Legal Case Summary

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, oye, oye. And recent having any matter, our board obnoxiousness is vetoed the honorable, the United States Court of Appeals for the Fourth Circuit, our Honest Judge Law and I, and get their attention for the forties in now sitting. The United States and the Son of the Court. Good morning. Please be seated. You know, I'm going to argue money in our first case. I can't lay versus West Virginia Regional. J.O. Mr. Cage, please to hear from you. Thank you, Your Honor. Good morning. May please the Court. My name is Elmer Robert Keach III. It is my privilege today to appear on behalf of the appellants, Michael Cantley, and Floyd Teeter. The central question that I believe this Court has to decide today in considering the procedures of the West Virginia Regional Jail Authority is balancing the concept of human dignity, which this Court has spoken about in the Amiche versus West decision, and has been spoken about elsewhere against the needs of correctional facilities and the policies and procedures that they put in place. Obviously, the Florence case is the central precedent that the Court will consider as part of deciding the claims made by the plaintiffs and the appellants in this case. And the Florence case discussed in the concurrence of Justice Alito how the searches at question in this case are deeply offensive and humiliating. Justice Alito further made clear as part of his discussion that many go head serve. Justice Alito did join the majority opinion. He did join the majority opinion, and I believe that the caveat of that majority opinion addresses the factual nuances that are present in this case, but we're not present in the Florence decision. The Florence decision addressed people who were committed to a local correctional facility by a judge after they were arraigned, after they had an opportunity to contest their detention, and after they had an opportunity to post bail. That may be true or insofar as Mr. Teeter, but not Cantley, you would agree? I do not agree, Your Honor, although I will concede that the complaint in this case primarily addresses one instance where Mr. Cantley was taken into custody where he was in fact arraigned and put into the Western Regional jail. There are other occasions that were put in the papers before the district court where Mr. Cantley detailed that he was in there on prior occasions during the class period. We provided booking records to that effect in the court

. Clearly the case that there was an instance alluded to that he was there on a pre-arrangement, wranglement type situation where he may even strip of, is that really established here? I thought the one insofar as Mr. Cantley concerned the instances in which he actually did go into the general population. He did face the arrangement. The instance that is referred to in the plaintiff's third amended complaint references that instance that Your Honor is talking about where Mr. Cantley was arraigned and put into custody after he had seen a judge. We did provide the court with booking records and Mr. Cantley's testimony that on prior occasions he had also been put in after he was arraigned, or excuse me after he was arrested, but not yet arraigned. He was then arraigned on video similar to Mr. Teeter. What you're acting is that Florence was some kind of big victory for you, but they didn't reach this solid question which you're talking about in the elite of concurrence. If you read the Florence opinion, the line after line after line talks about the discretion accorded correctional offices, the difficulty of trying to classify people right at the outset, talking about the dangers of weapons and the dangers of concessions. The Contraband, I mean, if you look at the weight of the opinion taken as a whole, realize you can try to pluck something from the concurrences and everything, but the weight of the opinion as a whole is hardly an unqualified victory for your point of view. I don't believe that I've characterized the Florence decision as a victory for my point of view. My point of view is this, the Florence decision took a set of facts that we don't have here. People that you know are going into custody. People that you know are going to stay there. And using the balancing test in Bell and the factors in Turner and balancing the rights. I mean, this, we're not just balancing off of a blank slate. The question is, first of all, it seems to me, could these correctional offices were there, there do you fair notice about what standards go in their conduct. And certain things may be clearer post Florence than they were pre-Florans. And is it really fair to expect these correctional offices to sort of dope out exactly how Florence was going to come out and to be clairvoyant because the cases prior to Florence were frankly fair. And that's why the Supreme Court took Florence to resolve all of these uncertain matters. And even then, the Supreme Court split five four on the question. And how prior to Florence are these people supposed to figure everything out when you impose damages on someone you should do it because they violated clearly established standards. Well, this case is just because these are offices of the state or just because they were uniform or just because they're correctional offices, you know, they're entitled to notice of what the standards for their conduct are just as all the rest of us are. And that's a problem because certain things seem to me to be prohibited after Florence. But that's a different question from me as to whether these individuals could be clairvoyant. You're on other two components to this case in the district court and the primary component of it is the effort to seek perspective and junct of relief about these practices and a determination as to whether or not they're constitutional. So that's the primary focus of this litigation is seeking and junct of relief, not seeking monetary damage

. Certainly that's pled in the in the class action complaint. And there is there's a separate. There's a prayer for monetary. Yes, sir, there was and there's certainly a question of qualified immunity as it relates to the individual. The individual policymakers in question in this case, the three individuals who headed the West Virginia Regional Jal authority. He did not the judge below did not. The judge only reached the constitutional issue and determined that there was not. And in the briefing I put before the court, I asked that one can affirm on an alternate ground. Absolutely, Your Honor. I don't agree that that should be the case because I think or excuse me, I would suggest to the court that the Logan versus Shelly decision is not expressly overruled in the Florence. Let me ask you about your argument. I want to ask exactly why you met when we talked about can't lean the facts of can't lean. And you said there were other papers submitted. Did you mean you argued other situations in which Mr. Cantley had been treated in this way when he wasn't put a reign to put in the general population? Is that what you meant by that? Yes, sir. And that was argued in front of the orgy that to the district court. It was argued in the papers and it was argued at oral argument. I understand what you said papers. Why apologies? No, no. Now let me ask you this. Do you think the facts, forget the timing for a second. The facts as they play out in can't lean here. Do you think that's controlled by Florence? Not the timing, but just the facts. I'm going to get to you on the timing that he was a reign and eventually put in the general population. Do you think Florence would allow that? Yes. When the instance where Mr. Cantley was a reigned, he saw a judicial officer had an opportunity to contest his attention and then was ordered into the past. So then why don't you lose facts here in can't lean? I lose on the facts relative to that particular search, yes. That search is covered under the Florence decision

. I want to get back to something Judge Wilkinson said before about the question. Let me ask one other question. No, no, no. What if in fact an officer at the time he searched it and know if somebody was going to go into general population. Your view is that would, but the person did go into general population. You think that officer would be would be protected or not? A testimony. I'm just asking this kind of a hypothetical I'm asking you that under your theory. If an officer performed the search before the officer knew as a certainty the defendant was going to go into general population. But the defendant in fact under my facts scenario did go into general population. Is that a protected search? Generally officers know how I ask you that I ask you if he did it. If I would certainly think in that instance if an officer was not aware of the person's detention status for reasons that are not applicable. I would think that would be protected by qualified immunity. That instance. Yes. That's not the case here. I'll speak to the constitutional question on that's the issue before us here. Yes. How does it in rule on that except we can look at alternative is judge vocals and said but I thought your arguments to the constitutional question. And addressing what Judge Wilkinson said before or question me about before. Deference to correctional authority is not abdication. The bell balancing test. That's arguing at a very general level though. I mean this in the case of Mr. Teeter. It seems to me it's sort of on the line because when he gets a bit to what Judge Shed was asking you about which was that he was in a holding cell where he could have been expected that a van of inmates. It held up to 15 people and he was moved eventually because a van of inmates was coming in. So he wasn't held in an individual cell or anything. He was held in a cell with 15 inmates or would have you. Or it could have been 15 inmates

. It was constructed to hold that many. And that seems to me kind of on the line. But isn't that very type of sort of in between or gray area or a foggy area in which qualified immunity would attach. In response to what Judge Shed asked me in this case they know who's going to go to. What Judge Shed was pointing toward is it's not always possible to tell right at the outset who is going to be put in a general population. And who is not now. The some instances you would be able to. In this instance that is established Mr. Mincer admitted that at oral argument in front of Judge Chambers. People that come in that are court order commits they immediately go to the general population. People that come in that are temporary commits are held in the booking area separate from the general population until they are arraigned and a determination is made of their detention. So we're not suing individual corrections officers here. So there's not a there's not an issue of. So pre Florence. That's not well that guess that procedure is allegedly pre Florence we're not sure that's the case but we didn't have a chance to to really explore it. And there was at least the possibility that given that the sale was constructed for 15 inmates that a larger number of inmates would arrive what I'm what I'm saying is you may be right going forward. And that's that that's certainly a fair point. The question is and what I think is an uncertain area. Prior to the Florence decision whether we can expect a correctional officer figure out exactly what the law is in this area for this type of situation. I mean I can't do it I couldn't do it. I tried to look over the different decisions prior to Florence and the different facts situations Logan and Amici applied to very different facts situations. And I'm not sure I could figure out exactly what was permissible and and and what was not. And I just ask you do processes is a is a standard that embodies notions of fairness and question whether you can fairly punish someone without clear notification. Of what conduct is prescribed that's that's what troubles me. I would agree with your honor that that and I believe my colleague Mr. Lit and the final on case will discuss this at greater length but qualified immunity certainly is a difficult issue that the court has to deal with here and one that is certainly uncertain. Let me take you back to let me take you back to my question you answer my question will yes it's covered by qualified immunity if you can remember my height. I remember yes sir what I'm asking you post Florence do you think that is a constitutional violation not qualified immunity so that the person. Let's just say the procedure being used is the procedure that searches before the jail or the officers know for sure that defendant is going to go to general population but in fact in the facts of the case the defendant does go to general population is you think that's not qualified immunity

. I'm asking is that a constitutional violation in your view may have the privilege of proceeding past my allocated time. Sure thank you how too long but you are there chance. I do want to answer your question your honor I want you to yes I do believe it is a constitutional violation because a corrections officer can easily find out and in fact we'll all know. No no no I don't want to go to that point the point is you think if he does it or she does it before they know you think that's a violation. Yes if they do it before they're arraigned I believe that's a violation if they're it's done after arraignment and they go into general population then no it is not a violation but you the the procedure in this case thank you thank you very much thank you. Thank you very much. Please court your honors I have the privilege obviously representing the state of West Virginia our regional jail authority and three executive directors who have ran that authority for the last 15 years. As Judge Wilkinson just pointed out if we can't figure out a group of reason to heads able to look at discern the law whether this was okay or not pre-arrainment. It goes to the qualified immunity question agreed entirely. I'm with the entire out of the world do you get around Florence in so far as teeter I don't know about Kentley I'm having some problem of seeing how he fits in but when you look at the Florence decision a five four decision chief justice robbers and Justice Alita wrote very limiting concurses. My math tells me you subtract those two from the three you're going to have from the five you're going to have three left in the majority and they explicitly said and particularly chief justice right. She's really fed her up and there's nothing wrong with three judges. Thank you y'all I must agree sometimes even two can be good to. She just as robbers in his concurring opinion he said words to the fact that we must not embarrass the future and I see which is which is interesting they recognize that well you got an instance here of an individual who's out snow playing his yard he pushes snow out into the road officer comes along as you obstructing things they get into the thing he gets arrested. He goes in and strip searches while he's going through the ship search one officer says well you know what officers here doing the same thing we got to rest them for that too. So he strip searches gin and tools or check now he's open he asked to been over and expose himself all out in the public you know that could be grandma who was out there shoveling snow in the yard too and that same thing could happen and I think chief justice Roberts and Alito recognize that that there's a limit to this. On one hand we're concerned about contraband but if but for every citizen to be subject to a potential strip search just on a balancing where there's no consideration of that teeter is very limited in this instance and that's why I point to his case in particular on the constitutional question. I'm not there only it may well need to be remanded on immunity or we might be able to get to it I don't know but the constitutional question is difficult on teeter. The constitutional question is the one I'm interested in judge because qualified immunity issues already settled that's easy for all of us the issue of moving forward what happens on this claim for injunctive for me. Qualified immunity is settled but settled while we're here. It settled because I'm here on a constitutional issue the qualified immunity issue again if the three of us if the three of you were all of us in this room can't figure out you're right. It's not reaching this case so that's why I see I don't know about the settled aspect of it but it didn't reach it in this case when I say settled I say settled because judge Wilkinson pointed out that we can't determine pre pre-floorance whether it was a clear line. How could we get that qualified immunity is easy that's what that's easy. It also seems to me it's an interesting thing because it seems to me judge winds making some good points about going forward. I mean there are limits and if someone's not going to be in the general population you know I agree with my colleagues review of the concurring opinions. And if a blanket strip search policy prior to a rain month for somebody who's not going into the population that's bad. And that's you know that that does seem to me to be the constitutional rule going forward. The problem is you've got a case with Teter who's who's kind of on the line here. You've got you've got circuit decision district court decisions all over the lot

. You've got someone who's not in a single holding sale but somebody who could be joined by a much larger number of people. So it's murky in terms of imposing damages on somebody. And you know the other thing is the strip searches there's no question that they are fit to human dignity. But there's also in Florence opinion points this out time and time again. Both pat down and strip searches where they are conducted where they need to be to protect the safety of inmates because the jail environment is something where the strong prey on the weak. And you don't want the weak to be even more vulnerable than they already are. You're honored to address the point of pre-arrayment strip searches. The strong as you've described them that get inside start out in those communal holding cells. The strong that prey on the weak. And every rationale for strip searching once somebody gets in or is going to general population applies when they're in that 15 person communal holding cell just as equally. So the issue is and the court determined you talk about the grandmother that that might be out and gets gets brought in on a misdemeanor charge or Mr. Teter in this case. The problem is that the Supreme Court recognized there are all sorts of circumstances where someone gets brought in on what would otherwise be thought of as a minor non dangerous charge that ends up with contraband. It could be that we've got more serious because the record in both of these cases indicate that there is a real possibility not only of contraband and cell phones and the libra. We're talking about razors and knives and underwitly the albers. Let's suppose that something happens which we all wish not to happen and that is somebody gets badly hurt. Somebody gets slashed up or whatever and that's because the knife wasn't found or the razor blade wasn't found. And then you're going to be in court in a hurry. You're right. We get sued and you didn't even look for it. You're going to be in court on a failure to protect claim. You're right. Because you did not do enough to protect the safety of that inmate who was taken advantage of by people who were either bigger or better armed than he or she was. So it comes down to a balance. The Supreme Court struck a nice balance I think going forward but that doesn't mean we should clobber you with damages for failure to figure out what. And frankly I could not. And understand the Supreme Court didn't say pre-arrainment it's not okay to do. Everybody is coming with this sort of argument. It's been minded even when you look at justice, Olitos, concurrence and Chief Justice Roberts

. Even in those instances you can do a strip if you have suspicion. You can. It's all it is a suspicion not probable cause it's not all this. It's a suspicion. It tells you an ordinary citizen come in and you got someone pushing snow out on the road and there's just no history of anything there. You just can't and you're not going to put them in the general population. You got them over the attention sale and you got in by the way he's been escorted when he was in that area with the 15 or so the old time he's there. That you just don't strip ordinary citizens under there unless you have a suspicion. So all of these horrors, parade of horrors that can happen you just need a suspicion. I know the Supreme Court user Timothy McVeigh example enough but you could pick any example on an extreme that will be an exception to any rule you make and use that as a basis to go on the other way with it. Well if we if we get the problem heaven though at least in where we're going. If we're talking constitutional analysis that's one thing we're talking qualified immunity is another thing on this. And if we're going qualified immunity on it and we're talking about the law I'm not sure the law was all over the place in the fourth circuit. The Logan case was the law here. And so that's the law you have to deal with when you're dealing particularly with Tita is time it is a Logan case not the law all over the place in other places. It's the Logan cases. You're right judge and we all understand from looking at Logan Vichili that it doesn't say pre-arrayment strip searches are unconstitutional. We know that because she wasn't pre-arrayment. She was post-arrayment when she got searched. It's not a slam dunk is what I'm saying. It's almost like you need for the on call up out immunity if you're going to go there. Some trial court or somebody needs to go back and look at Logan and come up and make some determination based on the facts because it fit within for circuit precedent. But Logan made two really important points that I agree with entirely and that make perfect sense to me. The first is where is the search done and is it done in private. In our case our regional jails do more private searches than what Florence was subjected to because Florence had five other detainees in with them when he was strip searched one of his two times. In our jails every detainee is searched by himself and one correctional officer of the same sex always no exceptions. And so we're more private that's a really important consideration. The second is does it is it done pursuant to a reasonable effort to reach your penal logical goal right is it done for safety purposes and in Logan Vichili it clearly was not because she was released within minutes of the search. The facts that lead up for determination of whether that happened or not were facts the trial judge never got to because it never made that determination

. I mean all of that may well be true that's the way it happens here you know but it didn't analyze it from a qualified immunity perspective. It did it from the constitutional. That's right Logan Vichili actually went up on direct verdict. What your point is the facts of Logan are dramatically different from what we have here because the detainee was being held without being exposed to any other detainees. They hadn't even tried a pat down search. The search was done where other people could say could see her naked body. I mean the search was outrageous. It's patently offensive. But that's a far cry from what was happened here which was a search by an officer of the same sex and with two pat downs. It was conducted in private in other words you said hey they made one mistake after another and you conducted this in a totally different way and a totally different fashion. And when we're talking about the balance between security and privacy which is what we're talking about the facts and the manner in which a search is conducted make a big difference because the dignity interests are implicated in the manner in which it's conducted. The big issue of Logan Vichili was a qualified immunity versus constitutional. If you're talking constitutional law on this and you're looking at those concurrent opinions even the scenario just as Wilkerson puts forth that is privacy same officer in the sale will not fit if that person's not going into the general population and if that offense is relatively minor. It doesn't matter if you can take him in a little room with the same sex by himself and search him you still can't do that to an ordinary citizen if you're not putting them into the general population or there's no danger of them being in exchange. I'm sure for one of those two unicroned opinions and as I indicated the sending opinions which was for them said the same thing along with those two. So that's unconstitutional too in that in that arena. For 40 years the US Supreme Court's recognized that there is a loss of privacy and a loss of freedom of choice as an incident of detention. The question is does this search serve a legitimate penological interest in Logan Vichili it did not because there was no safety interest. Let me ask you this under the facts as a pertains a teeter in this case. I'm not talking about qualified immunity I'm talking about the constitutional violation. I want you to make your argument to me or to us on what is the most important fact fact as to teeter that means there is no constitutional violation and if it's different what is the minimal fact the minimal and minimum fact that makes that argument. The largest significant factor is this he's put in a communal holding cell. How many people with one other person specifically to him however at the time he gets put in there it's absolutely not predictable as to whether it's going to be one or going to be 15. And if you're going to put him in with 15 other people and you're not going to protect his safety. So by strip searching each of you to find a stand. Then is your argument that if you're going to be put in anything other than a solitary sale. This constitutionally just fine. If you're in a solitary cell there's no reason to do a strict would that be yes or no. That's a yes because even under Logan Vichili by yourself there's no reason

. There's no safety risk. Wait one second you just told me 15 people and I said was he in with 15 and you said no but at the time you did not know what on the solitary cells how would you know at that time that maybe you just didn't get doubled up and you had to put two people in the cell. I took as a definition solitary is going to be one person. And he's by himself and in a cell where he's only going to be by himself. I didn't ask that solitary cell I didn't say by himself but is your argument that there's any chance at all that he'll be placed with somebody else in detention. Constitution is just fine. Well he is just fine. He's going to be put in there. No no I asked you is that's your argument that is constitutionally. That is argument because you got to save him from others. And the only time a strip search body cavity search is not just fine is if the officer knows beyond any doubt that at the moment he wants to do the search the person cannot possibly end up with another inmate. Is that your argument? If he can't end up with another inmate there's no safety reason thus no legitimate penological purpose served by doing that strip search. So that means that basically everybody can be strip search body cavity search for anything anytime. If your jealous set up so that you keep everybody and individual cells by themselves there's no reason to strip search before they get a rent. It's not that limited and if you look at Chief Justice Roberts concurrence he doesn't say you know you actually put him in with the gentleman. He says there's no alternative available to not put him there. And then the same and then the leader follows up and uses the word could he could be put somewhere other than general population doesn't give the doesn't give officers a cock lunch opportunity then to say well we've read Florence so from now on we'll just put everybody in the general population that doesn't work. If there's an opportunity you got someone come in snow plow and I keep using that because that's the example put on the road ordinary citizen and you got a little spot you can just hold him here for this very minor offense. He says no I'm going to put him in the general population therefore I can strip searching you can't do that. And on of those at least on the Chief Justice Robertson is very strong on that point that's where he used that language not to embarrass the future. He knows what this means. Right the exact language used is do you have facilities available to house him singularly we do not sing a lot from the general population the fact that you bring another detainee and sort of stick him in with it doesn't necessarily make that general population. We've got two issues with that not just one one is he's put in with one but unpredictably maybe in there with 15 others but more important than that still is he's taken into the core of our facility to go to video or a man meaning he's walking past the tainees who were in general population. He's escorting right going so what if he's being taken to the cool well there are there officers in the booking area as well however well he's in that community. He's contraband and do others he's being escorted the whole time he's going through that that's true. Even mine all of this is actions being taken by the officers in terms of where they put it their choices being made here and the question is how much do you get the nuance those choices to fit within scenarios that will will take you out of constitutional and constitutional violation again I'm you know is a different argument when you're talking Logan and and and qualified immunity I think I'm moving in judge judge Wilkerson camp on that when you get constitutional violation which is the question we have in this case because the judge didn't get to it then that's a whole different scenario. There's no question nobody's ever said that this even pre-arrainment would be a constitutional violation right spring court and Florence didn't say we've decided and you can't do this pre-arrainment they said that it should be a constitutional violation right. The issue's open for another day which is what we're here about today. Well the only point I'm trying to make really fail in my eyes we've had a lot of fun analyzing Florence and some good points have been made with respect to the opinion of it we have the benefit of Florence they did not

. That's why I say that's an easy issue qualified immunity and that's not why I'm here I'm here about is this a constitutional rights violation or not I clearly don't believe it is the reason I don't believe it is is every reason why you would do it when they're going to general population applies equally to once you're going to put them in a communal holding cell and we don't have an alternative. I have a violation that's put them to. What would she do we do with the qualified immunity? We're sitting back to the trial judge for the termination of whether qualified immunity exists in this case in light of Logan because he didn't make any facts. You all certainly. We just do it ourselves well you all certainly could say you're going to have a case right behind me where you're going to have to say whether it's qualified immunity or not. The issue is that preliminary and juncture or that junction claim is going to get sent back if that's what you decide the point is mood anyway we don't do pre-reignment strip searches our policy doesn't call for pre-reignment strip searches our training doesn't. If under Pearson V. Callahan if we resolve qualified immunity the way he wants to resolve it do we need to get to the question of whether it's a constitutional violation. Absolutely because there's still an injunctive claim out there that's at stake and we can we can decide okay from here forward you know here's what's going to happen and qualified immunity going back we shouldn't have expected these people a reasonable person there in their situation to know you could or could not do this. The issue is is this a constitutional rights violation or not that is it esthetic or is it a constitutional rights violation. Absolutely not now let's go back as you read I just want to be sure I get this straight and really that I understand your position you think after Florence what are the parameters of when there is a constitutional violation under body cavity search. Well I would say if you're going to do a physical body cavity search with penetration certainly that probably would be a constitutional rights violation however our situation with no contact. I don't know you think it would be violation if they were going into general population. If you're going to do a penetrative body intrusive body cavity search by an untrained medically untrained correctional officer I would think that there's a serious. Is that for a second? I don't know what happened in this case with Teter that the search that Teter underwent we together on what that is factually. Yes when would such a search be a constitutional violation after Florence in your opinion. I don't think it is it would never is never is if in our jail system there is no alternative or potential for a detainee to be isolated by themselves. So you think then the way you read Florence is in the real world you never know for the certainty that's required to for go that search so therefore any search as search is allowed in any circumstance. Yeah we've got we've got all kinds of contraband found evidence of that in this case justifies that search. Let me ask you one other question did the district court make a finding on the no alternative point or whether you would have reason to know that he was going to be in the general population or not but they may have a bearing on the prospective question. I want to know on those two points which you may number one did you have did you have no alternative to putting him in this larger cell and number two were you able to know at the time you conducted this search. Well he was going to be putting in the general population particularly the alternative point what alternatives were available. Did the district court make a finding on that I can tell you I noticed just now my time is up but I would love to answer the question if I can. The district court absolutely said that there is there are individual cells in that area that are intended for people who are on suicide watch who are coming off of drugs or alcohol and need to be kept isolated for that reason this guy was going to a communal holding cell no question there was no alternative available that was a finding made by the district court. And a factual true he threw out our entire unit moved when the van of 15 arrived into a two person two people were put he and the other guy into another cell for a period of a little less than an hour. But you're saying he made a specific finding that there was no alternative and yet there were individual cells. There are individual cells again intended for other purposes and use for that. You say there are individual cells for people coming off of alcohol and drug has wouldn't have been feasible to put this individual in one of those cells. You may have a circumstance where one of those cells is empty however it's not predictably going to occur in perpetuity or in every situation the intention and the understanding is that these people coming in new detainees will go in a communal holding cell. So what do you think of a limits because it's clear that Florence let you go a long way but it does have limits and what do you think are the limits just on your own. Now that you've got that decision you're going to have a large part you're going to have a lot to say about how the regional jails go forward. And what would what would be your policy after Florence? What can you represent to court because you don't want you don't want injunctive relief or what's what's going to be the possible going going forward. Do not do intrusive body cavity searches. That's constitutional rights violation of my mind. At any point no correctional officer should do that and we don't do that our policy is if we believe that's necessary what we'll do is dry sell people and have them sit in there if they've got to go back to general population. You don't have any blankets you don't have blanket strip searches even for people who are going into the general pop. Not that would involve contact or inserting anything into any orifice of the body we would send them out to a hospital if we deemed that a punishment about a penetrating body search. That's correct. Much different from visual body body cavity. Do you think there are no limitations on just the visual strip search visual inspection in our circumstance that's correct because we don't have an alternative to putting them in communal. I didn't even I you don't think that generally because unless this I mean as I asked you your your view of the law after Florence says unless the officer is absolutely certain beyond any doubt there won't be any contact between this defendant and another defendant that any that visual strip searches between detainees I agree. When we use the word strip search are we talking about visual searches or are we talking about penetrating search. We're talking in this case about visual cat body cavity inspections and that's what Florence looked at. I understand your view on the penetrating searches but what is your view on the limits of the visual searches after the penetrating search is well anything where you're going to make contact and you're going to go into an orifice of the body whether it's no absolutely not. Absolutely not. Talking about the visual on the judge said it's not. Florence made a major point that the fact that there is no contact in its search which is one of the key components. So so anybody coming to your facility now is going to have going to be searched in the manner that a Florence now because you have made a decision. There's no alternative. That's correct. And and you think every citizen that comes in nothing matter. We could be if you bring them in that facility you're going to strip search then you're going to do a visual search in the Florence matter because you now have no alternative. Let me let me make a correction. Let me tell you real quick. We had three jails that were doing pre-arrayment strip searches out of ten against our policy and against our training. However, after it was made clear to them that that was in violation of policy they stopped doing it. And we had administrative sergeant Wayne testify in this case and it's in the record that when they were told that Mr. Teeter's jail, Tiger Valley Regional jail, not to do pre-arrayment strip searches anymore, every officer in there was upset because they believe it compromised the safety of that facility

. So what do you think of a limits because it's clear that Florence let you go a long way but it does have limits and what do you think are the limits just on your own. Now that you've got that decision you're going to have a large part you're going to have a lot to say about how the regional jails go forward. And what would what would be your policy after Florence? What can you represent to court because you don't want you don't want injunctive relief or what's what's going to be the possible going going forward. Do not do intrusive body cavity searches. That's constitutional rights violation of my mind. At any point no correctional officer should do that and we don't do that our policy is if we believe that's necessary what we'll do is dry sell people and have them sit in there if they've got to go back to general population. You don't have any blankets you don't have blanket strip searches even for people who are going into the general pop. Not that would involve contact or inserting anything into any orifice of the body we would send them out to a hospital if we deemed that a punishment about a penetrating body search. That's correct. Much different from visual body body cavity. Do you think there are no limitations on just the visual strip search visual inspection in our circumstance that's correct because we don't have an alternative to putting them in communal. I didn't even I you don't think that generally because unless this I mean as I asked you your your view of the law after Florence says unless the officer is absolutely certain beyond any doubt there won't be any contact between this defendant and another defendant that any that visual strip searches between detainees I agree. When we use the word strip search are we talking about visual searches or are we talking about penetrating search. We're talking in this case about visual cat body cavity inspections and that's what Florence looked at. I understand your view on the penetrating searches but what is your view on the limits of the visual searches after the penetrating search is well anything where you're going to make contact and you're going to go into an orifice of the body whether it's no absolutely not. Absolutely not. Talking about the visual on the judge said it's not. Florence made a major point that the fact that there is no contact in its search which is one of the key components. So so anybody coming to your facility now is going to have going to be searched in the manner that a Florence now because you have made a decision. There's no alternative. That's correct. And and you think every citizen that comes in nothing matter. We could be if you bring them in that facility you're going to strip search then you're going to do a visual search in the Florence matter because you now have no alternative. Let me let me make a correction. Let me tell you real quick. We had three jails that were doing pre-arrayment strip searches out of ten against our policy and against our training. However, after it was made clear to them that that was in violation of policy they stopped doing it. And we had administrative sergeant Wayne testify in this case and it's in the record that when they were told that Mr. Teeter's jail, Tiger Valley Regional jail, not to do pre-arrayment strip searches anymore, every officer in there was upset because they believe it compromised the safety of that facility. And in fact after they stopped doing those searches he had two circumstances where in a communal holding cell multiple detainees were smoking pot and taking Xanax and there was a sharing of Xanax by one prisoner that came in. And that is the earmark of what will happen absent pre-arrayment strip searches when people are put in this communal cells. That's why we need to do that. It's not just when people are put in communal cells but when there's possible there will be put in a cell with at least one of the person. They'll be put in a communal cell. The questions will end up with other people in with them. You're exactly right. And you can't predict. You say communal cells just because they aren't designed for one person. That's exactly right. And it's the potential for them, for other people to join that not the actual fact because you just don't know if they're going to do the search. I want to be sure I'm sure I think I am. Well, if you think when anybody is arrested they're subject to this or if they're going to be held they're subject to this search unless it's just a dead sense certainty they can't even have any contact with another. Right. If they go to a jail and they're going to have contact with other detainees. So the answer is yes, though. That's right. If they could theoretically be arrested and released without ever going to a jail facility. I'm going to come at the jail. Yeah. So it's always the case that you could potentially house it to just Tenee with somebody else, isn't it? That's always the case now. It wasn't the case in Logan B. Shealy. They knew she wasn't going to be housed when there was somebody else. She was released within a prison area is always a possibility that a person being arrested can be housed with someone else. In West Virginia Regional Jails, yes. And so following so Logan the concurrence is mean nothing. There's no possibility exception, even if because what you create it now is always a possibility. And if you follow that then doesn't mean anything

. And in fact after they stopped doing those searches he had two circumstances where in a communal holding cell multiple detainees were smoking pot and taking Xanax and there was a sharing of Xanax by one prisoner that came in. And that is the earmark of what will happen absent pre-arrayment strip searches when people are put in this communal cells. That's why we need to do that. It's not just when people are put in communal cells but when there's possible there will be put in a cell with at least one of the person. They'll be put in a communal cell. The questions will end up with other people in with them. You're exactly right. And you can't predict. You say communal cells just because they aren't designed for one person. That's exactly right. And it's the potential for them, for other people to join that not the actual fact because you just don't know if they're going to do the search. I want to be sure I'm sure I think I am. Well, if you think when anybody is arrested they're subject to this or if they're going to be held they're subject to this search unless it's just a dead sense certainty they can't even have any contact with another. Right. If they go to a jail and they're going to have contact with other detainees. So the answer is yes, though. That's right. If they could theoretically be arrested and released without ever going to a jail facility. I'm going to come at the jail. Yeah. So it's always the case that you could potentially house it to just Tenee with somebody else, isn't it? That's always the case now. It wasn't the case in Logan B. Shealy. They knew she wasn't going to be housed when there was somebody else. She was released within a prison area is always a possibility that a person being arrested can be housed with someone else. In West Virginia Regional Jails, yes. And so following so Logan the concurrence is mean nothing. There's no possibility exception, even if because what you create it now is always a possibility. And if you follow that then doesn't mean anything. Every one of those reasons to do it once somebody goes to general population applies equally to when they're going to get put in a communal holding cell. I don't think that's the end of this issue. We'll see. Is that true that there's even for someone just to take your ordinary drunk and you say goes in a solitary cell with that with respect to that person, for example, is there reason to believe that they might be part of the general population? Yes, because once you are done sobering up, you can be held in West Virginia jail for up to 12 hours before your arrangement in which case you're going to be putting that communal holding cell because you're going to need that individual cell. If you're going to be held at a jail for any amount of time, visual search is constitutional. That's correct. So, low or Florence, you just made it blanket. Has no exception, no possibility of exception now. Look at that. Body cavity searches that are invasive. What in the world was Chief Justice Roberts and Olito talking about? There's not a possibility of an exception to this thing. I don't get it. I don't know what they were talking about. I don't know what he's talking about when he says not to embarrass the future. Chief Justice said that. What in the world could he have been talking about? Because everybody is going to be searched in West Virginia. I understand you're talking about two judges. There's a lot more than that up there. Yeah, the four to sending of judges that agreed with him. Well, we got to go by the majority opinion. That's all we have. I can get in trouble adding and subtracting just try to go with the majority. What the majority says. That's right. Anyway, thank you very much, sir. And we will appreciate the time. From you and Robottle. Thank you. Thank you, Your Honor

. Every one of those reasons to do it once somebody goes to general population applies equally to when they're going to get put in a communal holding cell. I don't think that's the end of this issue. We'll see. Is that true that there's even for someone just to take your ordinary drunk and you say goes in a solitary cell with that with respect to that person, for example, is there reason to believe that they might be part of the general population? Yes, because once you are done sobering up, you can be held in West Virginia jail for up to 12 hours before your arrangement in which case you're going to be putting that communal holding cell because you're going to need that individual cell. If you're going to be held at a jail for any amount of time, visual search is constitutional. That's correct. So, low or Florence, you just made it blanket. Has no exception, no possibility of exception now. Look at that. Body cavity searches that are invasive. What in the world was Chief Justice Roberts and Olito talking about? There's not a possibility of an exception to this thing. I don't get it. I don't know what they were talking about. I don't know what he's talking about when he says not to embarrass the future. Chief Justice said that. What in the world could he have been talking about? Because everybody is going to be searched in West Virginia. I understand you're talking about two judges. There's a lot more than that up there. Yeah, the four to sending of judges that agreed with him. Well, we got to go by the majority opinion. That's all we have. I can get in trouble adding and subtracting just try to go with the majority. What the majority says. That's right. Anyway, thank you very much, sir. And we will appreciate the time. From you and Robottle. Thank you. Thank you, Your Honor. I'd like to raise one issue that has not been the subject of this argument thus far, but as an important component of the appellance arguments in this case. And that is the concept of the delousing. And I'd like to point to the hypothetical posed by Judge Wynn when he talked about grandma coming into the West Virginia regional jail. I'm sorry. She would get searched. She would get searched. Grandma, anybody else, the Pope can come to there. If you get arrested, he is going to get strip searched. Yes, sir. Not only is he going to get strip searched, he is going to be put on a rest. Don't wait the law on West Virginia. He would get strip searched. That's exactly what I heard. Well, certainly this case has probably had caused me to have caution about sending my children to college in West Virginia. That's for sure. It's a funny thing because if he was not a funny thing, but it's a troubling thing because when you have a blanket policy, it's always said to be too broad. And then when you have a selective policy, the accusation is that you're profiling or singling out certain members of certain ethnic groups or people with certain, in certain demographic profiles. So I'm not sure. I mean, the blanket policy is sweeping, but the selective policy is profiling. And so you get, you know, they're whipsawed. I mean, you're catching them going and you're trying to catch them going in common. Your honor, I think that dichotomy is measured by the Florence decision about people who end up going into custody. And that being appropriate for everyone. I do keep coming back to the fact that the majority opinion line after line after line talks about the very real danger of introducing these contraband and things and and and cell phones because cell phones are prohibited, I think, under federal policy in the Bureau of Prisons. And the, you know, we say, well, we're balancing the needs of prisons against the needs, against the dignity of the individual, but there's a dignity of the individual point on the other side too. And that is that people do not want to get slashed with razor blades and with knives. And, you know, that's a part of, that would be a part of my human dignity. And especially if I couldn't defend myself because I was a little bit older or a little bit younger or didn't, a less able to engage in a fight or or or whatever and I, you know, I worry if we go too far in your direction that we're just leaving these people vulnerable and exposed. And that, you know, that really troubles me because I don't want all my conscience that somebody's been slashed and beaten because we would not let them

. I'd like to raise one issue that has not been the subject of this argument thus far, but as an important component of the appellance arguments in this case. And that is the concept of the delousing. And I'd like to point to the hypothetical posed by Judge Wynn when he talked about grandma coming into the West Virginia regional jail. I'm sorry. She would get searched. She would get searched. Grandma, anybody else, the Pope can come to there. If you get arrested, he is going to get strip searched. Yes, sir. Not only is he going to get strip searched, he is going to be put on a rest. Don't wait the law on West Virginia. He would get strip searched. That's exactly what I heard. Well, certainly this case has probably had caused me to have caution about sending my children to college in West Virginia. That's for sure. It's a funny thing because if he was not a funny thing, but it's a troubling thing because when you have a blanket policy, it's always said to be too broad. And then when you have a selective policy, the accusation is that you're profiling or singling out certain members of certain ethnic groups or people with certain, in certain demographic profiles. So I'm not sure. I mean, the blanket policy is sweeping, but the selective policy is profiling. And so you get, you know, they're whipsawed. I mean, you're catching them going and you're trying to catch them going in common. Your honor, I think that dichotomy is measured by the Florence decision about people who end up going into custody. And that being appropriate for everyone. I do keep coming back to the fact that the majority opinion line after line after line talks about the very real danger of introducing these contraband and things and and and cell phones because cell phones are prohibited, I think, under federal policy in the Bureau of Prisons. And the, you know, we say, well, we're balancing the needs of prisons against the needs, against the dignity of the individual, but there's a dignity of the individual point on the other side too. And that is that people do not want to get slashed with razor blades and with knives. And, you know, that's a part of, that would be a part of my human dignity. And especially if I couldn't defend myself because I was a little bit older or a little bit younger or didn't, a less able to engage in a fight or or or whatever and I, you know, I worry if we go too far in your direction that we're just leaving these people vulnerable and exposed. And that, you know, that really troubles me because I don't want all my conscience that somebody's been slashed and beaten because we would not let them. You say, oh, you got, you can do reasonable suspicion. That's fine, but one of the things the Florence decision says is that when you're bringing in large numbers of people, sometimes you, you don't know. People mean they're, they're all people charged with all different kinds of things. And the Florence opinion says, you can't classify people pre pre arrangement, pre-arrainment. It's a very difficult thing to do. And, you know, you worry when you sit on a bench that you're going to leave somebody vulnerable to a perfectly terrible injury, which is going to have them hospitalized. So, what it, what's the other, your opponent does have an interest on their side of the equation. I would agree and I agree it's important to keep contraband out of jails and I certainly agree as a civil rights lawyer that it's important to protect detainees from harm. But there are lesser measures that can be used here to do that. We talk about weapons. I have to go through a magna-tometer to come into this courthouse. They can use a magna-tometer to detect weapons and phones and that type of thing at the West Virginia Regional Jails. What do you think, what do you think? After the search, what other fact in Titor's case, what other fact makes the constitutional violation that, what, what is that? Well, I would think that the central fact in what has not been raised today that makes Mr. Titor's treatment in everyone's treatment. What is the central fact? Delousing. Having a complete stranger spray your genitals with an ace hardware pressurized wanted garden spray can. Wait, as to the search. Well, that's part of that's certainly part of the search. That is a seizure to make contact with someone's genitals. Wait, no, wait, stop for a second. I'm sorry. Is your answer that if there hadn't been a delousing, there would not have been a constitutional violation as Mr. Titor? No, sir. You asked me. Well, then delousing can't be. And I'm asking as to the search. That's what we've been talking about. Yes. Let's talk about delousing in a second

. You say, oh, you got, you can do reasonable suspicion. That's fine, but one of the things the Florence decision says is that when you're bringing in large numbers of people, sometimes you, you don't know. People mean they're, they're all people charged with all different kinds of things. And the Florence opinion says, you can't classify people pre pre arrangement, pre-arrainment. It's a very difficult thing to do. And, you know, you worry when you sit on a bench that you're going to leave somebody vulnerable to a perfectly terrible injury, which is going to have them hospitalized. So, what it, what's the other, your opponent does have an interest on their side of the equation. I would agree and I agree it's important to keep contraband out of jails and I certainly agree as a civil rights lawyer that it's important to protect detainees from harm. But there are lesser measures that can be used here to do that. We talk about weapons. I have to go through a magna-tometer to come into this courthouse. They can use a magna-tometer to detect weapons and phones and that type of thing at the West Virginia Regional Jails. What do you think, what do you think? After the search, what other fact in Titor's case, what other fact makes the constitutional violation that, what, what is that? Well, I would think that the central fact in what has not been raised today that makes Mr. Titor's treatment in everyone's treatment. What is the central fact? Delousing. Having a complete stranger spray your genitals with an ace hardware pressurized wanted garden spray can. Wait, as to the search. Well, that's part of that's certainly part of the search. That is a seizure to make contact with someone's genitals. Wait, no, wait, stop for a second. I'm sorry. Is your answer that if there hadn't been a delousing, there would not have been a constitutional violation as Mr. Titor? No, sir. You asked me. Well, then delousing can't be. And I'm asking as to the search. That's what we've been talking about. Yes. Let's talk about delousing in a second. What is the one fact that one fact that exists in Titor's situation that makes this a constitutional violation? In inviornce. I didn't mean to enter. Oh, sorry. In inability to exercise your constitutional right to be arraigned to contest your detention. I don't know what that means. No, just say it in everyday terms. What? To see a judge. You didn't get to see a judge before you had to go through this. And there was no determination made that he was going to go from what the defendants or the Apollese style as a temporary commitment to a court-ordered commitment. Well, let me ask you a fist of case, a disdipithetical, that this person has been arrested for dealing drugs. I'm not talking about your client. This person has been arrested for dealing drugs 300 times in that jurisdiction. He served time after time after time and the officers know there's no question. They just didn't realize the question that this person is going anywhere but other than to the general population. But they know that before the arrangement you would say that's a constitutional violation? No, sir, because I would strip search that person myself because there's reasons to believe that they have a weapon or contraband based on their history. Are they got arrested passing bad checks? That's different. No, that's not a change of hypothetical. It is different. No. So that means then that person arrested 300 times before and gets to, you know, 12, 15 months every time that he does it. It just can't help himself. But he hasn't been arranged yet. The officers know he's going to general population. They can't search until the arrangement. I would say, Your Honor, that, or it would be certainly... You know, you get me. I'm just looking for what is the dividing point that you say that plus the search is a constitutional violation

. What is the one fact that one fact that exists in Titor's situation that makes this a constitutional violation? In inviornce. I didn't mean to enter. Oh, sorry. In inability to exercise your constitutional right to be arraigned to contest your detention. I don't know what that means. No, just say it in everyday terms. What? To see a judge. You didn't get to see a judge before you had to go through this. And there was no determination made that he was going to go from what the defendants or the Apollese style as a temporary commitment to a court-ordered commitment. Well, let me ask you a fist of case, a disdipithetical, that this person has been arrested for dealing drugs. I'm not talking about your client. This person has been arrested for dealing drugs 300 times in that jurisdiction. He served time after time after time and the officers know there's no question. They just didn't realize the question that this person is going anywhere but other than to the general population. But they know that before the arrangement you would say that's a constitutional violation? No, sir, because I would strip search that person myself because there's reasons to believe that they have a weapon or contraband based on their history. Are they got arrested passing bad checks? That's different. No, that's not a change of hypothetical. It is different. No. So that means then that person arrested 300 times before and gets to, you know, 12, 15 months every time that he does it. It just can't help himself. But he hasn't been arranged yet. The officers know he's going to general population. They can't search until the arrangement. I would say, Your Honor, that, or it would be certainly... You know, you get me. I'm just looking for what is the dividing point that you say that plus the search is a constitutional violation. The lack of judicial process. And nobody can... just as we can't come before this court is lawyers and try to sue, say, what Your Honor is going to do. Yes, this is not a connection. I suppose I mean sometimes people are held in large holding cells with large numbers of people before they are brought for arrangement. And I'm wondering whether the critical thing is the general population. If someone's held in a holding cell with 15 other people and you haven't brought them for arrangement. And that circumstance, would you be able to strip search somewhere? No, Your Honor, for the same reasons I said before. And also because these individuals are searched, they have the ability to be put through a magnetometer. They have the ability to use something called a boss chair, which detects metal and body cavities. And you know it's not like they're in there on supervised that... What's your main complaint about de-lousing? The main complaint is that the inmates weren't allowed to do it to themselves? Yes, using an ACE hardware pressurized laryngrin spray can. What are they... Dehumanizing, unnecessarily... Wait, but let me ask you, that's not what I ask you. I said that they were not allowed to spray themselves. No, that they weren't allowed to apply the solution to themselves. Okay. So not to be sprayed. So they had to be given it some form they could rub on themselves. It's a shampoo that comes in a bottle

. The lack of judicial process. And nobody can... just as we can't come before this court is lawyers and try to sue, say, what Your Honor is going to do. Yes, this is not a connection. I suppose I mean sometimes people are held in large holding cells with large numbers of people before they are brought for arrangement. And I'm wondering whether the critical thing is the general population. If someone's held in a holding cell with 15 other people and you haven't brought them for arrangement. And that circumstance, would you be able to strip search somewhere? No, Your Honor, for the same reasons I said before. And also because these individuals are searched, they have the ability to be put through a magnetometer. They have the ability to use something called a boss chair, which detects metal and body cavities. And you know it's not like they're in there on supervised that... What's your main complaint about de-lousing? The main complaint is that the inmates weren't allowed to do it to themselves? Yes, using an ACE hardware pressurized laryngrin spray can. What are they... Dehumanizing, unnecessarily... Wait, but let me ask you, that's not what I ask you. I said that they were not allowed to spray themselves. No, that they weren't allowed to apply the solution to themselves. Okay. So not to be sprayed. So they had to be given it some form they could rub on themselves. It's a shampoo that comes in a bottle. This is detailed in the right. And you can put it into a cup. It's just like shampoo and you can wash yourself with it. That's what I said. They could rub on themselves. Yes, there's a big difference between... So you think that... You think there'd be a constitutional violation under delousing. Even if the rule was, we give you the a spray can. And you have to spray yourself. That would still be a constitutional violation in your opinion. Yes, because it's a difference between having you take care of your private parts and your face and your hair. But what if... What if they allow you to spray you down? What if they allow you to do that with the a spray can? They just say, for various health reasons, we don't want to give you this liquid. We're just going to put it in the can. But you have to spray yourself. We're not going to do it. But you've got to spray yourself good. You're just a constitutional violation in your mind. No, I would think, however, that could give it to them in a cup. That would be a lot easier. We have to make it a constitutional violation if they could do it a little bit better than they did it. I'm sorry

. This is detailed in the right. And you can put it into a cup. It's just like shampoo and you can wash yourself with it. That's what I said. They could rub on themselves. Yes, there's a big difference between... So you think that... You think there'd be a constitutional violation under delousing. Even if the rule was, we give you the a spray can. And you have to spray yourself. That would still be a constitutional violation in your opinion. Yes, because it's a difference between having you take care of your private parts and your face and your hair. But what if... What if they allow you to spray you down? What if they allow you to do that with the a spray can? They just say, for various health reasons, we don't want to give you this liquid. We're just going to put it in the can. But you have to spray yourself. We're not going to do it. But you've got to spray yourself good. You're just a constitutional violation in your mind. No, I would think, however, that could give it to them in a cup. That would be a lot easier. We have to make it a constitutional violation if they could do it a little bit better than they did it. I'm sorry. It doesn't make it a constitutional violation, does it? If somebody could think of a little bit better approach to it. It does under turner. If you can show that there are... Are we getting off the coast to being prison wardens? When we're going to say exactly how the delousing procedure ought to go and exactly what this and what that. I mean, one of the points of Florence is we're not the substitute our judgment of out of correctional officials. I mean, the farther we get into the weeds, indicting exactly how this procedure should go, or how that procedure should go, the more we just start taking over a function, for which we haven't been trained, and for for which, frankly, we just not competent. The turner decision makes clear that you have the right to select or you have the right to... If there's a demonimous way that an inmate's rights can be protected and correctional facility, you know, and the correction's interest can be accommodated that that demonimous interest should be used. It also makes clear that at oftentimes that can be a jury determination, which is one of the underlying problems with Judge Chamber's decision, is that certainly under the recent Supreme Court decision at Tolin versus Cotton, it's made clear that district courts should not become fact finders in these kind of issues that they should allow for fact finding. But this is a reasonable demonimous alternative to spraying down someone's genitals. I mean, you know, if we can't do anything... I've given you both a lot of extra time. I appreciate that, Your Honor. I think we're ready to come down and shake hands and move on to our second case. Thank you, Your Honor.

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, oye, oye. And recent having any matter, our board obnoxiousness is vetoed the honorable, the United States Court of Appeals for the Fourth Circuit, our Honest Judge Law and I, and get their attention for the forties in now sitting. The United States and the Son of the Court. Good morning. Please be seated. You know, I'm going to argue money in our first case. I can't lay versus West Virginia Regional. J.O. Mr. Cage, please to hear from you. Thank you, Your Honor. Good morning. May please the Court. My name is Elmer Robert Keach III. It is my privilege today to appear on behalf of the appellants, Michael Cantley, and Floyd Teeter. The central question that I believe this Court has to decide today in considering the procedures of the West Virginia Regional Jail Authority is balancing the concept of human dignity, which this Court has spoken about in the Amiche versus West decision, and has been spoken about elsewhere against the needs of correctional facilities and the policies and procedures that they put in place. Obviously, the Florence case is the central precedent that the Court will consider as part of deciding the claims made by the plaintiffs and the appellants in this case. And the Florence case discussed in the concurrence of Justice Alito how the searches at question in this case are deeply offensive and humiliating. Justice Alito further made clear as part of his discussion that many go head serve. Justice Alito did join the majority opinion. He did join the majority opinion, and I believe that the caveat of that majority opinion addresses the factual nuances that are present in this case, but we're not present in the Florence decision. The Florence decision addressed people who were committed to a local correctional facility by a judge after they were arraigned, after they had an opportunity to contest their detention, and after they had an opportunity to post bail. That may be true or insofar as Mr. Teeter, but not Cantley, you would agree? I do not agree, Your Honor, although I will concede that the complaint in this case primarily addresses one instance where Mr. Cantley was taken into custody where he was in fact arraigned and put into the Western Regional jail. There are other occasions that were put in the papers before the district court where Mr. Cantley detailed that he was in there on prior occasions during the class period. We provided booking records to that effect in the court. Clearly the case that there was an instance alluded to that he was there on a pre-arrangement, wranglement type situation where he may even strip of, is that really established here? I thought the one insofar as Mr. Cantley concerned the instances in which he actually did go into the general population. He did face the arrangement. The instance that is referred to in the plaintiff's third amended complaint references that instance that Your Honor is talking about where Mr. Cantley was arraigned and put into custody after he had seen a judge. We did provide the court with booking records and Mr. Cantley's testimony that on prior occasions he had also been put in after he was arraigned, or excuse me after he was arrested, but not yet arraigned. He was then arraigned on video similar to Mr. Teeter. What you're acting is that Florence was some kind of big victory for you, but they didn't reach this solid question which you're talking about in the elite of concurrence. If you read the Florence opinion, the line after line after line talks about the discretion accorded correctional offices, the difficulty of trying to classify people right at the outset, talking about the dangers of weapons and the dangers of concessions. The Contraband, I mean, if you look at the weight of the opinion taken as a whole, realize you can try to pluck something from the concurrences and everything, but the weight of the opinion as a whole is hardly an unqualified victory for your point of view. I don't believe that I've characterized the Florence decision as a victory for my point of view. My point of view is this, the Florence decision took a set of facts that we don't have here. People that you know are going into custody. People that you know are going to stay there. And using the balancing test in Bell and the factors in Turner and balancing the rights. I mean, this, we're not just balancing off of a blank slate. The question is, first of all, it seems to me, could these correctional offices were there, there do you fair notice about what standards go in their conduct. And certain things may be clearer post Florence than they were pre-Florans. And is it really fair to expect these correctional offices to sort of dope out exactly how Florence was going to come out and to be clairvoyant because the cases prior to Florence were frankly fair. And that's why the Supreme Court took Florence to resolve all of these uncertain matters. And even then, the Supreme Court split five four on the question. And how prior to Florence are these people supposed to figure everything out when you impose damages on someone you should do it because they violated clearly established standards. Well, this case is just because these are offices of the state or just because they were uniform or just because they're correctional offices, you know, they're entitled to notice of what the standards for their conduct are just as all the rest of us are. And that's a problem because certain things seem to me to be prohibited after Florence. But that's a different question from me as to whether these individuals could be clairvoyant. You're on other two components to this case in the district court and the primary component of it is the effort to seek perspective and junct of relief about these practices and a determination as to whether or not they're constitutional. So that's the primary focus of this litigation is seeking and junct of relief, not seeking monetary damage. Certainly that's pled in the in the class action complaint. And there is there's a separate. There's a prayer for monetary. Yes, sir, there was and there's certainly a question of qualified immunity as it relates to the individual. The individual policymakers in question in this case, the three individuals who headed the West Virginia Regional Jal authority. He did not the judge below did not. The judge only reached the constitutional issue and determined that there was not. And in the briefing I put before the court, I asked that one can affirm on an alternate ground. Absolutely, Your Honor. I don't agree that that should be the case because I think or excuse me, I would suggest to the court that the Logan versus Shelly decision is not expressly overruled in the Florence. Let me ask you about your argument. I want to ask exactly why you met when we talked about can't lean the facts of can't lean. And you said there were other papers submitted. Did you mean you argued other situations in which Mr. Cantley had been treated in this way when he wasn't put a reign to put in the general population? Is that what you meant by that? Yes, sir. And that was argued in front of the orgy that to the district court. It was argued in the papers and it was argued at oral argument. I understand what you said papers. Why apologies? No, no. Now let me ask you this. Do you think the facts, forget the timing for a second. The facts as they play out in can't lean here. Do you think that's controlled by Florence? Not the timing, but just the facts. I'm going to get to you on the timing that he was a reign and eventually put in the general population. Do you think Florence would allow that? Yes. When the instance where Mr. Cantley was a reigned, he saw a judicial officer had an opportunity to contest his attention and then was ordered into the past. So then why don't you lose facts here in can't lean? I lose on the facts relative to that particular search, yes. That search is covered under the Florence decision. I want to get back to something Judge Wilkinson said before about the question. Let me ask one other question. No, no, no. What if in fact an officer at the time he searched it and know if somebody was going to go into general population. Your view is that would, but the person did go into general population. You think that officer would be would be protected or not? A testimony. I'm just asking this kind of a hypothetical I'm asking you that under your theory. If an officer performed the search before the officer knew as a certainty the defendant was going to go into general population. But the defendant in fact under my facts scenario did go into general population. Is that a protected search? Generally officers know how I ask you that I ask you if he did it. If I would certainly think in that instance if an officer was not aware of the person's detention status for reasons that are not applicable. I would think that would be protected by qualified immunity. That instance. Yes. That's not the case here. I'll speak to the constitutional question on that's the issue before us here. Yes. How does it in rule on that except we can look at alternative is judge vocals and said but I thought your arguments to the constitutional question. And addressing what Judge Wilkinson said before or question me about before. Deference to correctional authority is not abdication. The bell balancing test. That's arguing at a very general level though. I mean this in the case of Mr. Teeter. It seems to me it's sort of on the line because when he gets a bit to what Judge Shed was asking you about which was that he was in a holding cell where he could have been expected that a van of inmates. It held up to 15 people and he was moved eventually because a van of inmates was coming in. So he wasn't held in an individual cell or anything. He was held in a cell with 15 inmates or would have you. Or it could have been 15 inmates. It was constructed to hold that many. And that seems to me kind of on the line. But isn't that very type of sort of in between or gray area or a foggy area in which qualified immunity would attach. In response to what Judge Shed asked me in this case they know who's going to go to. What Judge Shed was pointing toward is it's not always possible to tell right at the outset who is going to be put in a general population. And who is not now. The some instances you would be able to. In this instance that is established Mr. Mincer admitted that at oral argument in front of Judge Chambers. People that come in that are court order commits they immediately go to the general population. People that come in that are temporary commits are held in the booking area separate from the general population until they are arraigned and a determination is made of their detention. So we're not suing individual corrections officers here. So there's not a there's not an issue of. So pre Florence. That's not well that guess that procedure is allegedly pre Florence we're not sure that's the case but we didn't have a chance to to really explore it. And there was at least the possibility that given that the sale was constructed for 15 inmates that a larger number of inmates would arrive what I'm what I'm saying is you may be right going forward. And that's that that's certainly a fair point. The question is and what I think is an uncertain area. Prior to the Florence decision whether we can expect a correctional officer figure out exactly what the law is in this area for this type of situation. I mean I can't do it I couldn't do it. I tried to look over the different decisions prior to Florence and the different facts situations Logan and Amici applied to very different facts situations. And I'm not sure I could figure out exactly what was permissible and and and what was not. And I just ask you do processes is a is a standard that embodies notions of fairness and question whether you can fairly punish someone without clear notification. Of what conduct is prescribed that's that's what troubles me. I would agree with your honor that that and I believe my colleague Mr. Lit and the final on case will discuss this at greater length but qualified immunity certainly is a difficult issue that the court has to deal with here and one that is certainly uncertain. Let me take you back to let me take you back to my question you answer my question will yes it's covered by qualified immunity if you can remember my height. I remember yes sir what I'm asking you post Florence do you think that is a constitutional violation not qualified immunity so that the person. Let's just say the procedure being used is the procedure that searches before the jail or the officers know for sure that defendant is going to go to general population but in fact in the facts of the case the defendant does go to general population is you think that's not qualified immunity. I'm asking is that a constitutional violation in your view may have the privilege of proceeding past my allocated time. Sure thank you how too long but you are there chance. I do want to answer your question your honor I want you to yes I do believe it is a constitutional violation because a corrections officer can easily find out and in fact we'll all know. No no no I don't want to go to that point the point is you think if he does it or she does it before they know you think that's a violation. Yes if they do it before they're arraigned I believe that's a violation if they're it's done after arraignment and they go into general population then no it is not a violation but you the the procedure in this case thank you thank you very much thank you. Thank you very much. Please court your honors I have the privilege obviously representing the state of West Virginia our regional jail authority and three executive directors who have ran that authority for the last 15 years. As Judge Wilkinson just pointed out if we can't figure out a group of reason to heads able to look at discern the law whether this was okay or not pre-arrainment. It goes to the qualified immunity question agreed entirely. I'm with the entire out of the world do you get around Florence in so far as teeter I don't know about Kentley I'm having some problem of seeing how he fits in but when you look at the Florence decision a five four decision chief justice robbers and Justice Alita wrote very limiting concurses. My math tells me you subtract those two from the three you're going to have from the five you're going to have three left in the majority and they explicitly said and particularly chief justice right. She's really fed her up and there's nothing wrong with three judges. Thank you y'all I must agree sometimes even two can be good to. She just as robbers in his concurring opinion he said words to the fact that we must not embarrass the future and I see which is which is interesting they recognize that well you got an instance here of an individual who's out snow playing his yard he pushes snow out into the road officer comes along as you obstructing things they get into the thing he gets arrested. He goes in and strip searches while he's going through the ship search one officer says well you know what officers here doing the same thing we got to rest them for that too. So he strip searches gin and tools or check now he's open he asked to been over and expose himself all out in the public you know that could be grandma who was out there shoveling snow in the yard too and that same thing could happen and I think chief justice Roberts and Alito recognize that that there's a limit to this. On one hand we're concerned about contraband but if but for every citizen to be subject to a potential strip search just on a balancing where there's no consideration of that teeter is very limited in this instance and that's why I point to his case in particular on the constitutional question. I'm not there only it may well need to be remanded on immunity or we might be able to get to it I don't know but the constitutional question is difficult on teeter. The constitutional question is the one I'm interested in judge because qualified immunity issues already settled that's easy for all of us the issue of moving forward what happens on this claim for injunctive for me. Qualified immunity is settled but settled while we're here. It settled because I'm here on a constitutional issue the qualified immunity issue again if the three of us if the three of you were all of us in this room can't figure out you're right. It's not reaching this case so that's why I see I don't know about the settled aspect of it but it didn't reach it in this case when I say settled I say settled because judge Wilkinson pointed out that we can't determine pre pre-floorance whether it was a clear line. How could we get that qualified immunity is easy that's what that's easy. It also seems to me it's an interesting thing because it seems to me judge winds making some good points about going forward. I mean there are limits and if someone's not going to be in the general population you know I agree with my colleagues review of the concurring opinions. And if a blanket strip search policy prior to a rain month for somebody who's not going into the population that's bad. And that's you know that that does seem to me to be the constitutional rule going forward. The problem is you've got a case with Teter who's who's kind of on the line here. You've got you've got circuit decision district court decisions all over the lot. You've got someone who's not in a single holding sale but somebody who could be joined by a much larger number of people. So it's murky in terms of imposing damages on somebody. And you know the other thing is the strip searches there's no question that they are fit to human dignity. But there's also in Florence opinion points this out time and time again. Both pat down and strip searches where they are conducted where they need to be to protect the safety of inmates because the jail environment is something where the strong prey on the weak. And you don't want the weak to be even more vulnerable than they already are. You're honored to address the point of pre-arrayment strip searches. The strong as you've described them that get inside start out in those communal holding cells. The strong that prey on the weak. And every rationale for strip searching once somebody gets in or is going to general population applies when they're in that 15 person communal holding cell just as equally. So the issue is and the court determined you talk about the grandmother that that might be out and gets gets brought in on a misdemeanor charge or Mr. Teter in this case. The problem is that the Supreme Court recognized there are all sorts of circumstances where someone gets brought in on what would otherwise be thought of as a minor non dangerous charge that ends up with contraband. It could be that we've got more serious because the record in both of these cases indicate that there is a real possibility not only of contraband and cell phones and the libra. We're talking about razors and knives and underwitly the albers. Let's suppose that something happens which we all wish not to happen and that is somebody gets badly hurt. Somebody gets slashed up or whatever and that's because the knife wasn't found or the razor blade wasn't found. And then you're going to be in court in a hurry. You're right. We get sued and you didn't even look for it. You're going to be in court on a failure to protect claim. You're right. Because you did not do enough to protect the safety of that inmate who was taken advantage of by people who were either bigger or better armed than he or she was. So it comes down to a balance. The Supreme Court struck a nice balance I think going forward but that doesn't mean we should clobber you with damages for failure to figure out what. And frankly I could not. And understand the Supreme Court didn't say pre-arrainment it's not okay to do. Everybody is coming with this sort of argument. It's been minded even when you look at justice, Olitos, concurrence and Chief Justice Roberts. Even in those instances you can do a strip if you have suspicion. You can. It's all it is a suspicion not probable cause it's not all this. It's a suspicion. It tells you an ordinary citizen come in and you got someone pushing snow out on the road and there's just no history of anything there. You just can't and you're not going to put them in the general population. You got them over the attention sale and you got in by the way he's been escorted when he was in that area with the 15 or so the old time he's there. That you just don't strip ordinary citizens under there unless you have a suspicion. So all of these horrors, parade of horrors that can happen you just need a suspicion. I know the Supreme Court user Timothy McVeigh example enough but you could pick any example on an extreme that will be an exception to any rule you make and use that as a basis to go on the other way with it. Well if we if we get the problem heaven though at least in where we're going. If we're talking constitutional analysis that's one thing we're talking qualified immunity is another thing on this. And if we're going qualified immunity on it and we're talking about the law I'm not sure the law was all over the place in the fourth circuit. The Logan case was the law here. And so that's the law you have to deal with when you're dealing particularly with Tita is time it is a Logan case not the law all over the place in other places. It's the Logan cases. You're right judge and we all understand from looking at Logan Vichili that it doesn't say pre-arrayment strip searches are unconstitutional. We know that because she wasn't pre-arrayment. She was post-arrayment when she got searched. It's not a slam dunk is what I'm saying. It's almost like you need for the on call up out immunity if you're going to go there. Some trial court or somebody needs to go back and look at Logan and come up and make some determination based on the facts because it fit within for circuit precedent. But Logan made two really important points that I agree with entirely and that make perfect sense to me. The first is where is the search done and is it done in private. In our case our regional jails do more private searches than what Florence was subjected to because Florence had five other detainees in with them when he was strip searched one of his two times. In our jails every detainee is searched by himself and one correctional officer of the same sex always no exceptions. And so we're more private that's a really important consideration. The second is does it is it done pursuant to a reasonable effort to reach your penal logical goal right is it done for safety purposes and in Logan Vichili it clearly was not because she was released within minutes of the search. The facts that lead up for determination of whether that happened or not were facts the trial judge never got to because it never made that determination. I mean all of that may well be true that's the way it happens here you know but it didn't analyze it from a qualified immunity perspective. It did it from the constitutional. That's right Logan Vichili actually went up on direct verdict. What your point is the facts of Logan are dramatically different from what we have here because the detainee was being held without being exposed to any other detainees. They hadn't even tried a pat down search. The search was done where other people could say could see her naked body. I mean the search was outrageous. It's patently offensive. But that's a far cry from what was happened here which was a search by an officer of the same sex and with two pat downs. It was conducted in private in other words you said hey they made one mistake after another and you conducted this in a totally different way and a totally different fashion. And when we're talking about the balance between security and privacy which is what we're talking about the facts and the manner in which a search is conducted make a big difference because the dignity interests are implicated in the manner in which it's conducted. The big issue of Logan Vichili was a qualified immunity versus constitutional. If you're talking constitutional law on this and you're looking at those concurrent opinions even the scenario just as Wilkerson puts forth that is privacy same officer in the sale will not fit if that person's not going into the general population and if that offense is relatively minor. It doesn't matter if you can take him in a little room with the same sex by himself and search him you still can't do that to an ordinary citizen if you're not putting them into the general population or there's no danger of them being in exchange. I'm sure for one of those two unicroned opinions and as I indicated the sending opinions which was for them said the same thing along with those two. So that's unconstitutional too in that in that arena. For 40 years the US Supreme Court's recognized that there is a loss of privacy and a loss of freedom of choice as an incident of detention. The question is does this search serve a legitimate penological interest in Logan Vichili it did not because there was no safety interest. Let me ask you this under the facts as a pertains a teeter in this case. I'm not talking about qualified immunity I'm talking about the constitutional violation. I want you to make your argument to me or to us on what is the most important fact fact as to teeter that means there is no constitutional violation and if it's different what is the minimal fact the minimal and minimum fact that makes that argument. The largest significant factor is this he's put in a communal holding cell. How many people with one other person specifically to him however at the time he gets put in there it's absolutely not predictable as to whether it's going to be one or going to be 15. And if you're going to put him in with 15 other people and you're not going to protect his safety. So by strip searching each of you to find a stand. Then is your argument that if you're going to be put in anything other than a solitary sale. This constitutionally just fine. If you're in a solitary cell there's no reason to do a strict would that be yes or no. That's a yes because even under Logan Vichili by yourself there's no reason. There's no safety risk. Wait one second you just told me 15 people and I said was he in with 15 and you said no but at the time you did not know what on the solitary cells how would you know at that time that maybe you just didn't get doubled up and you had to put two people in the cell. I took as a definition solitary is going to be one person. And he's by himself and in a cell where he's only going to be by himself. I didn't ask that solitary cell I didn't say by himself but is your argument that there's any chance at all that he'll be placed with somebody else in detention. Constitution is just fine. Well he is just fine. He's going to be put in there. No no I asked you is that's your argument that is constitutionally. That is argument because you got to save him from others. And the only time a strip search body cavity search is not just fine is if the officer knows beyond any doubt that at the moment he wants to do the search the person cannot possibly end up with another inmate. Is that your argument? If he can't end up with another inmate there's no safety reason thus no legitimate penological purpose served by doing that strip search. So that means that basically everybody can be strip search body cavity search for anything anytime. If your jealous set up so that you keep everybody and individual cells by themselves there's no reason to strip search before they get a rent. It's not that limited and if you look at Chief Justice Roberts concurrence he doesn't say you know you actually put him in with the gentleman. He says there's no alternative available to not put him there. And then the same and then the leader follows up and uses the word could he could be put somewhere other than general population doesn't give the doesn't give officers a cock lunch opportunity then to say well we've read Florence so from now on we'll just put everybody in the general population that doesn't work. If there's an opportunity you got someone come in snow plow and I keep using that because that's the example put on the road ordinary citizen and you got a little spot you can just hold him here for this very minor offense. He says no I'm going to put him in the general population therefore I can strip searching you can't do that. And on of those at least on the Chief Justice Robertson is very strong on that point that's where he used that language not to embarrass the future. He knows what this means. Right the exact language used is do you have facilities available to house him singularly we do not sing a lot from the general population the fact that you bring another detainee and sort of stick him in with it doesn't necessarily make that general population. We've got two issues with that not just one one is he's put in with one but unpredictably maybe in there with 15 others but more important than that still is he's taken into the core of our facility to go to video or a man meaning he's walking past the tainees who were in general population. He's escorting right going so what if he's being taken to the cool well there are there officers in the booking area as well however well he's in that community. He's contraband and do others he's being escorted the whole time he's going through that that's true. Even mine all of this is actions being taken by the officers in terms of where they put it their choices being made here and the question is how much do you get the nuance those choices to fit within scenarios that will will take you out of constitutional and constitutional violation again I'm you know is a different argument when you're talking Logan and and and qualified immunity I think I'm moving in judge judge Wilkerson camp on that when you get constitutional violation which is the question we have in this case because the judge didn't get to it then that's a whole different scenario. There's no question nobody's ever said that this even pre-arrainment would be a constitutional violation right spring court and Florence didn't say we've decided and you can't do this pre-arrainment they said that it should be a constitutional violation right. The issue's open for another day which is what we're here about today. Well the only point I'm trying to make really fail in my eyes we've had a lot of fun analyzing Florence and some good points have been made with respect to the opinion of it we have the benefit of Florence they did not. That's why I say that's an easy issue qualified immunity and that's not why I'm here I'm here about is this a constitutional rights violation or not I clearly don't believe it is the reason I don't believe it is is every reason why you would do it when they're going to general population applies equally to once you're going to put them in a communal holding cell and we don't have an alternative. I have a violation that's put them to. What would she do we do with the qualified immunity? We're sitting back to the trial judge for the termination of whether qualified immunity exists in this case in light of Logan because he didn't make any facts. You all certainly. We just do it ourselves well you all certainly could say you're going to have a case right behind me where you're going to have to say whether it's qualified immunity or not. The issue is that preliminary and juncture or that junction claim is going to get sent back if that's what you decide the point is mood anyway we don't do pre-reignment strip searches our policy doesn't call for pre-reignment strip searches our training doesn't. If under Pearson V. Callahan if we resolve qualified immunity the way he wants to resolve it do we need to get to the question of whether it's a constitutional violation. Absolutely because there's still an injunctive claim out there that's at stake and we can we can decide okay from here forward you know here's what's going to happen and qualified immunity going back we shouldn't have expected these people a reasonable person there in their situation to know you could or could not do this. The issue is is this a constitutional rights violation or not that is it esthetic or is it a constitutional rights violation. Absolutely not now let's go back as you read I just want to be sure I get this straight and really that I understand your position you think after Florence what are the parameters of when there is a constitutional violation under body cavity search. Well I would say if you're going to do a physical body cavity search with penetration certainly that probably would be a constitutional rights violation however our situation with no contact. I don't know you think it would be violation if they were going into general population. If you're going to do a penetrative body intrusive body cavity search by an untrained medically untrained correctional officer I would think that there's a serious. Is that for a second? I don't know what happened in this case with Teter that the search that Teter underwent we together on what that is factually. Yes when would such a search be a constitutional violation after Florence in your opinion. I don't think it is it would never is never is if in our jail system there is no alternative or potential for a detainee to be isolated by themselves. So you think then the way you read Florence is in the real world you never know for the certainty that's required to for go that search so therefore any search as search is allowed in any circumstance. Yeah we've got we've got all kinds of contraband found evidence of that in this case justifies that search. Let me ask you one other question did the district court make a finding on the no alternative point or whether you would have reason to know that he was going to be in the general population or not but they may have a bearing on the prospective question. I want to know on those two points which you may number one did you have did you have no alternative to putting him in this larger cell and number two were you able to know at the time you conducted this search. Well he was going to be putting in the general population particularly the alternative point what alternatives were available. Did the district court make a finding on that I can tell you I noticed just now my time is up but I would love to answer the question if I can. The district court absolutely said that there is there are individual cells in that area that are intended for people who are on suicide watch who are coming off of drugs or alcohol and need to be kept isolated for that reason this guy was going to a communal holding cell no question there was no alternative available that was a finding made by the district court. And a factual true he threw out our entire unit moved when the van of 15 arrived into a two person two people were put he and the other guy into another cell for a period of a little less than an hour. But you're saying he made a specific finding that there was no alternative and yet there were individual cells. There are individual cells again intended for other purposes and use for that. You say there are individual cells for people coming off of alcohol and drug has wouldn't have been feasible to put this individual in one of those cells. You may have a circumstance where one of those cells is empty however it's not predictably going to occur in perpetuity or in every situation the intention and the understanding is that these people coming in new detainees will go in a communal holding cell. So what do you think of a limits because it's clear that Florence let you go a long way but it does have limits and what do you think are the limits just on your own. Now that you've got that decision you're going to have a large part you're going to have a lot to say about how the regional jails go forward. And what would what would be your policy after Florence? What can you represent to court because you don't want you don't want injunctive relief or what's what's going to be the possible going going forward. Do not do intrusive body cavity searches. That's constitutional rights violation of my mind. At any point no correctional officer should do that and we don't do that our policy is if we believe that's necessary what we'll do is dry sell people and have them sit in there if they've got to go back to general population. You don't have any blankets you don't have blanket strip searches even for people who are going into the general pop. Not that would involve contact or inserting anything into any orifice of the body we would send them out to a hospital if we deemed that a punishment about a penetrating body search. That's correct. Much different from visual body body cavity. Do you think there are no limitations on just the visual strip search visual inspection in our circumstance that's correct because we don't have an alternative to putting them in communal. I didn't even I you don't think that generally because unless this I mean as I asked you your your view of the law after Florence says unless the officer is absolutely certain beyond any doubt there won't be any contact between this defendant and another defendant that any that visual strip searches between detainees I agree. When we use the word strip search are we talking about visual searches or are we talking about penetrating search. We're talking in this case about visual cat body cavity inspections and that's what Florence looked at. I understand your view on the penetrating searches but what is your view on the limits of the visual searches after the penetrating search is well anything where you're going to make contact and you're going to go into an orifice of the body whether it's no absolutely not. Absolutely not. Talking about the visual on the judge said it's not. Florence made a major point that the fact that there is no contact in its search which is one of the key components. So so anybody coming to your facility now is going to have going to be searched in the manner that a Florence now because you have made a decision. There's no alternative. That's correct. And and you think every citizen that comes in nothing matter. We could be if you bring them in that facility you're going to strip search then you're going to do a visual search in the Florence matter because you now have no alternative. Let me let me make a correction. Let me tell you real quick. We had three jails that were doing pre-arrayment strip searches out of ten against our policy and against our training. However, after it was made clear to them that that was in violation of policy they stopped doing it. And we had administrative sergeant Wayne testify in this case and it's in the record that when they were told that Mr. Teeter's jail, Tiger Valley Regional jail, not to do pre-arrayment strip searches anymore, every officer in there was upset because they believe it compromised the safety of that facility. And in fact after they stopped doing those searches he had two circumstances where in a communal holding cell multiple detainees were smoking pot and taking Xanax and there was a sharing of Xanax by one prisoner that came in. And that is the earmark of what will happen absent pre-arrayment strip searches when people are put in this communal cells. That's why we need to do that. It's not just when people are put in communal cells but when there's possible there will be put in a cell with at least one of the person. They'll be put in a communal cell. The questions will end up with other people in with them. You're exactly right. And you can't predict. You say communal cells just because they aren't designed for one person. That's exactly right. And it's the potential for them, for other people to join that not the actual fact because you just don't know if they're going to do the search. I want to be sure I'm sure I think I am. Well, if you think when anybody is arrested they're subject to this or if they're going to be held they're subject to this search unless it's just a dead sense certainty they can't even have any contact with another. Right. If they go to a jail and they're going to have contact with other detainees. So the answer is yes, though. That's right. If they could theoretically be arrested and released without ever going to a jail facility. I'm going to come at the jail. Yeah. So it's always the case that you could potentially house it to just Tenee with somebody else, isn't it? That's always the case now. It wasn't the case in Logan B. Shealy. They knew she wasn't going to be housed when there was somebody else. She was released within a prison area is always a possibility that a person being arrested can be housed with someone else. In West Virginia Regional Jails, yes. And so following so Logan the concurrence is mean nothing. There's no possibility exception, even if because what you create it now is always a possibility. And if you follow that then doesn't mean anything. Every one of those reasons to do it once somebody goes to general population applies equally to when they're going to get put in a communal holding cell. I don't think that's the end of this issue. We'll see. Is that true that there's even for someone just to take your ordinary drunk and you say goes in a solitary cell with that with respect to that person, for example, is there reason to believe that they might be part of the general population? Yes, because once you are done sobering up, you can be held in West Virginia jail for up to 12 hours before your arrangement in which case you're going to be putting that communal holding cell because you're going to need that individual cell. If you're going to be held at a jail for any amount of time, visual search is constitutional. That's correct. So, low or Florence, you just made it blanket. Has no exception, no possibility of exception now. Look at that. Body cavity searches that are invasive. What in the world was Chief Justice Roberts and Olito talking about? There's not a possibility of an exception to this thing. I don't get it. I don't know what they were talking about. I don't know what he's talking about when he says not to embarrass the future. Chief Justice said that. What in the world could he have been talking about? Because everybody is going to be searched in West Virginia. I understand you're talking about two judges. There's a lot more than that up there. Yeah, the four to sending of judges that agreed with him. Well, we got to go by the majority opinion. That's all we have. I can get in trouble adding and subtracting just try to go with the majority. What the majority says. That's right. Anyway, thank you very much, sir. And we will appreciate the time. From you and Robottle. Thank you. Thank you, Your Honor. I'd like to raise one issue that has not been the subject of this argument thus far, but as an important component of the appellance arguments in this case. And that is the concept of the delousing. And I'd like to point to the hypothetical posed by Judge Wynn when he talked about grandma coming into the West Virginia regional jail. I'm sorry. She would get searched. She would get searched. Grandma, anybody else, the Pope can come to there. If you get arrested, he is going to get strip searched. Yes, sir. Not only is he going to get strip searched, he is going to be put on a rest. Don't wait the law on West Virginia. He would get strip searched. That's exactly what I heard. Well, certainly this case has probably had caused me to have caution about sending my children to college in West Virginia. That's for sure. It's a funny thing because if he was not a funny thing, but it's a troubling thing because when you have a blanket policy, it's always said to be too broad. And then when you have a selective policy, the accusation is that you're profiling or singling out certain members of certain ethnic groups or people with certain, in certain demographic profiles. So I'm not sure. I mean, the blanket policy is sweeping, but the selective policy is profiling. And so you get, you know, they're whipsawed. I mean, you're catching them going and you're trying to catch them going in common. Your honor, I think that dichotomy is measured by the Florence decision about people who end up going into custody. And that being appropriate for everyone. I do keep coming back to the fact that the majority opinion line after line after line talks about the very real danger of introducing these contraband and things and and and cell phones because cell phones are prohibited, I think, under federal policy in the Bureau of Prisons. And the, you know, we say, well, we're balancing the needs of prisons against the needs, against the dignity of the individual, but there's a dignity of the individual point on the other side too. And that is that people do not want to get slashed with razor blades and with knives. And, you know, that's a part of, that would be a part of my human dignity. And especially if I couldn't defend myself because I was a little bit older or a little bit younger or didn't, a less able to engage in a fight or or or whatever and I, you know, I worry if we go too far in your direction that we're just leaving these people vulnerable and exposed. And that, you know, that really troubles me because I don't want all my conscience that somebody's been slashed and beaten because we would not let them. You say, oh, you got, you can do reasonable suspicion. That's fine, but one of the things the Florence decision says is that when you're bringing in large numbers of people, sometimes you, you don't know. People mean they're, they're all people charged with all different kinds of things. And the Florence opinion says, you can't classify people pre pre arrangement, pre-arrainment. It's a very difficult thing to do. And, you know, you worry when you sit on a bench that you're going to leave somebody vulnerable to a perfectly terrible injury, which is going to have them hospitalized. So, what it, what's the other, your opponent does have an interest on their side of the equation. I would agree and I agree it's important to keep contraband out of jails and I certainly agree as a civil rights lawyer that it's important to protect detainees from harm. But there are lesser measures that can be used here to do that. We talk about weapons. I have to go through a magna-tometer to come into this courthouse. They can use a magna-tometer to detect weapons and phones and that type of thing at the West Virginia Regional Jails. What do you think, what do you think? After the search, what other fact in Titor's case, what other fact makes the constitutional violation that, what, what is that? Well, I would think that the central fact in what has not been raised today that makes Mr. Titor's treatment in everyone's treatment. What is the central fact? Delousing. Having a complete stranger spray your genitals with an ace hardware pressurized wanted garden spray can. Wait, as to the search. Well, that's part of that's certainly part of the search. That is a seizure to make contact with someone's genitals. Wait, no, wait, stop for a second. I'm sorry. Is your answer that if there hadn't been a delousing, there would not have been a constitutional violation as Mr. Titor? No, sir. You asked me. Well, then delousing can't be. And I'm asking as to the search. That's what we've been talking about. Yes. Let's talk about delousing in a second. What is the one fact that one fact that exists in Titor's situation that makes this a constitutional violation? In inviornce. I didn't mean to enter. Oh, sorry. In inability to exercise your constitutional right to be arraigned to contest your detention. I don't know what that means. No, just say it in everyday terms. What? To see a judge. You didn't get to see a judge before you had to go through this. And there was no determination made that he was going to go from what the defendants or the Apollese style as a temporary commitment to a court-ordered commitment. Well, let me ask you a fist of case, a disdipithetical, that this person has been arrested for dealing drugs. I'm not talking about your client. This person has been arrested for dealing drugs 300 times in that jurisdiction. He served time after time after time and the officers know there's no question. They just didn't realize the question that this person is going anywhere but other than to the general population. But they know that before the arrangement you would say that's a constitutional violation? No, sir, because I would strip search that person myself because there's reasons to believe that they have a weapon or contraband based on their history. Are they got arrested passing bad checks? That's different. No, that's not a change of hypothetical. It is different. No. So that means then that person arrested 300 times before and gets to, you know, 12, 15 months every time that he does it. It just can't help himself. But he hasn't been arranged yet. The officers know he's going to general population. They can't search until the arrangement. I would say, Your Honor, that, or it would be certainly... You know, you get me. I'm just looking for what is the dividing point that you say that plus the search is a constitutional violation. The lack of judicial process. And nobody can... just as we can't come before this court is lawyers and try to sue, say, what Your Honor is going to do. Yes, this is not a connection. I suppose I mean sometimes people are held in large holding cells with large numbers of people before they are brought for arrangement. And I'm wondering whether the critical thing is the general population. If someone's held in a holding cell with 15 other people and you haven't brought them for arrangement. And that circumstance, would you be able to strip search somewhere? No, Your Honor, for the same reasons I said before. And also because these individuals are searched, they have the ability to be put through a magnetometer. They have the ability to use something called a boss chair, which detects metal and body cavities. And you know it's not like they're in there on supervised that... What's your main complaint about de-lousing? The main complaint is that the inmates weren't allowed to do it to themselves? Yes, using an ACE hardware pressurized laryngrin spray can. What are they... Dehumanizing, unnecessarily... Wait, but let me ask you, that's not what I ask you. I said that they were not allowed to spray themselves. No, that they weren't allowed to apply the solution to themselves. Okay. So not to be sprayed. So they had to be given it some form they could rub on themselves. It's a shampoo that comes in a bottle. This is detailed in the right. And you can put it into a cup. It's just like shampoo and you can wash yourself with it. That's what I said. They could rub on themselves. Yes, there's a big difference between... So you think that... You think there'd be a constitutional violation under delousing. Even if the rule was, we give you the a spray can. And you have to spray yourself. That would still be a constitutional violation in your opinion. Yes, because it's a difference between having you take care of your private parts and your face and your hair. But what if... What if they allow you to spray you down? What if they allow you to do that with the a spray can? They just say, for various health reasons, we don't want to give you this liquid. We're just going to put it in the can. But you have to spray yourself. We're not going to do it. But you've got to spray yourself good. You're just a constitutional violation in your mind. No, I would think, however, that could give it to them in a cup. That would be a lot easier. We have to make it a constitutional violation if they could do it a little bit better than they did it. I'm sorry. It doesn't make it a constitutional violation, does it? If somebody could think of a little bit better approach to it. It does under turner. If you can show that there are... Are we getting off the coast to being prison wardens? When we're going to say exactly how the delousing procedure ought to go and exactly what this and what that. I mean, one of the points of Florence is we're not the substitute our judgment of out of correctional officials. I mean, the farther we get into the weeds, indicting exactly how this procedure should go, or how that procedure should go, the more we just start taking over a function, for which we haven't been trained, and for for which, frankly, we just not competent. The turner decision makes clear that you have the right to select or you have the right to... If there's a demonimous way that an inmate's rights can be protected and correctional facility, you know, and the correction's interest can be accommodated that that demonimous interest should be used. It also makes clear that at oftentimes that can be a jury determination, which is one of the underlying problems with Judge Chamber's decision, is that certainly under the recent Supreme Court decision at Tolin versus Cotton, it's made clear that district courts should not become fact finders in these kind of issues that they should allow for fact finding. But this is a reasonable demonimous alternative to spraying down someone's genitals. I mean, you know, if we can't do anything... I've given you both a lot of extra time. I appreciate that, Your Honor. I think we're ready to come down and shake hands and move on to our second case. Thank you, Your Honor