good afternoon welcome to the special setting of the ninth circuit and we welcome of course judge bright from the eighth circuit we're delighted to have him sitting with us again and  the board must determine whether any finding a future dangerousness is a consequence of an inmate's disability and if so too the board must determine whether or not reasonable accommodations as for example mandated participation in a drug rehabilitation program will avoid discrimination on the basis of disability without altering the nature of the parole process now in this case was before as the allegation was that there was a blanket policy correct that was one of the allegations that was one of the two claims judge fisher and the case could be resolved in that matter i'm pleased to address that but there is so i have a little difficulty in where this case is going to assume we go beyond the blanket policy that your contention that every parole decision involving someone who has a drug addiction is now subject to review under the a t f so that the parole board decision has to be evaluated as to whether in each case there is a reasonable accommodation that we weigh and try to second guess with of world war does in deciding whether a convicted murderer now that we put out on the streets because with or without a drug addiction history that would not be our position with respect to disability in fact exist based on you have is that the individuals present and whether or not any finding a future dangerousness relates to that relates to that particular disability you're honest yes a different question as i understand it that relates for example to the individuals whom they presented evidence about asking and i'm trying to know where this case goes through stages so sorry i think you you have been answering my question but i'm when we had this case before  as we made clear we were dealing with as it was presented to us the question of whether it was a blanket policy is that nobody with a history of drug addiction gets consideration by the parole board it's come back to us with the record that says well wait a minute we've got these eight cases where we've done so and so your start now well there needs to be an individualized assessment and i'm just sort of looking down the road ok is that what happens if in fact we were i'm saying is that on the facts of this particular case where the two individuals both of vision thompson did assert that disability where does one controverted one method of resolving this case which i believe is dispositive of the case is was the dangerousness that doesn't alter the pro process now just the smoking how it serves in this case your honor our pages one twenty one and seventy four of the record want to wait one fourteen and one twenty one seventy four seventy nine consideration of a drug relapse program or drug programming as a condition of parole in your consideration of risk can you release me with this sort of reasonable accommodation secure that i won't be a danger in the future if in fact this reasonable accommodation this drug rehab program is part of it and presiding commissioner more response at page seventy four ok well that would be  you were to receive a date today and yes you were to receive a date that would probably be one of the things that we would consider now your honour's that is exactly backwards what that means in terms of looking at the record to make the determination is that what the book is done is they said look first we'll make a determination as to whether or not there is a yes it is a future danger and this is a risk in the situation then and only then will we turn to the specifically required is that as part of the decision making process not after the decision but as part of the decision making process there be consideration as to whether or not these programs exist if that's not the case foregone conclusion as a result of the disability that is what is so remarkable about the record in those two cases there is not a speck of discussion about these individuals characteristics of the district court decision these individuals characteristics nor whether any reasonable accommodation is available so i would say just be sure that the sort of inquiry because this is a process case but it's a profoundly important profound process  in terms of how to deal with with drug disability in the prole setting but in these records there is nothing that indicate that consideration was made of accommodations the last point if you look at the cases th is another way to resolve this case we don't know from those records who's got a disability none of those individuals claim the disability within the meaning of the eighty eight and we certainly don't know what the universe is but here's what we do know we do know that in at least four of those cases individuals were put in these programs after the determination was made in terms of whether they were pro rata now one of the three points one is we know from the overall record in this case there is no consistent practice cases that none of that consideration took place in their case get the process this court could say this is the process under the a b a they didn't get it they should get that process that's one of the claims they made there is another another possibility in terms of dealing with the with this matter that would be more exhaustive this more long lines which at fisher aspect they made a discovery they did a discovery request and they said look if we're going to talk about the policies then we ought to be able to see what those policies are how are they implemented what the records look like should have been eligible because they had a drug addiction disability we have no clue to that invests with the discovery with being that my memory just one final point your honor and that is with the m t a my clients quite frankly grossly overstated what they needed to prove they came here and they said i know which one of the claims nobody ever gets out of course they went on i think there's material facts in dispute about that but if they don't do the process ten percent of the time twenty percent of the time even if they don't do it five percent of the time that the n e a doesn't tolerate best out of seven best out of ten sort of record that process to be process has to be for women going on in this policy well my clients were pretty pretty clever at coming up with lots of different arguments they didn't think of but but i do think that your honor is  something in that it does appear to me that there is a recognition that it's specifically part of the code dealing with battered women syndrome and it seems to me that your honour's observation may be a spillover that if we had to go back to discovery then that would be one of the things that we'd want to know it's hard to believe that the universe of individuals who have passed drug addiction is not a huge very male oriented universe in order to really ascertain of all just moving factor standard second the issue about whether defendants were similarly situated to plaintiffs i'm sorry i have to fence but the proles inmates and third the reasonable accommodation issue with regard to the motivating factor standard was articulated in head a couple of points first head was an employment case and the holding which adopts that specifically certain limits the application of the motivating factor standard to employment cases it's not clear based on head whether it has any application beyond that setting second i think more importantly it's important to keep in mind plaintiffs claim here these two in the well yes yes there is however there's not a complete record with regard to any individual karole decisions pertaining to mr wagner the church or mr thompson i believe hearing well there is that they've they've attached a complete portions of some of their their are they are incomplete so was there an effort under discovery to attempt to show  least offset your universe of eight that they could show that in their own cases there was no consideration individualized consideration given to them their circumstances and how their addiction prior addiction might be a result in any kind of post release monitoring or whatever to do to address the issue of danger to the community well i think i don't think the records clear on that point i think i would presume that they would have access to their own pool consideration transcripts well so the way this proceeded apparently  individual parole hearings it was specifically described as alleging a policy and i didn't get an opportunity to fully discover in respect to that policy you sent all we've got some people that we let out but they were mostly women they were mostly abused women and if very different factors i think court and i think the real picky evidence was that for similarly situated in mates were released on parole by defendants like you claiming that they were similarly situated but predominance for females they all have drug addictions they all were second degree murders they all were under the influence of drugs or alcohol at the time of the murder and they all have rehabilitated in prison and they all have future plans to consider to continue those efforts if they were released all of that information was before the court and if you're talking about discovery i think within the context of a rule fifty six f motion it's important to keep in believe all eight inmates who were released under the davis administration four of those inmates like inmates had substance abuse histories and prior drug addictions those are the four that i think are t to this policy and the existence or nonexistence of the policy the other for the only relevance they might have is that those inmates although they did not have a sudden civvies history did participate as part of the rehabilitation discovery has to be identified that is relevant to the issue what plaintiffs wanted was government records and statistics and things of that nature none of which would have controverted the fact that for light inmates exactly the same with the same characteristics as plants were released and if that's the case there can be no policy got parole if you look over the other side of the universe is those who aren't drug addicted or disabled there are thousands of them and in five hundred of those  understand and for there to be a policy i think there there has to be if those exceptions there needs to be a principled basis some sort of reason for for the exception if if this theory of a policy is going to stand in the wake of what appear to be exceptions but but here there is no principled basis there's no way to distinguish these like inmates who were paroled they have all of the same defining characteristics as mr bogden and mr thompson and i don't think an allegation of a policy can stand where you have people that have clearly not been subject to that policy and you can't explain why so we've got a list of whether it's to be able to claim why they didn't have discovery well i don't think you need to have discovery to be able to look to look at all the only information they needed was contained in the pro transcripts for other hypothetical files so you know that information gives all of their all of the relevant characteristics and if there  governor davis was a lot of the older people were murdered well i think that even four out of a thousand or whatever astronomical number the court might want to hypothesize was there is some way to distinguish those four from the plaintiffs then i think there are allegations of a policy fails and here it wasn't four out of a thousand it was four out of  that for me mates who are similarly situated plans to not suffer from this policy but there is no evidence to refute that and certainly have a chance to get any evidence d m well well your honor to answer that question as this court recognized in thompson drug addiction is a relevant circumstance to consider and for all consideration because it affects its relevance of whether someone is is dangerous or will be dangerous in the future so it doesn't the board doesn't need proxies to consider drug addiction it can openly and directly consider that as this court has recognized they have a legitimate pina logical interest in doing so so and if you look at the record in this this argument was made prior to the thompson opinion there are other reasons for the denial  i think you know again it's that once the evidence is that for me it's for whatever number have been released that fit that description then the policy cannot stand the evidence evidence by the fact that only four out of some number which none of the world we can speculate here ever in a period of time have ever gotten a role that does not  who raises the issue if they are a disabled because they're addicted are entitled to an evaluation and accommodation and then how do you respond to that  shows that the board does consider that information for each of the inmates released they all presented evidence and testimony about their future plans and  it and when would evaluated mediate well well the accommodation they the plaintiffs want is simply that the board consider the inmates future participation in drug rehab programs when deciding whether to grant parole the record is clear that in all of these inmates hearings that that was considered and if this should be treated as a normal  i've i don't think it should for the reasons recognized in footnote four in the thompson case for the reasons articulated by this court in the in the gates case in the prison setting in the prole setting  think there are legitimate societal and pina logical reasons that justify a slightly different application of da da i would like to address something in the record my last point your honor to address your primary concern is that regardless of any other discovery their claim is that there is this policy we presented evidence of the inmates released had sense of use addictions they claim that there's this policy of categorically excluding such inmates from parole cannot stand perhaps there's a stringent standard but there same unless there is some principled way to distinguish that one inmate who was released i don't believe a policy can stand where you can't explain it and you don't need statistics and outside information you should be able to look at the information pertaining to the poor old inmate to be able to say ah here's why do this person was different than me and and that evidence was presented that evidence was before the court and on that my first point i'm going to speak up for the the first time this case is all about numbers in two different ways first is judge fisher said the evidence you know the defendants point to fo instances we don't know is that four out of eight is a four out of eighteen discovery of the word six so it's on the record they asked for parole statistics they asked for guidance that guidance that's been promulgated or by the second point about why numbers matter is that it doesn't matter whether it's eighty thousand people are going to have reasonable accommodations or not the fact is and the record is clear on this that these two individuals were denied reasonable accommodations and interest to rosen have said before that should mean of those was a title two case and that's the bare case which is the fourth circuit case another was the mcnally case the mcnally case was an eleventh circuit case and what the mcnally what the unit macnelly court did was say you know what this is a title one case but the causation standards in titles one into our material be identical so we're going to look at the legislative history of title to and in title to congress said it was being clear that it was taking out not including the solely by reason of discrimination are not saying that you can't take into account the future dangerousness the bar the language of the regulation itself in fact what we're saying is of course you should take into account future dangerousness and she said you should consider  participation in a drug treatment program at the time that you're considering the suitability right because that's the real world situation if the if the parole boards modus operandi is to when they put somebody on parole they this on the front end or the back end it's saying if we're going to attach this as a condition of parole which they do it seems like it might not be circumstances whether that should be a consideration that real world that practical difference would actually be a consideration of evidence  that they didn't do that because both of the plaintiffs cases they deny that entirely deny they deny considering participation in the drug treatment program concurrently with a parole suitability fifteen seconds feels that a new record for where you are here's my point where on earth you are asked a question does it make a difference as to whether it happens for four after the answer is that's the ballgame if the if the board waits until