and i'd likely three minutes for rebuttal so we're here to argue a challenge to certain d h us policies and there are basically two policies that are the subject of this appeal the first a section four three five zero which is a brought internet and electronics band basically anything which has any kind of wireless capacity or could it at any future time have a wireless capacity which basically covers most  challenging that on fourteenth amendment and first amendment grounds that's the first issue regarding the fourteenth amendment challenge appellant are arguing that the government has not shown legitimate security concerns from the possession of the electronics that they were given the internet because they were either given the option of having unfettered internet access or no internet access there's been absolutely no tailoring to see if they could still have some electronics but with a more limited internet access to them and the ban is so broad that it takes into account any and all kinds of are trying to fix for instance incidents in four years but we don't know if this was one person who violated the policy and cost sixty incidents out of a population of a thousand people we don't even know if it was s v p patient because ho only a few people were doing it your and the problem with that is i mean where do we set the standard in terms of what an exaggerated response is so this band i mean this supreme court in attacking h clearly said that the internet now is no longer just a convenience there is no substitute to the internet as a public forum where you know individuals can interact and discuss things with you with each other therefore when you're actually restricting a civil detainee from any and all access and any and all electronics regardless of whether it has the internal capacity to deal or not that it could have some time in the future there has to be some showing that the declarations from maynard duvall suggest that they'd open twenty criminal investigations of that had numerous problems of downloading child pornography so high volume of policy violations sixty reported incidents and he describes vos testimony once again he does say he has a substantial amount of allegations against patients accessing the internet some of them are speculative some of them are things they could do in the future if you actually parse the language he's using he has having found certain violations narcotics or even child pornography once again the data is impossibly big because he says i saw two hundred images of child pornography at that point not even sixteen or seventeen mates had computers so are we talking about one person who had two hundred images of child pornography on his computer and some of that problem could be taken away as amended regulations done by taking away data storage capacity we don't even know if these images were downloaded from the internet all we know was according to sergeant devolves testimony is that he found these images on a computer a number of computers i think part of what is difficult here is what constitutes an exaggerated response this  is why the numbers are important i'm not asking the court to set a bright line number or a bright line rule but i'm saying there are two problems with exaggerated response which is that it covers even things were none of the security concerns would be implicated like you know like i said like a radio or game device let me come back to the radio as i understand the regulations they forbid electronic devices that are capable of internet connectivity the radio as you described it is not capable of my mis understanding your argument we're going to have radios that connect to the internet to work out well so if i just have an old fashioned transistor radios that barred if you had offered it would not be barred have some kind of wireless connectivity but an old fashioned radio that is simply a receiver correct is ok yes ok got it so there are two problems of exaggeration so i'm not just focusing on numbers i'm all to focusing on th of the sheer breadth of it which is exaggerated and the dia such admits this because the initial regulation was passed in two thousand and nine just before this briefing started it was amended with certain modifications because y that the amended regulation was to was in broader than they actually anticipated and did bar some electronic devices which they had not intended to bar and so they're reinventing it so maybe the government is acknowledg problem of exaggeration is the only evidence they have on the record that they can't provide them some internet access big is because this is they have to monitor every single device in order for them to be able to give them that's given today's technology simply not true only alter my child my two year old child has a baby can amazon gives you these kindles for kids and all you do is you put parenting controls and he's limited to four websites if videos or his cartoons things like that it's that simple nowadays to be able to give them some access and say look but we've controlled i don't have to go in every day and look and look at his watch history that's what technology provide in that sense too it's exaggerated it's simply not commonsense clee does not make sense they'd only we to provide any access is if i have to check everything the computer i understand there are numerous problem there is the digital storage problem that can be done with this is the government obligated by what by the first amendment to provide you know there were also so the second issue would be robinson filed a motion for leave to amend on first amendment grounds  december twenty four team appellant robinson moved men december twenty fifth team a mere year later and he was denied on the grounds of undue prejudice now the district court absolutely feel to give any specifics and what this undue prejudice false and if you look at the history of claims on this particular claim the litigation active litigation had been going on only for a year and a half well and i think the reason the district judge gave in addition to what you just mentioned is that the district judge  wasn't open to allow the sorry i'm sorry can you as i understand it the district judge refused to allow the amendment to add the first amendment claim on the ground that there'd been a rematch and from the ninth circuit and did not leave open that possibility right i think that's an end correct reading of what the nights are going to previously if i read what the ninth circuit because at the time that that the motion to dismiss was appealed tonight initially the computer claims were all dismissed in twenty twell and they were appealed to the ninth circuit at that time there was no first amendment claim for the ninth circuit to actually rule on so the ninth circuit could not have looked at the merits of a first amendment thing where the ninth circuit said was we  appellate brief that his first amendment rights have been violated and what the ninth circuit said was we will not look at this issue for the first time now it's not even there in the pleadings this was years before robinson actually made his first ame until the ninth circuit reinstated them june twenty fourth so active litigation on these claims only started after june twenty four team so he's amended within a year or a half of that in fact an answer in this case was in files of september twenty four team and he's a proceed prisoners that this was that this this policy was was enforced differently in state prisons and outside of california and washington state facilities and what evidence did you put into the record on that oh  that apparently is not inconsistent with policies in other facilities in california so i understood that you were that you're making a comparative argument when you started i never saw the i never saw the evidence of the comparison so what person they might be clean but that's a human dignity i mean we we went through decades in this country where we're we're we're cloth diapers we're laundered outside and then returned for size and then we moved on where we don't do that anymore ok i think summary judgment to other substantive due process claims the challenge to the regulation banning the personal possession of internet capable computers and other electronic devices as well as calling a state hospitals policy of laund commonly assigned clothing including underwear provided to these plaintiffs now let me get the last one first just because it's fresh in our mind given the order of the argument we just had it's obvious that it is unnecessary for pena logical purposes or for institutional purposes it is not necessary to require that the people held a calling to use commonly  shared underwear because obviously the california state prison system doesn't do that to give the patient really give the prisoners the option of having their own so what possible justification is calling to have for its policy let's back up a little bit if we could your honor in examining the record in this case yes one of the complaints to say it's fifty odd pages that there was a concern in regards to personally as to commonly assigned underwear however when it came time for the motion for s by that time the idaho law clinic working with these plaintiffs had darrow down many of the issues and at the time of the motion for summary judgment proper the defendants the issue of any sort of cognizable constitutional claim to personally assigned a new work was simply not before the district court the only issue brief before the district court was the issue of whether or not the clothing of these specially violent predators was indeed properly laundered by the department of state hospitals or coalinga through the prison industry authority they were contending that the laundry was not was not effective and they were concerned about whether or not their clothing especially their underwear was appropriately laundered and claimed there was nothing before the district court in regards to a claim regarding some sort of the hospitals they're operating under title fifteen that the california could have regulations and they also provide commonly assigned underwear t shirts as as well as other clothing to inmates that's in their property matrix have that we can determine what goes on in the state prisons but it is not before us is not before us i would agree with that your honor is there is there a reason that the state wants to tell us as to why this is why why they use commonly assigned underwear supposed to personal underwear again your i would hesitate because again it's not before this court it wasn't before the district court however when you combine internet capability and the ability to contact outside vendors to purchase personal underwear and you bring that person under into an institution where you've got over nine hundred seventy violent predators and they all want their own underwear laundered in a certain way you could have potentially nine hundred seventy five predators hand washing their undergarments in their shower facilities as was the testimony of some of these plaintiffs rather than using appropriate laundry facilities that meet the requirements of stringent standards of a hospital institution like the department hospital coalinga where you have title twenty two saying you've got to use a certain type of detergent with a certain ph balance for you know how occupational safety and health the issue of the merson faction being spread is of course very very pertinent when it comes to laundering of any personal undergarments and so i would hope that this court would abide by that sort of national and if you don't share it how do you want launder for your own purposes so you know and even if it's being laundered for your own purposes you're hired because people are in close contact you want to be sure that their clothing is as well attended to and meet certain hygiene standards when i'm using it my t into effect in two thousand and nine these plaintiffs essentially contend that they should be entitled to internet capable devices however what we see in the record is no substantive due process violation if  cognizable right what we see is uncontroverted evidence that was presented to the district court establishing that when these patients over nine hundred seventy violent predators at calling us a hospital this year a majority of patients at that hospital are given computers even without internet capability they find a way to make them internet capable we've seen the published decisions in ray robinson and people v gold and that those internet capable modifications created situations where child pornography was imported into the institution and could be distributed to other patients we also see from a decoration that revived it by defendants in this case that the internet capability allowed for contact with not only prior victims but potential victims in the community as well as accessing social media sites to obtain profiles of potential child victims as well as on staff working at the hospital there was copyright violations in terms of burning to us as well as issues obtaining geographical information to planescape and contact people would help them with those escapes so there was a conspiracy council save and they by opposing counsel what it was it was overbroad this machines but were broken and didn't work and why isn't there a triable issue of fact on these issues in regards to access to computers at work your honor was there the prohibition was overbroad because yes we give access to the internet in our own way with our own computer the evidence appearing to be that a lot of those were just broken down it didn't work why wasn't there a triable issue of fact as to the breadth of the regulation there is no trouble issue of fact in regards to the breath of the regulation or are because an actuality the issue that was being pursued by the plaintiffs was simply personal possession of internet capable computers they were not making any claim that the supervised access they had to computers in the computer lab was in any way ineffective what they only wanted out of this litigation was their own computer with internet capable access and as a result the issue is truly the section four three five zero provide for an effective means for hospital administrators to prevent the criminal activity of the sexual violent predators people who have been deemed likely to engage in further sexually violent acts and we submit your honor given this population of over nine hundred seventy five predators out of a population of eleven hundred given the over sixty to seventy cases involving child pornography as well as two to three cases of child pornography reported each month to the department police that this regulation was appropriate and not excessive it was the only way to address a situation where  unlike two year olds were engaging in very proactive actions to obtain internet access this is a situation where any firewall issue or any parental controls were discussed before the trial court but i judgment of the hospital administrators as to the dangers of giving to the individual patients their own computers but if there is some interest in the inmates having access to internet information it would seem to seem to me at least part of the argument that you ought to consider other mechanisms by which the inmates would have access to the internet the would not  pose the same dangers which is to say for example in the library there would be computers that would be controlled by the administration by the hospital so they know that they're not capable of being a misused but you say well doesn't and what we see in subsection c is that there is allowed internet access where there is essentially supervision of the patient in a common room where there are computers available for supervised use and so it's not that all and access is disabled it's that personal possession of computers with internet access is prohibited but there is available to judicial notice of a regulation is something quite different from fact finding as to whether or not these exist in accordance with the regulations seem to contemplate and so on do we need to send a back to if we think it important that there be some access to the internet to  on safe do we need to send it back to see if in fact the regulation is providing what the regulation promises keeping in mind that this litigation began in two thousand and six and between two thousand and six and today's day what we see is not only the  publication of section four three five zero in two thousand and nine but also now these amendments we would ask the court affirmed the district court summary judgment on the section four three five zero as it existed at the time of summary judgment should the plaintiffs or other patients within the hospital have concerns regarding how these amendments to section four three five zero and their their ability to get internet access under these amendments any issues about that then they can bring a new complaint well but if we a what the district judge did that automatically means that what you'll be the institution is now offered is permissible because what the district judge was looking at was a record that was less favorable to the patients than what you now have so you  missing they chose to file into this particular section four three five zero they chose not to bring up before the district court any issues regarding internet access through the computer lab room or through other areas provided by the hospital and so  regards that you know who has to the first amendment claim that was not permitted to be added in regards to that matter i know i'm going into my time here i think the court is correct that the ninth circuit indicated that that was simply not timely presented in the course of the initial appeal of the motion to dismiss however when it was sent when i was down to resent it all that's correct the ninth circuit said it was not present it was not timely presented on appeal and but what we do see is a futility issue what given this case was started in two thousand and six and discovery had been going off and on with the help of idaho law clinic for many years i think the court was completely within its discretion in saying basically we don't want to hear a new claim at this time we're going to proceed on the claims that have already been addressed in the motions for summary judgment and the answers and let's move on from there would be i would have to say what bothers me a root about this case is that these are not convicted prisoners and as you quite rightly pointed out this is monitor amendment case the fourteenth amendment case because these are these are civil civil committed civil committed people these are not prisoners these are not there because they're kind of their convexity are not there and cannot be punished what which means that the deference we give in prison cases comes up in such a different context that i'm a little reluctant just to bring over all the drivers we give to the prison operators because they can punish the defendants here cannot punish we understand that your honor but even in the context of providing more considerate treatment to civil detainee's in a secure facility created for their detention pending any release into the community during that time there are reasonable restrictions that may be made in order to ensure the safety of the public and staff and what we're saying here the internet capability of computers creates a safety issue that this organization tried in multiple ways as seen in the declaration of jamie mangrum to address through constant surveillance or in going checks of the computers the poxy and that ports and quite frankly those means were defeated time and again despite exorbitant resource expenditure by the hospital and this was a situation that really did require a complete prohibition on internet capability ok thank you very much thank you we the district court chose to frame it in the way the government chose to present the argument as a laundry issue doesn't take away from the fact that appellant allen and de berry said we don't wonders because we don't feel clean not just in terms of the laundry aspect of it that this ere's plenty of case law that says the amendment is applied through the substantive due process clause of the fourteenth amendment in detainee cases that was my response to the laundry clean just a couple of points she made about you know why this is security risk shows the problems with the evidence if you parse out because they've given you a lot of security concerns but if you start parsing them out for instance she talked about an aerial shot of d s age the first thing i did when i got the case was i typed this aerial shot comes up it's kind of a blurry fuzzy picture with the d s that's put on this web site so the entire world has access to this they could get in the mail you know actually plotting some kind of security it's what anyone outside has access to this picture but it's a thank you to do tradition that has to mr hellman thank you also even though you're being paid i would just like to thank the court it's my first ninth circuit argument and i was nervous in the beginning he made it very comfortable for me ok i think