clause from hold before i address the implications of holder want to let the court know that in light of whole t t c j has changed its grooming policy now commits a half inch beard permit a pursuant to a religious exemption in the first three months months we processed nearly thirty seven thousand requests to grow religious beard that however does not include mr ali's claim because he testified he would not accept anything short of a f anything and we should continue with this case as it is here before the this court it should not be remanded your honor because mr always said that he wouldn't accept anything shorter and so hot and is not going to change his claim and the record here is fully developed as to why t c j cannot accommodate a four inch beard or a koofi cap without some restriction initially hold does not overrule the deference to nan dated in cutter b wilkinson and whole the inmates saw a half plausible explanations for its chosen policies once the prison system puts on that evidence then you move to step two and step two is that deference just do now in whole arkansas did not put in that evidence so the princip work with that word unquestioning no doubt for me but nonetheless it doesn't address what you're talking about intrigued me whatever was held before about deference has been greatly altered by what i would disagree your honor i don't think mandated unquestioning deference and justice sotomayor in the concurring opinion in whole talked about the limited role of deference and or loop analysis that the clarification that we get from whole is first you have to have that evidence the plausible explanation and evidence to back it up and i think that that was to correct maybe some circuits from offering an unquestioning deference in her concurring opinion she echoed the phrase differences did and in this case we're not asking for unquestioning deference in fact very very little deference is required given the abundance of evidence in this record now the reasons for our policies are that of four inch beard  restriction they place contraband in our prison they give another hiding place for inmates to hide contraband there is no question from this record that contraband can and will be hidden in a four inch california also well it's worth noting that california restricts beards to one inch that's what their policy says however they gave up in forcing that policy they found it on a forcible they can control the inmates to keep them within the specifically to study their grooming and cousy policies and what he saw was that there were fundamental differences in the systems between t t c jay and those he saw that they guarded their inmates with arms firearms inside the prisons so inmates walk around with the gun barrel pointed at them essentially they also have a great number of metal detectors lethal fences they have their well staffed their budget is triple maybe quadruple that of t c j all of this is in the record lot of the new policy that now allows beer does that does that water down some of the reasons for example identification or misidentification now that mirrored you're allowed that water now and that region for not allowing beer to i mean is security the main reason for and concern for not allowing beards four inches long do you give up the other regions are you still looks like we're going to be allowing inmates to search their own beards by running their fingers through it that won't be effective for a four inch beard an inmate will be easily can easily undermine a self search and a four inch beard all allow an officer visually see down to the skin so that's one issue that's just it's it's not the same with a half and a four inch beard also with that long the beard you have to take a look if you don't know again i believe they would your honor now and other issues that with a four inch beard word we're going to be very worried about putting our officers in the strike zone standing in front of an inmate within reach to search a beard mr ali even testified that he would have a big problem he would find it invasive and unfair or if an officer tried to touch his face to search his beard we also had testimony that offenders are going to resist these kinds of searches of some of these arguments that you're making we're days just evidence presented before the trial court i guess what i'm getting at is there was a trial and  were to the judge heard witnesses expert witnesses from both sides and gave discretion to to the department of the whatever but still found that the witnesses for mr ali were more credible and made a factual determination that this was not a there was not a security concern and etc so are we looking at overturning is a question of law a mixed question however if you look at the seventy three findings of fact in the district court's findings we don't have a problem with the findings of fact this isn't a case about developed record we're not looking to overturn findings of fact if you look at the specific facts that any of the experts testified to you were not necessarily contesting that were contesting what it needs girls who were among the findings you may tell me  not persuasive it sees me that we are back to what you started with if some level of deference must be given it's not so much to me was a question of a question of fact it's does does the case that you create with some evidence a lot more than was it hoped get more deference than the measured judge gave it and that's sort of an important issue before us but hold i think it's making clear that on our loop or whatever my right pronunciation of that acronym is you do have to look beyond what the department of corrections are saying around the country and determine what actually is the reality of the situation and we need to question your evidence it seems to me and we can quibble over the wording but i do think that's on the table yes your honor and the evidence in this record shows pictures of contraband it details stories about contraband being given and as to the experts the judge did not w competing pieces of evidence from the experts the judge weighed apples to oranges and that's what mr ali's experts testified about neither one of them knew what t t c j used current security protocols were how many in mates we have how we move them around what kind of security equipment we have they didn't know what kind of budget we have what kind of staffing issues they testified that they did not know or consider any of that but there is a you said that the judge matsch to judge w because not an expert says it does not mean that it is a question of fact the experts gave conclusory opinions that t t c j can change its policies without security problems and without cost there is no evidence in the record that supports that opinion the opinions of mr all these experts were based on what they had seen in the federal bureau of prisons and and because holt says that we have t o put in evidence as to why we are different from the bureau of prisons mr east and went to the bureau of prisons for the specific person purpose of looking at their policies he was there for two days and did not witness a single search  inmate that was so surprising to him because it's such a fundamental difference in how t v c j runs its prisons and perhaps to be a p can do that because of their additional staff are there additional security equipment however that the systems were simply so different that mr eason decided t v c j doesn't have the resources our system is just so different we can't implement the same policies that right here and then you say you underfunded that's true or prison systems are in the business of weighing risks and every person has to accept a certain risk profile because no prison is one hundred percent safe one hundred percent free of systems must be committed to combat the risk profile in the way that the legislature and the prison administrators deemed appropriate in our state v c j put in the hard numbers the math the statistics that were missing in hold and they were missing in garner we put in evidence of how long it would take to search beards in koofi s when we were able to calculate that it would take one hundred fifteen hours every single day to do nothing but search beards if only twenty five percent of the population chose to grow a beard and we now know that that may be an underestimate but at only twenty five percent that's one hundred fifteen hours per day now even staff now the reasoning for us and unable to fill our authorized staff positions that's also on the record where we don't pay our officers quite and as competitive as some other jobs so when we can't hire enough staff to do all the things that we need them to you in a prison then we start canceling activities we cancel activities like classes like recreation and that has terrible consequences in a prison unit and that is something that is already done on occasion  j and so this isn't a system that's just going to absorb one hundred fifteen hours every single day to do nothing but search beards if you're at lar strict scrutiny framework for what is your explanation as to resign what is your explanation on the the existence and description of the difference that applies have to home i think about difference in the strict scrutiny framework in our league or leave the case and say it when the evidence is or equal it nudges the state across the line well one of the reasons for deference in the past without religious freedoms being involved is this is outside the area of expertise for any of us judges or most anyway security concerns that are very real in a prison setting may not be recognized by the judiciary that's why there's evidence i appreciate that you've gone on evidence as to the state but it is a a pass that that whole through your briefing you know you saying is setting us down sending us down there would not give much deference to the prison officials on the realities of their world and that's troubling and i'm just wondering if that we need to be careful not to draw to eliminate deference to too large a degree on matters as important as religious freedom is there they can declare their security concerns by theology's with the concurrence and hold said and that's what we have here the trial court weighed evidence we actually brought our own experts with combined sixty years working in prison systems that actually allow beards fulling beers and cookies one of our experts spent twenty years in the federal bureau of prisons and he said beers and cookies just aren't a concern we let all the guys have a maid they let all inmates grow beards they let all the inmates grow out their hair  they let him aids work caps in do rags and things of that nature so those are not security concerns in the b o b they can't be solved by simple pat searching they don't cause identification concerns and so this case i think is somewhat unique in the fact that the plaintiff was able to put on his own independent x is own experts to refute some of the assertions or many of the assertions that t d sees experts put forth and so this isn't a case where the court had maybe very little to go on or only had the testimony of the of the state's experts and security guards to rely on he actually had other viewpoints to consider and he did consider those and he made findings including the expressed finding that our witnesses were more credible than t d c j s witnesses in part because they had much experience with beards and cooties in prison settings you see that this is a little different from the whole case words that have financial is ok for insurers then you can start maybe hiding stuff in bayard so at some point difference to the present system that we have some security concerns here because half an inch there's not a problem but we start into a length or maybe they can hide some things then then maybe we start becoming a problem and is this different from hope to that extent that that here facilities to determine if the quarter inch here could be a least restrictive means and he concluded that no it can't and the reason is because quarter inch beards in his view and also border bailey's view testified have the same security risk the two buried links at trial it's interesting that they've now changed their policy to allow half inch gears because it kind of undermines the credibility of their testimony at trial but that the only evidence is in the record about  there does seem to me that this case is just the next step down the beard road road and this is significant evidence of significant muslim belief in fooling viewers and of snow that case is right behind hear that that's right so i think as far as the muslim community is concerned i think that the first link is the maximum burgling i don't know maybe the evidence in this case supports yes  and so back to the contraband issues one of the trial court's determinations was he he looked at the other types the basis of the under inclusiveness of t d c j s policies at issue here and he he looked and said well what types of things are they willing to let  mates have and compare that to what mr ali was requesting t d c that's inmates wear these big coats there's pictures of it in the record with pockets in the hood they let their inmates wear caps in the kitchen which is indoors they give them to the roommates to wear outside while they're working there to give them some protection inmates are allowed to wear boots he also looked at the female inmates the female inmates are allowed to grow their hair long down their back so there's a lot of hair that has to be searched during female pass of fabric that's forty one inches by forty one inches and they the bottom put their long hair up in a band and put it on their head and wear those throughout t d c james facilities that's this precise release that mr always requesting except he's not going to wear  hijab is going to wear a little kooky which is a candle in the skull cap the comes down just above your ears and foreheads and and forms to your head it's got a last just city to it there's a picture of that in the record as well so the truck or evaluated all these policies and said really  i think came to the conclusion that what we're talking about here in terms of beards in cooties that it's it's the type of things that t c g is willing to address and other in other contexts i mean it's a simple search it may take a little bit more time to search the inmates that have beards but that's all we're talking about here in terms of identification for the ladies that were the job inside the prison the writing totals don't even have a picture of that's point two percent of t v season jay's annual budget of three point one billion dollars a year those searches would take levon hundred hours a day that's out of one hundred thirty thousand five hundred hours of seo time a day at trial t c it employed over twenty thousand ceo's that equates to one hundred thirty thousand of seo hours a day so be nine point nine percent less than one percent of the guards daily activities would be searching beards if one hundred twenty five thousand inmates had those if we go down to forty percent of the male population that would cost t d c five million a year which is point one percent of us in a budget that the four hundred ninety four hours per day which is point four percent of daily c e o hours budget or twenty three hours a day which is point zero two percent of the daily c e o hours and so and that's assuming that these searches of beards and fifty's can't be absorbed into the normal activities of the guards which the t court actually said there t t c didn't put on any proof that it would have to hire more guards in these types of searches or things that are he thought would be subsumed within the current was riveted to one of the things that client is saying that he would find it whatever the world word was offensive would somebody be doing that to him all these searches you're talking of the searches are being undertaken now for what is allowed putting the officer hair and so you know the trial court considered this argument and rejected it because i'm not quite follow what you're saying or the search is being done now being done from behind the inmate where perhaps the ability the inmate to do a soft would be less but the beard search would have to be done from the front it depends on the type of searches i guess is what i'm saying is typically a pat search my understanding is it's the officers searching from behind but i i wouldn't say that is not in a strike zone because the the imake it's still elbow experts testimony to be more credible that you know they don't have any trouble searching beards it's one of the dress a few things there miss missile weary said that those evidence in the record the contraband can be hidden in a foreign security that's not true with the department of justice have to say yes well first i'd like to address this issue of deference i think that's one of the main concerns here in the prison has described it as giving a plausible explanation of their policies but i don't think that's they have to not merely explain but prove that they are using the least restrictive means and they get this straight from lupus language which says that the prison has not just a burden of production but a burden of persuasion so basically they have to convince the judge not only that they have evidence but that it's relevant that it convinces the judge of the facts if you look at our review ramps heightened as a result of that the state has put on evidence of serious concerns about policy change there are questions that are being raised about whether some of the experts didn't fully understand  how texas department of corrections operates maybe didn't factor in all the baby inmate guard ratios i'm just wondering if if we're going to give less deference to the  prison officials whether appellate courts need to be more searching that the lower court properly fully analyze the evidence and gave even give more intention change in the way the role of the appellate court certainly the appellate court needs to make sure that the deference was given so i think there might be slight change but it doesn't change the underlying deal the fundamental role of a district court  making actual findings and if you look at what the district court did here i think you can see that deference was given the court or told him to come down yes so the court was actually operating without some of the guidance that hold was given but it quoted cutter and said i have to give deference here there are limits on deference and then it follows what hunter cutter had said deference means i'm not asked to keep this in the context of a prison remember this happened and it analyzed these facts within the present context and often within the context of texas own policies if you take the example of cookies the court looked at that we said yes i i think agree with the president that this is some place you could hide contraband it looked at the fact that the prison allows hats in other contexts outside the prison when people are working outdoors in the kitchens and that was evidence that when prisoners go outside that's actually one of the most problematic times when they're picking up contraband nevertheless the prison has found a way to deal with that to search these hats and allow them in that context and that strong evidence that they can allow it in the religion context i think this bears out another important principle that holds said hold said you have to look at anal conduct within the prison within and that's one way of keeping it in the prison context hold said that analogous content in that case including the fact that prisons regularly find contraband in hair in shoes and clothes but his whole side of prison doesn't require the inmates to go around there all foot ball barefoot and make it they have ways of dealing with this in fact in this case the prison explained that it has found contraband in here and the evidence was that they would search beers the same way they searched here so they really didn't convince the judge and carry their burden of proof and the burden of persuasion in showing that a beard is so different from these other ways a contraband is modeled in that they just can't allow it there's no less remanded for the magistrate judge to to look at it again with regard to the length of the beard at the time that he was making a decision with just a matter of whether there should be a b or not but now the state of texas a half an inch is ok so now the issue considering a forage beer and that's what prisoners asked for so i don't think the differences between the orange beer and what's allowed here are really relevant you know if anything i guess it might strengthen the argument as  their plans for searching these beers are to have the prison visit on their hands through them the same and shake them out as the same thing they do for hair and they sometimes find hundreds and in here they still allow here and that shows that their search methods really have been adapted for this i don't so i don't think i think that the change in the policy if it changes anything at all really benefits the district court's opinion the district court's opinion aisle is also in line with holtz holding that it's important what happens in other prisons now the district court in this case said this wasn't the main reason he was making this decision although it was good evidence but hope actually said that once a prisoner presents evidence that things are done differently other prisons the prison has to offer a persuasive reason why their prison is not the same in the whole case there were two prisons presented at trial court that had different practices and hold said the prison had not adequately distinguished itself in this case both parties went into a lot of evidence about the two prisons they lined up all their similarities and differences and they just weren't properly made findings of fact here which are under clear error review that the bureau of prisons actually has fewer inmates of her fewer guards per inmate than texas to us and because the guard time is the main concern with searching beers and searching coffees that was the most important difference to consider it was well within the you know just  to make that finding of fact and i think it would be strange if this court were to find under a clear air review that it can basically go back question the district court's logic in which experts to believe decide which facts were most ated this carefully line by line address in the prisons concerns that initiated procedures that they already had and their own ways of doing things with in texas prison and found that this could be done let me ask you with my presiding judge permission to extend this move further do you see any distinction from what would be allowed if we affirm this and basically any length beard at all is your a place at which a prison could limit the link for beer i think so your honor and holt and this course previous decision say this is a case by case analysis whereby the case of a case solved case we're at right now it's saying may take more guards it may take somewhat longer time to be inspecting the beards another four inches another a change eight inches take maybe a little bit more time it sees me that that the result of this case is is very close to saying would be very hard limit t the beard well because the prison has the burden of proof the prison have to show this longer beard is on is a manageable this can't be accommodated you know within a given our practices i guess the only thing i can say here as representing the federal government prisons has allowed any length of the year this rule has been in existence since the seventy's and our prison officials just don't find it to be a problem there are problems in the prison but they don't want t honor affirmative this judgment will effectively eliminate any level of deference because the record is so full significantly full of evidence showing t d c j's security concerns ali and the department of justice are asking this court to raise the bar of due deference so high that the prison system in this circuit would no longer be able to meet it in other words the record in this case meets that evidentiary burden under  deference is due i want to address the winter jackets and the caps that t c jail allows and prison systems yes our prison officials might agree that making offenders walk around naked would be more safe j is a humane and lawful agency and the constitution does not permit a prison system to weigh its security interests against cruel and unusual punishment that balancing is not permitted however is written to require that balancing to for a prison system to weigh its security interests against a religious request for an accommodation and make a decision as long as that decision shows that it's the least restrictive means  furthering its compelling interests for head hair t d c j permits approximately a half inch of shorter and has to be shorn very neatly groomed and to answer your question judge southwick about how searches are done i'd also like to address the female inmates evidence a lot of evidence came in the trial about what we do for the female offenders this circuit has recognized different treatment of male and female offenders and the reason for that is that they present different security concerns there's lots of testimony in this record about female offenders and the different security concerns yes females bring in contraband but they're not concerned with the sharp and metal bolt they're not concerned with the drugs and the cell phone parts the female offenders are concerned with a new shade of lipstick that we didn't sell in the commissary and so they might have contraband too but it's a different security concern we've also never had a female offender scape in the history of t v c j and so in order to narrowly tailor our policies we have different policies for men and women if we've had a female one we've never had a female escape in the history of t v c j now as far as the experts that mr ali presented i discussed previously mr sullivan was this primary expert he'd never been to study t d c j unit he didn't consider any of our policies and his only may permit beards but many of them restrict beards to a shorter length ollie's other expert mr gravatt acknowledged a couple of states that he personally knew of that restricted beards to a half inch or one inch and so it cannot be said that t c g is not in the majority on that also with the cooties t j unlike other like other states permits these in our prison system offenders are allowed to have and wear coup fees we simply restrict them to in their cells around their bunk there is an at and a religious service and that is how we narrowly tailored our policies to try to eliminate the security concern with that series concern the short beards was always that you can't enforce it which is what california said they couldn't do a quarter inch a half inch it leads to a longer beard and so because some of the record evidence talks about quarter inch that's because mr ali had previously requested a quarter inch in this case and right before trial he abandoned that but t v c j did not have a burden at trial to show why it couldn't accommodate a quarter inch or a half  inch or anything shorter than a four inch when mr ali said i want to accept anything shorter than all that matters is why can't he see jay can accommodate a four inch beard it's not hell mr only can't have it both ways harder burden on t or their number of religions that are or inmates that are same their religion requires a beard there is record testimony and evidence that we for example roman catholics jewish offenders