for your honors may please the court my name is brooks de donato i'm with the law firm of parker mckay and i represent here before you today the border chosen freeholders of the county of burlington is an honor to appear before th to question about and my colleagues will let me because i'm really not sure that i understand all of the facts you are you represent the burlington county yeah but also have non indicted will offense prisoners as well as indicted of all and i can speak with absolute certainty that the burlington county guys and almost absolute certainty that essex has not indicted and indicted as well ok so how many non indicted bulls are we talking about i can tell you that during the class period the number of where non and by the bulls can be held before they go into the general population which generally what happens is that they are placed in with an inmate is placed into the jail and this is not part of the record so i want to be clear for that because i don't think this is come up in the papers but as long as your honour's asking you i will tell you that generally speaking an inmate will be placed in kind of a segregated area although still within the general population of the jail at some point in time shortly thereafter there's a question cation committee they classifies each of the inmates for a particular housing way and those wings are as i assume with all correctional facilities cheered based on levels of offensiveness violence what have you hell you hack to have reasonable suspicion before the non indict a bulls could be strip searched would be your position that you can look at the papers that come with the prisoner and say well by classification we will say those that have prior drug offenses whether they're in whether that's the offense at issue we would have reasonable suspicion to strip search and those who have prior g offenses violent offenses even though they come in on the non indicted paul would that be your position that there would be reasonable suspicion judge let me make it clear our position is that under the supreme and what harm trying to find out is and then the other your your adversary says well you know somebody who's in for contempt or didn't pay alimony or being arrested so we'll say that having who is reasonable suspicion would that be the burlington county jails position judge our position is flat out that please answer that as if yes under certain holdings including judge rodriguez which again we believe with all respect to be incorrect ok yes a person who has a violent history of crime a person who has a history of drug related  i believe if i'm correct a person who has been arrested and is being held on a drug related or violence offense the courts in some other cases have said that in another itself would constitute reasonable snarr i can finally get to my question which took a within those had are there a year judge i cannot tell you that many eyes actually judge there are probably in numerous members of them i think that the national to just statistic showed about the red light to tell you i believe that the records and the studies show nationally that roughly eighty to ninety percent of the people who are in jail are in on drug related offenses but there are numerous other people who get  jail there are people who get admitted on contempt citations there are people who are admitted perhaps as a witness in a case who are being put in because they are necessary witness and they don't want them to flee and i might add that the m c c that was the subject of the bell vs wolfish case was a federal institution in new york that held indict of all offenders non indicted bill offenders it helped people who were in contempt of court and it held people who were being held as material witnesses and it remains thirty years later from that date to this day the policy of the federal bureau of prisons that all people placed in a federal institution will be searched not only after contact visits but upon admission initial admission strip search and strip search and have a visual observation of all cavities oral anal and that remains the policy of the federal courts if i were to be held by this court in contempt addressed but you also have a vast number of people in jail are financially handicapped and they can't make bail i mean it seems to you and i perhaps you guys approx that maybe one of the problems and this is raised in the briefs but i worried about that which is that people who are put into the general population are people who don't have the money and who don't have the money to make belt because if you can make bail then you don't go into it until you know you are  hurt if you don't count in the general population so we're dealing with that substrate of society of poor people you're out of that's an that's an excellent point and it is not something that's been addressed in most of the opinions of what's about the fact that most of you this is a david versus goliath individual worths versus the state and that couldn't be further from the truth because the vast majority of people whose protection will be afforded as a result of the strip searches are the inmates themselves it's people like mr forte's who are not violent individuals who will beat protected by strip searching those who may be because the vast amount of violence in a jail is not directed at the correctional staff it's directed other they have to deal with the intimidation of the gang members they have to deal with the spread of infection from people admitted to the jail who don't even know they have immerses and you can be sure we get to the health issue and one of the things that i'm wrestling with on the violence issue is we now have several years of searches done only based on reasonable suspicion what evidence did you marshal below regarding weaponry that was brought into the prison under that framework your honor what i can tell you about that are our several points first and foremost we had seven boxes of material that we were prepared to produce through discovery on strip searches in items that were found during the course of the strip searches there were several months left of discovery so it was an open discovery period we had a conference before judge rodriguez i told him that we were in the process or even had our motion for summary judgment but i told him i don't think it's fair to hold the summary judgment in the normal scheme of things because i'm about to produce seven boxes of material that ms lasker quiets haven't had an opportunity to review and quite frankly i think we're going to need to extend the deadlines here because it's going to take them months to get through those boxes as it did me then it's going to take them months to respond to those and what rodriguez said is council this is a legal issue this is not relevant the number of instances here and the nature of the instances on contraband it was found is not relevant to this case we're going to proceed on the legal issue what was in the seven boxes judge i can tell you that in the seven boxes there were numerous instances where both gang tattoos and affiliations evidence of disease and in fact weapons were found i can point out and you use drugs frequently drugs including if you can believe this glass crack pipes and hypodermic needles lighters packs of cigarettes bags of marijuana heroin cocaine brushes it it boggles the imagination to what people would attempt to secrete into a jail in their orifice i can tell you of an incident again this is not in the record but i'm being asked very recently within the last six months atlanta county which stopped doing strip searches because it is one of the counties in new jersey beings sued right now they are also i believe submitted an amicus brief on the state had an inmate who was not strip searched he was an extremely overweight individual fourteen hours after being admitted to the atlanta county correctional facility he was found to have secreted a firearm with two spare clips of ammunition into the jail in the rolls of fat on his person now if that is not clear evidence that there is a problem if we do not strip search people i don't know what is on all the jails in new jersey strip sides not all but some mad well there are currently at least i believe six or eight of these class actions going on in the state in new jersey and there are class actions in the state of pennsylvania are common process and gaijin after people had had contact visits it also contains that ambiguous varies less than probable cause which justice pow issue certainly the weight of those roads against your submission i would concede that without question judge the numbers are i believe eight or nine to two at the current time in terms of the precedent what i would suggest to your honor is that if you read bell there is nothing in it to suggest that there is any requirement for reasonable suspicion and i do agree with judge karnit judge power remember this isn't a throwaway line judge judge pal sole basis for his dissent his dissent constituted three sentences and the sole basis of that dissent presumably made after he had sat in on the majority still liberations was my only disagreement with the majority is they don't require  reasonable suspicion if they admit the majority had even spoken about it why would he have bothered to dissent and after his dissent was handed in the majority if if the majority opinion had intended to include reasonable suspicion judge reckless would have written by the way judge powers mistaken we always intended i've seen that happen many people you can't you can't say that with any speculation maybe maybe three of the judges in the majority would have said that maybe two of them would have we have no idea there are multifarious reasons why there was no rejoinder to justice paul's the settlement issue that is correct i can only speak to what justice powell said and what i believe to be the obvious reason for that statement was that i i'm s same code it also says that all admissions to an adult county correctional facility shall be strip searched and that was noted by judge rodriguez in the district court opinion there are  inconsistent provisions in the same administrative code provisions and of course i remind this court the just because the attorney general says it so doesn't mean that it's constitutionally correct that's true but it's strikingly odd to me that you've got the attorneys general in the prison administration at loggerheads on this can you shed any light on that your honor i am baffled by that quite frankly not only am i familiar with those people and i consider them to be giants  but i know mr del to folk personally as a friend of my family i was shocked when i saw and i can't begin to imagine what their their purpose was initially in that position but that is their position and but that is a long standing disagreement between  the one part of the executive in another part of the exact judge when i heard that they were going to be offering an amicus brief i was tickled pink and when i found out what the basis of that was going to be i was shocked silence but they take the position as  say it's nine against two this is the vast majority of decisions by the courts of appeals are of the take the position that you can't reasonable suspicion your honor it is the foundation of our american system of justice and i do not say this flippantly that might does not make right and i think if you read those decisions and i truly believe that if you read judge  decision out of the ninth circuit and judge palace out of the eleventh circuit they are clear they are concise and they are very well reasoned and i cannot urge this court enough that i believe and i would submit to you to judge  not exaggerate in her concurring opinion in the initial decision out of the ninth circuit when she said if a court is to hold this policy of strip searching to be unconstitutional it will put lives at risk right but you've you've hit on something that's very important to me and perhaps my colleagues the ninth circuit case there was a record the san francisco jail according to that opinion had a history of problems along the lines of what you've told us in response to a question were contained in seven boxes but are not in the record here we are not in the habit of the citing cases based on things not in the record should this case  remanded to judge rodriguez was he wrong when he said this is a legal issue should this go back so that you can make a record in the way that the the record was made in the bull case i don't believe that remand is necessary or on i'll tell you why you're correct that they did have an extensive record in that case however the supreme court in bell felt no need for such a record that you know what they did they can we tell you that that was and after contact what you're different francisco you're not going to radically disparate records don't you i would respond to fold i would not suggest that i am it would be appropriate for me to submit my thinking for judge wright was but what he said is justice justice i indicative of the fact that it is a significant deterrent to smuggling than it is that there is an absence of a problem so that's how i would respond to that but judge what i can tell you is there have been numerous other cases in the federal court system that have  absolutely recognized as a matter of judicial fact it's going of contraband is a day to day problem in a security threat across the country but that appeals perhaps through our commonsense notions of what happens in jails it's not an evidentiary record maybe maybe i should let go of my trial judge experience but we decide cases based on evidence not things that appeal to our common sense notions of the fact that quote jails are dangerous places unquote but judge there have been decisions after decisions by the supreme court by circuit courts by district it's by state courts that have taken judicial recognition mission of the imbalanced fact took recognition of the fact that the smuggling of contraband and the violence of the weapons occurs in correctional facilities not this particular correctional facility not those and i would submit to this court that there's no reason to believe that burlington county jail is the one jail in the entire country that doesn't have a problem and what this court in particular has taken notice of the third circuit in the phrase matter was the gangs and gang violence in jails is a day to day concern in the state of new jersey penal institutions this court said that in phrase and they in fact went so far as it once one supports says that that doesn't become calcified in time so that five ten thirty five years later a subsequent panel of this court takes it as historic fact they still have the put witnesses on the stand to testify yes my name is so and so i'm an expert in prison administration i've been involved in it for twenty years and i can tell you as a matter of fact the gangs are a problem i mean that doesn't take more than a half an hour to put in that kind of evidence your honor if you would look at it or if you have looked at exhibits on brony county's appendix number fifteen through twenty they talk specifically about the issue of gang violence they talk very space and they talk about it currently not in the past tense they speak about the fact that the one of the easiest and most accurate ways to identify a gang member which is a raging problem in new jersey p says through the use of both body markings and tattoos and this court in phrase talked about the whole the record purport and statistics that were done by the new jersey department of corrections in this court recognize that there are problems  i don't know was the boss chair and there's something else you can do sure a strip search that will this will give some indication of what they have and you tell us about  listen but what i can tell you is near all the supreme court in bell very specifically said we don't have to look for lesser alternatives this is one that works it's effective and it's easily effective what i can also tell you i think is the important whether they're in  way to get to be in from here isn't isn't relevant not under the supreme court analysis in bell judge what they said is we are doing the analysis and if you way to security of the jail those concerns against the rights of the inmates and the supreme court attorney turner says it's important ok paternity you don't want to apply turn we've got a split in the ninth and eleventh one applies to her and one doesn't got i'm fine with that because what the eleventh said whether you applied bull or val were turner because the nice except turn your back turner's more favorable to the prison that's right and still the ninth circuit and i think i think in a well reasoned and certainly lengthy dissertation on the topic found at all for the turner steps were well satisfied by these strip searches and these are people where alternative lesser means were submitted to these jurists and then i thought the night said we don't have to miss out in time no i just realized that we given you all the time the sentence that's always been in dispute we do hear with the question whether visual body cavity inspections is contemplated by the m c c rules can ever be conducted or less than probable cause so we have we have ambiguity as to have a less than probable cause means no cause or some lesser degree so it's reasonable suspicion but i suggest to you that maybe we've been focusing on the wrong part of that  it covers the entire universe and certainly that is consistent with the lesson probable cause to say well there are categories we don't even need to know about this person  your honor i hate to seem as if i am a marketing executive for judge carnes out of the ninth circuit but i would take the same view on that issue as he has because the ever issue as they call it sometimes has been discussed by other courts and what i would suggest is judge carnes did is that you need to look at in the context of the immediately preceding paragraphs of bell and remember that bell was only they dealt with this entire issue in three paragraphs of a decision but in the preceding paragraph or at least the beginning of the paragraph where they used the word ever they talked about the fact that we assume that there will be instances where these searches will be held in abusive manners where the guards will act appropriately and they said but we are not dealing with those situations we are dealing with whether a strip search may ever be done and i think if you view it in that context what they meant by ever was a strip search can be done without reasonable suspicion in is long as it's done professionally in a non abusive mac you very facility does with the essex county facility has different procedures and even though judge rodriguez granted summary judgment the plaintiff in this case e county employee including three superiors who testified it's in the record on her and they all say they don't do strip searches and they gave a detailed description of what happens they describe what has been labeled in other cases of a clothing exchange as in kelsey insert and those other types of paints is but for the purposes of this appeal your honor the since since judge rodrigues factually ruled that strip searches need points and care and it's our position that under the constitution and the institution has the right to conduct a strip search without reasonable suspicion is it then is it your position that the practice in essex county is to have the intake prisoners that that's correct your honor that's correct you're on that's that's what the evidence shows on the other hand your honor plaintiffs has said in his deposition that's why he went to essex yes but your honor if i might interrupt myself sure if i had and i think you're also a fundamental distinction between burlington essex in one major respect in burlington he came in and he was in burlington for six days and he was transferred to essex county and i believe that if you analogize a situation it's more that the bell situation than burlington i think burlington has reasonable cause also for what they did but i think the essex county situation is different and i said in my read it and see syncing had about five hundred people in one thousand it and we have about two thousand and are many come and each year twenty five thousand juran and twice five thousand yes your honor and also to to make everything even more complicated we get people from that purpose we get immigration people that come in to our jail so we are our jail is a major it's the largest institution in the state of new jersey and as ar the most dangerous inst jail and it has a lot of contraband within it and since you have an die and you have in your general population prisoners who were there for that your honor asked in terms of bail and in terms of what type of person yeah according to the new jersey court rules a person has seventy two hours when they get into our institution to have a bail christian wrong and usually they should have had a help proceeding in the local institution if the requirements are twenty four hours but when they come into our institution there's a requirement of of syncrude hours there is nothing in the record as to how many people are just there for bail or not there you're on a lot of our people are in there because there's warrants already iran can and other type of warrant you're on i noticed that in two thousand and seven there were fourteen instances of in rates found with contraband during intake in your jail that's just an intake right then but then it will be let me finish i'm sorry and apropos of what i was asking your your co coun there should this be remanded for an evidentiary hearing that we have a sufficient record like the night circuit had in bowl i think there's a fifth is his fishing record your honor for a couple reasons one reason is we're not strip searching and they go through a metal compact everybody goes through a metal detector so so so if you're contraband problem with employees of the jail bringing in marijuana or other drugs you're metal detectors not to do a lot to help with the jail where prisoners are for three days before they ever get out into the general population that's that's what i was just explaining the their everybody that comes in whether you're a murderer whether you have a serious a person who might have reasonable suspicion for us to strip search they're in this quarantine area and you are the mix so effectively from day one they're in the general population and he said no they're not correct and his colleagues this agree orderly says colleagues didn't feel strongly enough to take up the case and they vacated his stay so they could the stay but i'm just saying for that we have that part and he goes along spend all day on this case which is why i asked story which is one of the reasons i thought mr maritz lee would find it of interest boxes i remember that that was a bone call and that was after three years of this case we're in our fifth year ok being here today so there was no they had three years to submit these boxes they did it i don't believe they exist or i what was found out dangerous what is it really because they had three years to produce and they didn't and i'll tell you about essex first of all essex doesn't even i did the depositions essex doesn't even fill out the forms i've asked there's no help for me ok you're on it about the the attorney in discovery i asked them what guidelines do you fall for strip searches they produced the attorney general guidelines they produced in new jersey statute that you spoke of earlier and they produced their own internal documents rules and regulations like burlington has eleven eighty six and you know they have their own names their own memos and they give a procedure do not strip search unless you have reasonable suspicion and then do it only when you have a supervisor there to check it off and fill out a form a strip search form was the reasonable suspicion you check it off why you fill it out so what's your problem with that policy it's a great power see my problem is they don't follow it so they're not going to be able to produce any well you have your client claims it was a fault in his case but you're not bringing in as applied  should we re man that there's no reason essex doesn't even have forms to produce they didn't they don't in depositions they admit that they don't fill out the forms in florence this case but of ethics is policy this is this case is strange on so many levels to me anyway if essex is policy is we only strip search if there's reasonable suspicion you don't have a problem with that policy as written right but they they both prisons ok produced documents saying we will not strip search not indict abodes unless we have reasonable suspicion and we will follow these procedures to do it but they don't follow their own semantics what they try and say is it's a clothing exchange or it's a visual observation they do strip search everybody in the record every one of their officers and their warden states specifically and judge rodriguez is this isn't tracks that that they do strip search they're telling everybody to take off their clothes it's just you may define strip search differently which we discover but you have your feeling you arguing i gather that the visual what they call visual observation during a clothing exchange is equivalent to a strip search it is it has a strip search it's more than that they make them squat and cough they make them turn around they are stripped and they sit in essex in a group there's essex to a body cavity inspection it's defined as a body cavity inspection when you spread your cheeks and they're looking in that's the law and that's what they do with three three to five men at a time stripped or women in a room that's about as big as this room with people walking in and out no privacy and not just the guard front telling them to strip but other guards and other people present it's a strip search with no privacy it doesn't follow any of the bell four factors you're saying but again a sort of focus on this but i'm trying to ascertain whether we're dealing with a facial challenge to the rules as written i take it you're not you're not the rules are you doing you're dealing with a class action facial challenge to the policies as violated exactly yes so where is the evidence in the record all the how many people besides mr florence have testified that the their policies have been violated we didn't even have to have people testify they testified for us being the officers every officer testified that we're not supposed to strip not indict a bull's eye but we tell them to come in front of us take off all your clothes and bend over  sansa so the testimony that you marshal from their own witnesses is that they regularly strip search irrespective of what their policies yes ok i think they are there now we now the jurisprudence of other circuits that held that strip searching with reasonable suspicion honor respectfully its privacy rights under the fourth amendment that they're violating and the answer to your question is well there's somebody that's an interesting question somebody who was put in jail of a privacy right  not to be stripped according to bell you do according to our constitution you do meaning bell gave us bell was limited to post contact searches i think the court got that the bell then went instead and by the way you know we're not we're not deciding anything else just these posts contact which it's a known fact you know that's the most planned opportunity to get smart went way known fact your side in the sense that they focused on the absence of evidence to say well that proves the deterrence rationale you know are you damned if you do damned if you don't under the analytics employed by the majority and well i don't think so i think bell was very limited it was to the post contact and then they said use these four factors a balancing test but this is we're talking about the constitution and there's stiffer levels of scrutiny there's different levels of people on right now we're talking about a very specific person at booking a non indict a ball person that comes in for violating a leash law let's say what's the fine what is it it's fifty dollars which seems like a perfectly reasonable decision tell us why it's wrong and why we should that i think just this judge or rodrigues had pointed out what pelle did is they started out with a sentence yes this is egregious to strip search at the human eyes it's but and then they just leap they completely ignored the four factors that bell gave the justification and they just leap right into you know what but the prisoner the prison system could do whatever they want there it's their prison they make the rules that's not the way i see it that's not what a majority of circuits see it  yeah that's right yeah yeah pell just went right into what the prisons decide what to do not while long with that family i mean aren't we stepping in to an area of the system that we really shouldn't be stepping into unless it's clear that it's unconstitutional that is the general feeling that we should  prison administrators who deal with these issues on a day to day basis we could do further but we don't have to give them this absolute power to invade our constitutional rights and i think the courts are the protectors of that and we're not taking away any power from the prisons no less what we're asking is the point this is just enforce the rules that you already have and use reasonable suspicion for this certain group of people at the specific time of booking th yes ok and if someone is in for a violent someone who has a background of violence would that give reasonable suspicion  ah i mean i'm how i just don't think the reason i chose us how many people are affected by strip searches for how many years i think it's two thousand and three till we only got till two thousand and eight i think they haven't updated that within those nine and i've also we know how many have drugs in their background or no violence no your honor and let me explain the process because you were kind of asking that what happens is when they when someone gets arrested there's like a rap sheet or a sheet comes with them and every it's in the record they testified to with the  officers and even one albert florence is at the top it'll tell you what the charges his was a contempt a civil contempt we're not talking about just their background how they may come in for a traffic violation but if you look at his what you call rack sheets he may have five drug and they have a computer system and they could check i think it's called c s i but one i'm trying to find them so we know how many people there are if you exclude these that you can see there would be reasonable suspicion to strip search because they have drug backgrounds do we know what we're talking about in terms of numbers and i think the answer is that even though we i don't think we even have to go there respectfully because when they're brought in on a certain charge if you're brought in on a criminal contempt they they could check anyways on the thing but they just a that they have a blanket policy of stripping everybody that walks and let me follow up judge slover so question you want to define your classes not indict a bull's she's asking questions regarding distinctions within the category of not indict a bull's right some may be dangerous people some may not be do you have the right to define the class or does the prison have the right to define the class it's an individual it's the class is it is the individuals it's an individual i suspicioned basis i'm like let me try to at you i don't think you understood my question who has the right to define who comprises the class you are the prison  so if you watch this case could you come back with another case that says let's say let's say hypothetically we wrote an opinion that says among  or if we sent it back let's let's say that that this court well stick with my have a thought occurred from an let's say let's say this court defines rules against you in this particularly case and the and the reason we rule against you is because within the category of not indict a bull's include some people that this court concludes pose genuine security risk to the prison violent people gang members it's are you with me define the class and the prison when they decide whom to search you're going to continue to slice the onion however thinly you want to meet your class definition and the prison has to live by your definition of the class the court  actually concludes what the class definition is so the court came up with the final definition of this class are we going to slice the onion i don't think it means to be sliced because these people come in pocket then they could patent frist or go to the next level and do the strip but they shouldn't be doing blanket strips on every non indict a ball that walks and regardless of whether they have a history of drugs or his if i'm a gang member gang members have rights do we know if they really do gang member and i came in on a traffic ticket violation i'm there for a traffic ticket violation if they do they have to strip me i like one of those and i'm not a gang member we have rights i could have you they could look at a tattoo in my might look similar to one of the gangs unbeknownst to me thank you your red light and go there you're there with your red light is on you have two minutes and we're going to keep it in two minutes and you know i had two minutes you're not on that you're not on the on the no you can you can honor judge harder than a very long case the second and judge hartmann just raised just but a few of the problems that happens when you start to distinguish classes of people who can be searched without reasonable suspicion and those among whom you need reasonable suspicion and i would point the court's attention rather than go into this like the judge kozinski concurring opinion in the book case where he spends ten pages talking about the problems that attach to defining who can be searched and who can't be searched whether it be reasonable suspicion or gang members or that he suggests to take this to the ludicrous extension would be to say that there are perhaps some people who can't be searched before going on an airplane and he spends ten pages talking about how it will promote subjective decisions that can't be backed up it will create mountains of paperwork too so that you can justify your decision so that a guy who probably has a high school degree can spit  out and try and justify why his gut says this person should be searched in this shouldn't he talks about the possibility of a leader ism and racism and profiling entering into the determination of who searched and who isn't and that's why when you go back to it you have to go back to bell you have to find that everyone needs to be searched and again i would submit to the court that the policy in bell that the supreme court found to be constitutionally sufficient required not only the searching of people after contact visits but that same policy then and today require the searching of everyone who goes into a federal penal institution it has never been challenged since about there have been no injunctive relief granted to stop that policy since bell and i would submit to you that as we stand here today the law of the land as emitted by the supreme court of the united states impel as such i'm all when they come into the facility it's what is required for safety thank you very much