an f p p and there are few who are more in need of the protection of our constitution and this court it's not a position that a dangerous person must be at least on  trial the problem here is that under this law a person could be of known danger to the community with adequate bail conditions but the judge would have no power to release that person you know pending the trial and there is a huge gap between the probable cause finding that's made and the clear and convincing standard that society is safe with adequate fail conditions counsel we ask you for a status claiming that somehow the delay itself was prejudiced or plan that doesn't seem to be an issue well that is that actually is an issue because you didn't make it one in your brief or in the state courts well i would we did not argue in the briefs and that it resulted in a perennial indefinite commitment and a long term commitment because there aren't any meaningful timelines that's one of the major problems that's why in september there was a trial on a statute that makes that claim all the more compelling it is part of the problem with the fact that the person is not released on bail pending pending that trial and in in the salerno case the united states of can court held that the clear and convincing standard was the one that applied this isn't a criminal case but that's true that is are well there is no specific chased that that that does that this would be you know the case i suppose and there hasn't been a case that has clearly recognized that but the cases do it explicitly only refers to bail and certainly an argument could be made that it only encompasses that the district court did address the due process claim and we therefore did did read it to encompass both of the addressed by the district court the the question under due process is whether the denial of bail or denial of determination of bail violates a fundamental principle of justice and it's johnson's burden to show that that failure violates such a fundamental principle and the courts have said that in looking to see whether there is a fundamental principle you look at historical practice and yet johnson has failed to identify any historical constitutional as those cases which are cited in our brief far out would nap and martin in the reply brief johnson notes that blackstone has said that in civil cases every defend statement refers to civil actions that his actions addressing private wrongs between individuals which at the time aflac stone permitted for civil unrest in the posting of bail it did not address civil commitment which at the time of that's the statute is still relatively new and at the time that it was inactive that there was no money provided for extra courtrooms or extra judges you need extra judges and extra courtrooms just to get these cases to try well because criminal criminal trials have been given i think that is an issue that could be raised by someone it has not been raised by johnson and the delays in this case have been addressed in this in the state court case which was published talking about the permissibility of consolidating recommitment petitions the court noted that delay has been a problem and it granted him relief that granted him the right to a trial forthwith and since that time that writ came down in january of  process you wouldn't be able to go on to the two thousand and four commitment so that's why it was important to go ahead and have that trial we did talk about that in the state court about what happens if he's cut if he's committed then to the time is over and the state court acknowledged that it couldn't give him back his time but it could give him his stuff for trial that he was entitled to that he was entitled to and they did give him that trial and now he has been found probable cause and has been found on the two thousand and four petition that was only two months ago and so he's being held on a current finding of probable cause that he is mentally ill and dangerous and likely to engage in sexually violent acts against the public if he's released and that is the equivalent of an schemes addressing civil commitment of mentally ill and dangerous people in a criminal case a finding of probable cause means just that the person committed a crime in the past in a s e p case a finding of probable cause there's a past crime component that they've committed to crimes in the nature but there's also a present time components that they are mentally ill right now and a future time component that they are likely to commit future acts of sexual cycle violence in the future and furthermore as the district court pointed out unlike a criminal case bail is not going to deter and as repeat from from reoffending because by definition he is unable to control his behavior he has serious difficulty controlling his behavior so bail makes no sense in this situation