been counsel on this particular case and on behalf of the court m r panel we always like to thank our pro bono lawyers and i'm sure that you'll both make equally wonderful arguments that we we rely on lawyers to step forward  chris lim for merissa livia i would like to reserve two minutes for rebuttal and then i think first i need to spend just a brief moment explaining the circumstances that happened with the reply brief i tried and failed to receive a thirty day extension for time and i have this far as i can tell i think i had installed a pop up blocker that basically prevented me from getting that thirty day which was not great about that anymore i think we have would point the court to advisory committee no in the two thousand and ten amendments to the advisory committee you know for rule fifty six which reads considering some facts undisputed does not itself allow summary judgment if there is a proper response or reply as to some facts the court cannot grant summary judgment without determining whether those facts can be genuinely disputed so that's if it seems to me that it's undisputed that for sleeping was the result of inmate disturbances and lock downs correct that's undisputed and can you repeat that well it seems it's undisputed that the floor sleeping was the result of inmate disturbances and lockdown so the way that's not disputed so i'm understanding your argument to really be that this is the court's legal conclusion that the fourteenth amendment can tolerate floor sleeping in the case of edge in circumstances like a lockdown that that's what you disputing will not actually i don't think that's my argument i'm trying to argue that there's if you look at the evidence that mr baka presented to the district court there inference is that the court could have made from that same evidence so in particular they could have the court could have it concluded that it made disturbances were not the exceptional case but the norm right so the evidence that mr baka presented to the court was simply that there had been a certain number of  inmate disturbances in a certain amount of time but the court was not given any further evidence about like the general state of affairs in the county jails and i think further there's a saying  all trying to suggest that those articles were going to be evidence in fact i have to simply want to to provide those just so that the court could know you know what's in the public realm of the time which is i think miscible within  overcrowding is really pretextual that there's really some other reason and that they're just simply using this overcrowding as a  pretext to to put these people on the floor and keep them there in order to punish them or i mean i'm just having a secret you never really answer judge callahan's question about exactly how you get around the the problem that it was exigent circumstances are i'm trying to get when i was reading it and reading your your materials i came to the the understanding that what you were trying to say don't know and under the rule fifty six standard the court needs to know so i'm not trying to make an an affirmative claim about what is actually happening in the prisons what i'm trying to say is that there's a tribal issue here circumstances are the normal state of affairs then they're no longer exigent circumstances and so there is a question about whether or not what the background situation is around the so so your honor i would point so there is no evidence in the record that would show that this is not either way that it's not the normal state of affairs or it is the normal state of affairs exigent circumstances so that when there is evidence that makes that high a tribal issue so i would say that there is if favorable inference that one can draw from that evidence what comes before and after that evidence is presented really happening when in all cases when they claim exigent circumstances it seems that you're you want to use this case you know i mean we can you can call a simple minded but we have to when we're evaluating something for purposes of a tribal issue we have to do it on what's in front of us ok so but it seems that you want us to use this as a vehicle to find out even though we could if we concluded that it there isn't a disputed fact that it's undisputed that four sleeping is the result in this case of a disturbance and a lockdown but you want us to go beyond that record and find out if there are other so if they're just saying that too much not to go beyond the record but i would i think the district court should have made an inquiry as to whether or not the the the created a tribal issue a material fact as to his fourteenth amendment for sleeping playing the issue of whether rights were commonplace and lies not mentioned in the court below there is no evidence in the record that county wide systematic lockdowns multiple facilities for a three day period was was a common occurrence well ok let's just take it from even if there's no disputed fact as to the existence of existence circumstances why isn't there still a factual dispute over whether floor sleeping was justified so isn't it an open question of whether the ends made reception center acted reasonably and declining to make some sort of accommodation for its detainees home and it became clear that delays in processing would extend well beyond the general twenty four hour processing guideline right now the record in place shows that there was a practice and there was a policy of ensuring that inmates were provided a housing facility with a bed when they entered the inmate reception center they there's a policy in practice that within twenty four hours they need to be moved to a housing facility but that the only reason in this case in which the department was and unable to do so was because of the i didn't circumstances  obviously let's say inmate disturbances this test of taping or sleeping have persisted for ten days rather than three would it have been constituted a constitutional violation had been made sleeping on the floor for that amount of time you know what about twenty days right what about a month where do we draw the line right and fortunately for this case it was a very short period of time unlike in the other cases cited in our answering papers  those were situations where certain constitutional rights were restricted temporarily for a period of months in time and which the court found that under certain circumstances prisoners as opposed to detainees these individuals you know they're not technically prisoners at this point however they are under the care in the custody of the the sheriff's department and the policy in practice in place was to ensure that their constitutional  right to have a bed was enforced it's a unique situation the overcrowding problem down there is an issue that's gone on for years now  obviously there are some other cases prior to this one such as the thomas one in which floor sleeping was a an issue but at the time of this incident the policy in place in two thousand and six was to ensure that individuals were provided the bad the overcrowding issue doesn't really come into play here because but for the accident circumstances the appellant would have been provided a housing facility with a bed so it's not the cause of him not being able to have a bad is overcrowding that's not in the record that's not basically how the situation occurred the record indicates that as soon as the lockdown was and did and everyone had been treated for their injuries they've done full investigations make sure everyone was in the proper cells and treated and that they conducted search for any weapons after that occurred they were able to move the telling into the housing facility be saying that the court should get more information that that there should be some question asked it's triable whether the policy i guess is you know if you're just having all of these disturbances and this is an everyday occurrence and i believe it be beyond the current standards if this court would determine that riots that resulted in multiple lock down stopping these riots as soon as possible and in a safe and humanizing manner their resources and their officers were severely limited they had to from the inmate reception center itself they had to send numerous personnel to the castaic jail they had to send individuals to the men's central jail to help defuse these riots to allow who are you are you saying number one it's not a constitutional violation but then secondarily even assuming that are worth there's nothing clearly established saying that it is yes this is the secondary argument as to the qualified immunity  individual capacity the initial argument there is one there was no constitutional violation due to the exigent circumstances and additional argument is that there is no evidence in the record and a bound to not meet its burden to show that sleeping claims against the same appellee additionally well you know it isn't demand of us i don't think i mean it seems like it's going to diminish as the guy sleeps on the floor for three days but i as a young lieutenant as a result of a united airlines pilot strike i spent three days on the floor of the washington national airport and i can assure you i didn't think it was de minimus so there is some discomfort there i can you know for sure is certainly no torture so the real question is number one were there exigent circumstances and that seems to be a little foggy here in number two and i think clearly shows that the district court carefully reviewed the the uncontroverted evidence and properly determined that and i can see did exist which justified the temporary while it was three days it was temporary compared to numerous cases cited and the answering brief you could help me out of here frequently because you know i'm a district judge so frequently when a motion for summary judgment they'll file a motion to continue so they can do discovery it almost always almost always grant that motion right such a motion request filed in this case i do not believe so well he was  if he asked for more time so i've had a proces ask you to write a letter to look i need more time to my understanding no he didn't again he has press a and the district court did take that into consideration in its ruling granting the summary judgment  going back to the qualified immunity argument there are several cases that are in dispute as to whether floor sleeping does raise to a constitutional violation but none of those cases involve existent circumstances such as in this case so as a distinguishing factor the department needed to allocate its resources and its officers to ensure the safety of the individuals the end made its own officers they were to say that the riots resulted in multiple jail facilities being put on lockdown due to these hundreds of in may disturb and says and fights did not create an accident circumstance i believe would create an impossible standard to be met in all future cases and i believe my times thank you so first i would like to direct the court's attention to thompson v city of los angeles judge callahan i heard you say that there were not none of the cases that you saw referred to pretend detainees and that's the ninth circuit case which specifically addresses floor sleeping for pretrial detainees and in the thomas case takes a chance or is not exigent circumstances but in the thomas case  they distinguish thompson because thompson had offered mattresses to to the plaintiffs so and that was you know and basically the ruling or holding of that case it seems pretty clear to me is the jail officials are on notice that pretrial detainees should be given either a bed or a mattress within a two day period of time so i think the qualified immunity issue should be addressed by that case by that precedent and just briefly i think i think the the just to recap the issue seems to me again very much one which you judge callahan seem to like put quite well which is that exigent circumstances can't be an everyday thing and if they are an everyday thing then they're no longer exigent circumstances by definition and so that i think that's the problem with your case you are handicap factual record to support that as i discussed with counsel there's it's well known that there's an overcrowding problem and if the record had demonstrated that due to the severe overcrowding there's frequent disturbances that with then lead to a partial lockdown there's something in the record that a partial lockdown under certain circumstances is possible that if there are disturbances then you basically  the facility on full lockdown so nobody gets processed in and out and that that happens frequently but jail officials don't take any measures to ensure that they're processed out and given a bat with than a reasonable period time i think that's a different factual record b the sea that sort of record in this particular case so i would agree the record is is insufficient on that on that point but you know i think it's worth bearing in mind that this is appropriate let again and hence the current says that you're to give latitude to such well let it go that you know proper purse if you get certain consideration but i don't know any case authority that says that we can put things on the record for propers that aren't there oh certainly not but