communication with the outside world for the eight years that he has been waiting adjudication the defendants say it's common sense to completely cut him off but the washington legislature doesn't think so state statute allows even a residents of the to possess internet enabled computers subject to appropriate and individualized limitations and even criminal prisoners prisons both state and federal can communicate electronically is unreasonable and unconstitutional not to allow mr herrick to do the same the district court however completely deferred to the f c c and ignored evidence that blanket restriction here was an exaggerated plan i think it's fair to infer from the existence of the a dent into the treatment plan that he does have a treatment program but what cases like the decision and moral make clear so it is inappropriate to restrict the rights of a pretrial  detainee in order to force rehabilitation and there is deference there's there's no dispute about that but as delegates wolfish says this court will not defer even to detention officials even on questions of order when there is substantial evidence in the record that they have exaggerated their response try to understand first the scope of the challenge for so mr hare was at alder correct and then moved to a different aspect of the facility correct ok so there is obviously different security restrictions in the two facilities is this a blanket challenge or are we looking at residents from possessing even a non internet enabled computer notwithstanding the washington statute that a force in that right he's also challenging that he's not there he's not there now he has retrospective damages claims and he also i think is so let me just and suit you on this one for a minute if we could on my understanding from this set of briefs is that all there is the highest management unit i think we know from the previous case that that's not right there is the intensive management unit that is more restrictive this is somehow in the middle is that right  it seems to be right i mean all the difference in their declaration is that it is subject to it's own property matrix ok well here's why it matters for example and this is how rudderless i feel in this case so for example if somebody gets put on the  unit which at least in this briefing is described as the highest management unit but let's just say even if they hire a management unit and that it's not a good thing to be put there and he went there because he didn't comply with the rules or something then the policy of not allowing somebody to have their own personally owned laptop could the reason for that could range from anything from you know a first amendment communication concern a therapeutic concern to a just a security concern they might throw it at somebody depending on what the outburst was  caused this person to be moved to alter so i'm really struggling with how we assess this without any kind of frame of reference no matter the restriction even for persons and minuter shade of segregation the defendants attention officials here are still have to come forward with a commonsense reason to justify the restriction and when that commonsense reason is refuted as it is here they have to defend it so i'd like to ok so what you say is refute three reasons and in fact the defendant's own evidence suggest that it's not a proportionate response there's a washington statute of the legislature looks at this very same facility and this very same concern with the legal profession but nonetheless rejects the notion of a blanket ban they in fact create a right for individuals even post trial residence to possess an internet enabled computer on less there's an individual lies determination of harm we don't have that here it's not just the one to have it here because we don't have a treatment plan here  or can you just fill in that short answer this is a blanket policy that they apply to mr herrick without any consideration of his individual circumstances so the washington legislature tells us that that's an exaggerated response to the very narrow problem of illegal pornography so you in that case based on the statute you would distinguish between the different units is that correct that's right because that statute says that even somebody who can see their rights restricted who can be denied a certain type of computer still has the right to possess a limited use computer but it's not just the washington statute it's also the decision of prison in ministry eaters in washington state in both state and federal prisons to  allow even criminal inmates sex offenders among them to have at least some form of electronic communication they can send e mails very different type of facility with without a therapeutic person purpose if we're talking about a correctional facility as opposed to this is you see a very special type of facility hence right at the outset that the top of the decision tree the institution has a different purpose once punitive once up here once ther well i'll remind you that according to the moral decision and footnote one i believe pretrial detainees cannot have their rights restricted in the interest of rehabilitation and it's also well that sentence that tha rehabilitation so that may be just a question of semantics of whether restrictions like this are in effect punitive and rehabilitative which is how i understood that footnote  distinguish operating within the facility given the nature of the reason that individual is put there so i'm not sure how much we can stake on that note when they are never record that looks at a particular reason for what rehabilitation versus therapeutic plan when they're there pretty plan is not necessarily  coextensive with rehabilitation would you agree with that i think the way that they've used the term may have been distinguish it but i take your point that and i'll assume that rehabilitation is an appropriate purpose here but that still means that the defendant let me interrupt you for just a second so the policy they're challenging says you're prohibited items any item device or information that represents a threat to safety or security of the institution or which may negatively impact the goals of the treatment program is prohibited what's wrong with this is a blanket policy that doesn't just bar dangerous or inappropriate material it keeps mr herrick from all forms of of online expression say forms productive forms protected forms look at what he can't do he can't send an email to who is an adult daughter who wants to keep the connection with him can't read the new york times he can't even watch the live stream of this argument cases like packing him this court's decision to united states against  b harris make clear that the first amendment specially internet communication is too important and alternative means less restrictive means of regulating the government's interests are too readily available to justify blanket if we look at the reported case at least one of them involving your client where he's trying to send a message to a girlfriend or former girlfriend to get information about how to cheat a test and that's that's the kind of detainee it seems to me that for therapeutic reasons really good good reasons to not want that individual to have access to the internet to hopefully encourage them to engage in treatment rather than trying to circumvent it for example so i just really struggle to see what's wrong with this policy so in the treatment of denim there is no indication that mr her because abuse the internet what he's asking for and it is there is right there is an episode where they did an examination of his laptop and they thought that he had access to breach the policy and i know about the lie detector test you know appreciate that that worked out the way it did but what we say there's no indication i guess i take issue with that they took his computer because they thought he access facebook to find out how his daughter was doing so you know that's not a dangerous purpose but i want to violate the rules right but the question is is that policy a legitimate proportionate means of attacking a narrow category  back to my original question about all there versus called the step you know because if it's a facial attack it makes a difference is that we're just looking in general are we looking for  you just make that globally or do you think they need to make it as to the particular institution or services you know might be appropriate for them to have different rules for different units that might be one way and they immediately different rule we know for all their right i mean the internet ban applies to everybody no matter their restriction might be appropriate to anoka implement that policy to different categories of confined persons are not doing that here i do want to make sure that we don't forget  that that blanket restriction is punitive the defendants can rebut that but they have to rebut it if the court doesn't have further questions right now i'd like to reserve the remainder of time for bottle to me thank you herrick's first amendment claim and dismissed that secondly the trial court properly determined that mr herrick received all process that was due in the defendant's confiscated his computer to investigate whether or not he had access to internet on that computer and third to the extent the court to the extent mr herrick raised the subsequent due process claim below the court properly dismissed that as well first of all with respect to the first amendment claim turner is a pro appropriate standard for this court to consider that claim here today first as a threshold matter mr herrick agreed that turner was the appropriate standard below second the cases cited by mr herrick for this court cases that involve persons who are in the community and they don't involve the turner situation and they don't involve the young situation where there is an institutional interest involved in the state has a significant interest and the courts have routinely indicated that they would defer to that instrument interest finally the cases in this court search sister circuits have applied turner in these circumstances at least six or six sister circuits have applied turner in civil detainee cases institutional security and other reasons the question is whether this prohibition which is a broad blanket prohibition is too broad or whether there are some alternative channels available are not available so if you can't get on the internet at all what are the alternative channels that are equivalent or appropriate make your honor first with respect to placing and according to the second factor the turner analysis the first step is to place the place the right in the context of what what is being asserted in this case it is a right to communicate with the outside world there's no independent right to communicate electronically with the outside a right to communicate with the outside world so when you're looking at alternatives within the institution that are offered here he had the right to visit he had the right to receive visitors he had the right to write letters he had the right  to even write letters on his computer once he had the computer he has the right to receive periodicals so there's all sorts of rights ways in which the f c c offers the mr herrick the right to communicate  world but the practical matter is that given the vast array of information on the internet and the fact that that's really the device or the platform that you're for receiving information how can you justify a complete an honor based on for the same reasons that the court indicates that but the internet is a unique position it is also unique it can be uniquely used for the various purposes but what about the ability to use a computer with  access and so with respect to the computer actually offering the computer without internet access the ban is specifically limited to the older unit and then beyond that if there's a specific prohibition in the residence treatment plan prohibit precludes them from utilizing the internet and they could also be a utilize them from using a computer they could also be banned in those circumstances you people awaiting hearings have treatment plant yes the certainly on this record there's a treatment plan and then identified mr herrick talked multiple times about how he met with his treatment team is provided with a treatment team and thirdly he talks about having his case manager review different materials so he's provided a case manager as well a therapeutic therapist case manager so as my colleague indicated it's very difficult to provide treatment do not want treatment or to develop some of these things which in those  play into all of this because it seems to it's like first it says if you have a treatment plan that says it's harmful then you can't even have a computer itself so i take it that the statute doesn't talk about the internet is that correct corrected the reference to the internet as in subsection b and so subsection a provides that the person committed or detained may not possess a computer if there and it's a mandatory probation not a mandatory provision of that right but if the plan calls for that yes if the plan calls in subsection b says if they are not allowed to have a computer then they must be given a limited functioning they must be have access to limiting function computer capable of word processing unlimited data storage that does not have access to the internet that specifically does not have access to optical devices and capability to display program photographs images videos or motion pictures or similar display capability but that subsection b does not mean that a subsection a computer must have all of those things i think that's a stretch to mr herrick was complaining that he did not get a subsection a computer he didn't there's no indication that he attempted while an older to purchase a subsection b electronic were going to have a computer that was somehow limited because your position that the facilities right to a subsection a computer and that's not contained there is not a treatment plan and and i'm on their individual treatment plans that indicate they're not able to have a computer so with respect that a that is not on the older unit however that does that mean not believe that the that subsection a claim if there is a state law claim with respect to their defines this chords analysis with respect to the constitutional that's not much question has he made a statutory claim that we should look at under the washington code you made a number of state claims below that were dismissed i do not believe one of them was seventy one zero nine zero zero eight zero subsection seems like nobody here knows what claims from us or not i mean the last argument is well some of these was a change but some didn't and that's like kind of a floating situation here so in your view is is the claim in front of us a facial challenge to the washington policy it does not appear to be i think with respect to what this case is framed both below and in this case also i'm having a hard time with your answer i just wanted to know  and i'm not trying to be difficult but i really don't understand your answer i'm looking at the statute it's the washington revised code seventy one zero nine zero eight zero that and i my question is do the current policies comply with this statute and your answer is what the older unit ban on personal computers did not comply with the subsection a that statute thanks there's no personal there's no personal finding in each individual's life treatment plan that presented to the computers counter indicated computer if their treatment plan requires it so in response to my question you tell me you think that they're not in compliance with subsection a because they don't necessarily require that their treatment plans contraindicate access to a computer or possession of a computer  the response to the chief question you're now clarifying that even the guy who can't have a computer with him could go to the computer lab is that right yes so doesn't that put you back in compliance with subsection o the records not fully developed with respect to what access is occurring appears call it a cancer is going to ask you i mean do you get a computer or do you get access to the internet over there very minor things there's no access to the internet period communication i don't computer lab isn't a computer lab in the sense that you have full access to the internet and have full access to word processing but sure i'm sure not but that's that's not the real there are getting a blanket ban and i don't see anything in here that indicates that he was completely prohibited from using a computer that we don't know from the record what the computer labs capability is or of the access the internet or whether it's monitored or whether the check mark is he's allowed to access a computer at the pearce college computer lab although conditions may apply directly under in that that timeframe was during the period with which he was under the six month suspension  suppose maybe that's why your own clears well i mean if you can just say don't make these statements and i'm like i'm looking in the records i'm going to figure out i think in general residents would be able to access t county college commuter computer lab i do not know of which we don't know the extent so anyway with respect to the remaining turner factors i think the treatment factor one the treatment i would want to make the point that the treatment is a ballad reason for the institution to  maintain a policy with mystery not only for a specific resident but for maintaining a therapeutic meal you and when you introduce the contraband as found by posing counsel said that there's a substantive process claimant here that was dismissed without the state moving to have a dismissed and you opened by saying it should have been dismissed so could you speak to that just quickly yes your honor when you when you speak to first of all the jones presumption was not raised in the court below there was no indication of any or any alternatives that would that would give rise to the level of a jones presumption at that at the dismissal phase and in the district court secondly as the courts look at turner versus young bird on the substantive due process claim both cases both interests are looking at the legitimate gate governmental interests non punitive with respect to young bergen alice due process analysis versus a legitimate government interest with respect to turner both cases both standards call for a deference to the governmental officials and deference to the determinations made by the prison officials and and therefore even if this case is analyzed under the assumption of due process analysis it's the same result with respect to the the government condition to claim a plaintiff does not need to show an independent first amendment violation second as this court said in bullock and city of san francisco of the court affords greater deference to detention officials under the turner test than it does under the belt it's this it's the same challenge to these limits on computer functionality and capability not the seizure of the computer know that he has a procedural due process games really i was going to say that was played as a procedural but i haven't talked about it all but the first amendment claims about access seeing the analyze it given that he has a very specific first amendment claim you can't belive you will fish looks it does that and i do want to stress none of these residents in any of the units have access to the internet at all it's not just administrative costs and all of that while there are i mean if he's paying for it there's almost no cost on the facility and certainly no cost to their legitimate interest because that would screen out the very narrow band of material they're worried about because a district court misapplied t substantive law and ignored material disputes a fact we ask that you verse to judgment and remained with instructions to appoint counsel for mr herrick thank you thank you for the argument in this case herrick versus quickly is submitted i'd also like to michelle e for participating in the pro bono program i think as in the case before it's always easier also for the court and for the government to respond to a well crafted brief and i also think the attorney general for your argument this