Demery v. Arpaio

BEA, Circuit Judge,

dissenting.

Perhaps in an effort to express their repugnance for the Madison Street Jail webcast policy, the majority opinion substitutes conjecture for analysis of the mootness issue. On the issue whether the webcasts constitute constitutionally impermissible pre-conviction punishment, the majority opinion substitutes the personal tastes of the Court of Appeals judges for the analysis the Supreme Court directs us to use as to what constitutes such punishment. Last, the majority opinion simply refuses to consider any rational relation between the webcasts and the legally permissible governmental purposes stated by the Sheriff. The result is the imposition of the majority’s will in the place of the judgment of the lawfully elected representative of Maricopa County voters. Because of these inadequacies, I respectfully dissent.

I.

Mootness

Notwithstanding the parties’ failure to brief the issue, the majority opinion correctly acknowledges our responsibility to address the mootness question: whether this action presents a live case or controversy. Then, somewhat perfunctorily, they conclude that this case falls within the “capable-of-repetition-yet-evading-review” exception to mootness. See Spencer v. Kemna, 523 U.S. 1, 17-18 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998). To state a cognizable injury under Article III of the Constitution, the Plaintiffs must show a sufficient likelihood that they — not others — will be subjected to the webcasts in the future, that is, that they will in all likelihood be arrested and detained at the Madison Street Jail in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983) (district court granted preliminary injunction to stop use of police chokeholds; Court of Appeals affirmed; Supreme Court reversed, finding Plaintiffs lacked standing to seek injunctive relief absent a showing of realistic threat to Plaintiffs — not others — of future injury).

The majority opinion determines that because some of the Plaintiffs have experienced detention by Appellant Sheriff on earlier occasions, this constitutes “compelling evidence that the Plaintiffs likely will be reincarcerated.” I do not take such a dim view of either the ineffectiveness of our criminal justice system or of human *1034 nature. 1 Nor do I believe that any self-ascribed propensity of Plaintiffs towards future arrest and detention — whether through their own malfeasance or simple bad luck — is legally sufficient to clothe Plaintiffs with the required standing.

The majority opinion correctly cites Spencer v. Kemna for the applicable standards to the standing requirement, but then proceed to ignore that ease’s holding that risk of future apprehension and conviction is insufficient to establish a personal stake in a habeas challenge to parole revocation procedures:

[Standing] was contingent upon respondents’ violating the law, getting caught, and being convicted. “Respondents themselves are able — and indeed required by law — to prevent such a possibility from occurring.” ... “[W]e are ... unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction.”

Spencer v. Kemna, 523 U.S. 1, 15 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998) (citations omitted); see also O’Shea v. Littleton, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974) (district court dismissed class action challenging bond, sentencing, and jury fee practices in criminal cases; Court of Appeals reversed; Supreme Court reversed, finding that Plaintiffs lacked standing because they had not alleged that they had been or would be improperly charged with violating the criminal law). Because Plaintiffs here cannot show that, but for their future arrest and incarceration, they again would be subjected to being viewed on the Sheriffs webcasts, they have not shown a legally cognizable case or controversy. Only by speculating, without proof, that at some unspecified time in the future they (not others) will again be arrested and taken to the Madison Street Jail, and again be viewed on the Sheriffs webcasts, can Plaintiffs state a cognizable case or controversy. Such speculation is not enough to confer standing on Plaintiffs under the Supreme Court cases cited above. 2

A finding of lack of standing would seem mandated by a case cited by the majority, Mitchell v. Dupnik, 75 F.3d 517 (9th Cir.1996). Once Mitchell was removed from the detention center and his petitions for post-conviction relief were denied, Mitchell lost standing to seek injunctive relief from detention center practices because there was no reasonable expectation that he would be returned to the detention center. Mitchell, 75 F.3d at 528 . The majority opinion maintains the plaintiffs here have standing because, in view of their prior arrest records, they are likely to be rearrested. Mitchell arguably had a greater *1035 claim that he was likely to be detained in the future — he was a convict, not just a detainee. Yet Mitchell did not have standing. Id.

I would reverse the district court’s order granting a preliminary injunction on the ground that Plaintiffs have not presented a justiciable ease or controversy in this action.

II.

Claimed “Punishment”

The majority’s conclusion that the web-casts inflict punishment prohibited by the Constitution is likewise unconvincing. As public servants, county sheriffs are charged with several important duties under Arizona law. These duties include preserving the peace, “arrest[ing] and tak[ing] before the nearest magistrate for examination all persons who attempt to commit or who have committed a public offense,” “preventing] and suppressing] all affrays, breaches of the peace, riots and insurrections ... ”, and “[taking] charge of and keeping] the county jail ... and the prisoners therein.” Asiz. Rev. Stat. § 11-441(A). 3

Given the importance and difficulty of fulfilling the responsibility of operating pe-nological installations, courts have taken an understandably cautious approach to second-guessing the decisions of prison administrators:

[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities.

Turner v. Safley, 482 U.S. 78, 84-85 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987) (in class action challenge to prison regulations regarding correspondence and inmate marriage, district court granted preliminary injunction in favor of inmates; Eighth Circuit affirmed, finding regulations violated First Amendment; Supreme Court reversed ruling on correspondence regulation, but affirmed order enjoining inmate marriage prohibition). This rationale is no less applicable in the context of jails and detention facilities. See Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.1999) (district court granted summary judgment in favor of county on challenge by prisoners and detainees to jail’s rule against sexually explicit periodicals; Court of Appeals affirmed, finding regulation reasonably related to legitimate penological interests).

The district court’s injunction was predicated on the belief that webcam broadcasts constitute impermissible pre-conviction “punishment” in violation of Fourteenth Amendment substantive due process. Although, “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt,” Bell v. Wolfish, 441 U.S. 520, 535 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, *1036 amount to ‘punishment,’ ” id. at 539 , 99 S.Ct. 1861 ; see also Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir.2002) (district court granted summary judgment in favor of jail officials in detainee’s challenge to restrictions on telephone access; Court of Appeals affirmed). The relevant inquiry is whether jail policies are reasonably related to legitimate penological interests, as opposed to “an inflexible strict scrutiny analysis [that] would seriously hamper [the Sheriffs] ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.” Mauro, 188 F.3d at 1058 .

The majority opinion gives needlessly short shrift to the governmental objectives proffered by Sheriff Arpaio. Although the majority opinion briefly acknowledges that the Sheriffs legitimate governmental purpose in the webcasts is to deter the non-jailed public from conduct which might obligate them to visit the jail other than by virtual means, the majority opinion leaves unexamined whether the webcasts are rationally related to the achievement of this goal. The majority opinion jumps to the question of whether the webcasts deter the already-jailed, but does not say a word about whether the webcasts were intended to deter the general public from illegal conduct.

Let us then apply the rational relation test to each of the Sheriffs proposed purposes:

Is it rational to believe that broadcasting pictures of detention installations will deter viewers from conduct that may land them there? Any traffic school attendee who is required to view ghastly photographs of crashes that result from speeding can attest that the consequences of actions are displayed to deter certain behavior. The rational relationship between prison views and deterrence of criminal behavior is similarly clear.

Do webcasts provide transparency to governmental operation of the facility? Clearly so. Of course, there are other means by which to provide such transparency. The Sheriff could give civic-minded groups tours of the jail to assure them of proper conditions and well-spent taxes. But whether the choice to expose detainees by webcast to millions or by tours to dozens is surely a matter of degree, left to the discretion of an elected official, restrained only by notions of whether choice of the larger number of viewers makes the measure “excessive” under Bell .

Do webcasts deter the filing of frivolous lawsuits against the county and county officials? Given that security cameras are already in place to videotape what actually happens in the jail, this purpose may suffer from the same redundancy as does the jail security rationale. On the other hand, the webcasts may reach more potentially frivolous litigants than would the knowledge that the jails had security cameras in place.

It bears repeating that this is a case where we may review governmental action only to determine whether that action bears a rational basis to legitimate governmental interests. See Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.1999) (en banc). This is not a case where the Sheriffs actions are subject to a “strict scrutiny” test.

By the proper “rational relation” test, the webcasts seem clearly allowable to attain public deterrence and transparency purposes. Bell stands for the proposition that if there is a “reasonable relation” between the measure and a legitimate governmental purpose, the measure will not be found to be punishment, “without more.” Bell, 441 U.S. at 539 , 99 S.Ct. 1861 . What is this “more” that may nonetheless invalidate a measure, even after a finding it is “reasonably related” to a legit *1037 imate governmental purpose? Bell gives us a non-exhaustive list of factors, which includes:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

Bell, 441 U.S. at 537-38 , 99 S.Ct. 1861 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144 , 83 S.Ct. 554 , 9 L.Ed.2d 644 (1963)). The Bell Court noted that the objective of deterrence of the person punished is only one of a series of “useful guideposts” in determining whether a restriction or condition is “punishment,” while acknowledging the possible existence of a constitutionally-valid “alternative purpose,” later recognized in Turner. 4 , Bell, 441 U.S. at 538 , 99 S.Ct. 1861 . Reviewing these guideposts in the context of this case, the conclusion that the webcasts purport to visit constitutionally-prohibited punishment on detainees is untenable.

Let us examine each of the Bell factors. An affirmative answer indicates a factor in favor of finding the measure to be prohibited punishment; a negative answer, indicates the measure is not punishment: a factor favoring permitting the measure.

1. Do the webcasts involve an affirmative disability or restraint? No. Inmates are not restricted to zones perused by the webcams. Neither are they detained in jail a moment longer because of the web-casts.

2. Are the webcasts historically regarded as punishment? No. They are too new to have a historical characterization.

3. Are the webcasts activated only on a finding of scienter? No. The inmates are detained or arrested on misdemeanors, such as minor traffic offenses and drunkenness, which do not require scienter.

4. Do the webcasts promote the traditional aims of punishment — retribution and deterrence? Yes, to the extent that emotional discomfort — shame—is visited on the detainees, that can be retribution and deterrence of the detainees. Indeed, the Sheriff admits he hopes the experience will deter recidivism. But No as to deterrence of the viewing public. There can be no punishment of the viewing public because that public is not shown on the webcasts, and because if offended the public viewer need only single-click to close the screen. Thus, the retribution and deterrence factor presents a mixed response. 5

5. Is the behavior to which it applies already a crime? No. The behavior viewed by the webcams is pretrial detention that, by itself, is not a crime.

*1038 6. Does it appear excessive in relation to the alternative purpose of public deterrence? No, when compared to the constitutionally permissible publicity routinely given to “perp walks” on local and nationally broadcast television.

The balance of Bell factors weighs heavily — almost exclusively — against the existence of the additional characteristics required by Bell to disqualify a measure reasonably related to the achievement of a legitimate governmental objective as punishment. Nonetheless, the majority opinion accepts a contrary assessment wholesale, seemingly as an article of faith. It is particularly telling that in the portion of the majority opinion concluding the web-casts constitute punishment, the majority cite no authority, case or statute, for the proposition that webcasts are punishment. That majority opinion’s aversion to the webcasts is not shared by the voters of Maricopa County, who re-elected Appellant Arpaio shortly after the webcasts commenced.

The majority opinion omits the Bell analysis 6 and equates webcasts with harm without establishing that such harm rises to the level of constitutionally-prohibited punishment. The webcasts publicize the arrest and, to that extent, may result in shame being inflicted on detainees. While shaming has long been a method of societal ostracism, it has nowhere been cited as a form of penological punishment, much less is there any authority for the claim that shaming causes violations of individual rights protected by the U.S. Constitution. 7

The majority opinion attempts to dispose of the Supreme Court’s holding in Paul v. Davis in a footnote. Paul, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), is more pertinent than the majority opinion would allow. That case concerned the stigmatizing of persons arrested for, but not convicted of, shoplifting, by police officers distributing a flyer that listed the Plaintiffs among active shoplifters. The Supreme Court declined to attach much significance to the claims of dignitary injury which are directly analogous to the claims asserted by the Plaintiffs here. The Court held that the government does not, simply by the act of defaming a person, deprive him of liberty or property *1039 rights protected by notions of procedural due process, absent some adverse impact on some other legally cognizable interest. Id. at 708-10 , 96 S.Ct. 1155 . Note that in Paul , Plaintiffs claimed dignitary injury because they were defamed, falsely portrayed as shoplifters by the police flyers. Here, Appellees can hardly claim the web-casts defame them. The more clearly they appear on camera, so does the truth: they have been detained for alleged lawbreaking.

The so-called dignitary harms asserted by the Plaintiffs in this case are also similar to the Fourth Amendment 8 objections of arrestees subjected to the now ubiquitous-on-TV “perp walk” — the conspicuous exhibition of eoiffed, suited, corporate criminal suspects, usually handcuffed, as they are brought to the courthouse or police station before charging, much less conviction. Although a staged “perp walk” has been termed an unreasonable seizure where it does not advance legitimate law enforcement purposes, it is not the case “that all, or even most, perp walks are violations of the Fourth Amendment.” Lauro v. Charles, 219 F.3d 202, 213 (2d Cir.2000) (reversed in part district court’s partial summary judgment which found staged perp walk had violated Fourth Amendment rights of Plaintiff and denying qualified immunity to defendants; appellate court found Fourth Amendment violation, but also found defendant police officers were entitled to qualified immunity).

Perp walks and their attendant shaming do not constitute constitutionally impermissible pre-conviction punishment for the same reasons webcasts do not. Whatever the consequence of an arrestee’s being “displayed to the world, against his will, in handcuffs, and in a posture connoting guilt,” Id. at 212 n. 7, perp walks promote many of the same governmental purposes put forward here by Sheriff Arpaio.

Yet, perp walks also serve the more serious purpose of educating the public about law enforcement efforts. The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes.

Divulging the arrests also enhances the transparency of the criminal justice system, and it may deter others from attempting similar crimes. Furthermore, allowing the public to view images of an arrestee informs and enables members of the public who may come forward with additional information relevant to the law enforcement investigation ...

Caldarola v. County of Westchester, 343 F.3d 570 , 572-73 & 576 n. 3 (2d Cir.2003) (citations and quotations omitted, emphasis added) (affirming district court’s summary judgment in favor of defendants, holding arrestee’s privacy interests outweighed by legitimate governmental objectives of perp walk); see also Rosenberg v. Martin, 478 F.2d 520, 525-26 (2d Cir.1973) (reversing jury award of damages in 42 U.S.C. § 1983 claim, finding no violation of right to priva *1040 cy where defendant was taken out of the police car a half block away from the station and paraded before television cameras, while the arresting officer announced “He is the killer, and he is going to burn.”)- 9 '

Likewise, sex offender registration laws which involve the “dissemination of accurate information about a criminal record, most of which is already public,” have survived Ex Post Facto challenges because, although such registration laws may shame, their application does not effect penal punishment. Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2002) (rejecting ex post facto challenge to Alaska sex offender registration statute). The argument that any governmental program which has the goal of public deterrence must visit impermissible punishment is not persuasive.

[It] proves too much. Any number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deterrent purpose renders such sanctions ‘criminar ... would severely undermine the Government’s ability to engage in effective regulation.

Smith v. Doe, 538 U.S. at 102 , 123 S.Ct. 1140 ; see also Hatton v. Bonner, 346 F.3d 938, 948 (9th Cir.2003) (applying Smith to California sex offender registration statute).

Where the sole effect of a measure is deterrence of the preconviction detainee, the measure may violate the fourth factor listed in Bell . 10 Here, as in the perp walk, the webcast’s effect is purposely beyond deterrence of the detainees; its purposeful effect is also to deter unlawful conduct by members of the public who have as yet not been — and one hopes never will be — detained. 11

Persons arrested cannot choose to whom the fact of their arrest can be publicized, whether it is through a perp walk shown on nationwide television, or an arraignment calendar detailing the charged crimes, hanging outside a courtroom. 12 *1041 “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.” Time, Inc. v. Hill, 385 U.S. 374, 388 , 87 S.Ct. 534 , 17 L.Ed.2d 456 (1967).

Sheriff Arpaio articulated a number of purposes justifying the webcasts, only one of which' — jail security — was addressed by the district court in its preliminary injunction order. Clearly, “maintaining institutional security and preserving internal order and discipline are essential goals” in the operation of a detention facility. Bell, 441 U.S. at 546 , 99 S.Ct. 1861 . However, the district court rejected the Sheriffs contention that webcams contribute to jail security, finding this task was accomplished by closed-circuit security cameras. The redundant placement of the webcams next to the security monitors indicates the webcams were an excessive response 13 to this otherwise legitimate objective. See Valdez, 302 F.3d at 1046 . The district court did not abuse its discretion in such finding of unnecessary redundancy.

But nowhere in the district court’s order is there a discussion of the Sheriffs other justifications 14 for the webcasts: (1) deterrence of crime outside the jail; and (2) transparency of jail operations for civic purposes. The majority opinion attempts to take up this slack by addressing the first of these remaining justifications, but the attempt misses the Sheriffs points.

The district court concluded that “deterrence” of the Maricopa detainees from committing future crimes was impermissible pre-conviction punishment of the Mari-copa detainees. Likewise, the majority opinion cites Bell by a disembodied quotation: “[Rjetribution and deterrence are not legitimate nonpunitive governmental objectives.” Bell, 441 U.S. at 539, n. 20 , 99 S.Ct. 1861 . However, a complete reading of the Bell decision indicates that the Court there was talking about deterring detainees ’ — rather than the public’s — future commission of crimes. Deterrence of the unarrested public from committing acts which would result in arrests is a different governmental purpose and presents a different issue entirely. See Smith v. Doe, 538 U.S. at 102 , 123 S.Ct. 1140 (“Any number of governmental programs might deter crimes without imposing punishment.”).

What the majority opinion avoids — perhaps because of the all-too-predictable result — is to ask the question basic to any review questioning the validity of governmental action under a rational basis analysis: were the webcasts reasonably related to the purpose of deterring public behavior that could result in pre-trial detention? The answer clearly is Yes.

As noted above, in addition to operating the Madison Street Jail, Sheriff Arpaio has been charged with the prevention of crime. *1042 I do not agree that an overly broad reading of Bell should be applied to undermine a perhaps effective method for achieving such a laudable goal as deterring crime among the public at large. Similarly unexamined is the Sheriffs purpose of providing transparency of jail operations as a civic good. See Caldarola, 343 F.3d at 572-73 .

Sheriff Arpaio’s methods to achieve his purposes of public deterrence and governmental transparency may not suit the fine sensibilities of some group advocates and jurists. But absent a violation of the constitutional rights of Plaintiffs — and I see none — such differences of opinion must be vindicated, if at all, in the ballot box, not in the courtroom.

A district court abuses its discretion when it fails to consider appropriate factors in fashioning an equitable remedy. See Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 602-07 (9th Cir.2000). The injunction was improvidently issued in this case because the district court’s order (1) is not supported by adequate consideration of the Sheriffs stated legitimate, governmental objectives, and (2) is based on the legally erroneous conclusion that all levels of possible shame constitute constitutionally prohibited “punishment,” without any consideration of the factors discussed in Bell .

Accordingly, I respectfully dissent, and would reverse the judgment of the district court granting the preliminary injunction.

. After all, we go to great lengths to prevent proof of prior bad acts as evidence of criminal character likely to produce the commission of a new offense. See Fed.R.Evid. 404(b).

. But, some will complain, if these Plaintiffs cannot bring the action, the legality of the Sheriff's webcasts may never be adjudicated. Just so. Such a complaint is based on the unarticulated premise that every government action must be validated or rejected by a court. Nothing could be more in contrast to the constitutional requirements of standing. Only "cases or controversies" which involve recognized legal rights can be the subject of a federal court action. "We can decide only cases or controversies. A moot case is not a 'case' within the meaning of Article III.” Eisler v. United States, 338 U.S. 189, 194 , 69 S.Ct. 1453 , 93 L.Ed. 1897 (1949). As to other claimed issues, remedies may have to be sought at the ballot box, the market place or by other means provided by society, but not lawsuits.

. Sheriff Joe Arpaio was elected by the people of Maricopa County in 1992, and reelected in 1996 and 2000.

. There is nothing in Turner which limits this principle solely to convicted prisoners, as the majority opinion claims. While it is accurate to say that Turner involved those already convicted of crimes, they, like Plaintiffs, retained certain constitutional rights such as not to have additional punishment visited on them without a predicate finding of guilt for different and additional transgressions. Were there a valid "alternative purpose” to the challenged measure, convicts as well as detainees would fail in their constitutional challenge.

. This constitutes a fulfillment of Bell’s prediction that inquiry into what factors make up punishment "may often point in differing directions.” Bell, 441 U.S. at 538 , 99 S.Ct. 1861 .

. Nowhere does the majority opinion ask the six questions above as to the six Bell factors regarding whether a measure taken constitutes punishment.

. The majority opinion quotes disapproving references by the Supreme Court to colonial shaming punishments, see Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2002), and mischaracterizes this dissent as "treating shaming as a legitimate government objective.” The majority opinion conveniently omits additional reasoning contained in the same opinion:

[Pjublic shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. ... Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.

Smith v. Doe, 538 U.S. at 97 , 123 S.Ct. 1140 (emphasis added). Thus, this case appears to suggest that while shaming qua shaming is impermissible, regulations or conditions not characterized by face-to-face confrontation or banishment are not per se penological punishment.

. The district court properly rejected Appel-lees’ claims of violations of privacy rights for the best of reasons: The Supreme Court has held that prisoners in custody do not have a reasonable expectation of privacy in their cells arising from the Fourth Amendment. See Hudson v. Palmer, 468 U.S. 517, 526 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984) (district court granted summary judgment in favor of prison guard on inmates claims of violation of privacy, destruction of personal property and denial of due process; Fourth Circuit reversed in part on privacy claims; Supreme Court reversed, finding inmates had no reasonable expectation of privacy).

. The majority opinion attempts to distinguish "perp walk” cases which have passed constitutional muster partially on the grounds that the interest involved in those cases derived from the Fourth Amendment, rather than from the Fourteenth Amendment as claimed here. These cases do not deter the majority opinion from citing Fourth Amendment jurisprudence (see Wilson v. Layne, 526 U.S. 603 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999)) to argue the webcasts were "excessive.” Rather than such selective applications, I would suggest that notions of what is permissible under the Fourth Amendment should inform what is permissible under the Fourteenth Amendment across the board.

. A point on which I agree with the majority, perhaps I did not make it clearly enough. The point is that although shaming may cause the pretrial detainee emotional harm, which would be impermissible if the only purpose were to deter his future criminal conduct. But, where there is another, legitimate governmental purpose served by the incidental imposition of such emotional harm, shaming does not become "punishment” under Bell, supra, unless it is "excessive” under the six-factor test advanced in Bell , an examination left undone by the majority.

. The majority opinion finds that the sole legitimate purposes of pretrial detainment measures must be limited to those which are appropriate to assure the detainee shows up for trial and to maintain jailhouse security, citing Halvorsen v. Baird, 146 F.3d 680 (9th Cir.1998). Such a finding is directly contradictory to the "perp walk” cases which allow for pre-trial detainment measures if rationally related to (1) general deterrence of crime and (2) governmental operations transparency.

. The majority opinion cites Houchins v. KQED, 438 U.S. 1 , 98 S.Ct. 2588 , 57 L.Ed.2d 553 (1978), for the proposition that detainees cannot be made part of a "reality show” for purposes of educating the public. Houchins dealt with the right, if any, of a television station to film detainees. Regardless of the self-ascribed high educational calling of pub- *1041 lie television, such stations are not charged by public statutes with the duty to deter crime or to administer jails as is Sheriff Arpaio. Houchins simply did not involve any of the issues framed in this litigation. Similarly, Wilson v. Layne, 526 U.S. 603 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999), involved the claimed right of the Press to accompany police in the execution of search warrants. The issue there was a vindication of Fourth Amendment rights in the homes of the subjects of the search warrants against persons not members of law enforcement. The case is not apposite here because the Plaintiffs are not being seen in their homes; they are in jail, where their search and seizure rights are greatly circumscribed (see Hudson v. Palmer).

. This is the proper test under Bell v. Wolfish.

. Alternative purpose[s] to which [the measure] may rationally be connected.” Bell, 441 U.S. at 538 , 99 S.Ct. 1861 .