FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUHAIR KHATIB,
Plaintiff-Appellant,
No. 08-56423
v.
D.C. No.
COUNTY OF ORANGE, a political 8:07-cv-01012-
subdivision; MICHAEL S. CARONA, DOC-MLG
an individual; BRIAN COSSAIRT, an
OPINION
individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
December 9, 2009—Pasadena, California
Filed May 3, 2010
Before: Alex Kozinski, Chief Judge, Stephen S. Trott and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Stephen S. Trott;
Dissent by Chief Judge Kozinski
6587
KHATIB v. COUNTY OF ORANGE 6589
COUNSEL
Becki F. Kieffer and Jennifer Mathis, Troutman Sanders,
LLP, Irvine, California, for the plaintiff-appellant.
6590 KHATIB v. COUNTY OF ORANGE
David D. Lawrence and Christina M. Sprenger, Lawrence
Beach Allen & Choi, PC, Santa Ana, California, for the
defendants-appellees.
OPINION
TROTT, Circuit Judge:
Souhair Khatib sued the County of Orange, California and
some of its officials, alleging a violation of the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc-1 et seq. The gravamen of her complaint is
that she was required against her Muslim religious beliefs and
practice to remove her “hijab,” or headscarf, in public while
she was held on two occasions between 9:00 a.m. and 4:30
p.m. in an Orange County Superior Court holding cell pend-
ing the disposition by the court of her probation violation. The
district court dismissed with prejudice her complaint pursuant
to Fed. R. Civ. P. 12(b)(6), on the ground that a courthouse
holding cell is not an “institution” as defined by RLUIPA. We
have jurisdiction over this timely appeal pursuant to 28 U.S.C.
§ 1291, and we affirm.
FACTS
On June 29, 2006, Mrs. Khatib and her husband pleaded
guilty to a misdemeanor violation of California welfare law.
The Khatibs were placed on probation on condition that they
complete thirty (30) days of community service by a date cer-
tain. Two days before that date, they appeared in court seek-
ing an extension. However, the court revoked their probation
and ordered them held in custody in the courthouse pending
disposition later that day of the violation.
When Mrs. Khatib was processed into the courthouse hold-
ing cell, officers required over her objection that she remove
KHATIB v. COUNTY OF ORANGE 6591
her headscarf for security reasons. To do so in this context
violated her religious beliefs by forcing her with head uncov-
ered to confront strangers, including men to whom she was
not related. As the district court noted, “Appearing in the
presence of male non-family members without a hijab is a
serious breach of faith and a deeply humiliating and defiling
experience.” Later that day, the Superior Court Judge returned
her to his courtroom, reinstated her probation, gave her addi-
tional time to complete her community service, and awarded
her one day credit for time served in the “Orange County
Jail.” She was then returned to the holding area from which
she was released later that afternoon.
DISCUSSION
I
[1] Section 2000cc-1 of RLUIPA is entitled the “protection
of religious exercise of institutionalized persons.” Section
2000cc-1(a) prohibits any government from imposing “a sub-
stantial burden on the religious exercise of a person residing
in or confined to an institution, as defined in section 1997 [of
the Prison Litigation Reform Act (“PRLA”).” Section 1997 in
turn describes in relevant part the term “institution” as fol-
lows:
(1) The term “institution” means any facility or
institution —
(A) which is owned, operated, or managed by, or
provides services on behalf of any State or
political subdivision of a State; and
(B) which is —
...
(ii) a jail, prison, or other correctional
facility; [or]
6592 KHATIB v. COUNTY OF ORANGE
(iii) a pretrial detention facility . . . .
[2] We begin by noting that the facility under examination
in this case — a courthouse holding cell — is not directly
addressed in the statute. Thus, the question here is whether the
courthouse holding cell into which Mrs. Khatib was placed
qualifies as an institution as defined in § 1997, i.e., “a jail,
prison or other correctional facility,” or “a pretrial detention
facility.” We hold on the basis of the text of the statute con-
strued in the light of its purpose that it is not, as we shall explain.1
II
A.
There are as many different types of lockups in courthouses
as there are courthouses. Some are more complex than others,
but many are just secure cells immediately adjacent to court-
rooms where prisoners await formal proceedings in front of a
judge or spend recesses in trials and other proceedings. Such
cells typically have no beds and no food service other than
cold lunches provided by the detention facility in which they
reside. Persons in such cells are not accompanied by any of
their personal belongings. The cells themselves are stark, bar-
ren, hard, and distinctly utilitarian. Their dual purpose is only
(1) to control persons in custody while they are in the process
of being delivered from the detention facilities to the court-
room, and (2) to ensure the security of all involved, including
the persons themselves as well as judges and courtroom per-
sonnel.
1
Khatib also argues that the district court erroneously converted her
motion to dismiss into a motion for summary judgment by relying upon
materials outside the pleadings. The district court did not convert Khatib’s
motion into one for summary judgment. Rather, the court relied upon the
Grand Jury Reports which contained detailed descriptions of the Orange
County detention facilities, including courthouse holding facilities. Those
reports were submitted by Khatib and judicially noticed by the court.
Therefore, the district court properly relied upon them.
KHATIB v. COUNTY OF ORANGE 6593
[3] A courthouse holding cell is designed to support a
courtroom during courthouse daytime hours. Time spent by
persons in holding cell custody can be as short as minutes or
as long as hours — but not overnight. Such a cell is not a
place where persons in custody either reside or are institution-
alized. As such, it is not a “correctional facility” in the nature
of a jail or a prison. See Witzke v. Femal, 376 F.3d 744, 753
(7th Cir. 2004). The purpose of courthouse confinement is not
to correct, to punish, to deter, or to rehabilitate, but simply to
provide a secure transient environment for persons in custody
while they are in the courthouse awaiting trial or other judicial
proceedings. In the language of the statute, these persons may
be confined in a holding cell, but they are not confined to it.
Accordingly, § 1997(1)(B)(ii) covering “jail[s], prison[s] or
other correctional facilit[ies]” is inapposite.
B.
[4] Courthouse holding cells are not “pretrial detention
facilit[ies]” either. The term “pretrial detention facility” is not
ambiguous; it is a facility where people ordered held in cus-
tody pending future court proceedings are sent to reside and
to which they are confined in the interim. See Gerstein v.
Pugh, 420 U.S. 103, 114 (1975) (describing pretrial detention
as the “extended restraint of liberty following arrest”). Indeed,
the Federal Bureau of Prisons, in listing the various types of
prisons it operates, sets forth as a specific category of prisons
“Administrative” facilities, which “are institutions with spe-
cial missions, such as the detention of pretrial offenders.”
Federal Bureau of Prisons, Prison Types & General Informa-
tion, http://www.bop.gov/locations/institutions/index.jsp (last
visited January 18, 2010) (providing examples of pretrial
detention facilities).
[5] A courthouse holding cell is a place where prisoners
are temporarily held during proceedings — there is nothing
“pretrial” about them, unless one reads the words “pretrial”
and “detention” completely out of context and without a clear
6594 KHATIB v. COUNTY OF ORANGE
understanding of how the system works. Once inside the
courthouse, the prisoner is no longer in a pretrial detention
facility, but in the institution of the courthouse itself as part
of the judicial branch of government, not the executive. To
hold otherwise would be tantamount to holding that the court-
room itself is a “pretrial detention facility” for persons in cus-
tody up until the moment that the trial or other proceeding
begins. And, the court’s discretionary award of credit to Kha-
tib for one day served in the “Orange County Jail” does not
convert the holding cell facility in the courthouse into the
Orange County Jail.
III
“In interpreting statutes, the court’s objective is to ‘ascer-
tain the congressional intent and give effect to the legislative
will.’ ” Pressley v. Capital Credit & Collection Service, Inc.,
760 F.2d 922, 924 (9th Cir. 1985) (quoting Philbrook v. Glod-
gett, 421 U.S. 707, 713 (1975)). “Legislative intent, however,
is not always evident from the plain language of the statute
and in that event, the courts must look to legislative history
for guidance.” Id. “As we have repeatedly stated, ‘the mean-
ing of language, plain or not, depends on context.’ ” Holloway
v. United States, 526 U.S. 1, 7 (1999) (quoting Brown v.
Gardner, 513 U.S. 115, 118 (1994)). Given that the object of
our attention is not explicitly included in the generic language
of the statute, we turn to the Congress for edification.
[6] Our conclusion in this case finds solid support in the
statements of the co-sponsors of RLUIPA, Senators Orrin
Hatch and the late Edward Kennedy. They stated on the offi-
cial record that the Act covered “persons in prisons, mental
hospitals, and similar state institutions,” because “[f]ar more
than any other Americans, persons residing in institutions are
subject to the authority of one or a few local officials. Institu-
tional residents’ right to practice their faith is at the mercy of
those running the institution, and their experience is very
mixed.” 146 Cong. Rec. S7774-01, S7774-S7775 (daily ed.
KHATIB v. COUNTY OF ORANGE 6595
July 27, 2000) (Joint Statement of Sen. Hatch and Sen. Ken-
nedy) (emphasis added). No one can persuasively argue that
a person in a courthouse holding cell is a resident of that facil-
ity. We find nothing in the legislative history to suggest other-
wise, or that this law was intended to cover persons
temporarily in transitional facilities.
Our conclusion in this regard finds confirmation in the con-
text of the law that we interpret, section 1997, which is part
of the Civil Rights of Institutionalized Persons Act of 1980.
This Act was manifestly designed to cover persons “residing
in State institutions.” Civil Rights of Institutionalized Person
Act House Conference Report, H.R. Conf. Rep. 96-897, at 8-
9 (1980), reprinted in 1980 U.S.C.C.A.N. 832, 832-33
(emphasis added). We note that Congress described the
intended beneficiaries of this Act as the “residents” of the var-
ious facilities and institutions covered by the Act.
[7] In addition, Congress’ decision to incorporate the
PLRA’s definition of institution into RLUIPA provides sup-
port for our conclusion that courthouse holding facilities are
not pretrial detention facilities. “Congress enacted [the PLRA]
to reduce the quantity and improve the quality of prisoner
suits; to this purpose, Congress afforded corrections officials
time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Porter v. Nussle,
534 U.S. 516, 524-25 (2002). In enacting RLUIPA, Congress
was similarly concerned about frivolous litigation and the
ability of officials to address complaints internally prior to the
initiation of litigation. This concern led Congress to incorpo-
rate the PLRA’s definition of institution into RLUIPA. See
146 Cong. Rec. S6678-02 (daily ed. July 13, 2000) (statement
of Sen. Kennedy) (“Congress . . . passed the [PLRA], which
includes a number of procedural rules to limit frivolous pris-
oner litigation. Those procedural rules will apply in cases
brought under [RLUIPA].”). Frivolous prisoner litigation
would be a real threat if RLUIPA’s protections were applied
to courthouse holding facilities, because stays at those facili-
6596 KHATIB v. COUNTY OF ORANGE
ties are never longer than twelve hours and so officials would
not be afforded the time to address grievances internally prior
to the initiation of litigation. Therefore, Congress’ decision to
apply the PLRA’s definition of “institution” into RLUIPA
indicates Congress did not intend that the phrase “pretrial
detention facility” apply to courthouse holding facilities.
AFFIRMED.
Chief Judge KOZINSKI, dissenting:
Freud is reported to have said that sometimes a cigar is just
a cigar. And a facility used for holding prisoners prior to trial
is a pretrial detention facility. The Religious Land Use and
Institutionalized Persons Act (RLUIPA) covers prisoners held
in certain kinds of institutions—defined to include both cor-
rectional facilities (such as prisons and jails) and pretrial
detention facilities. Souhair Khatib was held in a facility
where prisoners are routinely detained awaiting trial and other
court appearances. She was therefore held in a facility cov-
ered by RLUIPA and is entitled to its protections. This pretty
much sums up the case for me. Everything below is unneces-
sary and you could easily skip it.
The majority takes a convoluted path to reach the contrary
result, but its analysis just proves how wrong they are. For
starters, the opinion overlooks the fact that the statute here has
its own rules of construction, codified at 42 U.S.C. § 2000cc-
3. Among those rules is the following: “This chapter [mean-
ing RLUIPA] shall be construed in favor of a broad protec-
tion of religious exercise, to the maximum extent permitted by
the terms of this chapter and the Constitution.” Id. at
§ 2000cc-3(g) (emphasis added). Not every law that Congress
passes has such a handy guide to interpretation; in fact, very
few do. It seems to me that when Congress goes to the trouble
of telling us how to construe a statute, and uses such phrases
KHATIB v. COUNTY OF ORANGE 6597
as “broad protection” and “the maximum extent permitted,”
we need to pay close attention and do as Congress commands.
The Supreme Court routinely relies on such express instruc-
tions. See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,
497-98 (1985) (relying directly on the “express admonition
that RICO is to ‘be liberally construed to effectuate its reme-
dial purposes’ ”). And some of our nation’s hottest jurists
have called for their more frequent use. See, e.g., Alex Kozin-
ski, Should Reading Legislative History Be an Impeachable
Offense?, 31 Suffolk U. L. Rev. 807, 819 (1998) (“[O]ne
would hope that Congress would do the next best thing:
instruct the courts how to resolve the close cases. This would
not usurp the judicial function in any way; it would merely
give judges instructions how to go about discovering the stat-
ute’s fine nuances.” (citing Hearings Before the Joint Comm.
on the Organization of Cong., 103d Cong., 1st Sess. 81-82
(1993) (statement of Hon. Patricia M. Wald, Judge, D.C. Cir-
cuit Court of Appeals))).
The question then is not the usual one when we interpret
statutes, namely what is the most plausible construction.
Instead, we must ask the following question: Stretching the
term “pretrial detention facility” to its maximum limit, does
the place where Khatib was incarcerated for several hours
possibly fit within that definition?
As if the answer isn’t perfectly clear, let’s take a stroll
through the record and see what we find. In the same docu-
ment that the majority approves of at page 6592, note 1
(namely the 2006-2007 Orange County Grand Jury Report),
we find courthouse holding facilities described as follows:
COURT HOLDING FACILITY is a secure deten-
tion facility located within a court building used for
the confinement of persons solely for the purpose of
a court appearance for a period not exceeding 12
hours.
6598 KHATIB v. COUNTY OF ORANGE
Grand Jury Report at 1. I don’t need to tug very hard at the
corners of “pretrial detention facility” to get it to include a
facility fitting this description. But there’s more, right in the
middle of Orange County’s brief:
The court holding facility is staffed with only [sic]
20 sworn deputies, who are responsible for the daily
comings and goings of approximately 600 inmates
from the various Orange County Jails. (ER 98.) In
addition to inmates from the Orange County Jails,
the court holding facility temporarily holds custody
of a significant number of persons taken into custody
at the courthouse every day. (ER 208.) Moreover,
the sworn deputies are responsible for ensuring that
the persons in the court holding facility make it
through a “labyrinth of sub-basements, tunnel[s],
secured elevators, and holding cells . . . one-by-one
. . . .” (ER 98.)
Answering Brief at 22-33 (footnote omitted) (alterations in
original).
It’s pretty clear from this description that the facility in the
Santa Ana Courthouse isn’t a makeshift cell in the corner of
the courtroom, designed to hold the occasional unruly drunk
while he waits for the judge, as the majority posits at page
6592-93 of the opinion. The Santa Ana facility is a full-
fledged jail with its own permanent staff, schedule and proce-
dures. While the inmates don’t sleep there, they are treated
pretty much the same as in all correctional facilities, “segre-
gated by race, gang affiliation, criminal level of intensity, and
other characteristics to prevent trouble.” Grand Jury Report at
4. Note, also, that aside from the central facility itself, there
are a number of other secure areas in the courthouse, includ-
ing “holding cells” dispersed throughout the building. Those
holding cells may not themselves be facilities, and thus not
covered by RLUIPA, but surely the central facility itself—
KHATIB v. COUNTY OF ORANGE 6599
where hundreds of inmates are detained every day while wait-
ing to go to court—is a pretrial detention facility.
Is this the best interpretation of the statute? I think so, but
it doesn’t have to be. Applying RLUIPA’s rule of generous
construction, we must ask ourselves whether this is a permis-
sible construction if we read the term “to the maximum extent
permitted” so as to achieve a “broad protection of religious
exercise.” Can we honestly say that a mammoth facility in the
bowels of the Santa Ana courthouse, whose main purpose is
to hold inmates while awaiting trial, cannot possibly be a pre-
trial detention facility? Is that really like calling a fish a fowl
or an elephant a donkey?
But there’s more. Just think about what Congress was try-
ing to do when it crafted the definition of institution in section
1997:
(1) The term “institution” means any facility or
institution . . .
(B) which is . . .
(ii) a jail, prison, or other correctional
facility;
(iii) a pretrial detention facility;
(iv) for juveniles—
(I) held awaiting trial;
(II) residing in such facility or insti-
tution for purposes of receiving
care or treatment; or
(III) residing for any State purpose
in such facility or institution
....
6600 KHATIB v. COUNTY OF ORANGE
(v) providing skilled nursing, interme-
diate or long-term care, or custodial
or residential care.
42 U.S.C. § 1997. Looking at subsections (ii) and (iii), we see
that Congress divided the universe of institutions holding
adults caught up in the criminal justice system into two parts:
those whose inmates are incarcerated after they’ve been found
guilty; and those whose inmates are incarcerated while await-
ing an adjudication of guilt. Congress chose to define facili-
ties in terms of the kinds of inmate they would hold rather
than in terms of their physical characteristics such as whether
they have beds or bars on the windows. It included all facili-
ties for convicted inmates and all facilities for inmates who
are still presumptively innocent, thereby covering the entire
universe of facilities holding people who become enmeshed
in the criminal justice system. It’s hard to imagine how Con-
gress could have spoken more broadly. What would they have
had to say to make sure that the Orange County Court’s hold-
ing facility is covered? Would they have had to mention it by
name and zip code?
The majority’s contrary arguments only prove my point.
The suggestion that “[t]he term ‘pretrial detention facility’ is
not ambiguous,” maj. at 6593, and includes only facilities
where inmates spend the night, is wrong on its face. The
opening provision in the RLUIPA states: “No government
shall impose a substantial burden on the religious exercise of
a person residing in or confined to an institution . . . .” 42
U.S.C. § 2000cc-1(a) (emphasis added). If Congress had
meant to include only institutions with beds, there would have
been no point in adding “or confined to” following “residing
in,” would there? More fundamentally, where in RLUIPA
does Congress include a residency requirement—one so clear
that it absolutely excludes all facilities that don’t have beds?
I note that elsewhere in the same definition section, the statute
refers repeatedly to residency, so Congress surely knew how
to say so when it meant to. See, e.g., id. at
KHATIB v. COUNTY OF ORANGE 6601
§ 1997(1)(B)(iv)(II), (iv)(III), (v). Instead of stretching the
statute to its maximum limit, as Congress said we should, the
majority pulls out of thin air requirements that constrict
RLUIPA’s plain language. Is this what my colleagues see as
“broad protection of religious exercise, to the maximum
extent permitted by the terms of” the statute? If so, I’d hate
to see what a grudging interpretation looks like.
Nor am I moved by the majority’s ex cathedra disquisition
about courthouse holding cells generally being “stark, barren,
hard, and distinctly utilitarian.” Maj. at 6592. I suppose
they’re quite different from your ordinary jail cell, which
comes equipped with flat-screen TVs, mini-bars, iPod dock-
ing stations and Frette linens. None of this is in the record, nor
is the majority’s speculation that “[o]nce inside the court-
house, the prisoner is no longer in a pretrial detention facility,
but in the institution of the courthouse itself as part of the
judicial branch of government, not the executive.” Id. at 6594.
That the court and the detention facility are housed under the
same roof is neither here nor there; it’s quite common to have
executive agencies housed inside federal courthouses, yet
surely no one suggests that the offices of (say) the United
States Attorney are “part of the judicial branch of govern-
ment, not the executive.” The grand jury report tells us that
Orange County’s courthouse holding facilities are in fact
under the jurisdiction of the Orange County Sheriff’s Depart-
ment, not the court. [ER 95, 98] This is confirmed by the
Sheriff’s website, which tells us that its “Court Operations
Division is committed to protect and serve the judiciary and
the public by ensuring a safe environment in the Superior
Court of Orange County,” which includes “[s]taffing all
courthouse holding facilities.” Orange County Sheriff’s
Department, Court Operations Division, http://www.ocsd.org/
index.php?option=com_content&view=article&id=130&
Itemid=85 (last visited April 22, 2010). This argument, which
the majority comes up with on its own, just shows the folly
of writing an opinion based on judicial intuition rather than
the record and arguments presented by the parties.
6602 KHATIB v. COUNTY OF ORANGE
But it don’t matter anyhow. Even if we assume, contrary to
fact and common sense, that the courthouse holding facilities
in Orange County are entirely under the jurisdiction of the
Superior Court, so what? RLUIPA doesn’t exempt facilities
operated by courts. The holding facilities are separate units
within each courthouse, designated for a specific purpose—
holding inmates while they await court appearances. It
doesn’t matter who runs them; there’s no judicial immunity
for RLUIPA. The facilities are covered by the statute and who
operates them makes no difference.
In a creative effort to find support for its untenable posi-
tion, the majority tries to rely on the interplay between
RLUIPA and the Prison Litigation Reform Act, maj. at
6595-96, but the attempt boomerangs. As I understand the
majority’s argument, it is that RLUIPA can’t apply to court-
house holding facilities because the prisoners aren’t there long
enough to file grievances under the PLRA to resolve their
RLUIPA claims. Maj. at 6595-96. This argument has a simple
answer, namely that the PLRA only covers “jail[s], prison[s]
or other correctional facilit[ies].” 42 U.S.C. § 1997e(a). Pre-
trial detention facilities (however defined) are categorically
exempt from the PLRA, although they are covered by
RLUIPA. The interplay between the two regimes actually
undermines the majority’s position. This is another argument
the majority brings up on the fly with no input from the par-
ties. And, once again, the majority gets it wrong.
Finally, the majority seeks refuge in legislative history.
Maj. at 6594-05. As the late, great Judge Harold Leventhal
said, consulting legislative history is like looking over the
heads of a crowd and picking out your friends. Alas, the
majority here finds few friends; they’re more like cool
acquaintances. From the hefty legislative history of RLUIPA,
the majority plucks a couple of quotes where Senators Hatch
and Kennedy indicate that the primary purpose of the statute
is to protect individuals residing in institutions. It is not sur-
prising that a floor statement would focus on the most serious
KHATIB v. COUNTY OF ORANGE 6603
abuses the law is meant to target, which will almost invariably
involve long-term residents of institutions. One wouldn’t
expect a floor statement to cover every wrinkle of the statute.
But nothing the senators say precludes applying the statute to
Khatib’s case. Keep in mind that we are commanded to read
the statute broadly and give it the maximum effect. Do Sena-
tors Hatch and Kennedy stand in the way? Certainly not.
Congressman Canady, who is not a friend, gets no wave
from the majority, or even a nod. Yet, Canady was one of the
bill’s co-sponsors in the House and entered a section-by-
section analysis into the Congressional Record. This analysis
explains that, just like it says, RLUIPA is designed to “protect
the religious exercise of persons residing in or confined to
institutions defined in the Civil Rights of Institutionalized
Persons Act.” 146 Cong. Rec. E1563-01, E1563 (extension of
remarks) (Statement of Congressman Canady) (emphasis
added). So much for the conceit that the statute only protects
inmates who reside in institutions.
***
This is not a hard case. The statute here clearly covers
courthouse holding facilities like the one where Souhair Kha-
tib was confined and forced to uncover her head in the pres-
ence of men who were not her husband. As the district court
recognized—and the majority acknowledges—this is a serious
affront to her religious beliefs. I can see no plausible reason
why a facility which has a permanent staff of 20 deputies and
handles thousands of inmates a week ought to be exempted
from RLUIPA. If accommodating an inmate’s religious
beliefs is too burdensome or inconvenient, defendants need
not do so. See 42 U.S.C. § 2000cc-1(a). But that is not some-
thing we can adjudicate at this stage of the proceedings. All
we can decide right now is whether there is any conceivable
way that a courthouse holding tank is a pretrial detention
facility, as specified in RLUIPA. You don’t have to be the
White Queen to believe that it is. Freud, Leventhal and Ken-
6604 KHATIB v. COUNTY OF ORANGE
nedy are looking down on us and shaking their heads in disap-
pointment. We need to reverse and send the case back for
trial.