that will be again on behalf of the panel we we thank you for participating in this somewhat unusual method of proceeding but we think it will be a helpful way for us to have a discussion about your case today and with that in mind we're here for  did was presented with deposition testimony that described the alternatives to his request either keep it in a cell he said elsewhere but have it supervised unused in a cell have it used in another place in the institution under supervision didn't the district court did that in and look at the evidence and make its conclusion your honor district court did that but then wage facts and be factual and inappropriate on summary just wrong there were many of them and rebut it with were they all undisputed when they said when they ultimately concluded the proposed alternatives were not evil because they didn't have the staffing what's rebutted about that it's  it's like a four inch knife and i think sikhs are required to it if they have to do a study detailed study to say inmates can't carry current palms well your honor that is not a factual record by in a maximum security prison eat certainly the focus inquiry that home requires may not require any study commission study in the instance of a car but here we're talking about to fill in which has have permitted to fill in including in two of them in segregation and how they included them in a segregated special unit like we had here with the nature of this inmate population with the particular requester and his history  isn't this exactly this kind of circumstance where you have to give deference to prison officials where those other cases it might have been only appropriate to allow access to its will and given where it would be used in the nature of the who have access to it as compared to the circumstances and exactly what what we're supposed to defer to the presence of our i disagree your honor in that the factual inquiry that your honor is asking about is one that is inappropriate again in s decide whether your proposed alternative despite the evidence concerning resources and staffing they did jury should decide decide that issue are you also saying the jury should also determine whether the themselves but personally history in the prison the attempted escape removing his restraints with a makeshift key trying to go through the sewage  and that he was in new york to you they did not take into account but they considered this choice they considered it once and then they reconsidered it and they are you saying they weren't aware of all of these specific to mr wants me to know it but but also i mean to hold also says let me just so just to make clear that you know prisoners don't get an accommodation and then abuse the accommodation part of the  says even if a claim is religious belief is sincere institution might be entitled to withdrawn accommodation if the claimant abuses the exemption in a manner that undermines her presence compelling interests and i think  do we have to do this now so it's always after the fact or can we see a prisoner who's already views some of the prison process in say well that counsels against ever granting an accommodation as opposed to granting an accommodation only to have a prisoner abused than that is as one of the prison administrators said we can grant these accommodations and it may work until it does and till it doesn't may mean killing himself or killing some additional evidence is the post op rationalization legislative intent of our suggests is inappropriate here instead what would have been should have done look to what other prisons do defendants below to not provide any evidence that anyone who has been provided to fill in in any of the prisons has ever used in a dangerous way the defendants below did not conduct and he studies and we talk a lot about the dangerousness but defendants admitted that they could mitigate this risk was supervised excess defendant scarboro independent brenin their testimony together they say they could mitigate this risk to weigh that but and perhaps putting other prisoners and per home may have suicide atte but that's certainly the case your honor but the accommodation that was considered was mr watson in isolation using a prayer in his cell so that mitigates the risk to other prisoners and again to compare it to other dangerous with just objects that the prison allow the cross and chain which prisoners are allowed to maintain on a person's perception around other prisoners suggests that this accommodation and the risk can be mitigated to an extent that as  morning members of the corps council george lee is on the on behalf of the delaware department of justice and he at least i think the court has recognized and focused in on that this is not a policy that is institution wide james t bone correctional center or j t v c c this is a denial of a item specific to an individual who has a longstanding history within the institution of impermissible conduct he is an individual who has been found incompetent to stand trial in the courts in maryland this is an individual who the skate and his rationale for escape when being transported to a competency hearing in maryland was a snake told him too so we are not dealing with this my esteemed colleague would posit an individual who is simply which is it's page twenty two it's major brennan's deposition testimony where major brennan discusses that he in fact did look at the disciplinary history and that it was researched so this is not just simply a he's in our to you the residential treatment unit this is looking at the disciplinary history is well now candidly major brennan was deposed many many months after they made the decision to deny that to phil and to mr watson so his recollection of the specifics of mr watson's this plenary history may not have been as sysfs but then again the history which had been produced wasn't also placed in front of them and the questions positive to him did you consider this did you consider that the totality of the record is a major president did in fact state they  i think that that representation or argument is a lie by the record because it's not in fact a broad sweeping policy a j t v c c there is in fact a permission or permitted use where to fill in is allowed to be brought on to the compounds it is used by inmates with a lower or lesser security classification in the chapel under the supervision of or been a rabbinical students from the left institute if what if appellants request wasn't to use teflon every morning for prayer but let's say he just wanted to use it one morning a year maybe maybe yesterday morning was a day that was of particular importance to him asked only to have it one day out of the whole year could the prison accommodate that even given his personal history and even given everything else surely they could find fifteen minutes out of the year amid its funding and its staff in the us to let him have teflon one day right here are that question was never asked but in candor to the court and counsel i think that that is the type of thing that major brennan and warden scarboro commented that you know in a limited situation that type of accommodation may in fact be able to be made the concern here was a concern because of the security issues involving the to fill in all address that a little bit later but also the staffing issues which are well publicized and were testified to six thousand four hundred hours of overtime a week back in two thousand and eight maybe only fifteen minutes that doesn't seem to be the sort of funding concern that we're talking about if this was that he wanted it for everyone in the whole prisoner and you could you could make a case but here an hour and a half out of six thousand four hundred isn't much your honor it's not just the fifteen minutes and i think that the testimony spells it out that it's it's the time spent with that individual offender while also having to do with the  deal with the other operations going on in the arc to you and the concern that it is posed with that particular piece of equipment to fill in that it's not only securing it providing it to him giving him his time and accessing to it whether that be in his cell which includes one set of concerns versus outside of his cell which is then requiring a transport so it is in fact more time i think then just the skaro say that we could probably accommodate something akin to one day a year it's the fifteen minutes every day that was requested and that was what the request was a problematic but the answer the answer seems to be then not means asked us a look for the lowest the simple actually more than feasible but but lowest common denominator there and it seems that maybe the answer would be to come back and say yes you can get it one day a week that's three days  or one day a month but not never end and your answer is never in so don't you have to justify it never is the least restrictive means your honor the request in this instance and in this case was never and the never for mr watson in this case took into consideration all of the factors that were testified to that for this particular in may it was never i don't know that they sat down in their valuating candidly for mr watson the one day a week because the question was never asked the question was asked if he was on the compound bringing in a moment or medium was an issue of resources having the staffing to be able to monitor in response to the request received as opposed to a different request such as the once a year usage i just make sure i understand it correctly correct we looked at it from the perspective and my clients look from the perspective of fifteen minutes every day and what resources were available in the manner of that meeting and most patients  week days consistent with the religious tenets and so now if if your comments were well maybe once a year would work that wasn't the issue in front of the coup or because that wasn't the so we so from a practical point of view if this afternoon mr watson chose to make a request for money monthly hits or nearly use that would have to be  differently this case when answer that that would be my position you are correct is that the request was a broad brush every day request where snapping and security concerns came into play have to be a evaluation of what is mr watson's situation currently what are the housing concerns currently and how do we proceed forward that actually those don't feel and the argument was made that this was a denial of mr watson's request to fill in for the rest of his life because he was in prison for one hundred and one years i don't know that that is in it concerns government action and so it's the government's action the denial of any ability to ever get teflon to filling it is evaluated for at least restrict that's the government's position he will never get it we have to look at whether that government position regardless of what the request is it's the government's position it's challenged by this statute and a complete the question is is a complete at all times restrictive means at that time i have said that looking at it now there may be an opportunity or a argument to be made that something less could in fact be done but the  testimony of all of the senior staff at the institute of time was eventually one thousand and eighteen based upon stopping based upon the unique concerns posed by mr watson that in and the being in the buildings twenty one of the arts unit with all the other duties it was a lease or threaten it also to how do we resolve this thing because if i were wearing my old hat and you guys were in my chambers in my comments room i would be saying she did we have a conversation everybody about how i've had to build bridges and is that a remedy here you know can we can we were solved through communication conversation if you don't want to respond to that directly here perhaps after the arguments are concluded we can but it seems to me that perhaps a resolution could be reached here through conversation given change circumstance of what you've described as potential you're that is what the court below was confronted with the approach is there something that could be done what did not come up and i don't know for purposes of the appeal or an appeal where you're looking at what the and maybe i'll just be more explicit the circuit has a circuit mediation program that has a decently high resolution rate voluntary resolution rate settlement have you two with counsel of that's all right but in the meantime let's stay focused on i guess the legal question in front of us and if i understand mr lee's i think what you were about to say was if we focus only on the appeal on the record in front of this who are the requests made and the type of accommodations that were consider it's your position i understand that the resources were insufficient to accommodate the the request as presented including modifications of that request namely not just in your cell but in other parts of the institution i just i mean sure i understand your position that i want to follow up on something that judge phipps was alluding to so that is that your position of what's in front of us to decide correction wrong ok now following up on dangerous fix was saying that should the fact that the request was what it was absolve the governmental officials from offering something different understand my colleagues remarks today placing the he's placing the burden of the fund is a place in the burden on mr watson to propose alternatives to formulate his request in such a way that can be accommodated by the prince that is not what our were only on a day like yesterday the holiest day of the jewish calendar only that day his response would be you're not allowing me to fill the wreckage with the just turn it so i think would they be spinning their wheels if they went through the then it was not in th in complete denial by defendants and it was not until after this lawsuit was filed that mr watson started to propose alternatives mr watson said ok i could live with supervised access and then that was the night and the twenty to satisfy their burden to consider other alternatives and then either reject them or find where that somewhere in the middle is even though you know the proposal that would be offered would not would be inconsistent with the ten and he could they be accused of being less accommodating because you're proposing something that doesn't fulfill the tenet and i think we get your honor to a question of substantial burden which it is is not really the focus of the argument that is allowing mr what one day or just going to high holy days is that a substantial burden on his on his on his practice of his religion that is not something that offends developed below and frankly was not something i did and it's and it's this factual inquiry that