please the court james you going to have a plan of class like reserve five minutes of my time for a bottle constitution requires that the government provide every individual detains with humane conditions of confinement government has not come close to meeting that violations including photos of detainees crushed together in concrete holding cells of mother's knee on the concrete for changing their baby's diapers and piles refuse she also heard and considered the government's excuses correctly recognize the state of affairs plainly violates that than them just very didn't go far enough in addressing the cop governments constitutional violations as a matter of law class members entitled to adequate medical care which includes medical screening and medication es adequate medical treatment because your briefer account several incidents where prescription drugs were arguably improperly confiscated or withheld but is there any evidence of his chances were serious medical conditions wen undiagnosed or were critics were critical medical treatment was denied so you're out to reference the medications and we would submit that that is evidence of denial of medical care and so what about the last thing that i asked is there any evidence in the record where serious medical conditions went undiagnosed or were critical medical treatment was denied yes there's evidence of a decline for example had a large gash in his chest that went untreated there is evidence of a woman who was bleeding a never received treatment for that condition but it having said that even even aside from the concrete evidence of medical treatment tonight the question is whether there's a risk present to the detainees the as a matter of law an eighth amendment so certainly under the fifth amendment you process clause that exposing detainees to intolerable level of risk itself iow it's a constitution council one of the problems i have with this case is the unique nature of border patrol detention facilities and the fact that we have police departments and sheriff's offices all over the circuit that have holding areas where they process people before they take them to the local county jail or whatever the the local detention facility is is is that your vission that even a holding cell in a police station that's used for processing somebody on a dui arrest before they're taken to the county jail has to have  a nurse on duty to screen the person beds showers that sort of thing if they hold people for as long as the border patrol agents are holding detainees in these in these facilities yes that is what you're cut off period because clearly if it were four hours or less would you would your answer be the same so it depends on the particular deprivation that we're talking about medical care is required for any length of time in custody  an gibson recognize that as well as laali both of those where individuals who are detained in local jails just for a few hours i thought there was testimony in the record that if the condition is obvious for example somebody has broken a leg it out in the field when they're first taken into custody that they actually do summon an ambulance or transport the person to the hospital so the border patrol agents have basic first aid training that would likely be adequate to take care of something really obvious so it's not like they're doing they're doing nothing your concern is that they need to be doing more their number of other medical conditions that present issue that the spread of communicable diseases sir is the most obvious issue and that's why courts of generally held that that screening is necessary at intake ok otherwise or but that's a question i'm i'm wrestling with this what constitutes intake because these are not designed to be even short term stay facilities these are our police stations essentially the difference so i guess from sort of your local police department is that they're processing a huge volume potentially as many as one hundred or two hundred people a day and it takes a long really concerned about the precedent that you're asking us to set here i'm trying to figure out what the limits are of the rule that you're asking us to adopt i'm not asking your honor to set any precedent i believe the president has already set and gibson were gives and held that medical screening is necessary immediately upon and taken in take means when detainees introduce into the population but the reason it's excuse me counsel because i think this is important when you say medical screening are they supposed to have  a licensed medical doctor who stands there and everybody that comes in and they give them a physical is that what you mean by medical screening couldn't have border patrol agent do a medical screening  they had adequate training and if they were overseen by a medical professional medical professional includes either a doctor or a registered nurse and medical vessel doesn't need to necessarily physically be there so i understand that would require a lot of resource it could take a lot of time  need to happen what does happen in thousands of booking stations and jails across the country prisons is that they're specially trained corrections officers who understand how to for example take necessary observations regarding communicable diseases take a medical history to report their findings that they are trained in order to conduct these screenings and that they're able to communicate with a medical professional well maybe i'm not making my questions very clear but i'm drawing a distinction between those law enforcement facilities that are essentially the front line stations in the war on crime that are bringing people into the facility for a very brief period of time and then they take them to what i'll call an overnight or long term stay facility that's the concern i have so the government assumes obligations to everyone it takes into its custody that includes adequate medical care and so there's no exception to that obligation if the purpose of the detention is just supposed to be for a few short hours if a medical issue arises during that period of time the government's obligated provide care but does that obligation entailed what judges are asked you about do we have to have a doctor or a registered nurse at every ten person police department in small towns every ten per cent police department has to have correctional officers w trained to take a medical history and make necessary observations and those particular questions observation need to have access even if you have been a father going to do is roll their fingerprints and take their picture and prepare an arrest report before they lodge him at the county jail for emergency medical issues can or rise and i would have someone passes out and they're on the ground they have to do something but you're talking about you just want a full work up not a full work of just a sufficient screening to ensure that the introduction this person into the population isn't going to expose the entire detainees population to communicable diseases there's a number of issues present with measles other tuberculosis officers need to be trained in order to observe tho think you seem to be talking past the issue that i'm trying to get you to focus on and that is that there is a distinction between a booking holding area and lodging somebody into a longer term facility like a county jail or a metropolitan correctional center do you understand the question i understand the question perfectly well but i also think your honor may so a county jail often holds people for the same amount of that the detainees are held here in these particles don't so without answering the question you understand the distinction but you just say they're the same no your honor i did the obligation is the same the government even these local booking stations where people are health are very short period  the government is obligated to provide medical screening that's what this court's held in gibson though the individual it isn't reasoning may include taking immediate action if the person collapses on the floor is bleeding or stops breathing but is your position that if the highway patrol arrest somebody for dui and takes them to a local area office to complete the arrest reports before they take them to the county jail they have to have a doctor or a nurse on duty at the area office again no they just need to have a medical necessary for any length of time beds if detainees just in a holding facility for an hour they don't have a constitutional right to bet but this court is held and following a number of other circuits and reaching this holding that any time the government takes an individual into custody overnight then they must provide a bed here fifty percent of the teenagers are held for more than twenty four hours ten percent are held for two days another two percent which sounds small but we're talking about such a large number of detainees a ton hundreds and hundreds  held for more than three days the government doesn't provide them with the district court ordered maps and mylar blankets to be afforded to anybody held longer than twelve hours in your positions no it has to be a fix bed with  mattress the most important point is that the bed has to be above the ground so the core just standard to provide it has to be twelve inches above the ground there and for that it's basically a matter it's matter of both human dignity and hygiene so when detainees are crushed together on the floor where everyone isn't what or what are the current conditions in the border patrol stations i mean well here on the news that less people are crossing the border so the numbers have come down think significantly you still are sleeping on the floors the actual suggesting there were some capacity concerns and one of their increased delay in processing that was a year ago and they said that due to some capacity concerns they had been unable to transport detainees from one station to the other station that they wanted to use a transportation hub sent to tucson so that's the tucson the main tucson sector station that's just a court correctly realized that there was not an excuse for the unconstitutional conditions at issue here i mean th small they're not getting the privacy which they use that they can't clean themselves properly that presents an intolerable risk to the population again the spread of diseases it's also just it's not it's not humane it's not how we treat people in this country  properly applied delfi wolfish but that seems to overlook the fact that the court cited bell several times so it wasn't that the court wasn't aware of bell just didn't apply it the way you know i guess i'm just trying to understand i understand why you are defending the position that you prevailed on and this is a  issue or appeal on the other more prophylactic or are you really screaming at the top of your lungs that the the mats and the wipes are a terrible you know are really didn't work as sort of a recognition of bell and accommodation should this particular situation i mean the court didn't order bad the court didn't order showers your honor if i understand your question correctly i think it's the former rather than the latter the government seeks remainder of this case for the district court to apply the individual ised evaluation under the supreme court's two part test in bell for says wolfish and while the one of the conditions that the plaintiffs are complaining of but the district court went and visited some of the facilities to do that your honor i don't know but i think i th saw something in the transcript i know where it said that it had so it's so and the order i think does address some of the practical problems that i was exploring with  opposing counsel with regard to sort of the unique pressures on these border patrol station so i'm not quite sure what other than really weighing the facts and coming out with a different result what is it that you think the district court needs to do on remand if we send it back so your honor if i could address the first part the district court did acknowledge some of the conditions and the unique operational challenges and you know the border patrol has complied and i am not aware of any operational need for that requirement so in some respects the district court did look fully at the operational needs in others it did not basically super imposed rulings from other judicial opinions dealing with other types of confinement environments like civil confinement under the california sexual violent predators act or confinement i think of mentally disabled individuals and me ask you this that the district court requires blankets and these wipes that you're talking  about you think they're unnecessary no your honor we're not challenging that part of what have you heard what i mean so what exactly are you challenging it to to get back to challenge callahan's question what is it specifically specifically now that you think the district court ordered your client to do that they your client should not have to do your own i think we have to separate the the court's analysis in the application of the law from the remedy and we're challenging both of those and let's just get to the remedy what is it the exactly you think the district court did that shouldn't have been done the order to provide the sleeping mats after twelve hours to each and every detainee regardless of the circumstances it is too rigid for that the tucson sector would you accept twenty four hours i'm trying to figure out where the line should be drawn yes it well  twenty four hours would would be very very helpful and the border patrol could compile with that although they are complying with the twelve hour requirement right now but i mean he did on motion for clarification say look the clock starts running as soon as they arrive at the police station right yes and before that the border patrol is counting the time from i guess when they apprehended them in the field which could be several hours earlier by the time they get to the border patrol station yes and that was a record keeping issue and the district court clarified that for us and you track do you know hour by hour how much time each detainees has been at the sta and then when the clock says they've been here twelve hours you give them a mat and a mile or blank you are the way it is working now because the numbers of people migrating across the border have dropped substantially and by that i mean on a monthly basis in fiscal year twenty seventeen it's probably one quarter to one half each month of what it was saying you should actually do it now but you couldn't do it before sadly and we're supposed to go back to what the way that it was before well your honor though the issue is though so when we had asked for reconsideration of the printer preliminary injunction at that time the tolliver amount requirement was causing the significant operational issues and that's in our brief right now it is not however we don't know what will happen next month we don't know what will happen next year and already the numbers are increasing just the paid but we're not supposed to tell prisons or detention centers how to run them we're supposed to defer on some level but that deference isn't unlimited yes so it sounds a little bit like what you're saying here is you're doing what you can do what you were asked to do at this point you just couldn't do it before that's correct but we also if you just don't want anyone to tell you anything that you have to do i don't think that's the case but so you asking for surge protection as if that was what you want to do a safety valve ok call it a safety valve yes i call it surge protection but all of a sudden you've got two hundred fifty people knocking on the on the sally port door i actually got your i think your analogy is better that that is exactly what we seek why is it that when do you go to the district i mean this is a continuing injunction right yes all right so you would always have the opportunity to go back to the district court when you yes aren't isn't that your surge protection well we did go back to the district court after the preliminary injunction was issue and in january the court said they're still sure numbers are down so in your account your i want to comply so there is no search so i can i can certainly understand that but if the tidal waves were to break across tucson as you are concerned about you could always go back to the district court and say you know we can't comply because we now have these huge numbers and we need some modification you can do that can you we could your honor but when we did move for reconsideration in november when the number still were high the court the district court still insisted on the twelve hour time limit and also i just wanted to add right now the detainees at most of the stations actually get the mat when they arrive so the numbers are so low that the border patrol in tucson has the ability to do that so they're going beyond compliance then you're in a kind of a difficult position here because your numbers are way down right now i'm sorry our position in your numbers are way down right now they are and generally speaking federal courts don't speculate and what you want is us to speculate that something is going to happen in the future you well let me ask you this is the agency also trying to address the problem on a long term basis have you gone to g s a or whoever it is who builds your facilities to say look we need to expand capacity these border station yes your honor there are plans for expansion of capacity and if that does happen there are plans in the works and you know with some notice the tucson sector can get up and running and have capacity for a lot more people have they gone to some of the other counties to see if maybe when they can rent bed space from other county jails besides santa cruz ok i think this point i'm not aware but i know right now everybody after they were transferred transported to the tucson coronating center if they're there you know overnight they go to the santa cruz county jail so right at that that is right now what's going on and everybody is getting a bed in a shower if they have to go to court the next day so i say soon you agree with the judge that they should not have beds for s y i think it would be operationally and feasible at some of the stations i'm not asking you that i'm asking you whether you agree with the judge the judge said that it was a one on that issue yes i know so i did say time i can address some of the points that had plaintiff's counsel raised and i just they're all in the brief except i do have to trust one issue of the the stills from this surveillance video that they have put in their brief these are snapshots from surveillance video they they don't have any context we don't know when they were taken or if there were there's  was there in that situation how long the people were like you're not denying that there may have been times in the past when the conditions look like they may have looked like that we don't know for how long there could have been an influx of people and we say the border patrol has had to put them in a room and have them waiting but i don't know for how one month they forget what your think it was in march or something fifteen maybe where you had thirty two thousand apprehensions in the right right so think i forgot to look at what date the video stills were taken but i'm assuming it was in what i will call the surge months so why why did the district court error in relying on that evidence if the concern is what happens when i'm sorry the court the court did not articulate any factual findings based on those photos stills ok if you want to save some time yes i do sector has changed significantly since the litigation started has it not in other words can't congress allocated more funding for increasing the number of personnel as it but but that doesn't mean that the resources are unlimited that's i mean the problem is that we've got a spatial imitation do we know these holding cells or steel and concrete and what needs to happen is a major renovation or reconstruction well it's a good is there any and is there anything in the record that tells us how much additional capacity is available because i'm pretty certain the santa cruz county jail probably hold some other people that are there besides the that i don't know how realistic that is given all the things that they have to do i mean part of the problem here as i see it is and tell we finish processing these people we don't know who they are they could be a very innocent family of four trying to seek a better life or they could be somebody who was recently deported after serving a long prison sentence and in a state or federal prison who was deported to mexico now he's back again and now he's committed a new felony but we don't know that until after all the biometric going to make consul consultations available to people requests that again and asylum interviews i mean there are a lot of things that are done that are unique to a border patrol facility that a county jail doesn't normally do when an alien is and just briefly i want to mention that you know what i think we're missing here is what makes the border patrol unique it's the constellation of factors and i think this plaintiffs are pointing out that you know there are jails in remote areas and you know we're saying the border patrol stations are in remote areas but it's the constellation of all of these factors you're bringing in people at all hours of the day mostly at night you have a very diverse population judge  to segregate families with children from from the male population council i mean all all of my questions came from the record and that was what was in front of judge beurre when he ruled so do you just account the need to transport people from remote stations to tucson coronating here no evidence of that it's beyond his record and what are you saying that he just close  when that was going on and didn't consider and his decision he didn't articulate at the considering you know that way at the way that you want him to weigh it he didn't weigh it at all that was that's why we're here or you don't how do you know that just because he didn't write it down he you you you assume he didn't think about it or didn't weigh it that's it basically but if every district judge in every case and judge callan was a district judge judge thomas sat many years this district judge i said in tucson on and off for twenty years if they wrote down everything they considered the federal court system would come to a complete ha in every case would have a five hundred page opinion i mean i don't see that he didn't consider these issues i think judge callahan has hit the nail on the head your honor i guess well it is i read the primary injunction he didn't consider many of these factors and i think that what baffles me is he wrote a twenty nine page opinion in which all of those facts are included and i just i'm at a loss to understand why you think he ignored them i mean it really sounds to me like you just don't like the conclusion that he reached after looking at it i your position that that there was a clear error here in the district court's factual find no we were not arguing that we would prefer an articulation of the facts that he relied on for example he said well after twelve hours people need a sleeping that and pulled out from the american correctional association standards which are not part of the constitution and there are a lot of issues with those standards and talk about that that's a line drawing you'd prefer that he drew the line at a line somewhere do you know you can i was trying to get mr siegel to admit that four hours would be ok i'm not sure i got that concession out of him but but and you wanted it twenty four and you're saying twelve is unreasonable what we do with that well your honor we could do it for example when processing is complete and the detainee is waiting for his testing and take up to three days according to the record for some of these folks a small number but nonetheless well actually i don't think it those numbers that time period is over stated because of record keeping issues and for many of those detainees it's because they spent time in the hospital or the or there are some unusual circumstance but i do underscore this is really a case of first impression for the border patrol so what happens here will be guidance for i think the rest of the sectors so that's