right i'll call the next case of maurice walker versus the city of calhoun georgia injunction should be reversed for all the reasons both in our briefs and in my town the day i'd like to address two top yes first i'll address the court's questions posed in its memorandum to counsel and second i'd like to address that the injunction should be reversed with me before so the make sure we're on the same page i just want to make sure what you're challenging as i understand it you're challenging the twenty four hour limit versus a forty eight hour limit correct yes you're right and add and or stand you're also disagreeing with that part of the injunction that sets up this affidavit procedure is that correct that's correct john now there's a third thing you could be challenging which is the district the injunctions requirement that a person who's been determined to be end to end a gent must be released immediately on their own recognizance but i gather while i don't know that you're necessarily conceding that's constitutionally required you're not challenging that because your own order has that provision is that correct and that's correct your honor and we would agree that the constitution does not require that the chief judge smith decided that that's what as opinion in a dollar versus harris county which is now been reversed simply put if the fist circuit is correct that the federal due process right in titus to taney to a hearing within forty eight hours the standing by order supply satisfies the constitution and injunction should be reversed turning to the memorandum of counsel and this court ask about the impact of georgia's legislative changes to seven hundred six one and whether that impacts this court's ability to decide the case or move to mr walker's request  to the extent that question is posed towards the ability of the city of calhoun to operate under the standing bail order under the legislative changes the answer to both questions is no specifically because while subsection a did not previously applied a misdemeanor bail or specifically apply to a review of bail after it in preset under f on the legislature has made no finding that it should in the change to that but that argument takes a little more time than i ha i'd be happy to submit a supplemental brief to explain what's up section it's not a plot but for purposes of today assuming that subsection eighty two does apply to misdemeanor bail in this context the standing mailer satisfies all the protections provided subsection eight it specifically the standing mail order provides a review of the financial conditions of an arrestee and satisfies the timing of as soon as possible specifically because as soon as possible is a defined term under georgia law specifically one dash three days three subsection five defines a right as soon as possible means quote within a reasonable time having due regard to all the circumstances and statutory and case law show that within forty eight hours is a reasonable time in these circumstances first georgia law provides that arrestees are entitled to a probable cause hearing within forty eight hours of arrest cannot just talk to you about you know i was a prosecutor a line prosecutor many years ago and it was in a small office and so i got to see people booked and after they were arrested and it what would happen then was you know somebody would meet with them very and these are people charged with federal felony is not misdemeanors meet with figure out what their financial situation was  collect that information and then basically walk from the booking room into the into the courtroom with the magistrate judge and make a recommendation about what the magistrate judge would do what i'm having a hard time figuring out is that i mean i think you've pointed out all the case law about time limit but what happens during that forty eight me specifically that in an individual as to hearing case in the term in calhoun is that you have to get the players to the game the judge has to get there and in this case understanding baylor it's providing the additional protection of a point counsel to get them to the hearing so that the judge can make that turn let me ask you about that so it as i understand it judge smith performs this judicial duty on mondays yes you're so  if increasing the her schedule or how are you going to deal with that if the judge has to be there yes those these hearings the judge could also she's put in the order that if it's possible and it needs to be done quicker she can do it  teleconference or over a video conference or the judge can go to the jail and conduct those hearings at the jail not just in the courtroom on every monday so on days other than monday it could be done any one of those other three w judge murphy's injunction says the the decision could be made by somebody at the jail or flipping through his order i don't have it right in front of but the name several other people besides the the judge he does your honor i mean do you ever do it without the judge well your honor the standing bail order was actually entered in november of twenty third november twenty third or twenty fifteen and we were in join in february so there wasn't a whole lot of time to operate under the standing bail or but no judge smith has determined under the standing bail or that it's a better assurance of appearance at trial that that person wouldn't talk to  her and do you know why that is your honor all i can take is from the face of the standing baylor that judge mis understood the reasons behind the veil and the requirement of assuring presen trial and while judge murphy respectfully thinks that it can be done with a jailer he doesn't have to be a post certified police officer and an affidavit i respectfully submit that a defendant swearing to a judge who may end up sentencing them if convicted that i'm going to promise to show up and this is why i'm in a gent is a whole world of difference than saying it to a jail or limit i'm going to keep you up a little bit longer than your time and i think my colleagues have more questions for you as well  which is more information collected between booking and when this appearance before judge smith happens it could be collected specifically the  arrestee would have time to meet with it turning before the hearing so there could be information collected by the arrestee to present regarding indigence or not just in a just just inability to pay or objecting to the amount and asking the judge to reduce the amount that was pre set as authorized under seventeen six one f one your idea is that the defendant needs to talk to his counsel before he's able to fully advise about his own indigence well that's how i read is judge smith is providing that extra protection your honor but the to be clear the standing bill or does not require a holding period of forty eight hours that's the absolute upper limit maximum and at the end of the forty eight hours they're gone right if the hearing was not occur within forty eight everyone gets a rest gets released on their own a constant regardless of whether they're indigent and not because the hearing hasn't been held it's a within forty eight hour period such that in one case it could be forty eight forty could be thirty six could be twenty four could be thirty minutes after arrest it just depends on how long and the resources to get the judge there it's a totally different situation than say in fulton county where they have judges on call twenty four hours a day and that's if you look at seven hundred six one the definition of as soon as possible is a reasonable time it's a statewide declaration assuming it applies such that as a reasonable time in fulton county may not be the same reasonable time you know i guess if i feel like my job today to tell you what worries me about your case so that you can have a genius respond to it you as our read your briefs  seem to think that there's just a rock solid forty eight hours and you're protected with that within that period of time yes your honor specifically because looking at gerstein versus pew the u s supreme court stated that the  proceed yours and standards for a wrist in detention come from the fourth amendment and mclaughlin looked at the fourth amendment specifically and adopted the forty eight hour safe harbor burden shifting standard which we think should possibly you know apply in this case to the state e mail but what worries me about that is the language from michael off on that says you know there is no rock solid forty eight hour period you know it's i'm reading from a clock on such a hearing and the forty eight hour hearing nonetheless violates gerstein if the arrested individual can prove that his or her probable cause to term a nation was delayed unreasonably absolutely on the forty eight hour period as this court has stated is presumptively reasonable it's a burden shifting standard such that but what it also does is immunize is a city or a county who adopts a policy of providing within forty eight from a systemic challenge which is exactly what we have but so back to my days as a prosecutor if in these cases whatever information is taken at booking is all you've got and no additional information is gathered is it your position that you can still hold somebody for forty eight hours and forty seven sake delay for getting more evidence that was a yes yes you're the only information gathered as the time a booking your position is you can hold him for forty seven hours even if no further record is developed in that regard so long as you give him that hearing at our forty seven if as soon as possible applies you are i think it would depend on the specific circumstances i'm giving you the specific circumstances but you've got everything that you're go in the you know booking process nothing else happens i mean no other information is gathered the report taken at the time a booking isn't given to judge our forty seven and that's when the determination is made the bail determination is that you feel like you've complied with assuming that's the reasonable time that judge smith could get there i think you have to look her circumstances as well if that she's not available to have the hearing at that point in time then that's not an unreasonable delay if you apply mclaughlin's standard here because she may be in the middle of a jury trial and have something going on and she can't get there at that point and if you apply each to as soon as possible is a reasonable time taking all the circumstances in in this case as mclaughlin said you have to look at both sides you have to look at the judge getting there to conduct this hearing as well as the other circumstances  good morning good morning honors may please the court paul clement for the mickey the american bale coalition in the george association of professional bondsman what i'd like to start with judge martin is your your question a lot of questions you were just asking i mean i think that you know this might be a different case if after forty eight hours or forty seven hours they just the judge did nothing more than rely and do nothing else than rely on the same affidavit that could be gotten as part of the book the intake process but i think what the city of calhoun is entitle to do is to say we don't want to just rely on an affidavit of indigency you know for a variety of reasons including maybe we're worried that if it becomes widely known that the way you can get out of having to post bail is to just file an affidavit of indigency and then you're out immediately that i think city of calhoun is entitle to make the reasonable judgment that we actually want this to be determined by the judge as part of the initial hearing but they've also the determination the after forty eight hours if they haven't so you judge it's ok to just let him go on with my carving since they have said if you don't see a judge within forty eight hours we're going to let you go i  think that's in vision and as a way to make sure that the hearing happens within forty eight hours so i view that as an added protection but you understand the point i make and i mean if it's not safe to let him go forty seven hours into it until they've seen  judge why is it safe to let him go at forty eight hours if the judge had been available i don't think it really is to be perfectly candid but the point would be i don't think that can give rise to a facial defect in the policy and i certainly think that the way that the policy could be administered and the way that i understand that it's invision to be administered is that forty eight hour rule is not going to kick in except maybe you know maybe an extremest maybe if there's the judge is just not available and there's no way to get a hold of him but in in the normal instance the way this is supposed to work is you get the hearing in front of the judge in forty eight hours or less and then you get a determination of whether you're truly indigent you may also get and sort of an interim determination which says all right well you know this is a pretty serious offense this is you know driving under the influence and this is got a two thousand dollars bond and you can't pay that the maybe you can pay a thousand dollars and that's what we're going to put in a bond for i think that can also happen at this individual ised hearing and so i think from a constitutional standpoint i think the absolute most that the constitution gives you is a right to this kind of individualized determination within forty eight hours again to be candid i don't even think forty eight hours is the constitutional requirement when it comes to this kind of individual ised hearing in the bail context you think it could be longer i think it could be longer and the federal act contemplates that it could be longer but we have mclaughlin do we know we do but but mcglothlin spoke on the probable cause determination and you know and obviously there are differences with the federal system and i think my friends would say well the biggest difference in the federal system is nobody can post pursuant to a bail schedule and get out of jail immediately but putting that to one side in the federal system the basic statutory rule says that you have you have a constitutional title meant to probable cause hearing within forty eight hours but then as to your individual eyes bail determination under the statute itself the prosecutors can ask for a delay of up to seventy two hours so i bring that up not to litigat that's not for you but to maybe emphasize that it's probably important here to rule relatively narrowly so you don't need list the call into question the constitutionality of the federal law or again that joe the georgia statutory provision as i understand it contemplates a hearing a bail hearing within ten days so you know there are all sorts of other deadlines out there that are longer and i think the important thing and i think the fifth circuit decision in the o'donnell case really brings this home is that forty eight hours makes it obvious that there's not a constitutional problem and then if that's true an injunction that's entirely focused on the difference between forty eight hours and twenty four hours can't stand it's not based on the likelihood of a constitutional violation in the delta between twenty four hours and forty eight hours thank you thank  decided that we would try to give everybody a chance to say whatever they have to say i appreciate the court's consideration may please the court daniel ball chalk for the apple e m your honor's just to start with the new georgia law our position and it sounds like we agree with the other side is that it does sacked this appeal the city has said that they don't think the new law even applies to the standing bail order again we agree with the city in the sense that if the court is inclined otherwise we would ask for an opportunity for the parties to to brief that issue but otherwise we submit the court should go ahead and resolve the appeal and in particular the political injunction should be affirmed because under binding precedent it was the city's obligation to justify its imposition of wealth based pretrial detention and it as soon as possible is interpreted and that's one reason that my that that it is not need is the city and it's a could and it sounds like it does interprets as soon as possible to be more than twenty four hours and so we don't think that that is consistent with the constitution and so it doesn't mclaughlin tell us that up to forty eight is presumably constitutional no your honor and i'm happy to go straight to mclaughlin it is really there one argument on the merits i do want to put down a mar before i begin because you heard a lot of arguments this morning about why the city actually needs up to forty eight hours mclaughlin is not such an argument as i'll get to in a minute but you heard a lot about time to get the players more informed and more info can be collected groaners oral argument for the court of appeals is not the time to first make arguments none of what you heard this morning was put into evidence below or even argued in the city's briefs and this court should do what it courts regularly do and properly which is declined to disturb a lower court ruling based on arguments that were not both preserved below and made in the briefing in the court of appeals the city of calhoun this case is going back the city of calhoun is free to offer those arguments or others along with evidence in front of the district court when the case goes back to julie for permanent injunction proceedings any arguments it makes can then be ruled on by the district court if necessary brought back here brief and decided by this court on a proper record we do not have any justification offered here by the city for its imposition of wealth based attention and let me stress well i will remind me a little of what the evidence tree record was minor standing was that when this started  big concern was that people are languishing for a week or more like your client and you alternately get to the remedy when the case is remanded to judge murphy and he decides i can improve on the forty eight hours the supreme court said i'm going to lower it to twenty four hours what record did you all have to suggest to him that that was an appropriate thing to do we put in evidence about what the facts are really the key facts here judge cards are really do you put in evidence yourself and how you don't need forty eight hours twenty two will do it if you have that kind of well we did put in evidence to that effect your honor but i want to be absolutely clear strict scrutiny applies under beyond making a question and i think your affidavits were mostly look at all these people that have stayed out more than a week and i didn't and i haven't read it carefully i don't think your evidence was designed to get to the point whether it's forty eight or thirty six or thirty two it was just this is too long it's judge murphy's innovation might be guided by needle i let's see if we can improve on what the supreme court said well to be again i do want to get to the docket it's i would just disagree with that characterization but i don't want to get a comment on i was trying i will you want to i was trying to get to your question about what we put in by saying we had no burden to put in anything that's a little bit overstated because as the moving party we had the obligation to show our entitle or or reversal and maybe it's even easier if i start with the latter which is why there's no base to reverse even if you import the forty eight hour standard from probable cause over to a bail hearing number one supreme court in mclaughlin was not confronted with a jurisdiction that was providing probable cause hearing for the wealthy sooner than for the indigent and it's certainly said nothing to approve that kind of suspect wealth based discrimination so a lot of that that's a that's a little beyond what we need to hear certainly there is nothing in the standing order that creates two classes of people wealthy people and those who are indigent there absolutely is just galen and respectfully you do need to hear this because but laughlin would resolve our claim of a violation to our right to pretrial liberty it does nothing to resolve our separate claim to a right to be free from wealth based discrimination extending below are absolutely creates and i just have some difficulty looking at this in  which applies to everybody regardless of what their circumstances are your honor that is one of the arguments especially at the american bail coalition put forward which is that the ordinance is facially neutral the supreme court in griffin versus illinois and again williams williams versus  rejected precisely that argument by saying a statute neutral on its face can be quote grossly discriminatory in its operation and if that's a quote from both cases and if it is feared tape william spew versus rain water and frazier versus jordan and you know look at look at the federal bail system where people are in error and the time for a long long periods of time based on safety to the community that that's the regulatory purpose the regulatory purpose here is to figure out what you've got going on you can afford  that takes a period of time and the city is entitle to take the amount of time that it can show it needs in order to do that that would satisfy strict scrutiny it put in no evidence below and no argument here that it needs any particular amount of time let alone up to forty eight hours to make the straightforward determination of energy but judge carnes another important point bearden tate and williams are about imprisoning convicted persons and so you're talking about punishment of deterrence and those rationales few versus rainwater former fifth circuit sitting on bo decision binding here applied those holdings in the bail context o'donnell which the other side referred to came to exactly that conclusion three months ago footnote six of its opinion that that that q is binding said on that court and he followed it would be on this court as far as heightened scrutiny being required for imposing wealth based attention on pretrial arrestees let me get back to mclaughlin if i may i talked about the first reason why it would not warrant vacant or even if important and i have to put a sharp point on it which is to say if this court were to reverse or vacate simply based on o'donnell i don't know why calhoun or any other jurisdiction in this circuit could not tomorrow start giving bail hearing sooner to people of one race gender or religion than people of a different race gender or religion that is what we're talking about recall the language of fraser versus jordan which shows that strict scrutiny applies and they don't even address frazier versus jordan although they say it's rational bas review frazier versus jordan says imposing a fine like this or this sort of wealth basis criminal action creates quote a suspect classification that invokes the compelling government interest test that is greater versus jordan again for the fifth circuit so i mean what about the federal ban statutes that go a lot longer than that there and they deep trouble at this point to know they are not judge carnes respectfully the federal what the supreme court said in salerno in analyzing the federal bail reform act was exactly what we are arguing for which is that people can be detained there can even be wealth based discrimination to the extent the city can the governmental entity whatever it is can satisfy strict scrutiny can show that it is necessary to further a compelling government interest just to take an example we agree that whatever time is necessary for booking for fingerprinting for photographing those sorts of things that amount of time is legitimate and if the city can show that some additional period of time is required in order to make the see determination again there were some references to public safety or to determining risk of nonappearance city of calhoun has forsworn all of that because it has as was discussed in the topside argument decided that every single person accused of a misdemeanor tra violation ordinance can get out on bail he did by pain secured bail amount or waiting forty eight hours and proving indigent so as far as the implications of a ruling here judge barnes i think it would be very narrow if you rule in the way that we suggest which is to say under binding precedent it was the city's burden to sue to satisfy strict scrutiny and they put in nothing and the court is free to say this case is going back and nothing we say here precludes the district court from considering additional evidence or arguments that calhoun it's a meet and of course our side wants to put in on remand but the city has come here asking this court for guidance and asking this court to reverse without making a record to satisfy the burden that it has under strict scrutiny let me get back to mclaughlin the second reason that even if the co imported the forty eight hour rule that there would be no basis for vacancy or remained the city argues throughout its briefs and this was alluded to a couple of times judge garzon your questions as though the standing bill order were in place when this complaint was filed it was not they had as we were discussing a system in which people routinely detain three four five six even seven days and they don't defend that here rightly so it's clearly unconstitutional and that constitutional violation invoked as we discussed i think it's page forty seven to forty eight of our brief under supreme court precedent the district courts broad equitable discretion to fashion a remedy for the constitutional violation and in particular that discretion was not limited to imposing only that which the constitution affirmative requires for those who have not committed a violation the court could go beyond that so that's why we said even if this court doesn't this court doesn't need to reach the forty eight hour question or even if it disagrees with us and imports mclaughlin the district court had discretion in light of the violation of the original policy to impose something else on the two reasons why it was not a clear abuse of discretion for the district court to do twenty four hours and again at that point we really are talking about abuse of discretion number one it is a very real harm to people to be locked up for two days this is one of the key points i hope to leave with the court there are real arms here there is loss of employment there is inability to care for young children or possibly sick parents and on the other side so in light of those harms and this court  also a ballot it's here to there as opposing counsel said there's a desire on the part of the city to have people show up and there's are to have some sort of procedure that will impress on them the importance of them showing up and that line i'd like to ask you  just interpret and are the injunctions difficult for me in the affidavit section seems to suggest to me that as long as a person files an affidavit and put zero in all the columns or are low number that when you actually have judge smith coming back ready ready to have court she's there is that your reading of this and this injunction that she'd has no ability to reject the affidavit to ask some questions to make sure that in fact that's true because when i read the injunction it looks like you put the right numbers on no judge cars that's not correct let me say as a threshold matter i don't think the court should skate past the fact that this isn't the affidavit is made under penalty of perjury if it's falsified that is a separate charge perhaps even a felony so i wouldn't say that people would just likely falsify but in any event the stand the injunction incorporates the exact language from the standing bail order and it's at page twenty five of the of the in judge of the district court second order is what i'm going to be reading from what the district court said was if somebody if the affidavit shows indigents under the federal standard again this is all what the city of what the city of calhoun itself adopted i think that's important just to sidetrack for just a moment judge card you referred to the city's interest in ensuring people will appear as i said they have allowed everyone to go free as long as you paid the money or can show indigence if another jurisdiction comes in and many do and based bail on the likelihood of nonappearance that may be a very different case than the court c decide whether that satisfy strict scrutiny and all the other questions that the city has not properly preserve the charge cards back to your question it says if the affidavit shows indigence and the person shall be freed quote unless there is evidence that the person has other resources that might reasonably be used to excite or excited her so if there is other evidence again that's page twenty five of the district court second order and that is like that language is quoted from the standing bail or so what i just said about other evidence is in the standing bail order so to be clear the district court did not preclude the city of calhoun from doing all of these by hearing with a judge they are free to do that they may get the affidavit filled out and then a judge or as you referred to judge martin i think it was a law enforcement officer the court clerk other official but if they want he gave them the flexibility to have a hearing for everyone and have a judge look at it and have other evidence come in so that he it is only if there is no other evidence and of course you have a david is filled out so he's not that the district court's order does not take away that city that flexibility from the city of calhoun of course the order the the hearing would have to be held within twenty four hours and i do want to get to the two reasons that the twenty four hour the forty eight hour will from mclaughlin should not be important i dress the two reasons why even if it isn't what is there out there in terms of other precedents that would stablish a twenty four hour rule what is it that supports a twenty four hours to be clear is i just can that we did not argue for a twenty four hour rule the district court adopted that as a matter we think of equitable discretion giving the city some flex you might argue six hours we argue what we think comes right out of supreme court precedents i just can't win which is that infringements of the right to pretrial liberty and the right to be free of wealth based pretrial detention are permissible to the extent the government shows that it is necessary to further a compelling interest so we don't think a flat rule is necessarily he got people processing lots of people going through jail and you have to have some period that's an outer limit i mean if your rule is as soon as possible and we're time an injunction where somebody violence the injunction that person be held  contempt and go to jail or rule as soon as possible is not a rule that that's going to really work in an injunction every time somebody stands three hours instead of two you haul the jailer and before a federal court because he's filing the contempt order i mean you can't do it the way you suggest of course we can do it the way i'm suggesting judge barnes we could have a rule that i just articulated to judges scantlin and the city does not detain people longer than the time it actually needs to hold i mean this is very straightforward it does what it is someone is arrested they do what they need to do booking fingerprinting photographing verifying identity verify energy they do those things just as they do with the wealthy and then they either take the money if the person decides to pay the i'm out in the b schedule or they verify indigency and whatever amount of time that reasonably takes and then the person is free to go unless there is some further reason all they have to do judge garzon order so that when they feel about the form they're better if we're going to use a judge system they'd better have a judge nearby mediately within ten minutes fifteen minutes twenty minutes i don't know what your timetable and be ready to hear that case that it was not necessarily a judge although as i said that the city has the flexibility to use a judicial officer if they wish the injunction specifically provides that this can be done by a court clerk by a law enforcement officer and recall injunctions not the constitution and does the constitution require the city to give up its right to have a judicial officer oversee these proceedings  junction does not require that either judge barnes as i was saying a moment ago the city is free to continue having these hearings with a judicial officer so long as they do it within twenty four hours and what the constitution does require of articulated a number of times is that people not be hel not have what this court has called a reparable harm unnecessary deprivation of liberty unless there is a good reason if there is a good reason and it is demonstrated frequently in hearings around the country by various jurisdictions strict scrutiny is satisfied this injunction would be satisfied what we're talking about is the city holding presumptively innocent people in jail without having shown any reason for doing so i'm well over my time i'm happy to answer further question i have just one more question i'm  listening to my colleagues and thinking about the three of us need to write an opinion together and i'm hearing concern about the twenty four hour limit put in judge m injunction and what i think you said is you didn't ask for a time is a time limit necessary the time limit that we believe is the constitution and precedent requires is the amount of time the city needs to further a compelling interest so the twenty four hour time limit in the injunction is not necessary from your standpoint it is well your honor they are they are of course the appellant we are defending what the district court did and they need to bring a good reason for it to be vacated but in terms of what this court could say i don't see a reason why this court couldn't say the constitution does not this to be fair i was going to say the constitution doesn't provide in a numeric limit as long as the city can show that it has a compelling reason that is necessary in order to effect this detention that's a satisfaction strict scrutiny that's ok under the precedent but again we have to find under this court's precedent clear abuse of discretion of the twenty four hours was a remedial provision and i think the judge martin's asking when that's abstract and we have to deal with abstract principles to get our file answer we're dealing now with an injunction with jailers you need to read something and know tells them when you've got a reason to hold them hold them do what you need to go do and let them go but if the concern is the jailers don't understand the sort of language i was articulating i think that made well be one of the reasons that the district court imposed twenty four hours and so that may be a reason to leave it in place but i the way you're there either has to be the limit here because they have not shown clear abuse of discretion or it has to be what comes directly out of supreme court precedent which is that the government needs a compelling reason and a compelling interest that is necessarily furthered by deprivation of the rights against free trial the basis criminalization and the right to pretrial liberty thank you very much like your about this amorphous term up until this point and the first time we were in the other court room his counsel argued for an immediate bail hearing that the constitution required an immediate bail hearing to answer your question judge martin do we need a timeframe we need a timeframe because this case is to what pew versus rainwater is what mclaughlin was to gerstein cigar the last time i did hear on it and i'm still trying to get direction because here we are two and a half years later and the city of calhoun is still asking for direction as to how to constitutionally employ the use of a master bail schedule when dealing with engine arrestees and the first circuit court answer to that the first answer from a circuit court being the fis adonal says that there are three requirements one notice an opportunity to be heard and submit evidence to within forty eight hours of arrest and three a reasoned decision from an impartial decision maker the standing male or provides each of those requirements in further than what the fifth circuit required and o'donnell specifically it's going to give an individualized bail hearing to all arrestees not just in the genes second it's providing appointed counsel for the individual eyes bail hearing and third if at that individualized hearing the court determines that that person is indigent and there are no other holes in that person's going to be subject to release on their own recognizance that result was one that the fifth circuit explicitly rejected was required under the constitution the standing mailer goes further than what the constitution requires and therefore the district court in prohibiting the city of calhoun from operating under question you know as your friend on the other side says you know that's all in the merits decision which is not really our job our job is to review the injunction that's correct you are but this is a facial attack on the standing by order that issue in this injunction and undersell antic this court can get to those and specifically regarding the which violation it must be limited in scope to the extent necessary to protect the interest of the parties that's the forty eight hour women at most on or in this case let me ask you how if we'd actually write this order let's assume just talking f a let's assume that we decide back to the three things you need to think you care about that we're going to strike the forty the twenty four hour part of judge murphy's injunction and say twenty and forty eight hours is ample let's assume you're also go win on your affidavit like the constitution doesn't require this affidavit procedure nor do i think there's anything in the evidence your record to suggest that's necessary so that's gone so what are we exactly enjoying we're saying there's nothing much left  judge murphy's order except the time limit part and then are we going to wed would that your concession that you're particularly make what you agree in a standing order now part of an injunction and other words no your honor but we simply ask is for this  the district court's granted the injunction because the standing builder complots the constitution this court does not need to set the limit doesn't need to say how far it is if it's seventy two or what you know mr clement says but seems to say whatever the constitution requires it doesn't require more than what the standing baler provide us we ask this court to reverse the injunction because it provides our because the standing bill or provides meaningful consideration of the alternatives to monetary bail within a time period the supreme court has hilt to be prompt and under the constitution as stated in the government's brief this court should correct the district court's error by finding the presumption of constitutionality in applying that to the forty eight hour time frame contained in the standing bail or we have this court to reverse the injunction thank have just one more minute and i just wanna make one point my friend representing the apple e's would like you to apply the williams tape rearden line of cases to bail and that would be a very revolutionary step from the very beginning the institution of bail unlike the punishments at issue in those cases has had almost as an implicit idea that not everybody is going to have enough resources to post the amount of bail that's just inherent in the concept of bail and courts have consistently rejected the argument that the eighth amendment excessive bail provision gives you a right to affordable bail so if you go down that route there are just all sorts of difficult questions that you have to confront including the question the judge of scanlon confronted in his dissenting opinion in the locus vallance whale a case about how do you conform substantive due process in the eighth amendment for purposes of this kind of claim and all of those difficult steps are unnecessary because the further any precedent goes to suggesting those cases apply to bail is pew against rainwater all pew against rainwater says is we're going to reject a facial challenge is long as there's some mechanism for individualized it doesn't specify itself what time would be sufficient and then this court can simply say look forty eight hours that's complies with mcglothlin it complies with the fifth circuit said donal case and that gives us enough basis to vacate this injunction and everything else can wait for another day thank your honour's thank you appreciate the presentation it was helpful