repeatedly and unequivocally that they have no intention of reinstating in the future it is equally undisputed your honour's that the current conditions of confinement on virginia's death row satisfy the requirements of the  case would be to reverse the district court's judgment and to dismiss the case for lack of a remedy the reason why is that the plaintiffs have not carried their heard of showing that actually is available to them in two different ways you know when i look at the case and you've got to prevent to argument you've got to remedy the eighth amendment argument here seems to me it might be a focus you want to hit on because i don't think that it should go to far but that was my feeling in one i thought you were going to argue this case i don't you can say judge we we don't need to get to this remedy because we've got this matter here and quite frankly the condition two to virginia's favor i think you've done a great job in changing the conditions there since these suits start so i had the presence of god be feeling somewhat good about that because the conditions of what they were from the beginning what they are now are very different but on this particular point which is the subject the problem of the eight the men i i'm i guess not  say well i don't have to the side that because the other alternative ways of daum and i don't think that's correct i think it can be used as a defense that if you have a penal logical  justification in a prison system to put someone isolation they get the state should be allowed to present that justification and it but if you read the decision from what i've written and i could be read in  here from the plaintiffs on this but it but it looks like to me that part of the season went a little too far that when i fully agree with that and we have asked for a man in this case no matter what else the court you think they should go back to trial are other arguments and in particular the remedies are going was about i don't even get to the rim it is if we go there that's right judge when what we what i guess from virginia perspective we have to change the conditions of confinement if the court looks at the record as money from the director of the  is unequivocal that he has no reason to go back that he wouldn't go back even if there were more death row inmates that everything has been fine of the correct and missions which we think are it's a good thing that they went ahead change them to make them less correct if they have legitimate because this is in one scene where baker situation do you disagree that if you if you reach that conclusion that a trial court of the law is that you could find an issue of fact on a penal logical justification presented by the state but then nonetheless coincidence that eight amendment violation because the other alternative means by which you can prove up the subject the problem that that sounds problematic it does sound problematic judge with more than problematic sounds like the media is a major issue in the case because of the state because you realize that next time you come up here and someone's in an isolation that becomes the basis for the eighth amendment alone with so judge when i think the way we would think to resolve this from the courts what we were trying to do as a good stewards of the court is a point out the easier way through from our perspective just because what we think is really happened for the different court and for my friends on the other side on the remedies for the poor is what this w never go back under any circumstances and so that wasn't sufficient for prostitution and movements but the e mail ability of an optimal remedy is different standard and it's on the plaintiffs to show that there is something more than the mere possibility that this incident yes judge me and i are and so from our perspective what we have in the record with the district court did not refute in any way is the undisputed testimony from the department that they have no reason to go after the deposition transcripts in this case are unequivocal on that point and the only two things that i understand the district court to have relied on in rejecting sort of the bail are at the remedies argument was one that the department won't refuse that it would never go back to some situation developed in the future notwithstanding the inability of the director to even posit such a situation and that there would be no will immediately way for my friends on the other side to challenge a resumption of the prior conditions of confinement and we think that that people seek emergency relief fairly often from this reports and so we think that there is a i don't believe them to come back in a reraise this challenge on an emergency basis if necessary but we also think they just failed to show you a real threat that it would likely develop in the future just extent the court disagrees with me on that we would want to have a trial whether of jack tiddly the conditions that previously existed what did substantially deprive them of a basic human need and when to have a trial and subjectively whether their circumstantial evidence actually shows that the why do you have a trial on that is that a question of law after the facts are stoppers the facts are all agreed upon they know exactly what the conditions were what the rights were what the powers were in the slow patient not on the only question is does that amount to and they demand by late and the vote is an argument the court would make as a matter of law and i agree that the ultimate issue just me my reason is a question of law there seems to be in reference me some discrepancies between judgment from our perspective here what we would ask the court to do on the merits of this case is we cited some cases from this circuit that we will admit are fairly dated and  illinois and the restrictions were more severe than what your genya had in this prior situation walthers between themselves or our sound group the lighting is only on the sky they can't see the trees or mountains they don't have many rights visitation they have a little radio in them little black like television they get out into exercise one hour a day where they can take ten steps that she's right about it not to resurrect the conditions she's right about that judge came but will then you disagree with judge brinkema she says you won't commit no we agree we won't we will not commit to that but there is you know you won't commit but there you said earlier changes is one thing but going back it seems to be impossible you spent two million dollars and change the exercise area to put in another room the ideas why don't you commit you're never going to go back to at fork age you never going to go back to closing some of these fire conditions if circumstances warrant it while a commitment that's my problem what's the commitment is a commitment not to go back to all the conditions this is a bundle of conditions and they said they didn't wan commit i thought it was not to make any changes to judge me by what the defendants here don't want to commit dot to the time their answer in any meaningful way because they believe our conditions were constitutional what i will point out to the court is that the injunction in this case as we read it said we can't reimpose the combination of all the prior conditions the reason why this injunction matters to the department is because we've been communicated with from planes over the summer about changing any one of some any number of small morning your others may please the court i'd like to start by defining the injunction the judge brinkema issue because i think it speaks to a couple of the panel's questions that injunction the judge brinkema issued which is in effect for two years until february twenty twenty is a narrow injunction in joining the combination you're correct the team are of twenty three hours a day alone in their cells no contact visitation no congregate recreation of programming and one hour a day five days a week of outdoor recreation and separate cages that is the injunction that issue and judge painting you are quite right that when when mr maguire first it up i wrote down what he said because what he said was that  repeatedly testified that it had no intention of reinstating those conditions in the future it's never attested to that unless you start hairsplitting i think about well present intention is versus burden under the supreme court standard seems to be much happier than this expression of intentions the supreme court says that there has to be evidence of a real threat and a probability more likely than resumption in order to justify acquittal relieve an iowa i didn't see any evidence it's not just some i don't see any evidence of a real threat or probability of assumption the best that you argue is that there's a possibility because they won't commit and of course the court rejected that as the standard probable relief and you're going to address that but that's my biggest difficulty on the remedy niemeyer it was much more than just saying these defendants had committed not to return to these conditions in fact a point now that the crew panel previously found just that alone to constitute quote more of that  e possibility of a return to the previous conditions but on top of that what judge brinkema found in her decision was that this limitation crowd did these changes there was talk on the defendants moving effort of before the litigation even started to change the conditions so i think that's not clark was sort of fighting an uphill battle with the incumbents there in the prison system and  let's ride with what you say i mean the fact is they did make a change but they spent money on the change and they found it for two years it's been working now three years and you know the p l r is is pretty that doesn't that doesn't be little the point that they make changes they've been living with them for two years they don't intend to go back they don't want committed to making a change because if also when they find in the congress for instance a commentary th the case they're satisfied with the changes they've made and there's no indication that they are threatening to go back or there's a probability more likely than not that your proof that it will go back to judge me my or i i have to resist the phillips seen the written quite a bit on it of the cases here but what do you say is the standard of review because that's critical as to what is the review we get for the review of a decision of a difficult judge on this well he argues in line with this credential this idea is that is an equitable matter which certainly rests with the extensive discretion of the supreme court of the district court the district where shouldn't have granted this injunction but just  saying there's a cognizable danger of this recurrence and if her basis is that well they won't commit the question then we then faces this whole business of will you commit will you do it again is that sufficient for us to be able to do to say that's an abuse of discretion by the judge we could disagree with it we could go one way or the other and says and we're not all day long but the question is was it an abuse perspective as i said we could we could disagree all day while we go back and forth on it but is that an abuse of discretion if that's the standard or a deep that the short answer is no and the longer answer is on top of that what i mentioned earlier the district court didn't just rest on this this refusal to commit what they just report said was there were three reasons why it was a nice change or one of them was that this litigation prompted the changes never mind what somebody had been thinking about in his mind before the situation this litigation after the litigation began that's when the changes were made that's point one point two is the refusal to commit and point three is the fact that the warden serves at the pleasure of the governor those were the story reasons that it was none of those satisfy the affirmative duty i'm reading here from oregon state this is the supreme court it says where the record discloses no threat or probability probability of resumption the plaintiff has failed to appear his burden of and they talked about the possibility of it and everything you said points to a possibility but there is no indication that they intend to go back there's no intend no steps have been taken to resume it there's been and everything you reside in are sort of the negatives you fail to carry on more likely than not and it's not just the oregon state medical case of and it's the grant case too and i don't know possibility they won't read nonce that they'll never go back that's not a threat that's basically we're not going to commit because we're pino article institution and we don't know what we're going to confront but there's no commitment that they're going to go back there's no probability of to us and that is if a party does something and then either says nothing more when asked directly are you going to do it again the question is is that one side or the other and if it goes there the question then comes back to is that abuse of discretion if one jurist felt one way rather than others who feel another way and so it comes out i think oid is someone goes in and makes a correction guess themselves out of court the next day do it again because they said well we won't commit then you go back and do it again even though you might feel well you won't ever do it again because you've already made all these two million dollars with changes you don't know stuff that doesn't tell you anything from a legal perspective so if the words we won't do it again will satisfy the inquiry seems like to me that would make it in the absence of evidence but that's that's the judicial question and quite recently does name out is right you could easily go in that direction but it seems where my perspective there's another direction it could go in when you go there we may be in a realm of what is the review of this bill yohn beyond it the standard whether or not is the probability is that whatever it is a question of the abuse at that point because then you get back and forth and alongside the standard review the actual my starting point was the narrowness of this injunction and the temporal limitation on this injunction so if anything all this talk about whether the defendants were would not justification but i don't need to decide that because the alternative to it better than not seem right to me would you responded that certainly i think the response has a lot to do with what the defendants are doing now because the defendants of course have put in place a number of conditions that are very different as the judges have pointed out from where we started so to to our minds one of the reasons that defendants did not because they changed the conditions it couldn't have been a legitimate you know logical justification if they can exist with the conditions that are currently in place that's the defendants didn't even argue this in their court appeals briefs that's why mr mcguire started by the reason for making that conclusion reaching that conclusion that it had to do with the declaratory judgment that the district court also issued if she had not issued the declaratory judgment and we put in place the injunction the defendants of course will return to those back on described conditions of that exists several years ago and make a conclusion about those known as judge zero wins as that's all on the books now and that now we have to scrutinize whether there's an eight minute violation  and that raises some serious difficult questions as it bothers me a lot because we have a lot of people logical institutions where conditions like that have been ongoing and and it's accepted for i risk persons and of course there's a record where the people who run death row or were high risk for a lot of reasons are having a lot of difficulties that managed prison i i think if you reach the conclusion that the court could properly issue the injunction without breaching the underlying constitutional question i really don't need to reach that issue as well i think one of the issues that may be prompting this is that the the defendants in their with respect to the comparisons to other institutions first of all i think it's difficult if not dangerous to to look outside the record to try to mask who is doing what but more in the way one of the differentiate i carry with you and i'm  evolving conditions we don't want people anymore but exactly right and that's why you know a lot of the cases on which the defendants for life here both from this circuit in from other circuits are quite stale at this point given the evolution of some of the science accommodations and the federal presence for example are they in the record here they are indeed yes you can find it in the joint appendix you can actually ponder the rest of the conditions out there in colorado in that area those are in the record yes in fact have an expert in the record a former director of the south carolina prison system saying that these conditions are unconstitutional so if we're going to look outside might look to the expert who submitted testimony in this case but with perspective change and the statement says we will not however commit to the future i think it's i think it's a little bit more complicated than that the statements that were made including to this court include statements like i can't stand up here and buy into the hands of somebody in the future that's not just oh we don't intend to commit that's a that's a statement that they're not going to buy into their hands in the future now if that if my brother on the other side stands up and says we know not return to th condemnation of conditions absent an emergency which is what the injunction says for the two year period covered by the p r a then i think that's a new commitment made to this court as an officer of the court this court can rely on if you want to that if he if he commi commit to keep the revised all of these in place and not revert to the challenged policies unquote that's correct we're going to pay no thirteen fourteen that's is a judge bot no that that was judge narrowly tailored limited time she did it was because this litigation prompted the changes it was because the words or is it the discretion of the governor it was that combination of pieces that led her to put this towards questions of the day the case be a great deal easier if the virginia corrections officials will say that they will not go back to the pile and i'll quote from his deposition that what i think is the clearest statement of director clark's position weston case think of n could you come forward again in just a little i ask you one question under the p l o are a is the burden to get an injunction to show an ongoing violation no not not not to get an initial injunction here on the burden is to show a courage an ongoing violation when there is a motion to terminate an injunction it's already in place but that the language of those two sections the initial injunction and the  if you do look at the p r a is there anything in that language that in because we've been talking about this all going on current media as a precondition for really i don't read the language you're saying one word if you look at the statute look at the section the cell about heard it all go and that's exactly right judge when that the bill language about renting the initial injunctive relief this was the point i was trying to make earlier about what the p l r a does and doesn't do in this respect the app's limits the time with the injunction the action narrows the scope of the injunction but with respect to whether an injunction should issue that doesn't change that is the same equitable abuse of discretion standard the current ongoing language only appears in that terminations provision and we think that that difference in the text is very