necessarily even the fire under that were sun the county state of california could have built new facilities to house people in and that's a similar situation to what you have here you want to just work for recognizes that part of the way of complying with the population reduction directive would be to transfer ultimately the government has to take certain steps on release or transfer whatever to confide in me that media separate question the government's kind of discretionary discretion how it complies but the court can't order always so that's that's i think he the key was really the findings were really infected by needle errors about the idea that there had to be six feet of social distancing at all times in all places that that was the end of the need to satisfy delivered different standards all that sort of thing so too i mean i think a lot of these are factual findings dressed up as his legal conclusions your honor i mean i think the idea that the only effective way to deal with transmission  we go into the fine rain facts of the on line don't approach we're really getting into the area where you know reasonable people can have different views where we are it's pretty clear from the declarations on the record that i want to has responded don't think it mean there are individualized aspects of that they all process and that's that's really i think one of the problems with it do doing it on a class way basis your honor but i mean the district courts here were attacking the process writ large which is i why this order which seems to just set up a process for a future orders is itself either a final judgment or an injunction or otherwise it's something from which you can appeal sure you  been i think four days and one hundred and fifty more within seven days given the significantly decreased numbers i think those aspects of beef are moved the release order eat and the release viability question there it's all factual points were clearly the core relief that the court granted was this reduction in the population numbers and as i understand it that was driven to a large extent by the arrangements in which people have to sleep right that they're just not going to be possible to have enough distance between the beds of these their housing units or are set up  agree with you in part because i think you're right that in light of what we know certainly they maintain six feet of distance is not necessary one hundred percent of the time it is necessary to have people used properly if so if the beds are going to be closer than sixty to one i think that's what in my mind drives the problem from the population right and him so what i was trying to get a sense from you is  then to separate people in terms patient may be to to act provide adequate distancing in circumstances your honor and i think again that that's consistent i don't think there's a basis here to hold it that is deliberately indifferent or unconstitutional sixty social distancing required as a requirement is is just not feasible as a general matter in the detention context but we've done most reasonable and circumstances and and and again i think the cc's guidance in our nation  said the response point that we had a lot of out from from the government because they sort of repeat this a lot of throughout that race but i think when you drill down to what the actual response was you sort of find it was highly inadequate and also most of the time what they're studying it just things that  injunction you know they mentioned staring that in a times you know on the th district court found that people was still lining up inches apart and that the number of people who were in the dining hall was still more than twice as many as could accomplish social distancing so in all of these instances you of the circumstances because i think that the implication from the drop in population might be that the government has sort of voluntarily reduce the population the facility and that's not true so they're only being for that discretionary releases that the government  there are also people that being transferred into the facility so we pointed out over one hundred people who are code for from from it's from facilities that have outbreaks were transferred in there's been no systematic effort to bring down the population it's been happening because fewer people are coming into the facility and we don't know the reason for that but we strongly suspect the reason is that at a facility like alan toe you know you get a bunch of people coming in from street level enforcement street th wasn't still seems to be continuing we have a lot of examples of that and you have a completely fine to have a highly populated facility and in fact that you know court shouldn't really be addressing this sort of thing at all although the anything they need to be doing is addressing whether the government has has done something in response and i think that that sort of i think the fundamental paradigm we have here i wouldn't think goes to the to this court's minnes question that you asked us to brief which is you know i think it's right to say that the injunction is highly necessary and in light of that the core of the district court's injunction was that the population needs to come down to a level ethics but social distancing is possible even if the government voluntarily accomplish that that would still not be moot because you know you're in a classic voluntary cessation situation where it has to be unmistak clear as the supreme court said in lay law that that challenge conduct one to be a cop but here we don't even have that we have a cessation that's do you not to the government's conduct but to sort of other factors and so it's sort of that the need for the injunction is still absolutely cl and i think the one thing that the district will probably should reassess and remind is whether or not one hundred and fifty releases are unnecessary i think that's a question that the district court made based on the factual findings they had at the time in the population of all that had the time there's no there's no reason why you know next week the government necessarily needs to really reduce the population by one hundred and fifty maybe it does but that's a question i think the district would have to address in the st instance so in terms of the disposition i think it would be to sort of  downright irrational not to mention inhumane so there has been sort of a systemic sort of releases a just something we're not going to do with the i system and then the fact that i want to show us specifically you know quite a bit wise and we have details factual findings as judge said one of the things that that the rd circuit said for example was that there hadn't been any real findings on this sort of space component and here we have those precise findings and none of the other cases really have this this level of detail and i think that their response in terms of what indifference prompt is easily satisfied in those facts it was the subject of deliberate indifference prom which doesn't apply in civil cases like this one that was the basis of this except it's ruling so we can the six that basically completely aligned with what the court would be doing here and if i mean the injunction the case is articulating that test it's a test that governs here the treatment of detainees so that the fact that the person is going to be detained seems to be what is it you want to say well you know detention itself you're the detention itself is the problem because it creates the crowding that creates the risk and so what is the legal basis by which we can say it well we're going to not assume the factor that i'm sure we're going to look at whether the government has some legitimate law on punitive purpose in detaining at all because i don't see that that's a thing that's been we're not suggesting that there are i mean with the core of the relief here is that people who need to be detained in situations where they can exercise reasonable safety where they can exercise sex but social distancing and so if the government could accomplish that by moving people to other facilities that would be fine the district court's order is totally consistent with that and we're not seeking release to everyone in the class half are met where saying you need to release a sufficient number of people so that everyone can exercise social distancing whether that means us that for the people released that social excessiveness looks to the sort of conditions that people are housed and and it asks whether that is too much given the government's purpose and given the reasonable alternatives that exist so here we have you know the ice that program which i share ninety nine percent effectiveness try monitoring other things like that is it true that every single person within our land so needs to be detained in order to accomplish the government's purposes and again you know we think it's very plausible the government could or could accomplish social is detained without having committed a criminal violation and we i don't think anyone disputes that if they've removed half the people from atlanta that probably would be enough to accomplish social distancing so that's the real question you know is it does it is it expensive to keep every single person out alonso which is the government's position in relation to the purpose of detention which is to prevent upstanding and to prevent crime and again there's no evidence that anyone has been released an electronic monitoring or on bail from any of the cases across the country they've done so has really has committed any crime so you know once again i think that that's how the doctrine sort of works and if you think the government's kind of extreme position i think it is a sin is you we identify a legitimate interest you know that's the end of the inquiry and that can't be right i mean jones and king would have come out differently that have to be some inquiry about the balancing of the excessiveness and if it's not excessive to put someone in extreme danger of their life then what is excessive so i don't know what set of facts under the government's theory would adult warrant relief i of the physical footprint of adelanto we i don't think we have a number of particular in mind i do think probably in the course of the trial the parties will probably propose different numbers i'm sure judge hatchett will ask for a number i think the point that you made judge was that is exactly right at its core i think that number is going to be very much linked to that space you know i think that if you have those these sort of you know eight by twelve foot cells it's very hard to have more than one pass and if you have a ten by fifteen foot cell it's very hard to have more than two people in those and in these open plan  areas you know the beds are really really packed together you actually have sometimes you know six pets within six feet of each other and so i think part of it is going to be figuring out how many people can can can fit within the footprint of that facility given the sort of sleeping arrangements that be currently you know all to down so they can't move the bads now maybe the government will say at trial we can do that bad and they'll be sort of litigation about that but i do think that's going to be key in terms of figuring out the number is can everyone sleep in a way that they're actually you know at least you low enough we know from discovery that there are still you know three people and four passing cells out there clearly there are still get out there's no social distancing happening at the facility under the current circumstances whether it's possible to happen and the government is just sort of no so i'm i'm i'm certainly with you on the corner holding this record she the terms of as i said i my focus was mainly on the sleeping arrangements but that this records of john was quite intrusive and wanted a bit further tha feet of distance basically at all times except for these very exceptional circumstances that strikes me as not remotely feasible you know the detention facility and also not necessary because we know the people can get on seems like a very micro manag been going on for about two months by this point and you know the government was really taking a pretty extreme position that it didn't have to do very much of anything and in practice wasn't doing very much so i think just had to try to create very strict and stand lines to just make sure that something would you know th immediate compliance now again i think a lot of those things to the extent the quote thinks they're excessive are reasonable i think the judge had a could look at it again on remand i do think what's interesting is the government never went to judge hatter and that look here are practical problems here is why i will make  provisions were unreasonable in it didn't seek relief from the provisions in the st instance and i think there's no reason to think judge hatter actually would would be amenable to that he is revise multiple what is in this case and the government's favor he has he's for example in the bail and i'm sure he would be very amenable to changing them but as you point out judge what's at the core of the injunction is the need to make sure the population level is such that six but social distancing is possible and you know i think that that is that is sort of on the factor record the district will hat a totally reasonable provision i think the government is trying to use these marginal provisions to sort of like make it seem less reasonable but at its core a judge had to do something you know fundamentally you know he sent not any th intriguingly you know in general shanley is case in the northern district of california when judge chabria asked the government what is the remedy you would want if i were to find a constitutional violation against you it was basically the same remedy as here the government said we want something that gives max and discretion and you can't wait for the outbreak to happen before putting in place that that the policies that you need to prevent it if you look at it and makes a bad day that you know there were no cases of coke it until late july and then in two weeks half the facility tested positive with findings you have the findings about the communal space and people being interested part so this is sort of the most extreme and most detailed set of factual findings we have and it's in the civil detention context where the stand it's a dramatically lower we have our whole theory of proof a this court should look to the supreme court's order as being anything other than a judgment based on the particular facts before it and eventually i think a lot of these case are going to come up and the court is going to have to make a case by case assessments based on the particular facts and i do want to make one sort of final point then on the remedy side he said you need to implement six but social distancing i don't think that means that in every facility in the country there needs to be six foot social distancing i think if for example a facility could prove it had unbelievably  case the preliminary injunction was not an abuse of discretion ok a pretty narrow holding but i ask case which is taking into account you know that criminal history in a very significant way and also that you know their rehabilitation various other factors where they would stay outside and obviously i think in some ways and in mandatory detention that would be a significant fac hold consider i don't think it means that the district court can't consider bail for that person because ultimately the question is is there a constitutional violation after that passing in their individual circumstances and the fact that there's a statute that says they have to be detained doesn't doesn't mean the court lacks authority to release them so if you would have someone who was extremely vulnerable for example and you know and it was being it was being housed in conditions where it's very likely he specifically was going to get one thousand i think it would make sense for the for the court to because i could die before then and so that's that's where bail really is in substance and you know i think that i don't think they have i think that one option would be just the judge having to allow individuals to just present their own individual petitions and i think judge had a one said a systematic  organized process and i think the government probably wants that too i don't think the government wants one thousand eight hundred bail applications so that that's sort of what the bail the bail process looks like and when the way in which they are currently being done is that people who are  have class which is the group of people who have ice identified as being high risk the bail order requires that they be present to the court fast and we're still working through that class of highly vulnerable people and there's no way will be able to get through that listing of people before trial so in practice the only people who are really going to be presented for bail applications are people who are already within a highly thing is not a requirement you need to be adept in the circumstances nonetheless we've taken sound social distancing friendship and we've also my friend also says essentially that ice is done you know no response that's just not buyable on this record we reduce the population by when this court is looking at the record i would encourage the courts to look closely at our declarations in it as i know the court will do whatever current problem in the petitioner briefing here is that is two things one they rely repeatedly on