# Kuykendall v. Marshall

> District Court, N.D. Alabama · March 29, 2021

URL: https://www.frixlaw.com/law-library/cases/9990208

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9990208

## How later opinions describe it (automated extraction)

- noting the Supreme Court has “voiced its hesitance to assume that the plaintiff will routinely violate the law in the future and thus be brought within arms’ reach of the police”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JAMES D. KUYKENDALL, )
)
Plaintiff, )
)
v. ) Case No. 1:20-cv-00797-SGC
)
STEVE MARSHALL, )
)
Defendant. )
)

MEMORANDUM OPINION1
This matter is before the court on the motion to dismiss filed by the defendant,
Attorney General Steve Marshall. (Doc. 6). The plaintiff, James Kuykendall, has
responded, and the motion is ripe for adjudication. (Docs. 15, 19). For the reasons
discussed below, the defendant’s motion to dismiss will be granted.
I. FACTUAL BACKGROUND
Kuykendall was operating his vehicle westbound on Interstate 20 in St. Clair
County, Alabama, when he was involved in a collision with Christopher Smith’s
vehicle. (Doc. 1 at ¶ 5). No police officer or other law enforcement officer witnessed
the accident. (Doc. 1 at ¶ 6). A law enforcement officer subsequently arrived on the
scene and took statements from an eyewitness, Daniel Tibbetts, and the other driver,
Smith. (Doc. 1 at ¶¶ 7-8). The witness told the law enforcement officer that

1 The parties consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c). (Doc. 16).
Kuykendall applied his brakes as Smith tried to pass him on the right. (Doc. 1 at ¶
7). Upon this information, the officer issued Kuykendall a Uniform Traffic Ticket

and Complaint (“UTTC”) for reckless driving under Alabama Code § 32-5A-190.
(Doc. 1 at ¶ 8). The UTTC lists the details of the charge as “driver slammed on his
brakes and caused a two-vehicle crash” and “witness also saw the crash.” (Doc. 6-

2 at 2). The UTTC also indicates Kuykendall was “released on [his] own
recognizance.” Id. Plaintiff’s traffic case is pending in St. Clair County District
Court and currently set for trial on August 2, 2021. State v. Kuykendall, No. TR-
2019-003168 (St. Clair Cty. Dist. Ct., Pell City Div. entered Mar. 22, 2021), Doc.

25. Kuykendall requests this court enjoin the state proceedings against him and
seeks an entry of judgment declaring Ala. Code § 32-5-171(b) unconstitutional.
II. STANDARD OF REVIEW

The Attorney General moves to dismiss Kuykendall’s claims arguing he failed
to state a claim for a Fourth Amendment violation. (Doc. 7 at 16). Further, the
defendant moves to dismiss on jurisdictional grounds, asserting Kuykendall lacks
standing and this court must abstain from exercising jurisdiction pursuant to the

Younge abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). The applicable
standards are set forth in turn.
A. Rule 12(b)(6) Motions for Failure to State a Claim
To survive a 12(b)(6) motion a complaint “must contain sufficient matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Lord Abbett
Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1207 (11th Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court “begin[s] by identifying

pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. The court next “assume[s] the[]
veracity” of all well-pleaded factual allegations and determines whether those
allegations “plausibly give rise to an entitlement to relief.” Id.

Generally, only the complaint itself and any attachments thereto may be
considered on a motion to dismiss, even when the parties attempt to present
additional evidence. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th

Cir. 2014); see also FED. R. CIV. P. 12(d). However, a court may consider documents
that are central to the plaintiff’s claim and whose authenticity is not disputed when
ruling on a motion to dismiss. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.
2002) (citations omitted). Finally, “[t]he Eleventh Circuit has held that, when

considering a 12(b)(6) motion to dismiss, a court may take judicial notice of the
public record, without converting the motion to one for summary judgment, because
such documents are capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” Davis v. Williams
Communications, Inc., 258 F. Supp. 2d 1348, 1352 (N.D. Ga. 2003) (citing Bryant
v. Avado Brands Inc., 187 F.3d 1271, 1279-80 (11th Cir. 1999)).

B. Rule 12(b)(1) Motion for Lack of Standing
“Because a motion to dismiss for lack of standing is one attacking the district
court’s subject matter jurisdiction, it is brought pursuant to Rule 12(b)(1).” Region

8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 807 n.8 (11th
Cir. 1993). A 12(b)(1) motion takes one or two forms: a facial attack or a factual
attack. Lawrence v. Dunbar, 919 F.2d 1525, 1529-30 (11th Cir. 1990). The
defendant’s 12(b)(1) motion is a facial attack on Kuykendall’s standing. To evaluate

this facial attack, the court examines whether the allegations in the complaint, taken
as true, sufficiently allege subject matter jurisdiction. Id.
C. Younger Abstention Standard

The law lacks clarity regarding whether courts should analyze the Younger
abstention doctrine under Rule 12(b)(1), challenging jurisdiction, or Rule 12(b)(6),
attacking the sufficiency of the complaint. Compare Fairfield Cmty. Clean Up
Crew, Inc., v. Hale, No. 17-308-LSC, 2017 WL 4865545, at *2-3 (N.D. Ala. Oct.

27, 2017) (applying Rule 12(b)(1) standard), with Cano-Diaz v. City of Leeds, 882
F. Supp. 2d 1280, 1284-85 (N.D. Ala 2012) (applying Rule 12(b)(6) standard).
However, the choice of rule makes little practical difference because the court

applies a standard akin to 12(b)(6) when addressing a facial attack on subject matter
jurisdiction under Rule 12(b)(1). Carmichael v. Kellogg, Brown & Root Services,
Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). The defendant’s motion to dismiss

references both 12(b)(1) and 12(b)(6), and his argument presents a facial attack.
Therefore, this court applies Rule 12(b)(6) pleading standards to the motion.
III. DISCUSSION

In his motion to dismiss, the Attorney General argues Kuykendall lacks
standing and this court must abstain from exercising jurisdiction pursuant to
Younger. (Doc. 7 at 3). The challenged statute provides:
(b) A law enforcement officer, as defined in Section 36-21-40,
subsequent to a traffic accident, may issue a traffic citation to a driver
of a vehicle involved in the accident when, based on personal
investigation, the officer has prima facie evidence demonstrating
grounds to believe that the person has committed any offense under
Chapter 5, 5A, 6, 7, or 7A of Title 32.

Ala. Code § 32-5-171(b). First, the defendant asserts Kuykendall lacks standing for
declaratory or injunctive relief because he has failed to show a substantial likelihood
he will suffer future injury. (Doc. 7 at 7). Further, the defendant contends this court
must decline to exercise jurisdiction over Kuykendall’s claims pursuant to Younger.
(Id. at 10). As explained below, Kuykendall’s claims fail on both grounds, and each
conclusion is addressed in turn.2

2 The Attorney General also contends he is entitled to sovereign immunity and the plaintiff’s
claims fail on the merits—arguing the plaintiff failed to state a claim for a Fourth Amendment
violation. (Doc. 7 at 3). Because Kuykendall lacks standing and this court must abstain from
exercising jurisdiction pursuant to Younger, the court need not address the defendant’s other
arguments.
A. Standing
To establish standing under Article III, a plaintiff must show: (1) “an injury

in fact”; (2) “a causal connection between the injury and the conduct complained
of”; and (3) that it is “likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992) (quotation marks omitted). The injury in fact must be “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Id. Because injunctions regulate
future conduct, a party has standing only if the party alleges, and ultimately proves,
a real and immediate—as opposed to a merely conjectural or hypothetical—threat

of future injury. Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994).
In assessing whether a future injury is likely to occur, the court considers
whether a plaintiff is likely to have another encounter with an officer due to the same

conduct that caused the past injury.3 J W ex rel Williams v. Birmingham Bd. Of
Educ., 904 F.3d 1248, 1264 (11th Cir. 2018); see, e.g., Honig v. Doe, 484 U.S. 305,
320 (1988). When standing is challenged at the pleading stage, as it is here, “general
factual allegations of injury resulting from the defendant’s conduct may suffice, for

on a motion to dismiss we presume that general allegations embrace those specific
facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (alteration

3 “Individual standing requirements must be met by anyone attempting to represent his own interest
or those of a class.” Lynch v. Baxley, 744. F.2d 1452, 1456 (11th Cir. 1984).
incorporated) (quotation marks omitted). Thus, for this court to have jurisdiction to
issue declaratory and injunctive relief—the only relief sought—Kuykendall must

assert a reasonable expectation the injury he has suffered will continue or will be
repeated in the future. See Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985).
Generally, a party lacks standing to seek injunctive relief if he fails to

sufficiently allege a substantial likelihood he will suffer future injury from the
challenged ordinance. See Worthy v. City of Phenix City, Ala., 930 F.3d 1206, 1215-
16 (11th Cir. 2019). In Worthy, the appellants challenged the constitutionality of
Phenix City’s red light camera ordinance; they sought damages and injunctive relief.

Id. To enjoin the use of red light cameras, the appellants had to allege facts from
which it appeared there was a substantial likelihood they would suffer injury in the
future. Id. at 1216. Ultimately, the court held the threat of future injury was not

sufficiently real or immediate, particularly because “the main event that will trigger
the potential future harm is a voluntary decision by one of the Appellants to violate
the law.” Id.; see also Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1162
(11th Cir. 2008) (noting the Supreme Court has “voiced its hesitance to assume that

the plaintiff will routinely violate the law in the future and thus be brought within
arms’ reach of the police”).
Here, Kuykendall seeks a judgment declaring § 32-5-171(b) unconstitutional

because it authorized law enforcement to issue him a traffic citation based on
unsworn statements from eyewitnesses in violation of his Fourth Amendment right
to be free from unreasonable searches and seizures. (Doc. 1 at ¶ 36) The Attorney

General contends Kuykendall has failed to allege any facts that could establish a real
and immediate threat of future harm and, therefore, lacks standing. (Doc. 7 at 8). In
response to this argument, Kuykendall relies entirely on Mitchum v. Foster, 407 U.S.

225 (1972), asserting that like the plaintiff in Mitchum, he is subject to prosecution
and a favorable outcome would stop that prosecution. (Doc. 15 at 6-8). However,
the only similarity between Mitchum and the present case is the existence of a state
court prosecution. Mitchum addressed the application of a federal anti-injunction

statute—not standing—holding the statute did not categorically bar a federal court
from enjoining state court proceedings. 407 U.S. at 242-43.
Kuykendall’s constitutional challenge is to § 32-5-171(b), the procedure of

issuing tickets upon unsworn statements from eyewitnesses, not § 32-5A-190, the
reckless driving statue under which he is being prosecuted. (Doc. 1 at ¶ 36). To
suffer injury under the challenged statute: (1) the plaintiff would have to be operating
in violation of one of the relevant Alabama statutes; and (2) an officer who did not

witness the violation would have to issue a ticket after determining the plaintiff
committed the offense. Kuykendall has failed to allege sufficient facts that he is
likely to suffer future injury from § 32-5-171(b). Like in Worthy, this court finds

the threat of future injury here is not sufficiently real or immediate, particularly
because the main event that would trigger the potential future harm would be
Kuykendall’s voluntary decision to violate the law. Worthy, 930 F.3d at 1216. This

court echoes the Supreme Court’s hesitance to assume the plaintiff will routinely
violate the law in the future and thus be brought within reach of the police and § 32-
5-171(b). See Browning, 522 F.3d at 1162 (citing Los Angeles v. Lyons, 461 U.S.

95 (1983)). Accordingly, this court lacks jurisdiction as Kuykendall has failed to
plead sufficient facts to establish standing.
B. Younger Abstention
Under the Younger abstention doctrine, a federal district court may properly

abstain from exercising jurisdiction to avoid interfering with a plaintiff’s pending
state court proceedings. Younger, 401 U.S. 37. In Younger, the Supreme Court held
federal courts should not stay or enjoin pending state court proceedings except under

special circumstances. 401 U.S. at 41. Accordingly, Younger abstention is required
when “(1) the proceedings constitute an ongoing state judicial proceeding, (2) the
proceedings implicate important state interests, and (3) there is an adequate
opportunity in the state proceedings to raise constitutional challenges.” Turner v.

Broward Sheriff’s Office, 542 F. App’x 764, 766 (11th Cir. 2013) (citing Christman
v. Crist, 315 F. App’x 231, 232 (11th Cir. 2009); 31 Foster Children v. Bush, 329
F.3d 1255, 1275-82 (11th Cir. 2003)). In determining whether the federal

proceeding would interfere with the state case, “the court looks to the relief requested
and the effect it would have on the state proceedings.” Cano-Diaz, 882 F. Supp. 2d
at 1286 (alterations incorporated).

Younger and its progeny recognize certain exceptions, including where: (1)
there is evidence the state proceedings were motivated by bad faith; (2) there is no
adequate alternative state forum to raise the constitutional issues; (3) the law in

question is patently unconstitutional; or (4) a federal injunction is necessary to
prevent great and irreparable injury. Narciso v. Walker, 811 F. App’x 600, 602 (11th
Cir. 2020) (citing Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.
619, 626 (1986)); see also Redner v. Citrus Cty., 919 F.2d 646, 649 (11th Cir. 1990).

Extraordinary circumstances may justify an exception to Younger when a state court
cannot fairly and fully adjudicate the constitutional issues and the plaintiff presents
“an extraordinarily pressing need for immediate federal equitable relief.” Kugler v.

Helfant, 421 U.S. 117, 124-25 (1975).
Kuykendall does not dispute there is an ongoing state proceeding which
involves important state interests. (Doc. 15 at 10). Further, the requested equitable
and injunctive relief—enjoining the state prosecution—would interfere with the

traffic case pending in St. Clair County; it would end the proceeding entirely. The
plaintiff argues, because this case falls under the bad faith and irreparable injury
exceptions to Younger abstention, the state proceeding does not give him an

adequate forum to raise his constitutional claims. (Doc. 15 at 10-11).
However, Kuykendall offers no evidence to support his contention the state
proceeding does not give him an adequate forum to raise his claims, other than a

passing reference to “Mitchum and its progeny.” (Doc. 15 at 10). Again, Mitchum
held that a federal anti-injunction statute did not categorically bar a federal court
from staying a state court proceeding. 407 U.S. at 242-43. Mitchum noted Younger

“emphatically reaffirmed ‘the fundamental policy against federal interference with
state criminal prosecutions.’” Id. at 230 (while acknowledging the aforementioned
exceptions to abstention). Mitchum also explained “we do not question or qualify in
any way the principles of equity, comity, and federalism that must restrain a federal

court when asked to enjoin a state proceeding.” Id. at 243.
It is the plaintiff’s burden to establish the state proceedings fail to provide an
adequate opportunity to raise constitutional issues. 31 Foster Children, 329 F.3d at

1279. In the absence of unambiguous authority to the contrary, a “federal court
‘should assume that state procedures will afford an adequate remedy.’” Id. (quoting
Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 15 (1987)). Kuykendall has alleged no facts
to the contrary, and therefore, this court assumes there is adequate opportunity for

him to raise his constitutional claims in state court during pre-trial proceedings, at
trial, and/or in any appeals he may file if convicted.
Kuykendall next contends Younger does not apply because of the “bad faith”

exception. (Doc. 15 at 12). In support of this argument, Kuykendall relies on
Pettaway v. Marshall, 19-1073-KOB, 2019 WL 3752475 (N.D. Ala. Aug. 8, 2015).
(Doc. 15 at 12). A proceeding is initiated in bad faith if it is brought without a

reasonable expectation of obtaining a valid conviction. Redner, 919 F.2d at 650. As
noted in Pettaway, other Supreme Court decisions held improper prosecutorial
motive and harassment can also constitute bad faith sufficient to avoid Younger

abstention. Pettaway, 2019 WL 3752475 at *9 (see Cameron v. Johnson, 390 U.S.
611, 619 (1968)). In Pettaway, the court found the plaintiffs’ allegations sufficient
to state a plausible claim of bad faith, citing the Attorney General’s personal
connection to the parties involved, including his public criticism of the plaintiff’s

brother (Sheriff Pettaway) and his failure to enforce gambling laws. Id. at *4. The
court also pointed to the defendant’s statement he would “handle” the Sheriff just a
few months before initiating seizure and forfeiture proceedings against the plaintiffs.

Id. There, the Attorney General’s statements provided facts sufficient to support
allegations the proceedings were initiated in bad faith with the intent to harass the
plaintiffs and the Sheriff.
The facts here are clearly distinguishable from those in Pettaway. Kuykendall

makes the following conclusory allegations:
Ala. Code § 32-5-171, is unconstitutional because it allows for an arrest
without probable cause. . . . Such arrests and traffic citations are in bad
faith, and done solely to harass Mr. Kuykendall and the putative class
because the state knows, in most cases, the costs of contesting such
citations outweigh the benefits. . . . By definition, the practice of
continuing prosecutions for misdemeanor crimes without probable
cause is carried on in bad faith, simply to create revenues through fines
collected.
(Doc. 1 at ¶¶ 39-42). Unlike in Pettaway, Kuykendall has not pled sufficient facts
to plausibly allege bad faith. Further, he does not plausibly claim the prosecution
was undertaken with the motive to harass him or that the proceeding was brought

without a reasonable expectation of obtaining a valid conviction. Therefore, the
plaintiff’s case does not fall under the “bad faith” exception to Younger abstention.
Kuykendall further contends Younger does not apply because of the
“irreparable injury” exception. “A state statute may cause irreparable injury,

justifying an exception to Younger abstention, when it flagrantly and patently
violates express constitutional prohibitions.” Henry v. Fla. Bar, 701 F. App’x 878,
882 (11th Cir. 2017) (citing Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1263 (11th

Cir. 2004)). A law which is constitutional as applied in one manner may still
contravene the Constitution as applied in another. Watson v. Buck, 313 U.S. 387,
402 (1941). The plaintiff argues “this case presents a direct, frontal challenge to the

constitutionality of Ala. Code § 32-5-171(a), which purports to give a police officer
the power to make a warrantless arrest ‘although he or she did not personally see the
violation.’” (Doc. 15 at 11). Kuykendall’s only arguments regarding the
“irreparable injury” exception to Younger relate to § 32-5-171(a). (Doc. 15 at 11-

12). However, the plaintiff’s constitutional challenge is to § 32-5-171(b), not § 32-
5-171(a), which only applies to violations of § 32-5A-191—driving under the
influence. Kuykendall is being prosecuted for reckless driving via § 32-5-171(b),
not driving under the influence via § 32-5-171(a). Thus, he lacks standing to

challenge § 32-5-171(a) and cannot seek an exception to Younger for a statute
unrelated to his current case.
Although not mentioned in his response, the plaintiff’s complaint alleges

“secondarily, Ala Code § 32-5-171(b), is flagrantly unconstitutional as it substitutes
a standard, ‘based upon personal investigation’ for the standard of a sworn warrant
or oath contained in the Fourth Amendment.” (Doc. 1 at ¶ 43). The court is not
persuaded by this argument. Section 32-5-171(b) provides:

(b) A law enforcement officer, as defined in Section 36-21-40,
subsequent to a traffic accident, may issue a traffic citation to a driver
of a vehicle involved in the accident when, based on personal
investigation, the officer has prima facie evidence demonstrating
grounds to believe that the person has committed any offense under
Chapter 5, 5A, 6, 7 or 7A of Title 32.
The plaintiff contends he “was improperly arrested and charged without a warrant
as probable cause,” violating the Fourth Amendment prohibition against warrantless
searches and seizures. (Doc. 15 at 16; See Doc. 1 at ¶¶ 36-43). However, § 32-5-
171(b) is not flagrantly and patently violative of express constitutional prohibitions
as the irreparable harm exception requires. Younger, 401 U.S. at 53.
The Supreme Court “adhere[s] to the view that a person is ‘seized’ only when,
by means of physical force or a show of authority, his freedom of movement is
restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). Section 32-5-
171(b) allows officers to issue traffic citations based on a personal investigation
giving grounds to believe the person involved violated the listed offenses. The

statute does not authorize warrantless seizures of individuals in violation of the
Fourth Amendment. The plaintiff’s argument as to the “irreparable harm” exception
fails because a traffic citation is not a seizure under the Fourth Amendment and,

therefore, § 32-5-171(b) is not flagrantly and/or patently violative of express
constitutional prohibitions. See Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th
Cir. 2003) (misdemeanor defendant who had to appear in court was not seized under
Fourth Amendment where promise to appear was akin to promise “motorist makes

when issued a traffic citation”); Williams v. Chai-Hsu Lu, 335 F.3d 807, 809 (8th
Cir. 2003); McNeill v. Town of Paradise Valley, 44 F. App’x 871, *1 (9th Cir. 2002);
see also DePiero v. City of Macedonia, 180 F.3d 770, 789 (6th Cir. 1999) (traffic

ticket that required a plaintiff to appear at hearing and answer to charges was not a
“seizure”); Bielanski v. County of Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“No
court has held that a summons alone constitutes a seizure, and we conclude that a
summons alone does not equal a seizure for Fourth Amendment purposes. To hold

otherwise would transform every traffic ticket and jury summons into a potential
Section 1983 claim.”); Kingsland v. City of Miami, 382 F.3d 1220, 1235-36 (11th
Cir. 2004) abrogated on other grounds by Williams v. Aguirre, 965 F.3d 1147 (11th

Cir. 2020) (being “required to (1) pay a $1,000 bond; (2) appear at [an] arraignment;
and (3) make two trips from New Jersey to Florida to defend herself in court,
pursuant to the authority of the state” did not “constitute a significant deprivation of
[the plaintiff s] liberty” and therefore did not constitute “a seizure violative of the
Fourth Amendment.’”).
Pursuant to Younger, this court will abstain from exercising jurisdiction
because the plaintiff's state court case constitutes an ongoing state judicial
proceeding, the trial implicates important state interests, there 1s an adequate
opportunity in the state proceedings to raise constitutional challenges, and no
exceptions to Younger abstention apply to this case. Turner, 542 F. App’x at 766
(citing Christman, 315 F. App’x 231, 232 11th Cir. 2009); 37 Foster Children, 329
F.3d at 1275-82).
IV. CONCLUSION
For the reasons discussed above, the plaintiff lacks standing, and the court will
abstain from hearing this case under the Younger abstention doctrine. Accordingly
the court will grant the defendant’ motion to dismiss.
A separate order will be entered.
DONE this 29th day of March, 2021.

La Lf Cpepibeine)
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990208. Public record. Not legal advice.