morning my name is david brian i'm here representing shannon peters this case has to do with giving this opportunity a giving that this court the opportunity to reaffirm its holding in jones versus edwards  regarding strip searching preach trial detainees who are not going to be placed into general jail population but just will be released once they crime has been reviewed by a magistrate these are simple misdemeanor crimes or or less my intent here today is to convince you to reverse the district court that felt that the supreme court decision in florence versus board of frozen of chosen freeholders reversed jones versus edwards and i think a fair reading of jones versus edwards is that it did not reverse it the district court held that reasonable suspicion is not required to strip search detainees subject to possible but as not yet fully defined exceptions and the court made a distinction which i'm not sure i completely understand because the court agreed with peters that the holding in florence did not allow strip searches to be conducted on pretrial detainees that were not going to be placed into the general jail population but the court distinction between the holding in florence and the rule that was announced in florence and i'm not really sure how to explain that other than to just quote what the what the court said which was the legal rule not the holding the rule over rules of prior circuit legal rule that adult detainees cannot be search without reasonable suspicion regardless of circumstances now i think the district court made this erroneous conclusion by committing one legal error and two factual errors the legal era was applying florence in a situation where the very majority in florence the current currying opinions in florence and the dissenting opinions in florence all said it did not apply to pretrial detainees who haven't had their cases reviewed by a magistrate who were accused of minor crimes and who were not going to be placed or exposed to people that were in the general jail population we have to keep in mind the general rule and the reason for it we understand that jails have to provide security and they have to keep contraband from getting into the jail and we understand that people might intentionally try to get arrested or take an opportunity to convey contraband into a jail but at this discord previously held in joint jones viet words and as every circuit court has held ms peters at home yourself in the next twenty minutes you would be suing on behalf of her estate for failure to protect how they have it seems to me has to be translated into the governing standard here it would and i think it's easy you simply have appropriate suspicion test it any any any detain any person who is brought in for booking and about to be detained put into the custody of people who  then have a duty to protect who refuses to answer routine suicide questions and refuses to surrender first of the longings that might be used to commit suicide  given reasonable suspicion to do what was done here what's wrong with that as a legal standards aside the legal standard some find the problem is it doesn't comport with the facts of this case right  you need to go back and review the record judge because excessive force case which you lost your trial you need to review the record judge miss peters was asked are you going to hurt yourself and she responded why the fuck would i want to hurt myself that you refused to answer the suicide question didn't refused to answer anything if you look at the video she was upset they were asking her questions she wasn't responding they said that's it this is over they took her back while they're walking or back she starts to calm down they get her into the jail cell they bring an orange jumpsuit in which she should be able to put on in private the only reason the only justification for forcing her to change clothes while they watch her is because she might be suicidal right they didn't think she was suicidal if they thought she was suicidal they would write a paper suit in the video clearly shows they brought a orange jumpsuit in they through the orange jumpsuit  myself and they refuse to accept that it doesn't matter she says i'm not going to hurt myself even though that's the reason they gave for the fact that she that they had to watch her take her clothes off listen what happened here is these defendant wanted to embarrass and humiliate her because she was not fully cooperating with them they had under their policy and under the fourth amendment no right whatsoever to watch her take her clothes off she didn't even need to take her clothes off under the policy in effect that would be the county jail at the time they forced her to do that to embarrass her because she was being belligerent and you don't have to look any farther than the record then look at their reports judge their initial report says when she came into the jail she's not suicidal she's not doing anything wrong we walk her back they beat her strip her naked leave her in the cell with a paper jumpsuit go back out and change the order changed their records do they change it to say we had to do what she did because she was suicidal no they change and actually told the truth we did what we did because she was belligerent that's what the record says after they did this to her we did it because she was belligerent doesn't say suicidal inma to any question that is that mis read that i think she did it but there is a dispute as to exactly what the timing was in terms of asking the question the second time when they were back in the holding cell versus asking the question when they're out at the out of the front desk when they first decided she's just too upset and we walked her back to holding what's clear is they told her to put the jumpsuit on first the orange jumpsuit not the paper suit she she didn't want to do that only after they ordered her to put the jumpsuit on did they ask her the suicide question again and this is right in their reports did they did they ask you the suicide question the officers came back and inquired one officer have you question that's right and she had not because she didn't identify that in the report so at that point in time she does give her the suicide question and all the officers testify that her response was why the fuck would i want to hurt myself which they all admitted in their questions when she said yes and they all admit in their depositions that that's a negative response i asked each of them look if i ask you sitting here that you want to go out have a beer with me after we're done with this deposition and you say why would i want to do that that's a negative responses and they all said yes and i said if you say why the f word i want to do that that's a pretty emphatic negative response isn't it and they all agreed that yes it was but somehow the fact that she and phatic the record well she's upset she's she's been arrested she's had a day with her kids it's sunday afternoon she have to be with the boyfriend she thinks the boyfriend had a restraining order against him she thinks it's been lifted and hasn't she's upset but she's not acting out she's not physically aggressive she's crying she doesn't scream at one point in time that i lifted that restraining order that's when they step in and say look we're just going to take her back to the room which they do ask questions again which they do as we already talked about and only at that point that's when she says why would i want to hurt myself i don't want to hurt myself i want to be here but i don't want to hurt myself she was emphatic about and the judge in this district court judge locum please read his decision and he specifically says that a factual issue has been generated as to on on her statements why the f what i want to hurt myself as a negative response and he specifically says in factual issues been generated as to whether or not they were right to have a strip search over because they believed she reasonably was going to hurt herself but he goes on to find even though he sets out those factual disputes he goes on to fight as a to find as a matter of law that she in fact was suicidal and that they were justified in that soley for the reason because they believe she was suicidal which again i have to do is look at their records their records and you can determine that that's not the case they never saw her suicidal they never identified her a suicidal the first time they identified or suicidal was in their depositions they had done a fighter as belligerent and they put a paper suit on because they knew they couldn't stand there and watch under their own policy end of the fourth amendment they couldn't stand and watch her take her clothes off unless she was suicidal or unless they had reasonable suspicion to believe that she was consuming contraband or a weapon and they all agreed that she was not that they didn't have any suspicion to believe that she was concealing contraband or a weapon so this the for its case and jones we have heard has everything to do with this case is the policy of this of this district that people that are not going to be put into the general jail population should not be subject to such humiliating search and this person was subjected to the relating searchin she objected to it that's what started this all she calmly said look she's standing there saying i don't want to take my clothes off in front of you and i don't want to take my clothes off with these two guys standing out in the hallway watching and they denied that they were standing on the hallway watching but the video shows clearly they are because he thought she was after she was becoming more adamant about refusing to take her clothes off if you hit this road in front of the female correctional officers you think the male want to stay there based on my history of eight cases against this jail facility i absolutely believe that yes i believe they would have stayed and watched and i believe she was right in objecting and i believe they would have they would not have followed with her objection and she just would have had to continue to disrobe in front of the two males that were standing out in the hallway watching her well there are there are various and there the whole question of what what is a strip search what the and through the ballot thing all right we're we're now we're now out of the point where we have a correctional officer watching that's not even their policy though you look at the policies or in the extend extend that they don't have to watch a fourth amendment that's not a violation of the fourth yes it is under florence and under jones we get words if you're not being put into the general jail population it absolutely is a fourth but now you guys can reverse that if you want to but at least make it clear actually i'm not sure that this panel can reverse jones v edwards i think it would take an embryonic to do that but you can sure make known your wishes i'd like to decide based on procedural grounds the pursuit procedural background of this case is important peter's complaint during a man alleged causes of action under forty two u s c nine hundred eighty three for violations of her first and fourth amendment rights summary judgment as to the peter's excessive force and free speech claim but granted the motions as to peter's fourth amendment violation of privacy rights claim on two grounds each crown being one of the elements of qualified immunity that at the time of the incident on may twenty seventh two thousand and twelve it was not sufficiently clear that a reasonable officer should have allowed peters to remain in the cell with articles of clothing that she could have used to harm herself or than an officer could not forcibly require her to change her clothes when provide clarity for all searches of detainees absent reasonable suspicion for weapons and contract contraband but but in that case the facts were very dissimilar then here  in jones the jailers there performed a non contact visual strip search of jones consisting of stopping jones in an alcove of a hallway where he was nude and then visually inspect in his private areas in this case th didn't happen and so i think the way to look at jones's so actually under looking at qualified immunity you know it does jones provide clarity for this case and i think it provides one example of where a search was not deemed reasonable but in she never mentioned qualified immunity in her brief at all and under the summary judgment ruling judge bennett granted summary data under both elements of calls i mean any namely one there was no violation  results testimony that were detained he refuses to answer the suicide questions the detainees must be treated as potential for self harm and that the street clothing must be removed i think that was kind of the crux of his ruling on the fourth amendment mr o'brien says well she didn't refusing to ask the questions she actually gave what the what he says any reasonable person would construe as a negative response is that how do you reconcile the two well i think it i think it you need to look at the totality of the circumstances and based on her behavior prior to that comment and then her behavior after that comment a reasonable officer and it's objective tests not a subjective test a reason law for looking at all those who would view her as a potential threat of self harm  have hurt myself why the f i want to hurt myself and i think mr bryant's point of comparing that to saying why that's what i want to go get a beer is a lot different than the situation given the news especially under you know that supreme court just went through all of those reasons why we need to give deference to jailers in florence that you know i think crushes have to be taken and you can't just assume that she by giving that expletive response that she knew would not harm herself and it's unreasonable to take a wait and see approach your honor to see if she went or at least you're saying it's reasonable not  is you know and that's one of the procedural questions that we point out in our brief and i think the confusion there comes from how did the appellant plead this appeal and she states that this appeals an appeal think you know it is true that judge bennett in denying the motion for new trial pointed to his summary judgment ruling so the question is how to has said failure to raise an issue in an opening brief is deemed a waiver and and they can't later on raise that issue in their reply brief so i'm going to the most generous reading time i don't think i have a very short time and i have a really only one thing i want to set two things actually one is i understand that i didn't use the language that did the defendants wanted me to in terms of writing my brief but i don't think that's a requirement clearly our position was that jones  offense who's not being placed in the general jail population is open again after florence because florence is we don't decide whether you may conduct the search of a person who will be exposed to the general population but it's them for support of its decision in florence but those cases are both going to the general jail population so every circuit court that's reviewed this ten of them have said not one and less are going to the general population and judge loken the last thing i say is that if you want to reverse jones edwards you can do that but you need to understand that in jones the defendant was just as defiant just as belligerent just as upset so if the rule is that if a person is upset during the booking process we get to strip search him then you do need to reverse jones we have a word in