you have a seat yes the i would respectfully suggest that the central question at this court has to address in the face of the procedures employed by the city of cleveland which are twofold first involving the physical delousing of pretrial detainees using exterminators in an exterminator can to spray solution onto their heads and genitals and then second the group strip searches that are addressed in the individual claimants claims meaning reconciling those practices against the standard of human dignity that this court has already enunciated in the start of my decision the cornyn in stottlemyre made clear that even after the force decision that florence and deference to corrections officials does not equal abdication that florence does not equal open season on the privacy rights of detainees the start of meyer decision addressed a situation very similar to that presented by tunisia williams before this court was in turn interpreted informants and in turn addressing the turner factors made very clear that the manner in which people are treated matters it's not just the practice that's looked at to determine whether or not the turner factors are or are satisfied it's the manner in which people are treated and if inmates privacy rights can be respected as part of the manner in which corrections officials or jail officials have to address their legitimate penalized glentress that those privacy rights should be respected stay that these searches were being done in groups and likely continue to be done in groups i would want to shore that up but most of what they had meant that are there are thirty six deponent has admitted that yes how big are these groups  all ok so they they have three to get people together yes or they do all this stuff yes or do they claim that they have a reason why they need three people know as opposed to one that has that was to my knowledge has not been the subject of any briefing put forward by the city of cleveland and that's kind of the balancing test that they're in their interest in doing it the way they do it as opposed to the private theaters right we do we just don't know yes i agree that also wasn't  part of your you know put procedure you're going to be doing other things other people it is from what i know that was a that was a practice in the facility where those practices you know the the beeler that he was required to disrobe in front of a another detainee who is a trustee and that is part of being disrobed had to be sprayed down with the lasting solution so i would think that qualifies as a strip search but it's not of i don't know if he starts or the other inmate yes this was done by the other inmate that also was not addressed in judge pearson's decision and we did not have an opportunity to take discovery into that point but last but not least what i'd like to take discovery on most importantly is the need for and the the corrections officer would say the detainee at the burlington county jail all right here's some still lasting solution take a shower apply this to yourself versus having an exterminator can of delousing solution sprayed in your face in your hair on your genitals in your pubic hair and in the case of ms williams in her anus you kind of you want to discovery as to the effectiveness of this particular type of that is that it well there's more than that your honor but it's relative to the effectiveness i mean i would agree that under under turner being able to satisfy legitimate pain article interest is a low bar but under i believe in spies at school i know you've got to do more than one treatment to to get it off right just just having given the the lysine to have the person do a shampoo is not going to do it so that wasn't even effective in florence it's probably not a factor here as well but the supreme court of florence didn't seem the effectiveness didn't seem to be an issue the fact that this cup of shampoo of the lyceum is really not going to do it with allies but they allowed it for it so i don't know effectiveness really is an issue here that's all well certainly i would agree effectiveness is the lesser issue certainly the manner in which it is done the manner is i mean this is much more intrusive much more humiliating much more demeaning sprayed reza posed to go in the shower and you take care of this thing i mean this is this i this is really outrageous i think well your honor i certainly agree but unfortunately judge pearson did not see it that  way this is this is one of most offensive booking procedures that i think is ever going to agree with it yesterday we had a case the person was taken down to the local jail on a case of mistaken identity the person had nothing strip search right you know i don't know what my path with my colleagues are coming from on this but i think that the case probably comes down to a balancing of the legitimate penal interests of the city of cleveland to do these things and it's hard for me to see what they would be as opposed to the privacy interests of the pretrial he needs but that kind of a factual lack of weighing the facts here in favor of the cleveland facts of the detainee and we just don't have the record for it i think at this point we also don't have a ruling by the district judge on that we just out with mr judge i think making the erroneous finding that this is controlled by forums which i don't think it is so i mean at this point i would be inclined to remanded her the proceedings further discovery and then allow the defendant to bring a motion for summary judgment down the road by claiming that the penal interest outweigh the privacy interest and having come back to us would you be happy with that result that's what i'm hoping for you know that's what you're asked actually regard i don't see how i can get a reversal at this point i mean i can't see how we can matter of a law that this is unconstitutional right now without weighing the factors that's all i think ultimately you want a ruling that this is an unconstitutional violation of fourth amendment yes but i don't think we're in the position to rule that way at the moment without knowing they really do have an interest i mean would you agree with that yes i would agree that first off some of these issues may have to be subject to jury trial in fact you know that terms of the factors are there maybe turner factors are often subjected to jury trials only juries make a determination about reasonable and it with appropriate jury instructions but also that is one of the problems here is  that it appears that judge pearson did the opposite of what happened with the supreme court ruled should occur in tone versus cotton which is she accepted everything that the defendants put forward in the absence of any factual submission in factual pro said well deference to correctional officials i believe you florence applies and these obscene and unnecessary practices go forward i have just a few moments and i would just like to reiterate that in addition in although we've already discussed this in addition to the delousing issues there are the individual is the situation of the individual plaintiffs in this case th i think we were heading toward the class certification deadline and then the search area was granted in florence and the case in the case was stayed so we never had an opportunity to draw a square certification that i can remember i may be confusing this with another case i know there is one case where we had a motion pending an influence came down but i don't believe this one was it all right thank you thank you  the the amended complaint is a facial constitutional challenge to the city's the law and policy and in that regard i think the i think the question that's before the court is whether the fourth amendment permits the clean house of correction to require all detainees to undergo as part of a general intake procedure at the last in protocol before they are admitted into the general jail population and i do think that florence provides guidance to answer this question florence reaffirmed principles there were jail intake procedures that there were close visual inspections of an inmate's body cavities and in that regard it was a strip search and also at a loss in protocol and in that case i think it's important to point out that the court noted that there are real dangers in the introduction of license to age in and to start a facility and that it was not surprising to them that detention facilities such as the house of correction would devise thorough search intake procedures to prevent disease weapons and other contraband from entering into the facility so there is a special interest in detention facilities to maintain a which is a middle district of pennsylvania case decided in two thousand and eleven and the other is to file that authority now absolutely not writers but i believe that it is instructive here in that the issue was addressed by a core and that they found that that case and in the situation prevented here the detainees has already undergone a searcher's they it in gory uncannily and in this case you have individuals who are required to manipulate their genitals squat cough with their arms and expose other parts of their body for close visual inspection and i think as a supreme court noted in florence that that is always going to be offensive situation a little more he believes ations that doesn't matter is that the argument but i believe that already been humiliated my little pilot on the part of the the procedure happens you have to strip search and then procedure if they use that against you i think any individual would be outraged at this table k o i should we allow it to proceed because it as as florence articulated that there is a legitimate interest in preventing factors analyze the procedure here under turner it would still pass constitutional muster i think the question when you're looking at it under  what did the decision maker have a was or more of a non natural negligible risk that a harm could occur if we didn't take this these steps to prevent life from happening i think that there's very low bar that's been established here by o having the individual apply themselves or or having a spread out i think the there were relevant considerations to take into account when you were to allow someone to apply the solution themselves out those those potential factors but that's kind of a factual issue is it not would would not further discovery be helpful if that is your reason why this is a necessary to amend their complaint one time before by grant of mr court and yet they chose to again focus on the matter of the way that they blossom solution was applied and again argued that the that we really give them one opportunity to comport their decision to florence and i they fail to do so and i so i understand the concerns with the manner is applied but i i don't believe that's actually an issue that's properly before the court and i know a place also mentioned that they were strip searching as an issue that they want to address i believe that the case of power versus  versus bear would be dispositive that issue because in that case you had thirty to forty individuals who were groups this group strip searched and the authority that i believe we don't have to follow this circuit here now to do the job but i believe that often though i believe that that the fact that it has been addressed by the other court of the court found that hasn't been addressed constitutional given year and a year or so we are dealing with a considerable amount of individuals and there is a factor to take into account under charter was what what the accommodation would have on the operations facility those are factual issues are there not that were appropriate should be resolved by summary judgment as opposed to a motion to dismiss motion to dismiss all we're trying to do is determine whether addressed the proposed amendments but i guess that was never before her and that the the only complaint before this court is the amended complaint again that is a facial constitutional challenge two  proposed amended complaint is before us to because they have appealed the denial of the motion to amend have they not yes but i do believe that judge pearson did provide even assuming that she was incorrect in a term per the proposed amendment would have it and she says this is controlled by for that as a matter of law they have no no plausible cause of action here is that crue advantage of the opportunity if that had been the rule and then we might review it under discussion but i don't see that it's not your honour's believe that this matter can be resolved by the decision of warrants and that are the law general by the neighbor jerry coleman who is employed to burlington county jail stated under oath quote once he gives him the k well which is the delousing solution and instruct him how to use the k well the officer leaves in the end they takes a shower now there's more elaboration in the transcript itself but that clearly details that what happened in florence is not what happened here importantly the for instance cision carves out practices that are abusive in practices that involve the touching of detainees i would politely suggest to the court that this court should and should analyze the conduct in question here under its prior fourth amendment precedent including the start  decision which occurred after florence in which to consider florence as part of its ruling versus what judge pearson did which is to have a you know to just look at florence and say well that's it that controls and ignoring both the carve out and justice kennedy solution and most importantly the common in judge roberts concurrence where he talks about leaving exceptions to the florence ruling for practices that embarrass the future  council correct that you're really attacking it as a plug rather than a special attack are you going on a picture of that so i'm addressing what they're doing however we want to characterize it if it's as applied or a facial attack him at think that that type of analysis applies more and in first amendment cases certainly i'm looking at what they're doing what they're written policies are you're quite yes and what they did to my where hope is when this is reminded back to judge pearson that we're not even know this the city has did voluntarily stop it at the time we're not sure what has happened since i was lousy yes the last thing as well as a group searches as well as allowing trustees worst practices been stopped and now the one last thing has been stopped but the group's original strip searches continue and you and i it is we don't i don't know we haven't been able to do anything since florence went up for search area but if it happened to mr baylor i'm assuming it continues to happen today in the sense of having inmates involved in these procedures or having inmates observe them be in close proximity be able to see people in some way your  complaint allegations and as a result of these changes now people use the men dropped or what would you say about that i apologize for interrupting sir but this is not one of the issues that was addressed review exception to the moon is doctrine and as i said previously if judge one if judge pearson's decision is allowed to stand and that becomes the law of the six circuit this practice will be applied not just in cleveland it will be applied everywhere it will be applied everywhere in the six circuit at least that's my experience when you indicate to a jailer that they can do something they're going to do it and that's when it brings me to how i'd like to like is analysis is that florence is four and she can do whatever you want and if it's open season on the privacy rights of detainees which just with this decision certainly is physical cavity search compulsory showering by corrections officers handling you know using sponges in the like using fire hoses it's all in the mix and i certainly hope that that is not the state of the fourth amendment in this country because are a whole range of offensive practices that can follow from judge pearson's analysis thank you for your consideration your honour's thank you  may call the next day