Legal Case Summary

. Indeed, there was a full-blown adversarial hearing on that defendant's bailworthiness. Well, second. I'm sorry, let me cut you off, because I just want to be clear on your position. If the state had come forward with statistics showing, for example, that 90 percent undocumented immigrants who were granted bail just never showed up for trial, are you saying that on that record perhaps the provision could have been sustained or that it would matter because as a matter of due process every single defendant has a constitutional right to an individualized determination? No, Your Honor. Solerna sets out the value post. You not only need an empirical finding that there is a problem with flight risk for this category, but also that the remedy that this legislature chooses is narrowly tailored to address that remedy. And this court in the Nunez case that I've just cited as well as in Judge Kaczynski's opinion in the United States versus Scott explains why you need that empirical showing, and you need the empirical show-aiden that the remedy chosen by the legislature is narrowly tailored, proposition 100 fails on both those counts. Suppose Solerna had been arrested for murder rather than racketeering, and the jurisdiction category we forbade bail to murderers. Would the result have been different in Solerna? Perhaps, Your Honor, but I think that that wasn't actually an issue. To be clear, if you look at American bail wise, it stands now in its past four centuries, the presumption is that people should be affirmatively entitled to bail accepted capital cases. As the law professors Amika's brief point out, a very small minority of states have extended categorical prohibitions to cases that involve life imprisonment or get the death penalty and in a few cases to very serious violent felonies like murder, rape, or kidnapping or sexual assault. Proposition 100 is far, far of the old from such a limited count. Those statutes deal with one aspect of bail, and that is dangerousness. Another aspect that almost virtually all those things should take their count is flintless. Why can't the state say, okay, we've got categorical, some categorical crimes, or would you constitutionally may not be the title of the bail? We're not going to find a categorical class of suspects who we think are a fightress. Not every one of them, but you know, they're here illegally. The border in Arizona is very close, depending where you're in Arizona, it's right. It could be right across the street, right? From someplace like Tucson, it's not very far at all, right? Well, I would have two responses to that, Judge Kaczynski. The first is that the longstanding tradition that's clearly stated in Solerno, in Stack, in this court's decision in Galen is that where flight risk is the assertive government interest, bail must be set at an amount that is adequate to address that flight risk and not more. Proposition 100 is a jurassic departure from that fundamental constitutional principal. But is this a question that Solerno left open? I'm looking at 107 Supreme Court at the page, I believe it's 2105, in which they say, we need not decide today whether the excessive bail clause speaks at all to Congress's power to define the classes of criminal arrestedies, who shall be admitted to bail. So Solerno doesn't really give you as far as you want us to go, is it? But Solerno reinforces the Aether Amendment principle and more important for this purpose, it sets out the due process test, which proposition 100 fails on heavily countered. But if the court acknowledged that there might be a class of cases that a legislature could categorically restrict bail without violating the Aether Amendment, how does that support your position? Because in this case on this record, Arizona did not make the adequate showing either that there was a problem of flight risk with undocumented immigrants or the disparate law, which were a little bit more accurate. But surely, in terms of documenting the adequacy of flight risk, what more do you need than someone who is not in this, not as is in this country, is in here in violation of the immigration laws and is in the state contiguous to the state, in terms of the country in which that person comes from? Isn't that enough? No, no, no, no. No, no, no, no, no, no. No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no. So that's not the case of being clear that it's not possible, I want to do a second time, that's not so. Sorry. Any allegorality, any undocumented person? That's right. the existing system had been granted bail on his own reconnaissance, and it was only when he came in to court. And as he had been doing, the bail was revoked solely on the basis of his immigration status by the very court that had released him on bail because of the passage to a prop 100. That's right, Judge Fisher

. And let me make clear, the assumption about flight risk and undocumented immigrants is both factually incorrect on the record, and it is legally incorrect to rely upon it. Let me look at the record first. First the record in front of the legislature was that Arizona courts were already considering dependents, including undocumented immigrants, and assessing their flight risk. And many undocumented immigrants, as Judge Fisher points out, were assessed not to be a flight risk, at least not to the extent they couldn't be released on bail or conditions. Those dependents were showing up for court is directed, but when proposition 100 came down, they were immediately remanded into custody. That is on its face excessive. Secondly, Representative Pierce, who was the sponsor of Proposition 100, was actually challenged during a legislative hearing about whether he had any proof that undocumented immigrants categorically posed such a flight risk that the ban on bail was necessary. And that, the questioning representative pointed out that many immigrants in Arizona have longstanding residents in the state, stable ties, United States citizen family members, and may even own real property. Representative Pierce, the sponsor, did not respond. And finally, one point I want to make about the record before I turn the law is that there was not even anecdotal evidence. You would infer from his silence, you would infer what? Not just from his silent stretch, because in ski, but the fact is that no one ever came forward with evidence to support the notion that undocumented immigrants were in the state. But the press for admissions are basically said that, you have evidence, no, you have no evidence. That's right, Your Honor. When we depose the Maricopa County Attorney's Office and the Maricopa County Sheriff's Department 30-6 witnesses, they said there was no data to show that undocumented immigrants posed a particular flight risk. What role does the fact that the people of Arizona have asked what the legislature prepared to play in our analysis, to sign in to the lack of evidence of addressing this risk of the negative force? Well, I think the Supreme Court cases and the Ninth Circuit cases direct the court to look both to legislative record and to whatever the voters had in front of them that show what the intent was. On both those counts, there was clearly punitive intent. Does it in the voter pamphlet? In the voter pamphlet, in the way that the proposition 100 was described to voters. And again, there are very clear statements, consistent statements by the sponsor and supporters of composition 100, that the intent of the matter was to punish the perceived crime of being in the United States illegally and erroneous conclusion under Ninth Circuit and Supreme Court law and to end a perceived federal policy. That's a really good question. With regard to conception, do you understand the Solerno, which says first and second, I think that not to, it seems more sensible that they're humiliating. I mean, that is a way of determining whether it was pure evidence. I think the opportunity is to look both at what people said and also whether there's a match between what they did and they're purported alternative reason. It's not that quite worded that way, though. I think Judge Foresont that Solerno says that there are two separate stages to be inquiry, but I agree with you that the evidence showing that proposition 100 was excessive, bolsters the finding that there was expressed committed intent. What do we do with the finding by the Arizona Court of Appeals in Hernandez versus Lange and by the United States District Judge Susan Bolton in this case in the order on summary judgment that you are appealing, that that was not in fact the case, that the primary motivation was to address the risk of flight. Is that a factual finding to which we must defer unless we conclude it was clearly erroneous or are you urging us to do a complete and noble review of the right? It is Dana of a reviewer on her and it is not a factual question. The reason I say that is we are on a here on a review of a grant of summary judgment. And moreover, the record is complete and the record is clear. Every one, the courts and the parties agree that the statements reflected express statements of punitive intent and there were also unsupported mentions of flight risk as well. The legal question for this court is what is the conclusion you draw from those different assertions that were the legislative record? And I think the answer is clear. Whether it is a primary intent question or a predominant intent question or something less than that that is not specified by Solerna. There was clear punitive intent

. Let me ask you about that. It seems from the record you have evidence on both sides of this. So the standard does seem to make some difference. And to some degree, this is akin to kind of a mixed motive situation where there is some argument for flight risk and then other statements related to national origin and illegal status being the reason. What do you think is the standard that we judge these by and what do we look for to make that judgment? I think that at most the standard would be looking at the legislative record as a whole. What was the primary purpose of a legislation? It's not clear Solerna actually sets such a high bar, but I think on that test, it's clear there is punitive intent. And the city of the Annapolis versus Edmund explains why as a doctrinal matter, it would be a serious error to let an unsupported assertion of a legitimate interest effectively neutralize clear statements of impermissible governmental purpose. So you're really saying that we need to do these two pieces together, because unless you insist the record support for the asserted legitimate reason, the other by itself might not carry the data. I actually think that the first test, the punitive intent test, carried the data. I think getting to the heads of legislators and be a voter is when you're dealing with an initiative. I think so. So I think it's more sensible to feed in the question of whether the alternative is actually an alternative. You're right, Judge Wersan. I think that turning to the second test of whether the measure was excessive in relation to the asserted purpose helps to bolster the claim that the true intent here was a punitive purpose. Good reason I say that. Does that from also stand on its own, even if it doesn't, if one were to fail the primary purpose test? Yes, Judge Fisher, even if there was a punitive intent on the stripper proposition 100, it would still fail because it is excessive as a categorical prohibition. I do want to measure. Can you please? What can I go back to? It leaves me with no answer really of how we evaluate this, because for the same reason we're cautioned against legislative history on other statutory interpretation, we have a little of this and a little of that. And a little of this definitely goes your way and a little of that definitely goes the other way. So given you just have individual legislators, you don't have even a conference report, something akin to that, I'm not sure if it comes out in equifoys how we what kind of decision we can make as matter of law. And Judge McHughan, I don't think that the record isn't equifoys and here's how it answers your question about the standard for applying punitive intent. Why don't you with this question? It isn't equifoys. Okay, I'll see that. I think that's the question. I'll see that for the moment. I think if the facts were an equifoys, I think that look to see whether the asserted legitimate governmental purposes were supported by any empirical evidence. What we have in clear statements of punitive intent alongside lives that require that of most legislation, if we had required empirical evidence for most legislation, most of what Congress does wouldn't stand up. But because it's you have required it when fundamental liberty interests are at stake, the Nunez case that I submitted to the Court clearly says, although the Constitution does not require the government to produce scientifically certain criteria of legislation, the government must still demonstrate that his classification is precisely two. And that is what Congress has. The Congress sounds like asking for evidence. I mean, a legislature of some not facts finding bodies, they don't take evidence. I mean, they may have witnesses, but they call them witnesses, but they really are

. They are very solvent they have what we call hard evidence, or certainly nothing that would stand up in court. And it might be some stuff, but a lot of stuff comes in that would never get into an evidentiary case. So how do we look at this? I mean, it requires, we know in first amendment cases, the Supreme Court has told us we look for evidence. But that's the only area that I can remember where there's an actual statement of the Supreme Court of Evidence. Well, just going to be, there are other areas, I was in the first amendment. That's right, and faculty like, Rodigright, that's right. And in the fourth amendment context, just because it's key, in salt, we're going to hang it in the U.S. versus Scott for 50, and the third and about 870, where the issue was whether pretrial releasees can be required as a blanket matter to weigh the right against a search without probable cost. And the particular search in that case was a drug test without probable cost. And Judge Kaczynski wrote, and I think you were right, that it might have appealed a common sense to say that a pretrial releasee who uses drugs might be cut so in pair that he wouldn't show up for court. But you said it. These are conceivable justifications, but the government has produced nothing to suggest these problems are common enough to justify and shooting on the privacy rights of every single dependent out on pretrial release. Proposition 100 did just that. But that was not referring to what was produced in the legislature, which is what we're talking about. But there was a question, was it come up with something now? And I hope we're talking what the question is, does the legislature, we look at the legislative rectifier, if I can find evidence, just seems like being like a... It does happen in a few other areas, so voting, freshmen, but it's very limited. It's a very sort of dangerous thing to be expanding, is to be asking the legislatures to come up with evidence. I think the more, didn't it, when it was reviewing the evidence in the Nobel context, did in fact weigh heavily the findings of Congress that were generated by hearings and the narrow targeting that resulted? That's right, Your Honor, and DeMoran and Eiffelranon itself. The Supreme Court emphasized that Congress made a finding and then a tailorate its remedy for the government. Not only was there, I mean, a lot of the problems with evidence before legislatures or legislatures not really evidently by it, but there's no evidence before us. That is the right judge for his line, and that was the point I was going to make in response to Judge Kaczynski. To this day, the defendants have not put forward any evidence to support the notion. And I think it's important to remember that the baseline is that the record evidence was to the contrary. Again, the practices were strong. What do we do with the testimony by the Maricopa County Attorney before the House Legislative Committee, the judiciary committee in Arizona? And I quote, well, Arizona has a tremendous problem with the legal immigrants coming into the state, committing serious crimes, and then absconding, and not facing trial for their crimes, either because they jump bail after they are let out, or because when they are let out, they unveil the federal government to ports them. Is it your position that that's simply not a true statement that's never happened? Or is it that it doesn't happen enough in your estimate? It's my position that the Maricopa County Attorney's testimony was not supported by even anecdotal evidence after he'd so testified. The only piece of data that he offered was the case where an undocumented immigrant was released on bail, and the federal government deported the person. So that part of the statement is true? That part of the statement is true, but in that or the governmental interest, the legislature did not take the first step to address that problem, which would have been talking to the federal government. If they had, they would have found out there's a federal regulation that is already in place to do a precisely that problem, and federal courts and state courts around this country have cited that regulation to point out that the problem of a deportation of a state pretrial release is adequately addressed by simply communicating with the federal government

. Was that the case where the alien came back and was involved in the murder of a Phoenix police officer? That's right. It was the outpacing. So there is at least one case that supports the statement that the Maricopa County Attorney made before the legislature. It only supported a statement that there have been cases where a person is out on bail and then is deported by the federal government. It does not support his statement that there were undocumented immigrants who were released on bail and fled. Well, clearly, if he had been retained in custody, he would never have been in a position to murder the police officer. But again, then the question is, is Proposition 100 narrowly tailored to address the problem posed by the tragic, but she's in a public hospital? But isn't this in some respects a compared problem? I mean, you can also come up with anecdotal evidence like resume of people who are no legal aliens and who flee the jurisdiction. And so the question is really whether this is an additional or different problem, otherwise we're going to keep everybody in great fraught attention. Because some people are going to flee. That's right. Any category of legislation? If you're not right, the chance of the legislature to find some classes of suspects are more likely to be another. No, you're on or not without some empirical findings and without tailoring a remedy that addresses that problem. I would like to reserve the remainder of my time for a level of finding. Thank you. Okay, from the counter. Good afternoon, Your Honor. Your Honor. My name is Tim Casey. I represent the defendant's appellate. In this case, commanding police. Appelays, excuse me. May it please the court. And opposing council. Your Honor, Arizona has a legitimate and compelling interest to make sure that those people that are charged with committing serious crimes, families in Arizona, show up for their trial and they're convicted, serve their sentences. Well, that is a very large addition in this country as well as a constitutional provision that directly addresses the fact. That ordinarily people don't stain a jail, free trial, even though every, I mean many, many, many people have a, they put a snuff to show up instead. We have, that's what bail is about. It's a way of trying to assure that they actually show up. You're actually right, Jeff, you might say you're an incorrect. There's a person. Jeff, you're actually right. You also mentioned something here about competing in balance

. This is about the legislature in Arizona, which is a citizen legislature, has made a determination that there are certain groups of individuals that it has to turn to rightly or wrong, which is that perceived grip that are not a procliffe. They'll ask the 50 other states of 49 other states. Council, I, let me just stop you there because I would be inclined to agree with you if I thought rational basis review applied here. Then I think you're right that you could just say this is an, it's not an irrational determination for legislature or the people, I guess the Arizona made. But don't, don't you read Slernel and Foucia as requiring some kind of heightened scrutiny here? You get, absolutely. And Slernel does. So, don't, if you, if you can see that, I don't see how you could possibly prevail on this record because there is no evidence. I mean, there's, the discussion has already eliminated. There's no evidence whatsoever of the, kind of a tight fit between the means in the end. There has never been a requirement either by this court or by this three court that any legislature, even our federal legislation, has to come up with a bureaucrat. Of course, there has been many instances we just went over that before. There, there, there are instances, but there is absolutely no requirement. The court in its decision to end the three judge panel, the majority of the decision points out. There is not a requirement in Arizona. They're not a requirement as to bail or not a requirement. A empirical evidence in making a determination and I was trying to think, I was trying to answer Judge Walker's question about this. That Slernel does require a high standard. In this case, the standard ought to be affirmed because what it is is it's really reasonably tailored to what the legislature in the term was perceived, the problem in the state of Arizona of people that have been. But where is the reasonably tailored approach? The law was intentionally drafted very broadly. Yes, yes. Two things, you know. So, so what effort was made to carefully limit this law? I think two things. First and foremost is I believe, I don't practice criminal law so that's when you're supposed to be there, but I believe there are six or seven classes of felonies. The first four classes were determined by the legislature to be only the ones that if you're also in the country unlawfully, that you would be subject to non bail. So that was part of the reasonably narrow prescription, if you will. The other element also is there is nothing particularly unusual on this record in this case about legislative bodies, making determinations that either because of dangerousness or white risk that certain people charged with the crime not yet convicted, should not be vulnerable. We can finally heard here today some of the conversation about the convert cases. You also have situations in which you have certain hands sexual grounds, sexual assault. Council, that's A1, that's 22A1. And that deals with a class of crimes. Yes. A4 that is an issue here, that is, is a class of persons

. And that's very different. Two and three else of deal with persons, but they're persons under very specific situations that will require an individual determination. So, I know we've been using the language of narrowly tailored. This sounds like an equal protection problem, and I don't think there's an equal protection claim in this case. But there is a difference between the capital cases, which are again a category of crimes, and A1 are 22A4, which is a class of persons. But what justifies isolating a class of persons as a category? Judge Miving, there is, it is true that there is a classification of persons here. And that is people that are in the country, on documents, on law. Can Arizona not conduct individualized hearings for them? Can they, what? Is it impossible for Arizona to conduct individualized hearings with these people? No, of course not. And you've got to put up a Simpson-Sagura hearings. Yeah, absolutely. And before this enactment, a proposition 100, they're obviously worthy of individualized determinations. And immigration status was a part during? My understanding is a bonus in presence in the community. I think Judge Fisher pointed out, and I think you cited the Hernandez decision, which is the Arizona Court of Appeals, found this to be constitutional. As Judge Susan Bolton of the District Court found this constitutional as to Judge Member of this panel, lower court. Three courts have found this constitutional. And what they did is why we usually look at the Salarano, the Mabiosa Kinghead. Why you normally are looking at crimes, we've also had looked at, in this particular instance, they classed a person in terms of risk. That's a very important point. I mean, there was once email that indicated that this is being applied against people from Cuba who can't go back. Can not go to prison. There's no way they can go. But it's being applied anyway. Is that right? I'm sorry, I heard the Cuban part. It's being applied for people from Cuba who cannot go back to Cuba. Yes. So, it's obviously not calibrated to people who have any, I mean, aside from the fact that there's no numbers or anything else. It also excludes tourists, like... Who are just as likely to go back as illegal? And we're going to select any of these. Yes, Justice Insi. If you're a tourist, presumably you're here on a tourist visa and you commit a crime, you're excluding

... Or anybody who's a citizen of another country? Who is in our own country? Herely boy, by the citizen. A dual citizen, a citizen of another country. Any citizen of another country could go back. Can go back if they're in our country. Is there a way to leave here? Is there a way to leave here? Yes. Yes sir. No, I don't know. No, yes. If you happen to be from Romania, from here, you have Chappell Savaki, you've come over here, you've committed a crime that you're on a tourist visa. You're not taking a taxi. I think it's a crime. 1962, when you're a Romanian citizen, you can go back, you know? Your honor. Yes. But I think I'd like to focus on the classification because I think that's really the heart of what Judge Biden is. If we have unique situation here, is it a life-saving decision that whether we agree with him or not, whether it's a capital offense, whether it's a capital offense, whether it's a capital offense, whether it was Mr. Pastoral or Mentor who was kidnapped by the crime, whether it's him or whether you have something that even his traditionally not custodial is going to result in a custodial incarceration, if you will, the determination has been made that for justice to be done under the criminal justice system. Well, we have to have to make sure that the people are there. If they're here, then we can make sure that the person is in a position of justification for just attaining everybody without being. But there is no constitutional right, even under the federal system, or Arizona law, for being. So, in other words, yes, your answer is yes. If the legislature decided that we have too many people who aren't showing up, everybody should be pre-trial to them. Theoretically, under your hypothetical, a legislature could do that. I'm not arguing that they should do that. I don't think they should do that. But under that hypothetical, it is conceivable. What this court has to do, the legislature makes the policy decision of this court makes the constitutional decision under Solera. And understandably, will we have this unique classification of persons that have been being by the legislature as a flightist? Can I ask you to address the irrebutable presumption cases that are cited in Judge Fisher's dissent? Yeah, I think to me, I'll just put my cards on the table. Yes, to me, that's your real problem, is that that's what this proposition 100, that's what it sets up. In Judge Wattford with YC, here's two things. I will sincerely try to answer that question, because YC has two things

. Firstly, you've got that bail is not on the mental constitution or right. Under the federal court of the Supreme Court decision, Carlson Fernandez, the side of the page 13 of our review, then you can have the historical information we have in here about all the offenses with there as a denial of the bail without a category of determination. Because that's the issue you have here, some of the general judges here, is there's not an individualized determination of the OPP. But it's done all the time. Not only on a capitol offenses, but repeat felonies, crimes of violence, certain sexual crimes, you're all kidding me. Yes, but all of those required. You're reading down the list in 22A. And 22A2 and 3, I'm sorry, are you talking about... You said 22A. 22A. 0.2 and 0.3 are types of crimes, but where we have, if you get a person, but you're going to have to have an individualized hearing to determine whether the person is already admitted to bail on a separate felony charge. That's two. Under Arizona law. Under Arizona law. I mean, not reading three felony offenses if the person charged poses a substantial danger to any other person or the community. That's where the demand and individualized hearing. Judge Lyby, what I was referring to is not under Arizona law, but collectively the 50 states that all do not allow individualized hearing to be... Every example you gave was a definition of a crime that did not go to the flight risk question. Yes, it went to... So what will the issue have historically or now in which a categorical determination of flight risk was made? I have an obligation to this court. I have no empirical data because... I'm not talking about a spherical data now

. I'm asking you what examples of statutes do you have that have made a categorical flight risk determination? Alabama, Arizona, in the same way... I'm the same thing, but not on the other basis. I have been all admittedly, perhaps, this is the same. I haven't studied in all the basis, but I do know that these three states, my understanding is that categorical denial of fail for people charged with certain serious crimes into our own country on law. But not for any other reason. I couldn't tell you that if I'm sorry. I don't know. What other question? Yes. In fact, the determination that's made here is not that they are illegal in the country. It's that there's probable cause that they're illegal in the country. Yes. So even the fact that it's driving this isn't being proven as such. Not until Simpson's a guru here, in which they have a right to sell that. Even as a guru here, all that's being proven as such is probable cause, is that right? That is right. Yes, proof evidence, presumption, great, the crime is made. No, but as to their illegal statutes, it's not that they are in fact illegal. That is correct. And moreover, they, whatever, if the documentary evidence is being relied on, they can't see. They perhaps have the ability to present their independent evidence. But they can't see what the government's for my own. Yeah, and I think, you know, when you look at the underlying opinion, it's not because of any policy of my clients, it's because they've added that my clients rely on it's provided by the Federal Government and for whatever reason the Federal Government says that's proprietary. It can be monitored. But there are many mistakes that can be made along this way. So in many instances, the person has to know there might be probable cause that their illegal is not in fact illegal. That's true. What is your position on the standard on these legislative statements that have now been tallyed up by both sides? I think these arms are correct. It's what's the primary proof, but we know it's to know, but what's the primary proof? Yeah, I think it is a primary proof, it's under the Solarno decision. I respect this. I submit to you that the decisions, and I heard with you, you mentioned earlier, Joseph, and Q and about. There's some evidence here and evidence on this side. It supports both. But I think if you look at the totality of the evidence, and you look at some of the comments made about people that are unlocked in the country, this is in the 2005, 2006 time period. And in the context, or at least as I think those are on, are those scenes to be really about context where there's a side comment about frustration over our perceived failure by the federal government to protect the Southern Arizona Board. That's good. But it talks about the problem in which people who are charged with serious crimes being able to flee. And that is the flight risk concern. Right, but we have all those. So what are we doing? Line them all up. All the ones on which look to be a punitive excluding aliens. Some of which say basically being an alien ought to be the reason that you're kicked out. And we line those up then with the very snippets on flight risk and put them in the old judicial blender and decide on its primary narrative. What's the substantive basis? Well, I think you have to focus on Swayrenal. And Swayrenal doesn't provide that level of specificity, Judge McKaylin, about, you know, whether you're tall enough on one side of the paper or the other. I don't believe it does. Is there a punitive intent? I respectfully submit to you. There is not. I respectfully submit to you. And how do you benchmark a punitive intent when you have kind of a haphazard group of people on each side making statements? Well, let me, this way, and I'm on the front of the panel opinion below. I think Judge Bolton, you may not think that the court below, indicated that there might be some things that reasonable minds can conclude were inappropriate, perhaps motivating, but you never made a finding that there was a motivating of a punitive fact. But I think that it's a no-go review. It's a no-go review. And absolutely, this court thing to do whatever it believes is the law and correct. But I think what you have to do is, you know, the legislature is made up of numerous people. And I know that I don't know why I didn't cite it, but there's body of law that talks about relying on the statements of a few people, although Russell Pierce who was the sponsor of the bill on a problem member there is on a legislature at the time. And if the interest is relying on any one person and then projecting into why every legislator voted for it. But we also have another issue here. This thing was a representative sponsored referendum that actually went to the voters of the people of Arizona. In the past 78% to 22% and I think Judge Bolton, who lives in the district, analyzes the law, is conscientious judge. I said, quick, well, is that, and I forget one of the judges over here asked about what's the influence that might have been Judge Smith. What's the effect of the fact that voters looked at this? Well, it has a softening effect, if you will. Because you might have three or four legislatures, legislatures, and are commenting about the frustration with problems with the boarder. And then saying, we want to make sure that anyone here on Lawyers' Charter to Crime is non-vonible

. It supports both. But I think if you look at the totality of the evidence, and you look at some of the comments made about people that are unlocked in the country, this is in the 2005, 2006 time period. And in the context, or at least as I think those are on, are those scenes to be really about context where there's a side comment about frustration over our perceived failure by the federal government to protect the Southern Arizona Board. That's good. But it talks about the problem in which people who are charged with serious crimes being able to flee. And that is the flight risk concern. Right, but we have all those. So what are we doing? Line them all up. All the ones on which look to be a punitive excluding aliens. Some of which say basically being an alien ought to be the reason that you're kicked out. And we line those up then with the very snippets on flight risk and put them in the old judicial blender and decide on its primary narrative. What's the substantive basis? Well, I think you have to focus on Swayrenal. And Swayrenal doesn't provide that level of specificity, Judge McKaylin, about, you know, whether you're tall enough on one side of the paper or the other. I don't believe it does. Is there a punitive intent? I respectfully submit to you. There is not. I respectfully submit to you. And how do you benchmark a punitive intent when you have kind of a haphazard group of people on each side making statements? Well, let me, this way, and I'm on the front of the panel opinion below. I think Judge Bolton, you may not think that the court below, indicated that there might be some things that reasonable minds can conclude were inappropriate, perhaps motivating, but you never made a finding that there was a motivating of a punitive fact. But I think that it's a no-go review. It's a no-go review. And absolutely, this court thing to do whatever it believes is the law and correct. But I think what you have to do is, you know, the legislature is made up of numerous people. And I know that I don't know why I didn't cite it, but there's body of law that talks about relying on the statements of a few people, although Russell Pierce who was the sponsor of the bill on a problem member there is on a legislature at the time. And if the interest is relying on any one person and then projecting into why every legislator voted for it. But we also have another issue here. This thing was a representative sponsored referendum that actually went to the voters of the people of Arizona. In the past 78% to 22% and I think Judge Bolton, who lives in the district, analyzes the law, is conscientious judge. I said, quick, well, is that, and I forget one of the judges over here asked about what's the influence that might have been Judge Smith. What's the effect of the fact that voters looked at this? Well, it has a softening effect, if you will. Because you might have three or four legislatures, legislatures, and are commenting about the frustration with problems with the boarder. And then saying, we want to make sure that anyone here on Lawyers' Charter to Crime is non-vonible. But you don't send an out to the voters in 70% of those people approved. Well, what about your posing counsel's formulation, which as I understand it is, these two pieces work together. We don't need to answer the entire question of whether it's punitive under either problem. We put the two together to make this a decision. I disagree with Cecilia. She is a very capable lawyer at her arguments, but I disagree. I think the first column of Solarino, excuse me, for the mental credit there. The first column is you've got to establish whether or not there's that intent. Then the second thing is whether it's rationing the latest religion and compelling interests of the state. I don't think you roll the two together. Certainly didn't say that. I mean, it might have said either or, but it certainly didn't say both. I'm sorry. It might have said either or, but it didn't say both independently. No, I think if you find a punitive intent as I agree Solarino, if you provide, if you find that as a primary, that is the reason. Or if you find existence. Or you find existence in the past. I can't just talk about it. I see it all. Okay. Now, but I think what you ultimately need to do, respectively, is I'm looking at page 12 with the panel's decision. And this goes Judge Presonancy, excuse me, Judge McHillin's question. Page 12, quote, we're viewing the record neither of the legislative history nor the voter materials. In media coverage, would support the argument that Proposition 100 was motivated by a punitive rather than a regulatory purpose. Proposition 100 survives the first prong of the Solarino's subsequent due process test. I believe the panel majority got it right on that. That's what you do instead of lining up as Judge McHillin suggests, perhaps on the one side of the paper, pros, gathers like con. What you're doing is you're evaluating the record, the legislative history, the voter materials, and the media coverage. And we have three different courts, look at all of them and say, Constitution. Now, what we have here is we have a very emotional charge, additionally. And, admittedly, we're dealing with the classification of people. In the meantime, what did I thought? Maybe the some people, demagogues, or what, are criticizing the certain group of people that are out here unorthodoxy because it's politically expedient, popular, unpopular

. But you don't send an out to the voters in 70% of those people approved. Well, what about your posing counsel's formulation, which as I understand it is, these two pieces work together. We don't need to answer the entire question of whether it's punitive under either problem. We put the two together to make this a decision. I disagree with Cecilia. She is a very capable lawyer at her arguments, but I disagree. I think the first column of Solarino, excuse me, for the mental credit there. The first column is you've got to establish whether or not there's that intent. Then the second thing is whether it's rationing the latest religion and compelling interests of the state. I don't think you roll the two together. Certainly didn't say that. I mean, it might have said either or, but it certainly didn't say both. I'm sorry. It might have said either or, but it didn't say both independently. No, I think if you find a punitive intent as I agree Solarino, if you provide, if you find that as a primary, that is the reason. Or if you find existence. Or you find existence in the past. I can't just talk about it. I see it all. Okay. Now, but I think what you ultimately need to do, respectively, is I'm looking at page 12 with the panel's decision. And this goes Judge Presonancy, excuse me, Judge McHillin's question. Page 12, quote, we're viewing the record neither of the legislative history nor the voter materials. In media coverage, would support the argument that Proposition 100 was motivated by a punitive rather than a regulatory purpose. Proposition 100 survives the first prong of the Solarino's subsequent due process test. I believe the panel majority got it right on that. That's what you do instead of lining up as Judge McHillin suggests, perhaps on the one side of the paper, pros, gathers like con. What you're doing is you're evaluating the record, the legislative history, the voter materials, and the media coverage. And we have three different courts, look at all of them and say, Constitution. Now, what we have here is we have a very emotional charge, additionally. And, admittedly, we're dealing with the classification of people. In the meantime, what did I thought? Maybe the some people, demagogues, or what, are criticizing the certain group of people that are out here unorthodoxy because it's politically expedient, popular, unpopular. But the fact the matter is, is that if you're addicted with crime, the Arizona legislature has made a decision that if you're charged with a serious crime, we're going to hold you non-onger. And it is no different than holding anyone regardless of race, create that important who's charged with a serious crime. Holding them non-model, it just has to be there's a two-component here. The government of your information is working on a lot of status and serious crime. But for a serious crime, you're not going to help. Except the serious crime and the confidence there's a whole range of activity, some of which, like Mr. Hernandez involved, possessing a false social security card. Well, yes, absolutely. And I think one of the arguments that we can make and my opposing counsel, Aegli Mank, is, well, what is that? This is going too far on the passport. So it's the government if the Arizona Society or anybody who is a citizen of another country, including citizens, people who are illegally citizens here, cannot get by because they have the means to go to another country, that would be okay. I know I don't agree with that. And I also suggest to you that when you look at some more of the questions, because the legislature, whether or not, we agree with whether they have empirical evidence or they don't have empirical evidence, there is plenty of record that was cited by the panel decision, including even Mr. Pierce has been offered a criticized, talking about flight risk under the hypothetical that I just wanted to say. I'm talking about flight risk. I'm talking about flight risk. So I'm talking about flight risk. And the question is, how do you get up and says, obviously, people who are citizens of another country are higher flight risks because they can just walk into the other country, obviously. So therefore, we don't need any data. We're just going to say this. Yes. The legislature has the ability. That does. I think the issue that was raised, I think, by Judge Watford, and then as he would standard review, as he pointed out, at this for rational basis, we probably wouldn't be having this conversation. Yes. But if it is rational basis, then what is it? So why not wasn't it clear on that? No, it wasn't. So what are we to do? What standard are we, is it some type of heightened scrutiny, and if so, how would you define it? It is a heightened scrutiny, and quite frankly, the panel decision determined that we had, so the state of Arizona had a lot of children, and having interest in making sure those people charge the crimes that were here on lawfully were there for trial and serve their time. So it is a heightened scrutiny. But is it an intermediate scrutiny, or are there more balancing, or do we have a strict scrutiny here, in some kind, where you've got to have picked out the only way, basically, that is by the state's legitimate interest? Judge Smith is an intermediate, I respect his Smith's record, I believe, is an intermediate level. And the reason why is because when you go to the Supreme Court decisions in Carlson and Fernandez, where Bell, Bale, excuse me, Bale is not a fundamental right. And then when you compare it with the 50 states that have made categorical denials available about individualized determinations, there is no fundamental right. And that is one of the things that is clear. No fundamental right to bear

. But the fact the matter is, is that if you're addicted with crime, the Arizona legislature has made a decision that if you're charged with a serious crime, we're going to hold you non-onger. And it is no different than holding anyone regardless of race, create that important who's charged with a serious crime. Holding them non-model, it just has to be there's a two-component here. The government of your information is working on a lot of status and serious crime. But for a serious crime, you're not going to help. Except the serious crime and the confidence there's a whole range of activity, some of which, like Mr. Hernandez involved, possessing a false social security card. Well, yes, absolutely. And I think one of the arguments that we can make and my opposing counsel, Aegli Mank, is, well, what is that? This is going too far on the passport. So it's the government if the Arizona Society or anybody who is a citizen of another country, including citizens, people who are illegally citizens here, cannot get by because they have the means to go to another country, that would be okay. I know I don't agree with that. And I also suggest to you that when you look at some more of the questions, because the legislature, whether or not, we agree with whether they have empirical evidence or they don't have empirical evidence, there is plenty of record that was cited by the panel decision, including even Mr. Pierce has been offered a criticized, talking about flight risk under the hypothetical that I just wanted to say. I'm talking about flight risk. I'm talking about flight risk. So I'm talking about flight risk. And the question is, how do you get up and says, obviously, people who are citizens of another country are higher flight risks because they can just walk into the other country, obviously. So therefore, we don't need any data. We're just going to say this. Yes. The legislature has the ability. That does. I think the issue that was raised, I think, by Judge Watford, and then as he would standard review, as he pointed out, at this for rational basis, we probably wouldn't be having this conversation. Yes. But if it is rational basis, then what is it? So why not wasn't it clear on that? No, it wasn't. So what are we to do? What standard are we, is it some type of heightened scrutiny, and if so, how would you define it? It is a heightened scrutiny, and quite frankly, the panel decision determined that we had, so the state of Arizona had a lot of children, and having interest in making sure those people charge the crimes that were here on lawfully were there for trial and serve their time. So it is a heightened scrutiny. But is it an intermediate scrutiny, or are there more balancing, or do we have a strict scrutiny here, in some kind, where you've got to have picked out the only way, basically, that is by the state's legitimate interest? Judge Smith is an intermediate, I respect his Smith's record, I believe, is an intermediate level. And the reason why is because when you go to the Supreme Court decisions in Carlson and Fernandez, where Bell, Bale, excuse me, Bale is not a fundamental right. And then when you compare it with the 50 states that have made categorical denials available about individualized determinations, there is no fundamental right. And that is one of the things that is clear. No fundamental right to bear. So the state in your view could say, no Bale. No Bale. If you are suspect of a crime, and you meet whatever our hearts, if they say to a fact that they are arrested, you sit there until you plead out or get acquitted. Yes, I'm not. You must serve your sentence. Yes, I'm under the law, that's right, because it doesn't, it's only when you allow or... This is a long-standing common law tradition. Yeah. And thinking this country, you look at that. I have a hard time accepting your answer that there is a good literature that could do away with it, a constitution. Pro-for-all crimes. For all people. Yeah. I'm answering it hypothetically because... What about the... So the excessive Bale clause is just a joke. I mean, it's basically said you can't have too high Bale, but you can have no Bale for anything. No. I certainly don't consider that a joke at all. Why? What I mean... You think it isn't... If you accept Bale, it's got to be reasonable

. So the state in your view could say, no Bale. No Bale. If you are suspect of a crime, and you meet whatever our hearts, if they say to a fact that they are arrested, you sit there until you plead out or get acquitted. Yes, I'm not. You must serve your sentence. Yes, I'm under the law, that's right, because it doesn't, it's only when you allow or... This is a long-standing common law tradition. Yeah. And thinking this country, you look at that. I have a hard time accepting your answer that there is a good literature that could do away with it, a constitution. Pro-for-all crimes. For all people. Yeah. I'm answering it hypothetically because... What about the... So the excessive Bale clause is just a joke. I mean, it's basically said you can't have too high Bale, but you can have no Bale for anything. No. I certainly don't consider that a joke at all. Why? What I mean... You think it isn't... If you accept Bale, it's got to be reasonable. Yes. But... No Bale is okay. Yeah. And that's... You don't get to Bale on the law, that's okay. Yeah. I mean, what I'd like to add with the Carlson and Fernandez to answer that is that proposition, but as soon as you... And there is the common law tradition, we make Bale available. And if you make it available, it has to be reasonable. It cannot be accepted. The A-Circuit has held, regardless of the country, right? I'm sorry. The A-Circuit has held, regardless of the country. It has. Let me ask you about the... There are a few classes here you really got a... I got a... Facial challenge and an as-a-flight challenge. Yes sir. Do you believe from Arizona's perspective that one is a better claim against you than the other? And they're so wide

. Yes. But... No Bale is okay. Yeah. And that's... You don't get to Bale on the law, that's okay. Yeah. I mean, what I'd like to add with the Carlson and Fernandez to answer that is that proposition, but as soon as you... And there is the common law tradition, we make Bale available. And if you make it available, it has to be reasonable. It cannot be accepted. The A-Circuit has held, regardless of the country, right? I'm sorry. The A-Circuit has held, regardless of the country. It has. Let me ask you about the... There are a few classes here you really got a... I got a... Facial challenge and an as-a-flight challenge. Yes sir. Do you believe from Arizona's perspective that one is a better claim against you than the other? And they're so wide. No. I don't want to eat anything. I don't want to eat anything. They're all syrup. No. The facial challenge, most obviously the most difficult because under the law, I could find my nose real quick. Well, while you're looking at that, perhaps you might return to Judge O'opper's question about your reputable presumptions, because I'm not sure you're quite answering that one. The... So it is an understanding of the law works. It doesn't make any difference whether or not the state conceives that there's no hyperscute or the Simpson-Circuit or the ring. And the states... The county says, we agree there's no flight risk. We stipulate to bail. The judge has no discretion. True. How does that fit in with the case law? I had cited by Judge Fisher and reference budget to watch for it about the presumption against probably the disfavorment of irrepatible presumptions. Yeah, it is clearly disfavor. And that's the decision that this court, obviously the Bonk, has to make a decision. There's no question about that. But what we have here, when I'm trying to urge obviously the court, is we have compelling interests in making sure people that attend their trial. And if in fact, are convicted, serve their time. So what was the men's self by irrepatible presumption, present in irrepatible presumptions? You know, Your Honor, to be honest with you, without... Without the impediment on hardening this without a formal state record being mentioned as staff, report is difficult to be able to... for me to be able to answer that question

. No. I don't want to eat anything. I don't want to eat anything. They're all syrup. No. The facial challenge, most obviously the most difficult because under the law, I could find my nose real quick. Well, while you're looking at that, perhaps you might return to Judge O'opper's question about your reputable presumptions, because I'm not sure you're quite answering that one. The... So it is an understanding of the law works. It doesn't make any difference whether or not the state conceives that there's no hyperscute or the Simpson-Circuit or the ring. And the states... The county says, we agree there's no flight risk. We stipulate to bail. The judge has no discretion. True. How does that fit in with the case law? I had cited by Judge Fisher and reference budget to watch for it about the presumption against probably the disfavorment of irrepatible presumptions. Yeah, it is clearly disfavor. And that's the decision that this court, obviously the Bonk, has to make a decision. There's no question about that. But what we have here, when I'm trying to urge obviously the court, is we have compelling interests in making sure people that attend their trial. And if in fact, are convicted, serve their time. So what was the men's self by irrepatible presumption, present in irrepatible presumptions? You know, Your Honor, to be honest with you, without... Without the impediment on hardening this without a formal state record being mentioned as staff, report is difficult to be able to... for me to be able to answer that question. I don't have any answer for you. But isn't there any irrepatible presumption in a category of cases such as murder cases, where a person is held without bail? And it doesn't matter in those cases whether or not the person could show that they would otherwise be a good candidate for release on condition? No, I mean, yes. I mean, Judge Almanette's exactly the case that we have. You've not only in Arizona, but in the 50 states, a whole host of categories, where you have these irrepatible presumptions. You can have people charge the first time. That's the first group of the seriousness of the crimes. I think you're point on that, but I just don't know of any other circumstance where we're talking about flyers, along where we have this situation. No. I think I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because the next question shows that record headquarters is obviously going to play trick News will play trick between articles I'm aware of this for my non-existent decision itself, of that that you get her into. The only record evidence we have for the Court is flying risk. But we know from our immigration cases where this exact kind of problem is going to show with regard to cancellation of removal and other forms of relief that these quote equities, which mean how attached is the person to this country, are widely married. Yes. Yes. I acknowledge that as counsel, I think, that you can. But the same thing, the reason why it's a person meets with a particular crime. And they're determined to dangerous, despite their roots, they're here. So it is a tough decision because you obviously have people that meet that criteria. But the record evidence that you have are people committing serious crimes. Sometimes, heinous crimes are pretty murderous. So even the illegality category, they may be here on the go, but that they have a 90% chance of getting relief if they're putting some removal proceedings. Yes. Yes. And I think also the way that, again, non-practice and incriminate law is that if they're convicted, then they're sent into time to serve. So there's not additional time on top of their pre-travel incarceration, especially if you're looking at a clot support felony, but again, that's not my area of expertise. Can you think of the quitter, or case you dismiss, and leave so much time to deserve to serve? Then they're afloat. Yes, sir. Those are all the comments I have. Thank you very much. But you put the overtime. The overtime. Thank you very much. Thank you very much

. I don't have any answer for you. But isn't there any irrepatible presumption in a category of cases such as murder cases, where a person is held without bail? And it doesn't matter in those cases whether or not the person could show that they would otherwise be a good candidate for release on condition? No, I mean, yes. I mean, Judge Almanette's exactly the case that we have. You've not only in Arizona, but in the 50 states, a whole host of categories, where you have these irrepatible presumptions. You can have people charge the first time. That's the first group of the seriousness of the crimes. I think you're point on that, but I just don't know of any other circumstance where we're talking about flyers, along where we have this situation. No. I think I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because I was just a little bit confused because the next question shows that record headquarters is obviously going to play trick News will play trick between articles I'm aware of this for my non-existent decision itself, of that that you get her into. The only record evidence we have for the Court is flying risk. But we know from our immigration cases where this exact kind of problem is going to show with regard to cancellation of removal and other forms of relief that these quote equities, which mean how attached is the person to this country, are widely married. Yes. Yes. I acknowledge that as counsel, I think, that you can. But the same thing, the reason why it's a person meets with a particular crime. And they're determined to dangerous, despite their roots, they're here. So it is a tough decision because you obviously have people that meet that criteria. But the record evidence that you have are people committing serious crimes. Sometimes, heinous crimes are pretty murderous. So even the illegality category, they may be here on the go, but that they have a 90% chance of getting relief if they're putting some removal proceedings. Yes. Yes. And I think also the way that, again, non-practice and incriminate law is that if they're convicted, then they're sent into time to serve. So there's not additional time on top of their pre-travel incarceration, especially if you're looking at a clot support felony, but again, that's not my area of expertise. Can you think of the quitter, or case you dismiss, and leave so much time to deserve to serve? Then they're afloat. Yes, sir. Those are all the comments I have. Thank you very much. But you put the overtime. The overtime. Thank you very much. Thank you very much. Thank you very much. So long. Why don't you bring an equal protection claim? Don't you do anything here with a class of persons rather than a category of crimes? Because I think that proposition 100 fails on the salarion and your process test. But you brought lots of other claims as well, I mean preemption and lots of other, a host of other things, but you didn't bring an equal protection claim here, did you? That's true, but I didn't want to address your question of standard, which also came from Judge Watford and Judge Smith. Narrow Taylor and replies on the due process claim, because Fusha versus Louisiana, Andrew and versus Flores, both can treat salarion as a reason for the crime. Doesn't matter what you can. Doesn't matter what you can. Doesn't matter what you can. Doesn't matter what you can. In due process claim, we don't usually have a three-tier, we usually just do a two-tier, isn't that correct? Usually if it's fundamental, then we get strict scrutiny, and it's not fundamental, we get rational basis, and there is no intermediate scrutiny. That's right, but I think strict scrutiny applies. And where do you get that out of the salarion? Salarino says that there has to be a compelling governmental interest, which we can see it as in place here, and it says that the means chosen by the government to address the governmental interest cannot be excessive. That logically is the same as saying, it must be narrowly tailored. As I said, in Reno and Fusha, the Supreme Court subsequently construed salarion as requiring narrow tailor. I do want to address some confusion, I think, coming from the defense position. There are cases that have language in them saying bail is not a fundamental right. All that means is that if a court determines that you're a flight risk, and that your flight risk cannot be addressed by conditions of release or by bail, then you can be detained. There can be no doubt that whether or not you should be at liberty when you're merely accused of fraud and confidential interest. That can't be what it means. There are lots of fundamental interests that never let's get up rich by government, first on end, and then traditional, also. So what I'm saying is there is no fundamental right. It means something more than you don't get it vindicated in this case. That's right, Judge Finsky, but the government has to meet the salarion test in order to prevent the labor. Is it just putting it as to whether there's bail as a fundamental right slightly off the question? Is there a fundamental right to be detained before you've been convicted of a crime? Without a very good reason. Without it, right, and in this case, without an individualized right, but you present such a great flight risk that no condition is required. The bail is just a way station as a condition of implementing. And that is the bail that you say exists to resolve this district's crime? That's right. To be clear, Reno and Fusha, both Construci Soleno, is requiring an hour's camera. Now on the governmental interest side of whatever the standard is, we can see it is a compelling governmental interest to make sure people show up for their trials. But we also have had an intermediate, for example, the other way. Some second amendment cases have come out from our part dealing with important governmental interest, and there's a balancing test that goes on here, or is the strict scrutiny of far, far more narrow situation. So I'm a little puzzled how you get from an intermediate scrutiny to strict scrutiny based upon what you just said

. Thank you very much. So long. Why don't you bring an equal protection claim? Don't you do anything here with a class of persons rather than a category of crimes? Because I think that proposition 100 fails on the salarion and your process test. But you brought lots of other claims as well, I mean preemption and lots of other, a host of other things, but you didn't bring an equal protection claim here, did you? That's true, but I didn't want to address your question of standard, which also came from Judge Watford and Judge Smith. Narrow Taylor and replies on the due process claim, because Fusha versus Louisiana, Andrew and versus Flores, both can treat salarion as a reason for the crime. Doesn't matter what you can. Doesn't matter what you can. Doesn't matter what you can. Doesn't matter what you can. In due process claim, we don't usually have a three-tier, we usually just do a two-tier, isn't that correct? Usually if it's fundamental, then we get strict scrutiny, and it's not fundamental, we get rational basis, and there is no intermediate scrutiny. That's right, but I think strict scrutiny applies. And where do you get that out of the salarion? Salarino says that there has to be a compelling governmental interest, which we can see it as in place here, and it says that the means chosen by the government to address the governmental interest cannot be excessive. That logically is the same as saying, it must be narrowly tailored. As I said, in Reno and Fusha, the Supreme Court subsequently construed salarion as requiring narrow tailor. I do want to address some confusion, I think, coming from the defense position. There are cases that have language in them saying bail is not a fundamental right. All that means is that if a court determines that you're a flight risk, and that your flight risk cannot be addressed by conditions of release or by bail, then you can be detained. There can be no doubt that whether or not you should be at liberty when you're merely accused of fraud and confidential interest. That can't be what it means. There are lots of fundamental interests that never let's get up rich by government, first on end, and then traditional, also. So what I'm saying is there is no fundamental right. It means something more than you don't get it vindicated in this case. That's right, Judge Finsky, but the government has to meet the salarion test in order to prevent the labor. Is it just putting it as to whether there's bail as a fundamental right slightly off the question? Is there a fundamental right to be detained before you've been convicted of a crime? Without a very good reason. Without it, right, and in this case, without an individualized right, but you present such a great flight risk that no condition is required. The bail is just a way station as a condition of implementing. And that is the bail that you say exists to resolve this district's crime? That's right. To be clear, Reno and Fusha, both Construci Soleno, is requiring an hour's camera. Now on the governmental interest side of whatever the standard is, we can see it is a compelling governmental interest to make sure people show up for their trials. But we also have had an intermediate, for example, the other way. Some second amendment cases have come out from our part dealing with important governmental interest, and there's a balancing test that goes on here, or is the strict scrutiny of far, far more narrow situation. So I'm a little puzzled how you get from an intermediate scrutiny to strict scrutiny based upon what you just said. Well, whether or not strict scrutiny implies we certainly need the heightened standard that applies to all the courts. But if you don't have strict scrutiny, you don't have a problem with what Judge Bobby was talking about. I'm sorry, Judge. Don't you have a problem that Bobby mentioned that you're going to have a rational basis, or you're going to have strict scrutiny, no intermediate scrutiny to meet the test. You were basically saying, maybe it's an intermediate scrutiny, but we think it's strict scrutiny. If you don't have strict scrutiny, you don't have a problem. I don't think the level of strict scrutiny versus intermediate is so important as looking to what the cases that deal physical liberty. Instruct and Solana. You're ignoring the language out of Solana. I'm quoting at page 203 of 107 Supreme Court. We cannot categorically state that pretrial attention offends some principle of just a so rooted in the traditions and conscience of our people as to be ranked as fundamental. Isn't that fatal to your argument that that strict scrutiny must supply? Because there is no fundamental right in issue. I think the language that you're quoting from Solana was again talking about the fact that in the court crimes that an individual is not bail-worthy, in that case because of dangerousness, there is no fundamental right to be free while you're accused. The principle is clear in Solana that whatever bail restrictions a legislature chooses, they must not be excessive in relation to the history of interest. That's what I just read out in the read from that statement. I think that's the due process as standard judges and that's what Solana and Strupps and Readown Fushar also do process cases and that's how they can see through the standard. I want to pick up on something else, Judge Byne B. Sen. And that is that proposition 100 along with its two copycats in Alabama and Missouri stands alone among all the bail laws in the United States in singling out for a categorical prohibition on bail, someone based on an individual characteristic, other than a past history of recidivism for that individual. All the other categorical bail prohibitions in the United States and they are very rare. Hinge on the most serious penalties or the most serious violent families. And I would add that in Alabama and Missouri there has been a recognition of the constitutional problem at least one Missouri court has set bailed, recognizing the problem and we have that in record. And Alabama recently in a small solidigation has recognized the constitutional problem and says that it will set bail because state governments cannot obtain based on immigration status. I want to address something that Judge Byne said quickly too. You are on this time. Oh, I'm sorry, I'm in favor. I have some face-minute response to Judge Byne. Thank you, Judge Byne. It's been a few years. Thank you. Again, the fundamental problem here is that there is no individualized determination of lightness, but to answer Judge Byne's question, there are serious procedural defects in this case and that is relevant under Solarion, which upheld a much less restrictive guilt provision based on the presence of those procedural, robust procedural protections. Here we have immigration status determinations made by a list of docket numbers on a post-it that are taken as 100% dispositive

. We had testimony that as Sheriff's deputy would take 15 to 20 minutes to determine status for 39 defendants. The defendant is not even allowed to see the evidence against him. There is no counsel and there is no effective appeal because by the time defendants find out about the right to appeal, it's too late because often these people are getting times served or non-custodial sentences. Thank you. Thank you. Thank you