weather the recent decision in the case of war soldier should govern the application of the loop in this case but what about the first amendment free exercise issue as such which would of course invoke turner and henderson we can let that go or is it still alive the issue i don't think it was initially raised in the in the opening brief because at that time the cutter opinion had not yet been decided resolving the constitutionality of the remove and since that has been resolved it is it is probably unnecessary for the court to address  substantial burden on the religious exercise of a person unless that person ever unless it is in furtherance of a compelling governmental interest and it is from least restrictive me if the court would like we can probably just confined the analysis to whether there is the least restrictive means although it is mr haley's position that there is not even a true compelling interest that has been advanced by the government cut their carol force in the case that were holder not cut their hair except in very limited circumstances here it's quite clear that mr haley is not permitted to cut his hair at all under any circumstance it is the only outward display of his lthough in that case sort of generally the court stated that there is a compelling interest in security when the court looked at the way that the the facts in that case  ferocity of the state in saying that security was actually a compelling interest there and the reason is because among other things women inmates have no similar provision that requires them to cut their hair regardless of how violent or dangerous they may be regardless of whether they pose an escape risk  is whether the government or of the defendants in this case can show that there is that they have actually considered and rejected less restrictive mean you would like us to leave man to the district court so that they could go through that exercise right or or are you making a stronger of the argument that somehow or other we can simply reverse out well i do think that this court could reverse out right i would not be disappointed how do you get there excuse me how do you get there i know you will be disappointed what is the proper procedure assuming that you for the prevailed on your analysis that  then that the institution could make a showing in the court would be forced to determine whether or not it is indeed the least restrictive method and after all this case was argued before while horse older came down was that not this case was argued before war soldier came down however the state of the law i would submit was relatively clear the letter that's not entirely i would go one bit further and say that there's no reason why the district court should have reached a different conclusion vended the court in war soldier except for the fact that the district court made legal  the court and war soldier simply reached the right conclusion and the district court the wrong one in terms of how the relief is to be applied to the grooming regulation that has been challenged briefed to the district court and the court as you will see from the district court's decision and determined that grooming standards constituted least actually find that there was no less restrictive method of accomplishing this at a minimum your honor the the district court determined that there was no less restrictive alternative that getting to less restrictive result least restrictive alternative if you do grooming standards of the california department of corrections do not mandate any forcible cutting of the hair and that doesn't get a lot of mention here in the in the failure to cut his hair without regard to his religious reasoning is treated the same as any other disobedience of an old valid water and put it there i mean it's no different than if someone said to him correct the failure to refusal cut here is treated the same as any other rules violations but the hair is not forcibly cut and i think that's a first step toward showing that there is a least restrictive alternative here in the district court the defendants demonstrated that there had been two escapes from c d c institutions in we're the cutting of the hair played a role  all of those have been discussed either in this case or in others your honor but those supposedly less restrictive alternatives are really not effective across the board and  case when it is discussing the least restrictive alternatives essentially lists a number of decisions from out of the circuit actually the same ones that you may remember  m the war soldiers decision however each of those has its own internal discussion about a less restrictive alternative that may have been proposed by the plaintiffs in those cases among them are such things as ponytails that the judge friedman mentioned in and i think each one of those has its own each one of those allegedly less restrictive alternatives has its own problem for example a ponytail can be taken out in a occasion for disciplinary procedures or criminal prosecution later on the same goes for the issue this is jumping ahead a bit in what i wanted to sa but the whole issue of hiding contraband in long hair and the supposedly less restrictive alternative that is implied leave or perhaps at some point you have the inmate shake it's here out running his fingers through his own hair those this whole strict scrutiny your honor i think is not a free for all it is a process that the court goes through first process goes the non moving party then says what about this less restrictive alternative what about that and the plaintiffs did that in this case and all of his proposals i have i would submit i don't really need to need this shake you know we didn't have the war soldier case at that time but if it had been there what can you show us one distinction between the two cases this case went all the way through the summary judgment process mr mr haley had the opportunity to put forward that evidence and those is correct as far as the record that was in front of him there were not genuine issues of material fact on the question of less restrictive all certainly going to counsel your time has expired thank you but what about that that's accurate and i also don't think that that's fair if we are dealing with a situation where the the plaintiffs mr haley was representing himself  he although there was a scheduling order which the court entered in which makes mr haley indicated that he was going to be speaking certain discovery he was never given the opportunity to take that discovery before the defendants brought their motion where the court pointed out that if a prisoner challenges the justification of the prison officials that the officials must set forth detailed evidence tailored situation before the court that identifies the families that was the state of the law  before were sold or granted that was with regard to the religious freedom act that was subsequently found unconstitutional by the supreme court but that is why the removal was adopted to correct the of that prior act and it was quite clear in this is the standard that had the district court properly applied the law would have reached the same conclusion that the war soldier court reached and that is looking at these purely legal issues and that's the way the war soldier court framed it these are purely legal issues there simply is no way that that the defendants can prevail by showing or in their contention that this was the least restrictive if you persuade us on the or moved or soldier issue do we can we still affirm based on a qualified immunity you know absolutely not there are a few reasons for that first of all the defendants don't even want you to address that issue as that they've stated in their brief second place and i mean you know we anticipated that they might advance that as an alternative basis for a firm and that's why we addressed it in our opening brief but in in their opposition they said the court does not need to address it in fact should not address at this point but in addition to that even if the definitive word of her fail below or if the district court level on a qualified immunity question mr healey would still be entitled to an junction which would not change that and in fact for the reasons for that in our brief i think you counsel are questions of took taken you over your time and the case just argued will be submitted for decision and we