same picture grammar in the same picture stated two people are flashing gang signs be he refers to one the sleeveless s the guy with the sleeve sleeve the shirt has a c and he says all of them are dressed in blue however in this picture we can see that these colors are the colors of these two people are white this inconsistency mr williams cannot have noticed given the language of this rule additionally mr williams has definitely contested that this are gang signs on page one hundred and thirty two of the appellant's brief appendix he asks the officers whether that's just the middle finger as a profanity not as a gang sign and so there are material questions of fact as to whether this pictures rule is unconstitutionally vague not whether this is not a specific challenge was mr williams properly found to have violated the regulation based on this picture because the answer to that could very well be yes and you would still win if the rule was unconstitutionally vague that's right under there are still issues that you process one which goes to the determination of whether the correctional officers where reasonable and whether this rule on its own it's vague and thus did not provide notice to mr williams you're saying there is a constitutional claim assuming that the that the  regulation is found to be not the that every prisoner who says but i was wrongly convicted at the hearing because this isn't in fact a gang sign has a federal constitutional claim no your honor that's not what what what are you what we're arguing is that the nd hearing was just a poor attempt to cure deficiencies of the st one which is the one that led to mr williams solitary confinement sentence this is the fishes sea lice and the fact that mr williams had a due process right to provide documentary evidence to defend himself county when that st year into place please excuse me mind me when that because the full penalty of the six months in shoe had already been so there was no additional time when it was overturned and expunged they were in even if they were to defect in the nd hearing they didn't have any consequences mean there was a challenge originally that he wasn't allowed to call certain witnesses he did not call those witnesses at all or seek to call them at the nd hearing even after the state court had said he should have been allowed to call  but that's not that's it that's out of the case now so now we're supposed to address where there procedural deficiencies at the nd hearing is that is that your position yes so your view is the st hearing is moot and the nd hearing is what we should examine for procedural deficiency well we're not saying that it's more because the unconscious he was the project no i know no more procedural deficiency yes yes only the nd hearing and that's because he had a right to percent documentary evidence to defend himself he and why do we care about that since that issue was mooted by the expungement and decision to reverse that hearing so suppose he did i mean if we put the fact that he went to schoo aside for a moment as a separate problem if we're saying there was a procedural irregularity in the nd hearing but the nd hearing then itself got reversed and nothing happened to him that wouldn't have happened to him already why do we have to worry about whether he had a right to put the photograph of the pope or whatever into evidence of the nd year in why does that matter to anything what caused him damage about that hearing the problem is the problem is if there is something wrong with the rule that sent him to issue for six months it doesn't matter what happened either hearing what matters is is the rule constitutional if the question is somehow and maybe the st hearing isn't moot i mean i don't know if you're looking at a procedural violation that sent him to the shoe that must have happened the st time the nd time it it doesn't send him to the shoe he's already been there and he's not going back and that got expunged anyways of the extent there's any reputational or other damage or his record is impacted by the fact that there was a problem at the nd hearing that's over so what what if anything is the damage that is occasion to him by the procedure or any procedural error that happened at the nd he the fact that based on the nd hearing the st the sentence was affirmed and he carried that sentence for two additional years until director housing and inmate discipline a program in history reversed two years later he had this in his record for two years and that that sentence that he was that he was subjected to based on a deficient hearing he had to live with it for two years and that has some damage here when due process violations are ok so the the just understand the the the damage that he suffered from a procedural error at  the nd hearing at the nd hearing is that he was not immediately vindicated as it were with respect to the sentence he had served before have would that work let's assume he hadn't been he hadn't been subject to the stuff in the st instance just an ordinary prisoner st time up he has a hearing say reversed because he's not really guilty anyway expunged you're saying that there would be a valid due process suit by an inmate for the procedural errors that were made and not corrected until later in the appeals process not in that case constitutional rights were not violated the same violations whatever you say are the procedural constitutional violations at the hearing that he had the exact same procedural violations you are saying the fact that an inmate for two years labored under the stigma and whatever consequences there are in the prison of having that violation can still be the subject of a federal constitutional lawsuit notwithstanding that eventually the prison well here also mr williams was deprived of his right to property to process these photographs and he was the private of that right for two years until the the nd hearing was reversed so there was an additional any any procedural violation that takes place in a prison hearing that has any consequence at all is actionable for those consequences notwithstanding that if the inmate follows the thing that we make him do of going through the process succeeds in getting the violation corrected and the concept the the record expunged no now i'm having trouble understanding why it does for him but that the provision of a property right in this case was a violation of his constitutional right not just about any right even if it's correct even if it even if it's corrected after two years after the fact well the same way that was through the appeals process i mean god knows we're here talking about this whole thing six or seven years later law takes time plate is whether this whole rule goes out the window and he should never have suffered anything at all and he suffered a very serious consequence as a result of that and now you're here spending ten minutes on rebuttal re visiting the issue that nobody really talks very much about before that that is adequately discussed in your briefs as to the violation of the procedural rule a hearing that the prison authorities themselves reversed to emphasize that penal logical needs to police certain behavior cannot trump constitutional rights and punishing someone under a vague rule he has no notice as to what constitutes gang related and that he's family farmers could be considered under it specially because train officials cannot discern these photographs was a constitutional right violation and this rule is vague based on the