Petition for Writ of Certiorari — Arpaio v. Demery
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IN THE
Supreme Court of the Anited States
JOE ARPAIO,
Maricopa County Sheriff, in his official capacity,
Petitioner,
V.
JAMIE DEMERY, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
CARTER G. PHILLIPS DANIEL P. STRUCK *
BRIAN T. FITZPATRICK EILEEN DENNIS GILBRIDE
SIDLEY, AUSTIN BROWN JONES, SKELTON & HOCHULI, P.L.C.
& Woop LLP 2901 North Central Avenue,
1501 K Street N.W. Suite 800
Washington, D.C. 20005 Phoenix, Arizona 85012°
(202) 736-8000 (602) 263-1700
Counsel for Petitioner
January 19, 2005 * Counsel of Record
SSSR NE RR ENR NETL T TE ANAS TRANMERE NOIR RIEU USSR RR EA
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001
Eo
QUESTION PRESENTED
Whether the Ninth Circuit correctly held that a county
sheriff who installed video cameras that broadcast images
over the internet of the booking and detention process in the
public area of a jail violated the substantive due process rights
of pre-trial detainees?
(i)
il
PARTIES TO THE PROCEEDING
Petitioner is Sheriff Joe Arpaio, an elected official of
Maricopa County in the State of Arizona. Maricopa County
was a party in the trial court below, but was not a party in the
Ninth Circuit and is not a party to this petition.
Respondents are former pretrial detainees at the Maricopa
County Jail who sought an injunction, alleging that broad-
casting their images over the internet violated their due
process rights. They are: Jamie Demery; Samantha Moore;
Aracelia Leticia Pfeifer; Janet Lee King; Jerri Cabaniss; Rosa
Velazquez; Cynthia Matthews; Rhonda Farmer; Sandra
Puebla; Jordan Martin; Laura Hartney; Elena M. Irvine;
Yvette Rose Leon; Tina Marie Sox; Loretta Christie; Alison
Lee Adair; Victoria Zepeda; Nikisha Calliste; Terry McEvoy;
Tom Odenkirk; Dean Tousignant; Benny David Berryman;
Damon Scoggin, and Sean Botkin.
TABLE OF CONTENTS
RPO PEEEE EAPEY fF PRREIEEI NS Blt icceesncecsacrnsoninesncstessscsscccsinnente i
PARTIES TO THE PROCEEDING...................cessceseee il
OPINION AND JUDGMENT BELOW .....00 l
STATEMENT OF JURISDICTION .....00.... cece l
CONSTITUTIONAL PROVISION INVOLVED......... 2
IIIa TTI iiccticsivnsvnscnsicesneuimninehtusinemnessentnandevenbieeiets 2
6
I. THE NINTH CIRCUIT’S OPINION CON-
FLICTS WITH DECISIONS OF THIS
COURT AND OTHER FEDERAL CIR-
CUITS HOLDING THAT DISSEMINATION
OF TRUTHFUL ARREST/CONVICTION
INFORMATION IS REASONABLY RE-
LATED TO LEGITIMATE GOALS OF
DETERRING THE PUBLIC AND EN-
HANCING THE TRANSPARENCY OF THE
CRIMINAL JUSTICE SYSTEM .................0.... 12
(111)
Il.
IIT.
iV
TABLE OF CONTENTS—Continued
THE NINTH CIRCUIT’S OPINION CON-
FLICTS WITH DECISIONS OF THIS
COURT AND OTHER FEDERAL CIR-
CUITS HOLDING THAT THE DUE
PROCESS CLAUSE DOES NOT REDRESS
CLAIMS OF REPUTATIONAL HARM;
AND IT IS NOT UNCONSTITUTIONAL
PUNISHMENT TO DISSEMINATE PUBLIC
RECORD ARREST OR CONVICTION
Se NC IY ceisscechnccscssntetecidainetienniasnnonaniiaaes
THE FEDERAL CIRCUITS ARE SPLIT ON
WHETHER TO APPLY BELL’S “PUNISH-
MENT” TEST OR TURNER V. SAFLEY’S
“REASONABLE RELATION TO LEGITI-
MATE PENOLOGICAL INTERESTS” TEST
TO PRE-TRIAL DETAINEES’ CONDI-
TIONS OF CONFINEMENT CLAIMA............
CEFR AMININS wsscnstsctistersrecessevassinctveabensnetanianbiimhandaainien
Page
19
22
24
Vv
TABLE OF AUTHORITIES
CASES Page
Bell v. Wolfish, 441 U.S. 520 (1979)......... 2, B, 12, 17, 22.
Benjamin v. Fraser, 264 F.3d 175 (2nd Cir.
PE Pcsnstscsiinsonnsaskahnsnsntapnabeenaaaiaadbertuameatin 6, 23
Caldarola v. County of Westchester, 142 F.
Sem.26 431 (BDI YT. FOBT) cccscssnnsennsosssscensccs 14
Caldarola v. County of Westchester, 343 F.3d
SIO Cane CAE: FG wieeanticteitninate 3, 11, 14, 17
Collazo-Leon v. U. S. Bureau of Prisons, 5\ F.3d
SES CEC, Te isiinsescacissenenpneeeiatenkintcseiaiiies 13,17
Covino v. Patrissi, 967 F.2d 73 (2nd Cir. 1992)... 6, 23
E.B. v. Vernerio, 119 F.3d 1077 (3" Cir. 1997)... passim
Femedeer v. Haun, 227 F.3d 1244 (10th Cir.
DOOD snssicssitninintnicaiceinccstheicanidentaprmabeaa eaadigmiaats 5,19
Hare v. City of Corinth, Miss., 74 F.3d 633 (Sth
Cir.1996)......... ssiaiahiieiaadicbuebieaiasihataaaipianeuussaiiaiiaaad 12
Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2004) ... 15
Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993),
cert den. 410 U.S. 1049 (1994) woe eee 6, 23
Houchins v. KQED, Inc., 438 U.S. 1 (1978)......... 15
Hudson v. Palmer, 468 U.S. 517 (1984) ........... 21
Kennedy v. Mendoza-Martinez, 372 U.S. 144
DDD vcnciner Utccchissinaciniaiasbisiceeiieniaaadaammmmannatel 17
Lauro v.Charles, 219 F.3d 202 (2d Cir.2000)....... 15
Magluta v. Samples, 375 F.3d 1269 (11th Cir.
DP iasicninsssicsnsinstiatiisiiscauminniamaiciaimamaiiinane 6, 23
Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999),
cert den. 529 U.S. 1018 (2000......... eee eeeeeeee 6, 12
Paul v. Davis, 424 U.S. 693 (1976).........00 4,10, 11, 20
Russell v. Gregoire, 124 F.3d 1079 (9th Cir.
1997), cert den. 523 U.S. 1007 (1998).............. 4
Shain v. Ellison, 273 F.3d 56 (2nd Cir. 2001),
cert den. $37 U.S. 1083 (2002) ............s.0s0s000000. 24
vi
TABLE OF AUTHORITIES—Continued
Page
Simmons v. Sacramento Cunty Super. Ct., 318
PSG 8 SG COU CAE, Be ccsscrrscninssssnsnnnsstnissinnss 23
Smith v. Doe, 538 U.S. 84 (2002).........ccccceseeeeees passim
Tesch v. County of Green Lake, 157 F.3d 465
CPla Coe, TSDED ancarstsrscnicctegpinneseniacstsnmansinntnttetitn 6, 23
Turner v. Safley, 482 U.S. 78 (1987)......cccccccceeeees 5, 8, 22
Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir.
2002), cert. den. 538 U.S. 1047 (2003)............. 6
Wilson v. Layne, 526 U.S. 603 (1999).......cccccceeeees 9
Whitnack v. Douglas County, 16 F.3d 954 (8th
Cae, FS asicessrececsiacsyesttimscsesineineemeiniaenienans 8
STATUTES AND OTHER AUTHORITIES
2B UBC. 8. TZFGE cucticintstietintininmmanas 2
Deborah L. MacGregor, Stripped Of All Reason?
The Appropriate Standard for Evaluating Strip
Searches of Arrestees and Pretrial Detainees
In Correctional Facilities,” 36 Colum. J.L. &
Soc. Peabo. 1G CHOC P ccencaninsssssincnssenstnatiansinsions 24
IN THE
Supreme Court of the Anited States
No.
JOE ARPAIO,
Maricopa County Sheriff, in his official capacity,
Petitioner,
Vv.
JAMIE DEMERY, et ai.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Sheriff Joe Arpaio respectfully seeks a writ of
certiorari to the United States Court of Appeals for the Ninth
Circuit.
OPINION AND JUDGMENT BELOW
The order of the court of appeals denying the petition for
rehearing en banc is unreported and is reprinted in the
Appendix to this Petition (“App.”) at 58a. The underlying
opinion of the court of appeals is reported at 378 F.3d 1020
(App. la-36a). The decision of the district court granting the
respondents’ requested preliminary injunction is unreported
(App. 37a-57a).
STATEMENT OF JURISDICTION
The court of appeals entered its opinion on August 6, 2004,
and the order of the court of appeals denying the petition for
2
rehearing en banc was entered on October 21, 2004. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment prohibits the imposition of
conditions of confinement on pretrial detainees that constitute
“punishment.” It provides, in pertinent part: “No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; ....”
INTRODUCTION
This case stems from Sheriff Joe Arpaio’s installation of
four internet video cameras in the public intake area of the
Madison Street Jail in Phoenix, Arizona. The “webcams”
streamed to the internet live 24-hour images of the intake,
booking, search, and holding cell areas of the jail. Sheriff
Arpaio installed these webcams for three reasons: (1)
exposing the viewing public to the jail’s detention procedures
deters the viewing public from committing crimes; (2) the
detainees’ knowledge that the public—including potentially
family and friends—could watch them being processed
deterred the detainees from misbehaving, thus improving
security at the jail; and (3) by opening up the jail’s operations
to public inspection, the webcams enhanced accountability to
the taxpaying public regarding how the County Jail is oper-
ated. Plaintiffs, former pre-trial detainees whose images were
depicted over the internet during the booking and detainment
process, complained that this depiction violated their due
process rights.
Under the Due Process Clause, a pre-trial detainee may not
_ be punished prior to an adjudication of guilt. Bell v. Wolfish,
441 U.S. 520 (1979). The government may certainly detain
an arrestee to ensure his presence at trial. Bell, 441 U.S. at
5
3
536. It may also subject him to the restrictions and conditions
of the detention facility, as long as those conditions do not
amount to punishment, or otherwise violate the Constitution;
and it may impose conditions that are reasonably related to
the institution’s interest in maintaining jail security. /d. at
536-37, 540. Under Bell, as long as a particular condition of
pretrial detention is “reasonably related to a legitimate
governmental objective,” it does not, without more, amount
to “punishment.” /d. at 539. Conversely, if a restriction or
condition is not reasonably related to a legitimate goal — if it
is arbitrary or purposeless — a court may infer that the purpose
of the governmental action is impermissible punishment. /d.
The issue for the Ninth Circuit majority was whether Sheriff
Arpaio’s reasons for installing the webcams are “reasonably
related to a legitimate governmental objective.”
Applying Bell, the court held that the webcams were not
reasonably related to any legitimate, governmental objective.
App. 15a-17a, 18a. This holding conflicts with cases from
this Court and federal circuits, which have ruled that deter-
rence of the viewing public and transparency of the criminal
justice system are, indeed, legitimate governmental interests,
and that disseminating truthful arrest and conviction infor-
mation—even over the internet—is reasonably related to
those interests. See Smith v. Doe, 538 U.S. 84, 97-103 (2002)
(upholding Alaska’s sex offender notification law as not
constituting punishment under Ex Post Facto clause);
Caldarola v. County of Westchester, 343 F.3d 570, 576 (2nd
Cir. 2003) (upholding validity of perp walks—the practice of
parading an accused before the media as he is brought to the
courthouse for processing—against constitutional attack; such
practice serves important non-punitive purposes of enhancing
transparency of the criminal justice system, deterring others
from crime, and protecting individuals from police abuse and
protecting police from false accusations of abuse). It also
conflicts with cases recognizing that deterring detainees from
violating jail rules is a legitimate governmental objective.
4
Collazo-Leon v. U. S. Bureau of Prisons, 51 F.3d 315, 318
(ist Cir. 1995).
The Ninth Circuit also held that the detainees’ embar-
rassment at having their real-time booking processes subject
to observation by the viewing public was a harm of con-
stitutional magnitude. App. 13a-14a. This holding, too,
conflicts with this Court’s pronouncement that reputational
stigma alone does not rise to the level of constitutional harm.
Paul v. Davis, 424 U.S. 693, 701, 712 (1976) (dissemination
to local merchants of a flyer identifying a shoplifting arrestee
as an “Active Shoplifter” did not rise to the level of con-
stitutional harm, even though the arrestee had not been, and in
fact never was convicted of shoplifting). Of plaintiff's claim
that publishing a record of an official act such as an arrest
violated his substantive due process rights, the Court said,
“({njone of our substantive privacy decisions hold this or
anything like this, and we decline to enlarge them in this
manner.” 424 U. S. at 714.
The Ninth Circuit’s finding of harm from the webcasts also
conflicts with the federal court cases holding that dis-
seminating accurate criminal record information that is
already in the public domain does not constitute punishment.
See, e.g., Smith v. Doe, 538 U.S. 84, 98-99 (2002) (“Our
system does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as
punishment”); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th
Cir. 1997) (“The [sex offender] information collected and
disseminated by the Washington statute is already fully
available to the public and is not constitutionally infirm’’),
cert. den. 523 U.S. 1007 (1998); E.B. v. Verniero, 119 F.3d
1077, 1099-1100, 1103-04 (3rd Cir. 1997) (New Jersey’s
dissemination of public record information about criminal
history is not punishment when done in furtherance of
legitimate governmental interest). Further, this Court has
already ruled that the fact that such publication occurs over
5
the internet does not turn permissible conduct into un-
constitutional punishment. Smith, supra, at 99 (“The fact that
Alaska posts the information on the Internet does not alter our
conclusion”). See also Femedeer v. Haun, 227 F.3d 1244,
1250-51 (10th Cir. 2000) (“Internet notification works merely
a technological extension, not a sea change, in our nation’s
long history of making information public regarding criminal
offenses”). The Ninth Circuit’s ruling that it was the “expo-
nential increase” in the number and kind of people observing
the detainees over the internet that amounted to punishment
under Bell, App. 14a, directly conflicts with this authority.
Finally, the Ninth Circuit held that Bell’s “punishment”
test was the correct test for assessing the constitutionality of
the webcams. App. 10a-lla. It is not at all clear, however,
that this is the correct test. Eight years after Bell, this Court
in Turner v. Safley, 482 U.S. 78 (1987), examined the
constitutionality of a prison’s mail and marriage regulations
using a new four-factor “rational relation” test. 482 U.S. at
89. While Turner itself involved convicted prisoners and not
detainees, it cited several times to Bel/l—a detainee case—in
developing its standard, see Turner, 482 U.S. at 87-89, and
indicated that Bell had been a stepping stone to the
development of this new test:
If Pell, Jones, and Bell have not already resolved the
question posed in Martinez, we resolve it now: when a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests. In our view, such a
standard is necessary if “prison administrators ..., and
not the courts, [are] to make the difficult judgments
concerning institutional operations.”
482 U.S. at 89. Bell in turn had already indicated that there
was “no reason” to distinguish between pretrial detainees and
convicted inmates in reviewing challenged security practices,
since there is “no basis for concluding that pretrial detainees
6
pose any lesser security risk than convicted inmates.” Bell,
441 US. at 546, n.28.
This lack of clarity has caused a split in the circuits
regarding which test to apply to detainees’ conditions of
confinement claims. Compare Magluta v. Samples, 375 F.3d
1269, 1273 (11th Cir. 2004); Valdez v. Rosenbaum, 302
F.3d 1039 (9th Cir. 2002), cert. den. 538 U.S. 1047 (2003);
Benjamin v. Fraser, 264 F.3d 175, 187 n.10 (2nd Cir. 2001);
and Tesch v. County of Green Lake, 157 F.3d 465, 475 (7th
Cir. 1998) (applying Bell), with Mauro vy. Arpaio, 188 F.3d
1054, 1058-59 (9th Cir. 1999) (en banc), cert den. 529 U.S.
1018 (2000); Hause v. Vaught, 993 F.2d 1079, 1081-82 (4th
Cir. 1993), cert den. 510 U.S. 1049 (1994); and Covino v.
Patrissi, 967 F.2d 73 (2nd Cir. 1992) (applying Turner).
Clearly, lower courts need guidance on which test to apply
to pre-trial detainees’ constitutional conditions of confine-
ment claims.
STATEMENT OF THE CASE
On or about July 27, 2000, Maricopa County Sheriff
Arpaio ordered the installation of four internet video cameras
in the intake area of the Madison Street Jail. Three of the
cameras were directed at processing areas while one was
directed at a portion of a holding cell, broadcasting images of
approximately two-thirds of the cell. A sign alerted pretrial
detainees and others entering the jail through Central Intake
that the area was under video surveillance and that their
images could be broadcast over the internet. In addition, a
sign posted in the holding cell area advised detainees that
they were under video and audio surveillance while in the
holding cells and that their images could be broadcast over
the internet.
The Sheriff's Office coordinated with Crime.com to
provide the internet videocamera feed to the Crime.com
website. Crime.com did not pay the Sheriff's Office for its
7
use of the video images, and the Sheriff's Office did not
receive any monetary compensation or commercial benefit
from it.
Jail employees avowed that the webcams served three
purposes: (1) exposing the viewing public to the jail’s deten-
tion procedures deters the viewing public from committing
crimes; (2) the detainees’ knowledge that the public—
including potentially family and friends—couid watch them
being processed deterred the detainees from misbehaving,
thus improving security at the jail; and (3) by opening up the
jail’s operations to public inspection, the webcams enhanced
accountability to the taxpaying public regarding how the
County Jail is operated. Plaintiffs—former pretrial detainees
at the jail—sought an injunction in state court, alleging that
broadcasting their images over the internet violated their
constitutional right to privacy. Defendants Maricopa County
and Sheriff Arpaio removed the case to federal court, which
had federal question jurisdiction under 28 U.S.C. § 1331.
After the preliminary injunction hearing, the trial court,
Hon. Earl Carroll, ruled that there was a constitutional vio-
lation, but not on the privacy grounds that plaintiffs had
argued. Discussing only Sheriff Arpaio’s security goal, and
not his deterrence or accountability goals, the court reasoned
sua sponte that the webcams were an “exaggerated response
to an already-filled security need,” and thus constituted
“punishment” before an adjudication of guilt in violation of
plaintiffs’ substantive due process rights—an argument never
made by plaintiffs. App. 42a, 54a-55a.'
' Sometime after the action was filed but before any injunction was
issued, Crime.com ceased carrying the live feed from the jail due to
financial problems. The Sheriff's Office, however, continues to seek a
new host for the site and, if successful in obtaining a reversal of the pre-
liminary injunction, will attempt to reach an agreement with another entity
to continue the webcasting from the four cameras positioned in the jail.
8
In a published opinion, Judges Paez and Berzon on the
Ninth Circuit’s panel affirmed. They first held that Crime.
com’s cessation of operations did not render the case moot,
because the Sheriff unequivocally intends to find another web
host, and as such, the issues were likely to recur. App. 5a-9a.
Next, the majority held that the district court had correctly
used the Bell v. Wolfish, 441 U.S. 520, 535 (1979), “pun-
ishment” test rather than the Turner v. Safley “rational
relation” test for three reasons. App. 10a-1la. First, the court
said that Ninth Circuit precedent required it to apply Bell, not
Turner. App. lla. Second, Turner was inapplicable because
it dealt with convicted prisoners and not detainees, id.—
though Bell itself had found “no reason” to make such a
distinction. Third, Turner involved an Eighth Amendment
challenge instead of a Fourteenth Amendment challenge, id.
—though as a practical matter the standard has been the same
for conditions of confinement claims. See e.g. Whitnack v.
Douglas County, 16 F.3d 954, 957 (8th Cir. 1994) (legal
standard applied to pretrial detainee’s conditions of
confinement claim is identical to the legal standard applied to
convicted prisoner’s conditions-of-confinement claim).
Applying Bell, the Ninth Circuit majority used a two-part
test: “For a particular governmental action to constitute
punishment, (1) that action must cause the detainee to suf-
fer some harm or ‘disability,’ and (2) the purpose of the
governmental action must be to punish the detainee.” App.
12a-13a. It then held that plaintiffs had been “harmed”
(apparently to a constitutional degree) because (1) “Exposure
to millions of complete strangers, not to mention friends,
loved ones, co-workers and employers, as one is booked,
fingerprinted, and generally processed as an arrestee, and as
one sits, stands, or lies in a holding cell, constitutes a level of
humiliation that almost anyone would regard as profoundly
undesirable and strive to avoid,” App. 13a; and (2) “The
9
webcams increase exponentially the number of people
observing detainees, and also alter drastically the classes of
people who can watch the detainees.” App. 14a.
Next, the majority held that this “harm” was not incident to
any legitimate governmental purpose. App. 14a-17a, 18a.
Instead of determining whether the webcams could rea-
sonably deter viewers, could reasonably improve security, or
could reasonably enhance the transparency of jail operations,
the court held that:
(1) the webcams “did not improve security” because
closed-circuit cameras were already present and jail
personnel were already watching, App. 14a. Yet it was
the prospect of being watched by family, friends,
employers and co-workers that caused the harm to be of
constitutional magnitude, according to the court; and
(2) deterrence of the viewing public was not legiti-
mate because “retribution and deterrence are not legiti-
mate nonpunitive governmental objectives.” App. 15a-
16a. But here the court only cited cases rejecting as a
goal the deterrence of the detainees themselves. Id. The
court did not cite any cases like the perp walk cases that
addressed the legitimate goal of deterring the viewing
public; and
(3) the Sheriff's accountability and public scrutiny
goal was not legitimate because, “we fail to see how
turning pretrial detainees into the unwilling objects of
the latest reality show” serves the goals of administering
the facility, guaranteeing detainees’ attendance at trial,
or promoting prison safety. App. 16a. The only direct
mention the court made of Sheriff Arpaio’s account-
ability objective was to state that such goal did not
justify the “broad public exposure of pretrial detainees’
intimate circumstances,” citing Wilson v. Layne, 526
U.S. 603, 612 (1999) (allowing the press to accompany a
valid search violates a homeowner’s Fourth Amendment
right to be secure in the sanctity of his home). App. 17a.
10
Of course, unlike one’s home, there is no right to
sanctity in a public jail. And there is nothing “intimate”
or private about a booking process that is a matter of
public record.
The Ninth Circuit majority concluded, “the webcams are
not reasonably related to a non-punitive purpose.” App. 18a.
One judge dissented. Citing Turner v. Safley, Judge Bea
noted that, “Given the importance and difficulty of fulfilling
the responsibility of operating penological installations,
courts have taken an understandably cautious approach to
second-guessing the decisions of prison administrators.”
App. 23a. Finding this precept “no less applicable in the
context of jails and detention facilities,” App. 24a, Judge Bea
stated that the relevant inquiry was Turner’s reasonable
relation test. App. 24a-25a. “There is nothing in Turner,” he
said, “which limits this principle solely to convicted prison-
ers, as the majority opinion claims.” App. 27a, n.4.
Judge Bea next stated that the majority gave “needlessly
short shrift to the governmental objectives proffered by
Sheriff Arpaio.” App. 25a. He reasoned that broadcasting
pictures of detention facilities would rationally deter viewers
from conduct that might land them there. App. 25a. In
addition, webcasts provide transparency to governmental
operation of the facility as much as group tours would. App.
25a-26a. Webcasts also deter the filing of frivolous lawsuits
against the county and county officials. App. 26a. Finally,
Judge Bea believed that the shame attendant to publication of
detainees’ arrests was not a harm of constitutional magnitude.
App. 29a-30a, citing Paul v. Davis, supra.
Judge Bea analogized this case to the Second Circuit’s perp
walk cases, because “perp walks promote many of the same
governmental purposes put forward here by Sheriff Arpaio,”
App. 30a-32a; and to the sex offender registration cases. .
App. 32a-33a. He concluded that the district court’s |
injunction was improperly based on “the legally erroneous
eee
11
conclusion that all levels of possible shame constitute consti-
tutionally prohibited ‘punishment,’ without any consideration
of the factors discussed in Bell.” App. 36a.”
Sheriff Arpaio filed a petition for rehearing en banc, which
was denied on October 21, 2004. App. 58a.
REASONS FOR GRANTING THE PETITION
The Ninth Circuit’s opinion that Sheriff Arpaio’s webcams
violate the detainees’ substantive due process rights conflicts
with existing Supreme Court and federal circuit authority in
at least three major ways. First, the Ninth Circuit’s holding
that the webcams are not reasonably related to a legitimate
non-punitive objective conflicts with this Court’s ruling in
Smith v. Doe, 538 U.S. 84, 97-103 (2002) and other federal
circuits holding that enhancing transparency of the criminal
justice system and deterring the viewing public are legitimate
governmental objectives, and that disseminating accurate
public criminal record information, even over the internet, is
reasonably related to those objectives. Caldarola v. County
of Westchester, 343 F.3d 570, 576 (2nd Cir. 2003); E.B. v.
Verniero, 119 F.3d 1077, 1099-1100 (3rd Cir. 1997).
Second, the Ninth Circuit’s ruling that disseminating
images of the booking and detainment process over the inter-
net caused plaintiffs harm of constitutional magnitude con-
flicts with this Court’s holding in Paul v. Davis, 424 U.S. 693
(1976), that reputational harm alone is not a harm that the due
process clause remedies; and it conflicts with this Court’s
ruling in Smith v. Doe, supra, and in other federal circuit
cases that it is not unconstitutional punishment to disseminate
? Judge Bea also indicated that he would have reversed the injunction
on mootness grounds because plaintiffs, who were no longer detainees,
could not show a sufficient likelihood that they (as opposed to others)
would be arrested and detained at the Madison Street Jail in the future.
App. 20a-23a.
12
already-public information about a person’s arrest and/or
conviction. Russell v. Gregoire, 124 F.3d 1079, 1094 (9th
Cir. 1997), cert den. 523 U.S. 1007 (1998); E.B. v. Verniero,
119 F.3d 1077, 1099-1100, 1103-04 (3rd Cir. 1997). Further,
the court’s intimation that publication over the internet makes
the governmental response “excessive” also conflicts with
this Court’s ruling in Smith v. Doe, supra, and the Tenth
Circuit’s ruling in Femedeer v. Haun, 227 F.3d 1244, 1250-
51 (10th Cir. 2000) that publication of truthful criminal his-
tory information over the internet does not turn constitutional
regulation into unconstitutional punishment.
Third, circuit courts are split on whether the correct test to
apply to detainees’ conditions of confinement claims is the
Bell “punishment” test or the Turner “rational relation to
legitimate penological interests” test. See e.g. Simmons v.
Sacramento County Superior Court, 318 F.3d 1156 (9th Cir.
2003) (applying Bell); Covino v. Patrissi, 967 F.2d 73 (2nd
Cir. 1992) (applying Turner); Magluta v. Samples, 375 F.3d
1269, 1273 (11th Cir. 2004) (applying Bell); Tesch v. County
of Green Lake, 157 F.3d 465, 475 (7th Cir. 1998) (suggesting
that Bell applies); Hause v. Vaught, 993 F.2d 1079, 1081-82
(4th Cir. 1993) (applying Turner), cert den. 510 USS.
1049 (1994).
I. THE NINTH CIRCUIT’S OPINION CONFLICTS
WITH DECISIONS OF THIS COURT AND
OTHER FEDERAL CIRCUITS HOLDING
THAT DISSEMINATION OF TRUTHFUL
ARREST/CONVICTION INFORMATION _ IS
REASONABLY RELATED TO LEGITIMATE
GOALS OF DETERRING THE PUBLIC AND
ENHANCING THE TRANSPARENCY OF THE
CRIMINAL JUSTICE SYSTEM
A condition of pretrial detention that is “reasonably related
to a legitimate governmental objective” does not, without
more, amount to “punishment.” Bell v. Wolfish, 441 U.S.
13
520, 539 (1979). Conversely, if a restriction or condition is
not reasonably related to a legitimate goal—if it is arbitrary or
purposeless—a court may infer that the purpose of the
governmental action is impermissible punishment. Jd.
To make this determination, Bel/ directs lower courts to
“decide whether the disability is imposed for the purpose of
punishment or whether it is but an incident of some other
legitimate governmental purpose.” /d. at 538. Absent a
showing of an expressed intent to punish by the detention
facility officials—as is the case here—that determination
generally will turn on “whether an alternative purpose to
which [the restriction] may rationally be connected is
assignable for it, and whether it appears excessive in relation
to the alternative purpose assigned [to it].” Jd. Even if a
condition may be viewed as having a punitive effect on the
pretrial detainee, it is nonetheless constitutional if it also
furthers some legitimate governmental objective. Collazo-
Leon v. United States Bureau of Prisons, 51 F.3d 315, 318
(1 Cir.1995) (citing Bell). Bell cautions courts to “heed our
warning that “[s]uch considerations are peculiarly within the
province and professional expertise of corrections officials,
and, in the absence of substantial evidence in the record to
indicate that the officials have exaggerated their response to
these considerations, courts should ordinarily defer to their
expert judgment in such matters.” /d. at 540, n.23.?
> See also Smith v. Doe, 538 U.S. at 105 (Court does not determine
whether the legislature made the best choice possible to address the
problem it sought to remedy; question is whether the regulatory means
chosen were reasonable in light of the non-punitive objective); Mauro v.
Arpaio, 188 F.3d 1054, 1060 (9" Cir. 1999) (‘it does not matter whether
we agree with the defendants or whether the policy in fact advances the
jail's legitimate interests. . . The only question that we must answer is
whether the defendants’ judgment was “rational,” that is, whether the
defendants might reasonably have thought that the policy would advance
its interests”); Hare v. City of Corinth, Miss., 74 F.3d 633, 646 (Sth
14
A. The Ninth Circuit’s decision conflicts with fed-
eral decisions holding that disseminating truth-
ful information about arrests and convictions is
reasonably related to legitimate governmental
interests in deterring the public and enhancing
the transparency of the criminal justice system.
Deterring the viewing public and enhancing the trans-
parency of the system by depicting real-time images of the
public booking process were two stated goals for installing
the webcams. These are clearly legitimate governmental
interests; and federal cases hold that disseminating truthful
criminal history information is reasonably related to these
legitimate governmental interests. The Ninth Circuit’s deci-
sion that the webcams are not reasonably related to a non-
punitive purpose cannot be reconciled with these decisions.
In Caldarola v. County of Westchester, 343 F.3d 570, 576
(2nd Cir. 2003), for example, plaintiffs—like the pre-trial
detainees here—had claimed that perp walks (the practice of
parading an accused before the media as he is brought to the
courthouse for processing) caused them “humiliation . . .
without any legitimate law enforcement objective or justi-
fication.” See Caldarola v. County of Westchester, 142 F.
Supp.2d 431, 436 (S.D.N.Y. 2001). The Second Circuit held
the practice constitutional, stating that it serves important
non-punitive governmental purposes—including informing
the public about the government’s efforts to stop the crime of
which the arrestee was accused; enhancing the transparency
of the criminal justice system; deterring others from
attempting similar crimes; and protecting individuals from
police abuse and protecting police from false accusations of
abuse (citing as an example the practice of installing video
equipment on police cruisers to record interactions between
Cir.1996) (Bell test “is deferential to jail rulemaking; it is in essence a
rational basis test of the validity of jail rules").
ee ee
EO ee
15
police officers and individuals pulled over in traffic stops).
343 F.3d at 576.* The webcams serve the same legitimate
governmental purposes.
Similar legitimate governmental reasons have led every
court addressing the issue to uphold sex offender notification
laws against claims that the public dissemination of con-
viction information constitutes unconstitutional punishment.
In Smith v. Doe, 538 U.S. 84, 97-99 (2002), the Court
rejected the claim of convicted sex offenders that the
notification provisions of Alaska’s Megan’s Law “resemble
shaming punishments of the colonial period.” The Court
reasoned that not only is the dissemination of accurate
information about an already-public criminal record not
punishment, but “criminal law tradition insists on public
indictment, public trial, and public imposition of sentence.”
Id. at 99. “Transparency,” said the Court, “is essential to
maintaining public respect for the criminal justice system,
ensuring its integrity, and protecting the rights of the
accused.” /d. In E.B. v. Verniero, 119 F.3d 1077, 1100 (3rd
Cir. 1997), the Third Circuit had earlier held the same thing,
stating that the dissemination of accurate public record
information about past criminal activities “‘heightens public
respect for the judicial process,’ it ‘permits the public to...
serve as a check on the judicial process,’ and it ‘plays an
important role in the . . . free discussion of governmental
affairs."”’ See also Houchins v. KQED, Inc., 438 U.S. 1, 8
* Contrast this with purely staged perp walks—“fictional drama-
tizations of an event that transpired hours earlier’—which have no
legitimate non-punitive purpose. Lauro v.Charles, 219 F.3d 202 (2d
Cir.2000).
* While the Megan’s Law [sex offender registration] cases deal with
the publication of convictions and not arrests, the question—whether
publication constitutes punishment—is the same, and courts analyze the
same factors in making that determination for the convicted and the
detained alike. See e.g. Hatton v. Bonner, 356 F.3d 955, 963 (9th Cir.
2004) (examining Kennedy v. Mendoza-Martinez factors to determine if
16
(1978) (holding that television stations do not have a First
Amendment right to access jail facilities when they so desire,
but stating that jail conditions are matters of public impor-
tance and that the media, being the eyes and ears of the pub-
lic, “can be a powerful and constructive force, contributing to
remedial action in the conduct of public business”).°
In fact, the Houchins Court described a number of alter-
natives available to ensure public scrutiny—including citizen
task forces and prison visitation committees; judicial inquiry;
and the legislative power. /d. at 9. Today—nearly thirty
years after Houchins—modern day webcams placed in the
public sections of the jail’s intake area are as legitimate a
method of ensuring public scrutiny of jail conditions as
citizen task forces and prison visitation committees.
B. Legitimate governmental conduct can also
deter without being punitive.
The Ninth Circuit dismissed Sheriff Arpaio’s deterrence
goals as not legitimate by simply quoting the oft-repeated
precept that “‘retribution and deterrence are not legitimate
nonpunitive governmental objectives’ that can justify adverse
conditions of detention for pretrial detainees,” because
’ 99
“deterrence is one of ‘the traditional aims of punishment’.
California’s Megan’s Law-is punishment in violation of Ex Post Facto
clause) and Bell, 441 U.S. at 538-39 (examining Kennedy v. Mendoza-
Martinez factors to determine if jail conditions are punishment in vio-
lation of substantive due process).
° The media asserted that public access to penal institutions was
necessary to prevent officials from concealing prison conditions from the
voters and impairing the public’s right to diseuss and criticize the prison
system and its administration. 438 U.S. at 8. While acknowledging the
legitimacy of the public interest involved, the Court disagreed with the
media’s assertion of a First Amendment right, saying, “The media are not
a substitute for or an adjunct of government and, like the courts, they are
ill equipped to deal with problems of prison administration.” /d.
17
App. I5a. To be sure, deterrence and retribution of an
accused for committing a crime of which he has not yet been
convicted would not be a legitimate goal. See Bell, 441 U.S.
at 539, n.20, citing Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168-69 (1963). But deterrence of the viewing public is a
legitimate governmental objective. Caldarola, supra.
Furthermore, Sheriff Arpaio’s desire to deter detainees
from misbehaving at the jail does not render his purpose
illegitimate or punitive. While punishment is usually
imposed in part to deter the wrongdoer from future similar
behavior, this Court has made clear that the opposite is not
necessarily true: just because government conduct might
deter someone does not a fortiori establish that it is done to
punish. See Smith v. Doe, supra, 538 U.S. at 102 (rejecting
sex offenders’ argument that because deterrence is one
purpose of punishment, the fact that Alaska’s Megan’s Law
might deter registrants from future crime makes the law
punitive):
This proves too much. Any number of governmental
programs might deter crime without imposing punish-
ment. ‘To hold that the mere presence of a deterrent
purpose renders such sanctions “criminal” . . . would
severely undermine the Government’s ability to engage
in effective regulation.
Contrary to the Ninth Circuit’s holding, deterring pre-trial
detainees from misbehaving at the jail is a legitimate gov-
ernmental interest that does not violate the precepts of Bell.
Collazo-Leon v. U. S. Bureau of Prisons, 51 F.3d 315, 318
(1st Cir. 1995) (recognizing Bell’s “clear approval of a broad
exercise of discretion by prison authorities to take reasonable
and necessary action, including punishment, to enforce the
prison disciplinary regime and to deter even pretrial detainees
from violation of its requirements”).
saaaaa eaten ean eae |
18
C. Internet publication is a modern-day techno-
logical convenience, not an excessive response
to a legitimate purpose.
In this day and age, dissemination of detainees’ images
over the internet is not an “excessive response to a legitimate
purpose,” as the Ninth Circuit seemed to intimate. App. 13a,
15a. In Smith v. Doe, this Court held that “the fact that
Alaska posts the [sex offender] information on the Internet
does not alter our conclusion” that community notification
was not punishment. 538 U.* at 99. The Court reasoned that
the state’s web site did not add to the public record comments
shaming the offender. Further, like here, the viewing public
had to take affirmative steps of going to the Department’s
web site and looking up the desired information. The Court
found the process
more analogous to a visit to an official archive of
criminal records than it is to a scheme forcing an
offender to appear in public with some visible badge of
past criminality. The Internet makes the document
search more efficient, cost effective, and convenient for
Alaska’s citizenry.
Id. In so holding, this Court rejected the same concern voiced
by the Ninth Circuit in Smith that the Ninth Circuit has again
voiced here:
The Court of Appeals’ reliance on the wide dis-
semination of the information is also unavailing. The
Ninth Circuit highlighted that the information was
available ‘world-wide’ and ‘[b]roadcas[t]’ in an indis-
criminate manner. . . As we have explained, however,
the notification system is a passive one. An individual
must seek access to the information.
* * *
The excessiveness inquiry of our ex post facto
jurisprudence is not an exercise in determining whether
the legislature has made the best choice possible to
538
19
address the problem it seeks to remedy. The question is
whether the reguiatory means chosen are reasonable in
light of the nonpunitive objective. The Act meets this
standard.
U.S. at 104-105. Femedeer v. Haun, 227 F.3d 1244
(10th Cir. 2000) is in accord. Holding that Utah’s internet
dissemination of sex offender registration information was
not punishment, the court reasoned that the information
is made widely available, but it is not broadcast in a
manner approaching the historical examples of public
shaming. Interested individuals must still make an
affirmative effort to retrieve the information. Internet
notification works merely a technological extension, not
a sea change, in our nation’s long history of making
information public regarding criminal offenses.
227 F.3d at 1251. The Ninth Circuit’s ruling that the web-
cams are no more than an excessive form of “colonial sham-
ing”
cannot be reconciled with this authority. They are a
modern day innovative response to legitimate governmental
concerns.
Il.
THE NINTH CIRCUIT’S OPINION CONFLICTS
WITH DECISIONS OF THIS COURT AND
OTHER FEDERAL CIRCUITS HOLDING
THAT THE DUE PROCESS CLAUSE DOES
NOT REDRESS CLAIMS OF REPUTATIONAL
HARM; AND IT IS NOT UNCONSTITU-
TIONAL PUNISHMENT TO DISSEMINATE
PUBLIC RECORD ARREST OR CONVICTION
INFORMATION
A. Reputational harm is not an injury that is
constitutionally redressible.
The Ninth Circuit found the detainees harmed by the
humiliation of having their booking procedures exposed to
“millions of strangers, not to mention friends, loved ones, co-
20
workers and employers.” App..13a. But “[n]Jot every
disability imposed during pretrial detention amounts to
punishment in the constitutional sense.” Bell, 441 US. at
537. In Paul v. Davis, 424 U.S. 693 (1976), this Court held
that the dissemination to local merchants of a_ flyer
idertifying a shoplifting arrestee as an “Active Shoplifter’” did
not rise to the level of constitutional harm, even though the
arrestee had not been, and in fact never was convicted of
shoplifting. The Court reasoned that reputational stigma
imposed by official action by itself was an insufficient basis
for invoking the due process clause. 424 U.S. at 701, 712.7
Of plaintiff's claim that publishing a record of an official act
such as an arrest violated his substantive due process rights,
the Court said, “[nJone of our substantive privacy decisions
hold this or anything like this, and we decline to enlarge them
in this manner.” 424 U. S. at 714. See also E.B. v. Verniero,
119 F.3d 1077, 1103 (3rd Cir. 1997) (New Jersey’s
publication of registrants’ convictions does not implicate any
interest of fundamental constitutional magnitude”). Indeed,
every federal circuit has recognized that reputational harm is
not constitutionally redressible.
—— —
Here, similarly, the reputational stigma or embarrassment
associated with being depicted over the internet during the
booking process was the heart of plaintiffs’ complaint. If a
defamatory publication relating to a detainee’s arrest does not
rise to the level of constitutional harm, it is difficult to see |
how a truthful publication does. Furthermore, if it is the
prospect of having friends, neighbors, and family watch the
detainee that the court believed raised the detainees’ shame or
emburrassment “harm” to a constitutional level, then certainly
it is legitimate for Sheriff Arpaio to reasonably expect that
same prospect of having friends, neighbors, and family
ee
’ The Court also found that the dissemination of plaintiff's name and
photograph did not implicate any constitutional right to privacy. /d. at
713.
21
watching the detainees in the jail will deter them from
misbehaving at the jail more than just having the prison
guards nearby.
B. Disseminating accurate public record infor-
mation is not punishment.
Judges Paez and Berzon believed that plaintiffs were
harmed by the “broad public exposure of pretrial detainees’
intimate circumstances.” App. 17a. But there is nothing
“intimate” about being booked into a public jail. See Hudson
v. Palmer, 468 U.S. 517, 526 (1984) (detainees have no
legitimate expectation of privacy in a jail cell). To the
contrary, federal courts uniformly hold that disseminating
accurate public information regarding criminal history does
not constitute punishment. See, e.g., Smith v. Doe, 538 U.S.
84, 98-99 (2002); E.B. v. Verniero, 119 F.3d 1077, 1099-
1100, 1103-04 (3rd Cir. 1997). In each of these Megan’s
Law cases, the courts rejected the argument that dissemi-
nating criminal history information that was already part of
the public domain was unconstitutional punishment. The
Smith Court stated:
Our system does not treat dissemination of truthful infor-
mation in furtherance of a legitimate governmental
objective as punishment.
538 U.S. at 98-99. The court in E.B. v. Verniero, 119 F.3d
1077, 1100 (3rd Cir. 1997) stated, “[O]ur laws’ insistence that
information regarding criminal proceedings be publicly
disseminated is not intended as punishment and has never
been regarded as such.” The Ninth Circuit’s conclusion that
disseminating truthful images of a public booking process
harmed plaintiffs conflicts with these authorities.
ee ee ee a en ER RE redeem
22
lil. THE FEDERAL CIRCUITS ARE SPLIT ON
WHETHER TO APPLY BELL’S “PUNISH-
MENT” TEST OR TURNER V. SAFLEYS
“REASONABLE RELATION TO LEGITIMATE
PENOLOGICAL INTERESTS” TEST TO PRE-
TRIAL DETAINEES’ CONDITIONS OF CON-
FINEMENT CLAIMS
In Bell v. Wolfish, 441 U.S. 520 (1979), pre-trial detainees
challenged the constitutionality of numerous conditions of
confinement and practices in a federally operated short-term
custodial facility. The Court held that to evaluate the
constitutionality of conditions or restrictions of pretrial
detention, “we think that the proper inquiry is whether those
conditions amount to punishment of the detainee.” Jd. at
535. The Court acknowledged, however, that it saw “no
reason” to distinguish between pretrial detainees and con-
victed inmates in reviewing the challenged security
practices. /d. at 547, n.28.
Eight years after Bell, this Court in Turner v. Safley, 482
U.S. 78 (1987), examined the constitutionality of a prison’s
mail and marriage regulations using a new four-factor
“rational relation” test,” 482 U.S. at 89, only the first factor of
which asks whether there is a rational relation between the
regulation and a legitimate, neutral government interest. Jd.
While Turner itself involved convicted prisoners and not
detainees, it cited several times to Bel/—a detainee case—in
developing its standard. See Turner, 482 U.S. at 87-89. It
also seemed to indicate that Bell had been a stepping stone
in the development of this new standard which more di-
rectly requires courts to assess the facility’s legitimate
institutional concerns:
If Pell, Jones, and Bell have not already resolved the
question posed in Martinez, we resolve it now: when a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to
23
legitimate penological interests. In our view, such a
standard is necessary if “prison administrators ..., and
not the courts, [are] to make the difficult judgments
concerning institutional operations.”
Id. at 89. The Turner Court, stressing that the judiciary
should not second guess prison officials by looking for less
restrictive alternatives to the officials’ chosen procedures, id.,
stated that courts should determine a policy’s reasonableness
by assessing (1) whether there is a valid, rational connection
between the policy and a legitimate governmental interest, (2)
whether there is an alternative means for inmates to exercise
the particular constitutional right, while giving the prison
officials deference to their chosen means, (3) the impact that
accommodating the asserted right would have on prison staff
and resources, and (4) the absence of ready alternatives. /d.
at 89-90.
Given Bell’s statement that the Court saw no reason to dis-
tinguish between detainees and convicted inmates in assess-
ing the challenged security practices; and given Turner’s later
reliance on Bell and its blanket statement indicating that Bell
and the other conditions cases had seemingly generated the
Turner test, the circuits are split regarding which test to apply
to detainees’ conditions of confinement claims. Compare
Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)
(applying Bell); Simmons v. Sacramento County Superior
Court, 318 F.3d 1156 (9th Cir. 2003) (applying Bell); Benja-
min v. Fraser, 264 F.3d 175, 187 n.10 (2nd Cir. 2001) (sug-
gesting without deciding that Bell, not Turner, applies); and
Tesch v. County of Green Lake, 157 F.3d 465, 475 (7th Cir.
1998) (suggesting that Bell applies); with Hause v. Vaught,
993 F.2d 1079, 1081-82 (4th Cir. 1993), cert den. 510 US.
1049 (1994) (applying Turner) and Covino v. Patrissi, 967
F.2d 73 (2nd Cir. 1992) (applying Turner). The Second Cir-
cuit tried to reconcile these cases by holding that Bell applies
to jail conditions and Turner to prison conditions, regardless
of the claimant’s status as detainee or convicted inmate. See
24
Shain v. Ellison, 273 F.3d 56, 65 (2nd Cir. 2001), cert den.
537 U.S. 1083 (2002). One commentator has proposed that
both Turner and Bell should apply together to detainees as
well as prison inmates in the context of strip searches.
Deborah L. MacGregor, Stripped Of All Reason? The
Appropriate Standard for Evaluating Strip Searches of
Arrestees and Pretrial Detainees In Correctional Facilities,”
36 Colum. J.L. & Soc. Probs. 163, 179 (2003).
The Ninth Circuit majority held that only Bell should apply
to detainees’ claims. App. 10a-lla. The dissent posited that
Turner was the relevant inquiry. App. 24a-25a. Some
circuits hold that detainees’ claims must be analyzed under
Bell. Another suggests that Turner can apply to the claims of
both convicted inmates and detainees. One circuit holds that
the status of the claimant makes no difference. Clearly, lower
courts need guidance on which test to apply to pre-trial
detainees’ constitutional conditions of confinement claims.
This Court should grant this petition and resolve the conflict.
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari
should be granted.
Respectfully Submitted,
CARTER G. PHILLIPS DANIEL P. STRUCK *
BRIAN T. FITZPATRICK EILEEN DENNIS GILBRIDE
SIDLEY, AUSTIN BROWN JONES, SKELTON & HOCHULI, P.L.C.
& WooD LLP 2901 North Central Avenue,
1501 K Street N.W. Suite 800
Washington, D.C. 20005 Phoenix, Arizona 85012
(202) 736-8000 (602) 263-1700
Counsel for Petitioner
January 19, 2005 * Counsel of Record
APPENDICES
— -_ — - — ee eee oe a it one et ra
la
APPENDIX A
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
No. 03-15698
JAMIE DEMERY; SAMANTHA MOORE: ARACELIA LETICIA
PFEIFER; JANET LEE KING; JERRI CABANISS; ROSA
VELAZQUEZ; CYNTHIA MATTHERS; RHONDA FARMER;
SANDRA PUEBLA; JORDAN MARTIN; LAURA HARTNEY;
ELENA M. IRVINE; YVETTE ROSE LEON; TINA MARIE Sox;
LORETTA CHRISTIE; ALISON LEE ADAIR; VICTORIA ZEPEDA;
NIKISHA CALLISTE; TERRY MCEvoy; TOM ODENKIRK;
DEAN TOUSIGNANT; BENNY DAVID BERRYMAN; DAMON
SCOGGIN; SEAN BOTKIN,
Plaintiffs-Appellees,
V.
JOE ARPAIO, Maricopa County Sheriff,
in his official capacity,
Defendant-Appellant,
and
COUNTY OF MARICOPA; John/Jane Does 1-100,
Defendants.
Argued and Submitted Dec. 3, 2003
Filed Aug. 6, 2004
Appeal from the United States District Court for the District
of Arizona; Earl H. Carroll, District Judge, Presiding.
D.C. No. CV-01-00983-EHC.
2a
Before PAEZ, BERZON, and BEA, Circuit Judges.
PAEZ, Circuit Judge.
The Fourteenth Amendment prohibits punishment of
pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct.
1861, 60 L.Ed.2d 447 (1979). Applying this principle, the
district court preliminarily enjoined the use of world-wide
web cameras (“webcams”) in the Maricopa County Madison
Street Jail. We must decide whether the district court abused
its discretion in granting the plaintiffs’ motion for a pre-
liminary injunction. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
3
When Maricopa County Sheriff Joe Arpaio announced the
installation of webcams in the Madison Street Jail, he
proclaimed “[w]e get people booked in for murder all the way
down to prostitution. . .. When those johns are arrested, they
can wave to their wives on the camera.” Sheriff Arpaio also
explained that his policy deterred crime and opened up the
jails to public scrutiny: “The public has the right to know
what’s going on in our jails. ... And I believe that they act as
a tool to deter crime. We hope that the only visit people make
to our jail is a virtual visit.” In July 2000, four webcams
began streaming live images of pretrial detainees to Internet
users around the world.
Sheriff Arpaio installed the webcams at the County’s
Madison Street Jail, a facility used exclusively to house
pretrial detainees. The four webcams were placed within
areas of the jail that were not open to the public except
through prearranged tours. They were installed in close
proximity to closed-circuit security cameras that were moni-
tored twenty-four hours a day by Sheriffs officers.
One camera was trained on the men’s holding cell. Web
users could view only a portion of this holding cell, including
the bunk bed area. Those detained in the men’s holding cell
<< A 0 URN Rann ae
3a
could therefore avoid being seen by moving to an area of the
cell that was outside of the camera’s view.
A second camera captured images of the pre-intake area.
Pretrial detainees could be viewed being photographed,
fingerprinted, and booked. A third camera was focused on the
intake search area. This webcam captured live images of
pretrial detainees being subjected to patdown searches.
The location of the final camera is hotly contested by the
parties. The plaintiffs contend that for at least six months, one
webcam captured images of the toilet and surrounding area in
the women’s holding cell. They also argue that the camera
was only repositioned in response to this lawsuit, and that in
the absence of an injunction, the Sheriff could simply move
the camera back to its original location. Sheriff Arpaio,
however, contends that his officers moved the camera within
hours of learning that the images of the toilet area were being
displayed over the internet. In any event, the camera was
ultimately repositioned to capture images of the hallway
outside of the holding cells.
In order to transport the images from the Madison Street
Jail to web users’ computers, the images had to be streamed
to a website. Although the Maricopa County Sheriffs website’
initially hosted the webcam images, the number of visitors to
the site quickly overwhelmed that website’s capacity. As a
result, Sheriff Arpaio entered into an arrangement with a
website called “Crime.com” to distribute the images to the
public.
Finally, in order to view the webcam images, web users
had to direct their web browsers to the Crime.com website
and click on a series of links. The website informed visitors
that “[i]f you fmd yourself sitting on this bunk, you probably
' The uniform resource locator for the Sheriffs website is http://www.
mcso.org.
ee ee es ae eee
4a
have been arrested for drunk and disorderly behavior, drug
possession, spousal abuse, or prostitution. Most people inside
the Madison Street Jail are facing misdemeanor charges but
Deputies see their fair share of murderers as well.” Visitors to
the Crime.com’s Jail Cam Special Ops webpage found the
following four links:
1. “crime.com’s Virtual Tour: You are busted! Enter the
Madison Street Jail as a detainee and see what it’s like to
be booked, searched, and locked-up.”
2. “Meet Sheriff Joe: It’s his jail and he’s proud of it.
Spend a day in the life of Sheriff Joe Arpaio on his own
turf, where inmates wear pink underwear, eat green
bologna and work on chain gangs.”
3. “Jail Cam: See the first live camera in a working jail.
Watch what’s happening at Madison Street Jail NOW.”
4. “Shakedown: See the first shakedown in four years at
the Madison Street Jail. Watch as SWAT teams raid
male and female inmate holding cells in search of
smuggled drugs and crude weapons.”
Visitors that chose the “Jail Cam” link were then directed
to a web page where they could choose which of the four
webcams they wanted to view.
Within the first few days of operation, the Crime.com
website recorded six million hits, with web users visiting
from as far away as Sweden, Britain, and Germany. As was
the case with the Maricopa County Sheriffs website, however,
the Crime.com website was unable to accommodate the
number of visitors interested in viewing the webcam images.
But for reasons that are unclear from the record, the
Crime.com website ceased operations after this suit was
filed but before the district court granted the preliminary
injunction.
Sa
This suit was brought by twenty-four former Madison
Street Jail detainees who challenged the Sheriffs webcam
policy in Arizona state court. The defendants, Sheriff Arpaio
and the County of Maricopa, removed the case to the United
States District Court for the District of Arizona. After
determining that there was still a live controversy, because
Sheriff Arpaio was seeking a new host for the webcam
images, the district court preliminarily enjoined the Sheriff
from operating the webcams because the Sheriffs policy
unconstitutionally punished pretrial detainees in violation of
the Fourteenth Amendment.
Sheriff Arpaio filed this timely appeal. Although he
concedes that there is a live controversy, he argues that the
district court abused its discretion in granting preliminary
injunctive relief.
IT.
We first consider whether this case is moot. “[A] case is
moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23
L.Ed.2d 491 (1969). Neither party contends on appeal that
this case is moot, a factor that weighs in favor of our
jurisdiction because a “party moving for dismissal on
mootness grounds bears a heavy burden.” Coral Constr. Co.
v. King County, 941 F.2d 910, 927-28 (9th Cir.1991).
Nonetheless, we have an independent duty to consider sua
sponte whether a case is moot, Dittman v. California, 191
F.3d 1020, 1025 (9th Cir.1999), and we consider this issue de
novo. Wade v. Kirkland, 118 F.3d 667, 669 (9th Cir.1997).
_ There are two significant events that might render this
dispute moot—the termination of the Crime.com website and
the release of the plaintiffs from the Madison Street Jail. We
conclude, however, that this controversy is not moot and
6a
therefore we have jurisdiction to address the merits of Sheriff
Arpaio’s appeal.
First, we agree with the parties that the termination of the
Crime.com website does not render this case moot. Sheriff
Arpaio intends to and likely will find another web host
willing to display the live images of the Madison Street Jail.
Although a suit for injunctive relief is normally moot upon
the termination of the conduct at issue, such a claim is not
moot if there is a likelihood of recurrence. See Fed. Trade
Comm'n v. Affordable Media, LLC. 179 F.3d 1228, 1238 (9th
Cir.1999) (holding that injunctive relief does not become
moot by defendants’ voluntary cessation of allegedly
wrongful behavior unless it is “absolutely clear that the
allegedly wrongful behavior cannot reasonably be expected to
recur”) (quoting Norman-Bloodsaw v. Lawrence Berkeley
Laboratory, 135 F.3d 1260, 1274 (9th Cir.1998)); Norman-
Bloodsaw, 135 F.3d at 1274 (holding that defendants in suit
for injunctive and declaratory relief must establish “either that
their alleged behavior cannot be reasonably expected to recur,
or that interim events have eradicated the effects of the
alleged violation’).
True, in this case the immediate cause of the defendant’s
cessation of the disputed activity was not in the short term
voluntary, as it was not Sheriff Arpaio who discontinued the
Crime.com website. Compare, e.g., Adarand Constructors,
Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d
650 (2000) (describing how the Federal Government volun-
tarily ceased its offending conduct and holding that the case
was not moot); Norman-Bloodsaw, 135 F.3d at 1274 (holding
that the voluntary cessation by United States Department of
Energy of mandatory testing for syphilis and ovher private,
medical conditions did not moot the plaintiffs’ claims). None-
theless, as the voluntary cessation and capable-of-repetition-
yet-evading-review cases, discussed infra, both illustrate, a
more general principle underlies the mootness determination.
7a
Once a defendant has engaged in conduct the plaintiff con-
tends is unlawful and the courts have devoted resources to
determining the dispute, there is Article III jurisdiction to
decide the case as jong as “the parties [do not] plainly lack a
continuing interest. . . .” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000).
In light of Sheriff Arpaio’s unequivocal representations, it
is likely that the Sheriff will reactivate the webcams if the
injunction is vacated. The Sheriff was actively searching for a
new website host before the district court issued the pre-
liminary injunction, and has stated that he plans to continue
his search if the preliminary injunction is reversed. Because
the Madison Street Jail images increased the popularity of the
crime.com website, and because web technology advances
rather than retreats, there is no basis for supposing that the
Sheriff will not succeed in his search for a new host. It is also
possible that the Sheriff could upgrade his own website to
Show the images. As the defendant intends to resume his
behavior if he can and there has been no showing that
recurrence is not technologically and otherwise feasible, it is
reasonably likely that he will resume the contested web
postings. As there is a sufficient likelihood that the Sheriffs
use of webcams will recur, the temporary cessation caused by
the demise of Crime.com does not render this case moot.
Second, the release of the plaintiffs from the Madison
Street Jail and consequent inability to post their images on the
web any longer does not render this case moot, because this
controversy falls squarely within the capable-of-repetition-
yet-evading-review branch of the mootness doctrine. This
branch applies when (1) the duration of the challenged action
is too short to be litigated prior to cessation, and (2) there is a
“reasonable expectation” that the same parties will be sub-
jected to the same offending conduct. Spencer v. Kemna, 523
U.S. 1, 17-18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Mitchell
8a
v. Dunnik, 75 F.3d 517, 528 (9th Cir.1996). Because the
Madison Street Jail is a pretrial detention center, “the length
of detention in the county jail is short enough that any
individual detainee’s claim would probably become moot
before trial.” Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101,
1117-18 (9th Cir.2003). As the Supreme Court has explained,
“{p]retrial detention is by nature temporary, and it is most
unlikely that any given individual could have his constitu-
tional claim decided on appeal before he is either released
or convicted.” Gerstein v. Pugh, 420 U.S. 103, 111 n. 11,
95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In these circumstances,
the plaintiffs readily satisfy the first prong of the cap-
able-of-repetition-yet-evading-review branch of the mootness
doctrine.
To satisfy the second prong, the plaintiffs “must show
either a ‘demonstrated probability’ or a ‘reasonable expec-
tation’ that [they] would be transferred back to [the Madison
Street Jail] or released and reincarcerated there.” Oliver v.
Scott, 276 F.3d 736, 741 (Sth Cir.2002) (quoting Murphy v.
Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353
(1982)); see also Mitchell, 75 F.3d at 528. Our analysis of this
second prong is guided by our decision in Mitchell. In
Mitchell, the district court enjoined the challenged pretrial
detention center policy even though the plaintiff had been
convicted and transferred to state prison. Because the plaintiff
was pursuing post-conviction relief that, if he were
successful, would entitle him to a new trial, the district court
held that the plaintiff had a reasonable expectation that he
would return to the pretrial detention center. We reversed,
noting that although these “circumstances arguably satisfied
the exception’s second prong,” the plaintiff no longer had a
reasonable expectation that he would be reincarcerated at the
pretrial detention facility because the plaintiffs petitions for
post-conviction relief had since been denied. 75 F.3d at 528.
9a
In contrast, the record here contains compelling evidence
that the plaintiffs likely will be reincarcerated at the Madison
Street Jail. For example, plaintiff Benny Berryman was
detained at the Madison Street Jail on twenty different
occasions between February 1997 and June 2002. Eleven
other named plaintiffs also have been detained at the Madison
Street Jail on more than one occasion. Thus, this controversy
also satisfies the capable-of-repetition prong. Accordingly,
the case is not moot and we have jurisdiction to decide the
merits of Sheriff Arpaio’s challenge to the district court’s
preliminary injunction order.
Il.
In considering Sheriff Arpaio’s arguments, we begin with
the proposition that our review of a district court order
granting a preliminary injunction is “subject to limited
review.” United States v. Peninsula Communications, Inc.,
287 F.3d 832, 839 (9th Cir.2002). We can reverse the district
court only if it abused its discretion. Gorbach v. Reno, 219
F.3d 1087, 1091(9th Cir.2000) (en banc). The district court
necessarily abuses its discretion if it relies on an erroneous
legal standard or on clearly erroneous factual findings.
Brookfield Communications, Inc. v. West Coast Entm’t Corp..
174 F.3d 1036, 1046 (9th Cir.1999). Accordingly, we review
de novo any underlying issues of law. Does 1-5 v. Chandler,
83 F.3d 1150, 1152 (9th Cir.1996). However, “[w]e typically
will not reach the merits of a case when reviewing a
preliminary injunction. By this we mean we will not second
guess whether the court correctly applied the law to the facts
of the case, which may be largely undeveloped at the early
stages of litigation.” Rucker v. Davis, 237 F.3d 1113, 1118
(9th Cir.2001) (en banc) (internal citations omitted), rev’d on
other grounds by Dept. of Hous. and Urban Dev. v. Rucker,
535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002).
Sheriff Arpaio’s challenges to the district court’s order boil
down to two arguments: the district court misidentified the
10a
applicable law and the district court misapplied the law to the
facts of this case. We consider these contentions separately.
A.
In evaluating the plaintiffs’ motion for injunctive relief, the
district court applied the correct legal standard. As the district
court recognized, the Supreme Court held in Bell v. Wolfish
that “under the Due Process Clause, a detainee may not be
punished prior to an adjudication of guilt in accordance with
due process of law.” 441 U.S. at 535, 99 S.Ct. 1861. More
specifically, the district court correctly identified and applied
Bell’s test for identifying unconstitutional punishment at the
pretrial stage of a criminal proceeding. That test asks whether
there was an express intent to punish, or “whether an
alternative purpose to which [the restriction] may rationally
be connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned [to
it].” Id. at 538, 99 S.Ct. 1861 (quoting Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168- 69, 83 S.Ct. 554, 9 L.Ed.2d 644
(1963)). Sheriff Arpaio contends that this was an incorrect
legal standard because the plaintiffs never raised a Bell
challenge to the webcams. The plaintiffs’ district court filings
reveal otherwise. For example, the plaintiffs’ fifth and eighth
causes of action, as well as their motion for a preliminary
injunction, alleged that the webcams violated their Fourteenth
Amendment Substantive Due Process rights. In footnote 4 of
their complaint, the plaintiffs specifically claimed that the
webcams undermined their Fourteenth Amendment Substan-
tive Due Process right to be free of punishment. And in their
response to the defendants’ motion to dismiss, which was
heard in conjunction with the plaintiffs’ motion for a
preliminary injunction, the plaintiffs argued that “the Internet
displays are punishment, the very thing that the state and
federal constitutions prohibit governments from imposing
upon unconvicted prisoners.”
lla
Alternatively, Sheriff Arpaio argues that the four-part “rea-
sonable relation” test of Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987),” replaced the Bell punish-
ment test. He concedes, however, that we have continued to
apply Bell even after the Supreme Court’s decision in Turner.
See Valdez v. Rosenbaum, 302 F.3d 1039,1045-47 (9th
Cir.2002), cert. denied, 538 U.S. 1047, 123 S.Ct. 2110, 155
L.Ed.2d 1087 (2003). We are, of course, powerless to
overrule the decision of a prior Ninth Circuit panel. See Bonin
v. Vasquez, 999 F.2d 425, 428 (9th Cit. 1993). Moreover,
Turner is inapposite for two reasons. First, Turner dealt with
convicted prisoners, not pretrial detainees. Second, Turner
involved an Eighth Amendment cruel and unusual punish-
ment challenge, not a claim brought under the Substantive
Due Process Clause of the Fourteenth Amendment.’ Both
distinctions are critical because the Fourteenth Amendment
prohibits all punishment of pretrial detainees, while the
Eighth Amendment only prevents the imposition of cruel and
unusual punishment on convicted prisoners. See Bell, 441
US. at 535 n. 16, 99 S.Ct. 1861.
Finally, Sheriff Arpaio suggests that the district court
strictly scrutinized the webcam policy, even though Bell only
permits courts to examine whether the policy is an excessive
response to a legitimate purpose. The district court deter-
? Turner's four-factor test for determining whether a prison regulation
is reasonable asks: (1) whether the objective is “legitimate and neutral”
and logically connected to the challenged regulation; (2) whether the
prisoners have alternative means of exercising the right that they allege is
infringed; (3) whether accommodation would have a “significant -ripple
effect” on guards, prisoners, and prison resources; and (4) whether there
are a lack of alternative prison policies that could satisfy the objective.
482 U.S. at 89-91., 107 S.Ct. 2254.
* We note that even under the Turner test, the Supreme Court struck
down an almost complete ban on prisoner marriages because it was “an
exaggerated response” to the objectives put forth by prison administrators.
482 U.S. at 97-98, 107 S.Ct. 2254.
12a
mined that improving jail security was not a legitimate
alternative purpose for the webcams because they were
placed nearby closed-circuit security cameras. Thus, it
concluded that the webcams “amount to an exaggerated
response to an already-fulfilled security need.” Sheriff Arpaio
asserts that this amounts to strict scrutiny, but we disagree. In
Bell, the Court held that the means employed cannot be
“excessive in relation to the alternative purpose.” 441 U.S. at
538.99 S.Ct. 1861. Although the district court used the term
“exaggerated” rather than “excessive,” this hardly proves that
it was employing strict scrutiny. And in light of the fact that
closed-circuit security cameras already were stationed nearby
and the webcam images could be viewed by millions of
people worldwide, the webcams were plainly an excessive
response to Sheriff Arpaio’s interest in maintaining jail
security. In sum, the Sheriff has failed to demonstrate that the
district court applied an erroneous legal standard.
B.
Sheriff Arpaio also challenges the district court’s appli-
cation of Bell to the facts of this case. This line of argument,
however, ignores our standard of review for a preliminary
injunction. As we have explained before, “[a]s long as the
district court got the law right, it will not be reversed simply
because the appellate court would have arrived at a different
result if it had applied the law to the facts of the case.” A & M
Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th
Cir.2001) (quoting Gregorio T. v. Wilson, 59 F.3d 1002, 1004
(9th Cir.1995)) (internal quotation marks omitted).
Additionally, we agree with the district court’s application
of the law to the facts. As we noted earlier, Bell held that,
“under the Due Process Clause, a detainee may not be
punished prior to an adjudication of guilt in accordance with
due process of law.” 441 U.S. at 535, 99 S.Ct. 1861. For
a particular governmental action to constitute punishment,
(1) that action must cause the detainee to suffer some harm or
13a
“disability,” and (2) the purpose of the governmental action
must be to punish the detainee. Bell, 441 U.S. at 538, 99 S.Ct.
1861(“A court must decide whether the disability is imposed
for the purpose of punishment or whether it is but an incident
of some other legitimate governmental purpose.”). Both re-
quirements are met here.
Plaintiffs were certainly harmed by Sheriff Arpaio’s
actions. Having every moment of one’s daily activities ex-
posed to general and world-wide scrutiny would make anyone
uncomfortable. Exposure to millions of complete strangers,
not to mention friends, loved ones, co-workers and employ-
ers, as one is booked, fingerprinted, and generally processed
as an arrestee, and as one sits, stands, or lies in a holding cell,
constitutes a level of humiliation that almost anyone would
regard as profoundly undesirable and strive to avoid.
Nothing in Bell requires that, to be punishment, a harm
must be independently cognizable as a separate constitutional
violation (e.g., a deprivation of First Amendment rights, or a
violation of a constitutional right to privacy). Rather, to
constitute punishment, the harm or disability caused by the
government’s action must either significantly exceed, or be
independent of, the inherent discomforts of confinement. Beil,
441 US. at 537, 99 S.Ct. 1861(“Loss of freedom of choice
and privacy are inherent incidents of confinement in such a
facility. And the fact that such detention interferes with the
detainee’s understandable desire to live as comfortably as
possible and with as little restraint as possible during
confinement does not convert the conditions or restrictions of
detention into ‘punishment.””).
In Bell, the Supreme Court determined that the practice of
double-bunking pretrial detainees did not impose enough of a
hardship to rise to the level of a constitutional violation. 441
U.S. at 543, 99 S.Ct. 1861. In that case, however, the Court’s-
premise was that any pretrial detention inherently involved
some discomfort; a detainee’s sleeping conditions even when
l4a
not double-bunked were far from ideal, and the additional
discomfort of having to share the already close corners with
another detainee was not sufficiently great to constitute
punishment.
In the case at hand, however, the additional impact on
pretrial detainees of webcam transmission is greater by
several orders of magnitude than the intrusion inherent in
incarceration. Being detained in a county jail necessarily
involves being observed by the staff of the jail and the other
detainees. The webcams increase exponentially the number of
people observing detainees, and also alter drastically the
classes of people who can watch the detainees. The
discomfort to a detainee of having her children, for example,
watch her while she is being detained is incalculably greater
than having jail guards watch the same procedure.
Having determined that Sheriff Arpaio’s practice of
streaming images of detainees on the web constitutes a harm,
we now turn to whether this harm is imposed “for the purpose
of punishment or whether it is but an incident of some other
legitimate governmental purpose.” Bell, 441 U.S. at 538, 99
S.Ct. 1861. The webcams did not improve the security of the
pretrial detention center when closed-circuit video cameras
were already present. Indeed, because the webcams were
placed so close to the closed-circuit cameras, they did not
even serve to increase the area of the jail that was subject to
video surveillance. And because the Sheriffs deputies were
presumably already monitoring the images captured by the
closed-circuit video cameras, there was no added benefit to
publishing the images on the internet. An unruly detainee,
willing to ignore the watchful eye of nearby prison guards,
would not be deterred from engaging in disruptive behavior
by the prospect of an unknown private citizen halfway around
the world viewing his grainy image over the internet.
Nor do we find any merit to the two alternative purposes
put forth by Sheriff Arpaio. First, he contends that the web-
1Sa
cams deter crime because the public, having viewed the
process of fingerprinting, pat-down searches, and pretrial
detention will decide that being arrested and confined in a
pretrial detention center is a fate to be avoided. The Supreme
Court, however, stated in Bell that “[rjetribution and de-
terrence are not legitimate nonpunitive governmental objec-
tives” that can justify adverse conditions of detention for
pretrial detainees, 441 U.S. at 539 n. 20, 99 S.Ct. 1861, and
has classified deterrence as one of “the traditional aims of
punishment.” /d. at 538, 99 S.Ct. 1861 (quoting Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9
L.Ed.2d 644 (1963)). We also have recognized that deter-
rence does not qualify as a nonpunitive goal with regard to
pretrial detainees. White v. Roper, 901 F.2d 1501, 1504-05
(9th Cir.1990). To be sure, as a general matter, deterrence of
crime through a variety of means is a legitimate governmental
objective.* But, as the Supreme Court and this court have
* We disagree with the dissent’s claim that installing webcams in
pretrial detention facilities serves the same government interest as a perp
walk: deterring members of the public from committing similar offenses.
A perp walk “is a widespread police practice in New York City in
which the suspected perpetrator of a crime, after being arrested, is
‘walked’ in front of the press so that he can be photographed or filmed.”
Lauro v. Charles, 219 F.3d 202, 203 (2d Cir.2000). Our sister circuit held
that legitimate perp walks (i.e.—ones that are not staged purely for the
television cameras) do not violate the Fourth Amendment because they
serve the government’s interest in informing the public about its efforts to
enforce the law that the defendant was charged with violating. Caldarola
v. Countv of Westchester, 343 F.3d 570, 576 (2d Cir.2003). No similar
interest is served by placing webcams in holding cells because viewers
have no idea why the arrestee was booked. As the Crime.com website
explained to viewers, arrestees could have been arrested for crimes
ranging from disorderly behavior to spousal abuse, from drug possession
to murder.
The Sheriffs policy, while less ¢ffective than a perp walk, is also far
more intrusive, for it is not just a one-time filming of an arrestee in a
public place, but a 24-hour-a-day entertainment program viewable by
l6a
recognized, where an individual is incarcerated before trial
but has not been convicted of any crime, imposing adverse
conditions during his detention as a means of deterring crimes
is not permissible. Such exploitation of pretrial detainees is
not “appropriate to assure the detainees’ presence at trial [or]
to maintain the security and order of the detention facility and
otherwise manage the detention facility.” Halvorsen v. Baird,
146 F.3d 680, 689 (9th Cir.1998). Thus, Sheriff Arpaio |
cannot point to deterrence, general or specific, as a legitimate
government interest that justifies the installation of webcams
in the Madison Street Jail. sy
Second, Sheriff Arpaio argues that the cameras are justified
by the County’s interest in having its pretrial detention
centers open to public scrutiny. We have given prison offi-
cials wide latitude in administerin« pretrial detention facili-
ties, in guaranteeing detainees’ attendance at trial, and in
promoting prison safety. /d. But we fail to see how turning
pretrial detainees into the unwilling objects of the latest
reality show serves any of these legitimate goals.° As the
internet users around the world. The Sheriff does not have “free reign to
use videotape or other potentially overly intrusive means to achieve the
government purposes enumerated above.” /d. at 577.
* We find the dissent’s assertion that shaming has “nowhere been
cited as a form of penological punishment” both remarkable and deeply
troubling. As the Supreme Court said in describing colonial forms of
punishment, “[e]ven punishments that lacked the corporal component,
such as public shaming, humiliation, and banishment involved more than
the dissemination of information.” Smith v. Doe I, 538 U.S. 84, 98, 123
S.Ct. 1140, 155 L.Ed.2d 164 (2003) (emphasis added); see also Dan M.
Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591,
631-32 (1996). Placing arrestees on public display in the stocks is a part
of our distant past and shocks the modern conscience. But under the
dissent’s approach of treating shaming as a legitimate government
objective in the administration of pretrial detention centers, it is difficult
to see how such a draconian policy would be impermissible. Although a
regulation that has the incidental effect of shaming may not be a form of
punishment, see Smith. 538 U.S. at 98-99, 123 S.Ct. 1140, we have no
17a
Supreme Court has recognized, “[{i]nmates . . . are not like
animals in a zoo to be filmed and photographed at will by the
public or by media reporters, however ‘educational’ the
process may be for others.” Houchins v. KOED, Inc., 438
JS. 1,35 n. 2, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (plurality
opinion). Also, the Supreme Court has held that the govern-
ment’s otherwise legitimate interest in “informing the general
public about the administration of criminal justice” does
not justify the presence of reporters during the execution of
search warrants at a suspect’s home. Wilson v. Lavne, 526
U.S. 603, 612, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Such
press exposure impairs citizens’ Fourth Amendment right to
be free of unreasonable intrusions into their homes, held the
Court, even when a search is warranted. Jd. Here, similarly,
the otherwise valid goven.mental interest in assuring account-
ability and public scrutiny cannot justify broad public expo-
sure of pretrial detainees’ intimate circumstances, as none of
the purposes justifying pretrial detention are served thereby.
The Sheriffs policy is all the more troubling because display-
ing images of the County’s pretrial detainees to internet users
from around the world is not rationally connected to goals
associated with educating the citizenry of Maricopa County.
doubt that when the government acts with the purpose of shaming an
unconvicted detainee, it most definitely is committing an act of punish-
ment in violation of the Fourteenth Amendment’s Due Process Clause.
° We recognize that, in a case decided before Bell, the Supreme Court
has held that the disclosure of an arrest record does not violate a constitu-
tionally protected right of privacy. Paul v. Davis, 424 U.S. 693, 713, 96
S.Ct. 1155, 47 L.Ed.2d 405 (1976). Here, however, the district court order
was not premised on a privacy right, but on a pretrial detainee’s Four-
teenth Amendment Substantive Due Process right to be free from punish-
ment. In Paul, the release of arrest records was not a condition of pretrial
detention. More importantly, there is a stark difference between releasing
an arrest record and thereby publicizing only “the fact of [a detainee’s]
arrest,” id. at 713, 96 S.Ct. 1155, and streaming live images of a pretrial
detainee’s every movement across the broad spectrum of the internet.
18a
We also reject Sheriff Arpaio’s contention that the injunc-
tion violates his First Amendment rights. The webcam
transmissions were not Sheriff Arpaio’s personal communica-
tions. The webcams were governmental property, installed on
government-owned premises operated for a governmental
purpose; the transmissions were originally over the Sheriff
department’s official website. Absent his official position,
Sheriff Arpaio could not have obtained or transmitted the
images. The speech was therefore that of a governmental
executive officer acting in his official, managerial capacity,
and as such is governmental speech, not the personal speech
of a government employee. Compare Rankin v. McPherson,
483 U.S. 378, 383, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)
(holding the discharge of a public employee for her comment
to a co-worker on a matter of public concern to be a violation
of employee’s First Amendment rights); Givhan v. Western ~
Line Consol. Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693,
58 L.Ed.2d 619 (1979) (“Neither the [First] Amendment itself
nor our decisions indicate that [freedom of speech] is lost to
the public employee who arranges to communicate privately
with his employer rather than to spread his views before the
public.”). The district court correctly held that “the Bill of
Rights protect the individual from the government, not the
other way around.”
Sheriff Arpaio cites Downs v. Los Angeles Unified Sch.
Dist.. 228 F.3d 1003, 1013 (9th Cir.2000), for the notion that
the government has First Amendment rights. But Downs
simply held that when the government is the speaker, it does
not violate the First Amendment rights of individuals by
expressing a particular viewpoint. Jd. Nowhere did Downs
suggest that the government has a cognizable First Amend-
ment right or interest.
In short, the webcams are not reasonably related to a non
punitive purpose. Therefore, we agree with the district court’s
determination that plaintiffs will likely prevail on their claim
19a
that placing webcams in a pretrial detention center violates
the Fourteenth Amendment substantive due process rights of
pretrial detainees by subjecting them to punishment. Accord-
ingly, we hold that the district court did not abuse its discre-
tion in granting the preliminary injunction.
IV.
Sheriff Arpaio has failed to demonstrate that the district
court abused its discretion in granting the plaintiffs’ motion
for a preliminary injunction. Accordingly, we affirm the
district court’s order.
AFFIRMED.
20a
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 opin-
ion 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 be-
tween 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
2la
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 nature.’ 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 case’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. “Respon-
dents 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 infer-
ences that in the course of their activities respondents
will be prosecuted fer 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)
' 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).
|
22a
(district court dismissed class action challenging bond, sen- '
tencing, and jury fee practices in criminal cases; Court of !
Appeals reversed; Supreme Court reversed, fmding 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 y
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.”
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 deten- |
tion 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 wou!d be returned to the detention center.
Mitchell, 75 F.3d at 528. The majority opinion maintains the
* But, some will complain, if these Plaintiffs cannot bring the action,
the legality of the Sheriffs 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 iecide only cases or controver-
sies. 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.
" ET
23a
plaintiffs here have standing because, in view of their prior
arrest records, they are likely to be rearrested. Mitchell argua-
bly had a greater 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. Jd.
I would reverse the district court’s order granting a prelimi-
nary injunction on the ground that Plaintiffs have not pre-
sented a justiciable case or controversy in this action.
II.
Claimed “Punishment”
The majority’s conclusion that the webcasts inflict punish-
ment prohibited by the Constitution is likewise unconvincing.
As public servants, county sheriffs are charged with several
important duties under Arizona law. These duties include pre-
serving 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,” “prevent[ing] and
suppress[ing] all affrays, breaches of the peace, riots and
insurrections . . . ”, and “[taking] charge of and keep[ing]
the county jail . . . and the prisoners therein.” Ariz. Rev. Stat.
§ 11-441(A)?
Given the importance and difficulty of fulfilling the re-
sponsibility of operating penological installations, courts have
taken an understandably cautious approach to second-guess-
ing 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 exper-
tise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legisla-
* Sheriff Joe Arpaio was elected by the people of Maricopa County in
1992, and reelected in 1996 and 2000.
24a
tive and executive branches of government. Prison ad-
ministration 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 regula-
tions regarding correspondence and inmate marriage, district
court granted preliminary injunction in favor of inmates;
Eighth Circuit affirmed, finding .egulations violated First
Amendment; Supreme Court reversed ruling on correspon-
dence regulation, but affirmed order enjoining inmate mar-
riage 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, fmding regulation reasonably
related to legitimate penological interests).
The district court’s injunction was predicated on the belief
that webcam broadcasts constitute impermissible pre-convic-
tion “punishment” in violation of Fourteenth Amendment
substantive due process. Although, “under the Due Process
Clause, a detainee may not be punished prior to an adjudica-
tion 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,
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
TRA
25a
penological interests, as opposed to “an inflexible strict scru-
tiny analysis [that] would seriously hamper [the Sheriffs]
ability to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administra-
tion.” Mauro, 188 F.3d at 1058.
The majority opinion gives needlessly short shrift to the
governmental objectives proffered by Sheriff Arpaio. Al-
though the majority opirion 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 ration-
ally 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 deten-
tion 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 opera-
tion 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
26a
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. Bel] 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
legitimate governmental purpose? Bell gives us a non-ex-
haustive 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 tradi-
tional 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
5. ae
MIEN... Fae IRR
27a
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 deter-
rence of the person punished is only one of a series of “useful
eo . in determining whether a restriction or condition
is “punishment,” while acknowledging the possible existence
of a constitutionally-valid “alternative purpose,” later recog-
nized in Turner.’ Bell, 441 U.S. at 538, 99 S.Ct. 1861. Re-
viewing 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 meas-
ure 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 webcasts.
2. Are the webcasts historically regarded as punishment?
No. They are too new to have a historical characterization.
* There is nothing in Turner which limits this principle solely to con-
victed prisoners, as the majority opinion claims. While it is accurate to say
that Turner involved those already convicted of crimes, they, like Plain-
tiffs, retained certain constitutional rights such as not to have additional
punishment visited on them without a predicate finding of guilt for differ-
ent and additional transgressions. Were there a valid “alternative purpose”
to the challenged measure, convicts as well as detainees would fail in their
constitutional challenge.
28a
3. Are the webcasts activated only on a finding of
scienter? No. The inmates are’ detained or arrested on mis-
demeanors, such as minor traffic offenses and drunkenness, |
which do not require scienter. ‘
4. Do the webcasts promote the traditional aims of pun-
ishment—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. In-
deed, 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. 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.
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. |
ee
The balance of Bell factors weighs heavily—almost exclu-
sively—-against the existence of the additional characteristics
required by Beil 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, se2mingly as an article of
faith. It is particularly telling that in the portion of the major-
ity opinion concluding the webcasts constitute punishment,
* This constitutes a fulfillment of Bell’s prediction that inquiry into
what factors make up punishment “may often point in differing direc-
tions.” Bell. 441 U.S. at 538. 99 S.Ct. 1861.
aa
29a
the majority cite no authority, case or statute, for the proposi-
tion that webcasts are punishment. That majority opinion’s
aversion to the webcasts is not shared by the voters of
Maricopa County, who re-elected Appeilant Arpaio shortly
after the webcasts commenced.
The majority opinion omits the Bell analysis® 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.’
° 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 I,.Ed.2d 1 64 (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 conse-
quences 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 public
30a
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 rights protected by notions
of procedural due process, absent some adverse impact on
some other legally cognizable interest. /d. 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
webcasts 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® objec-
ity 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 Appellees’ 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
3la
tions of arrestees subjected to the now ubiquitous-on-TV
“perp walk”—the conspicuous exhibition of coiffed, 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 ad-
vance legitimate iaw 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 stuged perp walk had violated Fourth
Amendment rights of Plaintiff and denying qualified immu-
nity to defendants; appellate court found Fourth Amendment
violation, but also found defendant police officers were enti-
tled to qualified immunity).
Perp walks and their attendant shaming do not constitute
constitutionally impermissible pre-conviction punishment for
the same reasons webcasts de not. Whatever the consequence
of an arrestee’s being “displayed to the world, against his
will, in handcuffs, and in a posture connoting guilt,” Jd. 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
process; Fourth Circuit reversed in part on privacy claims; Supreme Court
reversed, fmding inmates had no reasonable expectation of privacy).
32a
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 judg-
ment in favor of defendants, holding arrestee’s privacy inter-
ests 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 privacy
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.”).”
Likewise, sex offender registration laws which involve the
“dissemination of accurate information about a criminal re-
cord, 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 punish-
ment. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d
164 (20021 (rejecting ex post facto challenge to Alaska sex
offender registration statute). The argument that any govern
* 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, | would suggest that notions of what is permissible
under the Fourth Amendment should inform what is permissible under the
Fourteenth Amendment across the board.
33a
mental program which has the goal of public deterrence must
visit impermissible punishment is not persuasive.
[It] proves too much. Any number of governmental pro-
grams might deter crime without imposing punishment.
To hold that the mere presence of a deterrent purpose
renders such sanctions ‘criminal’ . . . would severely
undermine the Government’s ability to engage in effec-
tive 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.'° Here, as in the perp walk, the webcasfs
effect is purposely beyond deterrence of the detainees; its
purposeful effect is also to deter unlawful conduct by mem-
bers of the public who have as yet not been--and one hopes
never will be—detained."!
Persons arrested cannot choose to whom the fact of their
arrest can be publicized, whether it is through a perp walk
© 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 pur-
pose were to deter his future criminal conduct. But, where there is an-
other, legitimate governmental purpose served by the incidental imposi-
tion of such emotional harm, shaming does not become “punishment”
under Bell, supra, unless it is “excessive” under the six-factor test ad-
vanced in Bell. an examination left undone by the majority.
'' The majority opinion finds that the sole legitimate purposes of pre-
trial 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 “‘ow for pre-
trial detainment measures if rationally related to (1) general deterrence of
crime and (2) governmental operations transparency.
34a
shown on nationwide television, or an arraignment calendar
detailing the charged crimes, hanging outside a courtroom.
“Exposure of the self to others in varying degrees is a con-
comitant 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 ad-
dressed by the district court in its preliminary injunction
order. Clearly, “maintaining institutional security and pre-
serving internal order and discipline are essential goals” in
the operation of a detention facility. Beil, 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 cam-
eras. The redundant placement of the webcams next to the
security monitors indicates the webcams were an excessive
response’® to this otherwise legitimate objective. See Valdez.
'? 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
public 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. Simi-
larly, Wilson v. Lavne, 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.
ee
35a
302 F.3d at 1046. The district court did not abuse its discre-
tion in such finding of unnecessary redundancy.
But nowhere in the district court’s order is there a discus-
sion of the Sheriffs other justifications'* or 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 addr-ssing the first of these
reraining justifications, but the attempt misses the Sheriffs
po: ‘s.
The district court concluded that “deterrence” of the Mari-
copa detainees from committing future crimes was imper-
missible pre-conviction punishment of the Maricopa detain-
ees. Likewise, the majority opinion cites Bell by a disembod-
ied quotation: “[R]etribution 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 com-
mission 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 with-
out 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.
'* Alternative purpose[s] to which [the measure] may rationally be con-
nected.” Bell. 441 U.S. at 538, 99 S.Ct. 1861.
bi
f
P
36a
As noted above, in addition to operating the Madison Street |
Jail, Sheriff Arpaio has been charged with the prevention of i
crime. I do not agree that an overly broad reading of Bell fF
should be applied to undermine a perhaps effective method i
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 vindi- L
cated, if at-all, in the ballot box, not in the courtroom. :
A district court abuses its discretion when it fails to con-
sider 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 “punish-
ment,” 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.
37a
APPENDIX B
IN THE-UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
[Filed Mar. 11, 2003]
No. CIV 01-983-PHX-EHC
JAMIE DEMERY, et al.,
Plaintiffs,
V.
MARICOPA COUNTY SHERIFF JOSEPH ARPAIO, et a’.
Defendants.
ORDER
Pending before the Court are Defendants Sheriff Joseph
Arpaio’s and Maricopa County’s Renewed Motions to Dis-
miss [Dkt. 61, 62] and Plaintiffs’ Renewed Motion for
Preliminary Injunction.[Dkt. 63]. The central issue before the
Court is whether pretrial detainees who have not been found
guilty of a crime may be subjected, without their consent, to
continuous Internet broadcasting via web cameras. The Court
finds the web cameras in the present case serve no rational
purpose related to jail administration and thus violate the
constitutional rights of the pretrial detainees.
I. Background
Plaintiffs filed a Complaint in Maricopa County Superior
Court, alleging violations of Federal Civil Rights, a claim for
Declaratory Judgment on behalf of twenty-four detainees in
custody at the Maricopa County Jail against Defendants
Maricopa County (the “County”) and Maricopa County
Sheriff Joseph Arpaio (“Sheriff Arpaio”), in his official ca-
pacity. [Dkt. I, Complaint (attached to Notice of Removal)].
38a
1) Violation of Article II, section 8 of the Arizona
Constitution—Right to Privacy Clause;
2) Violation of Article II, section 4 of the Arizona
Constitution—Right to Due Process Clause;
3) Violation of Article II, section 2 of the Arizona
Constitution—Purpose of Government Clause;
4) Common law invasion of privacy;
5) Violation of the Fourteenth Amendment to the
United States Constitution—Due Process Clause;
6) Violation of the Fourteenth Amendment to the
United States Constitution—Equal Protection Clause;
7) Violation of the Fourteenth Amendment to the
United States Constitution—Right to be free from
unreasonable searches and seiz«ires;
8) Violation of the Fourteenth Amendment to the
United States Constitution—Substantive Due Process
right to be free from government created or condoned
sexual harassment and/or sexually hostile environment;
9) Violation of the Fourteenth Amendment to the
United States Constitution—Substantive Due Process
right to treatment for serious medical conditions, i.e., ac-
commodation for special needs arising from pregnancy;
10) Violation of the Fourteenth Amendment to the
United States Constitution—Substantive Due Process
right to be free from cruel and unreasonable conditions
of confinement, i.e., overcrowding, unsanitary condi-
tions, exposure to unreasonable heightened risk of
communicable diseases;
11) Violation of the Fourteenth Amendment to the
United States Constitution—Substantive Due Process
right of minors not to be housed with adults and not to
have their images involuntarily broadcast over the
Internet;
39a
12) Violation of 42 U.S.C. § 1983; and
13) Declaratory relief.
[/d.].
Plaintiffs filed a Motion for Issuance of Preliminary
Injunction, seeking to enjoin Defendants from using four,
live, 24-hour-per-day web cameras in the intake, booking,
search, and holding cell areas of the Madison Street Jail, and
then broadcasting those images over the Intermet on a
commercial website known as Crime.Com. Plaintiffs also
seek to enjoin Defendants from mixing males and females in
the intake and holding cell areas, as well as housing adult
inmates with inmates that are minors. [Dkt. 1, Motion for
Issuance of Preliminary Injunction (attached to Notice of
Removal)].
On June 4, 2001, Defendants removed this case to Federal
District Court. [Dkt. 1, Notice of Removal]. Both Defendants
filed Motions to Dismiss. [Dkts. 4, 7]. The Court dismissed
Plaintiffs’ state law claims pursuant to the stipulation of the
parties, leaving claims 5 through 13 in this Court. [/d..]. The
Court denied Maricopa County’s Motion to Dismiss and
ordered further briefing from the parties with respect to the
issues of class action and exhaustion of administrative
remedies [Dkt. 47]. The Court also denied Plaintiffs’ Motion
for Preliminary Injunction and Sheriff Arpaio’s Motion to
Dismiss without prejudice to refiling at the conclusion of
briefing the Court on the issues of class action and exhaustion
of administrative remedies. [/d.]
On November 4, 2002, Plaintiffs filed a Supplemental
Brief Regarding Request for Preliminary Injunctive Relief.
[Dkt. 50]. On November 25, 2002, Sheriff Arpaio filed a
Response [Dkt. 51], and on December 13, 2002, Plaintiffs
filed a Reply [Dkt. 55]. On February 19, 2003, the Court
permitted Sheriff Arpaio to renew his Motion to Dismiss and
Plaintiffs to renew their Motion for Preliminary Injunction.
40a
On February 20, 2003, Sheriff Arpiao filed a Renewed
Motion to Dismiss. [Dkt. 61]. On February 24, 2003,
Maricopa County filed a Renewed Motion to Dismiss [Dkt.
62]. On March 3, 2003, Plaintiffs filed a Renewed Motion for
Preliminary Injunction. [Dkt. 63].
II. Sheriff Arpaio’s’ Renewed Motion to Dismiss
Standard of Review
A court should not dismiss a claim unless convinced
beyond a doubt that the plaintiff can prove no set of facts in
support of the claim which would entitle the plaintiff to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102
(1957); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). The Complaint is construed in the light
most favorable to the plaintiff. W. Mining Council v. Watt,
643 F.2d 618, 624 (9th Cir. 1981). The Court must “pre-
sum[e] that general allegations embrace those specific facts
that are necessary to support the claim.” Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992) (quotation marks and
citations omitted). Legal conclusions, however, couched as
factual allegations are not given a presumption of truth-
fulness. W. Mining, 643 F.2d at 624.
In deciding a motion to dismiss, the Court may consider
allegations contained in. the Complaint, exhibits attached to
the Complaint, matters of public record, orders of record in
the lawsuit, and other materials subject to judicial notice. See
e.g., Parks Sch. of Bus., 51 F.3d at 1484.
Discussion
In his Motion to Dismiss, Sheriff Arpaio argues that Plain-
tiffs’ claims against him should be dismissed because 1) he
was sued in his official capacity rather than his individual
' The issues discussed herein also apply to Maricopa County’s separate
Renewed Motion to Dismiss [Dkt. 62].
Fl
4la
capacity; 2) the Prisoner Litigation Reform Act bars Plain-
tiffs’ claims; and 3) Plaintiffs’ causes of action are meritless.
[Dkt. 7].
1. Official capacity v. personal capacity
Plaintiffs have brought this action against Sheriff Arpaio in
his official capacity. [Dkt. 1, Complaint]. Public officers
(state, county, municipal) named in their official capacity
may be liable under § 1983 for compensatory damages. See
Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996) (holding
that a County Sheriff was not immune from judgment for
compensatory damages asserted against him in his official
capacity—in reality a suit against a governmental officer is
equivalent to a suit against the governmental entity.). There-
fore, the Court will not dismiss Plaintiffs’ Complaint against
Sheriff Arpaio.
2. Prison Litigation Reform Act
Sheriff Arpaio argues in his Motion to Dismiss that the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e,
bars Plaintiffs’ federal claims because Plaintiffs have not
alleged that they have exhausted administrative remedies
before filing this action. [Dkt. 7].
The PLRA provides in part: “No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such adminis-
trative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a) (emphasis added). The statute defines “pris-
oner” as “any person incarcerated or detained.” 42 U.S.C.
§ 1997e(h). The Court finds § 1997e(a) to be inapplicable for
two reasons: first, Defendants have failed to describe what
administrative remedies were available to Plaintiffs at the
time of detainment; and second, many Plaintiffs were un-
aware of the web cameras at the time they were detained and
42a
thus could not have filed an administrative grievance with
respect to the web cameras.
“(Njonexhaustian under 1997e(a) of the PLRA does not
impose. a pleading requirement.” Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. January 2 2003). Instead, a defendant
has “the burden of raising and proving the absence of
exhaustion.” Jd. The Court finds Defendants have failed to
meet this burden.
3. Constitutional Claims Arising From the Use of Inter-
net Cameras
a) Count 5. Due Process. (14th Amendment)
In Count 5 of their Complaint, Plaintiffs allege that the use
of four, live, 24-hour-per-day web cameras in the pre-intake,
booking, initial search, and holding cell areas of the Madison
Street Jail and the broadcasting of those images over the
Internet for commercial purposes without obtaining Plaintiffs’
consent or waiver deprives Plaintiffs of liberty and property
in violation of the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. [Dkt. 1, Com-
plaint at p.19].
“[{T]here is no constitutionally protected-liberty interest in
the preservation of one’s reputation, absent some further
injury to a tangible interest such as employment, because
damage to one’s reputation does not ‘alter[ ] or extinguish[ ]’
‘a right or status previously recognized by state law."“ Lauro
v. Charles, 219 F.3d 202 (2d Cir. 2000) (quoting Paul v.
Davis, 424 U.S. 693; 96, 711, 96 & Ct.1155, 1165 (1976)
Thus, the claim that Plaintiffs are entitled to control the
commercial use of their images pursuant to the Due Process
Clause of the Fourteenth Amendment is without merit.
However, as discussed infra, the Court’s preliminary injunc-
tion with suspect to Defendants’ use of the web cameras is
premised on Plaintiffs’ right as pretrial detainees to be free
from punishment under the Due Process Clause of the
43a
Fourteenth Amendment, Therefore, the Court will not dismiss
Count 5 of Plaintiffs’ Complaint.
b) Count 6: Equal Protection (14th Amendment)
Defendants argue that Count 6 of Plaintiffs’ Complaint
should be dismissed because Plaintiffs’ allegations fail to
state an equal protection violation in that Plaintiffs have not
alleged that they were members of a suspect class, nor have
Plaintiffs -alleged a discriminatory purpose or intent. [Dkt. 7].
In Count 6 of Plaintiffs’ Complaint, Plaintiffs allege
Defendants’ practices and policies installing and using
live, 24-hour-per-day webcams in the pre-intake/booking
area, initial search area, and holding cell area of the
Madison Street Jail facility, as described above; and
Defendants’ practice of broadcasting those images over
the Internet for commercial purposes, without obtaining
from Plaintiffs either consent or. waiver, deprive Plain-
tiffs of liberty and property in violation of the equal
protection clause of the Fourteenth Amendment to the
United States Constitution.
[Dkt. 1, Complaint at § 63].
However, in their Combined Response to Defendants’
Separate Motions to Dismiss for Failure to State a Claim,
Plaintiffs state that the essence of their equal protection claim
is “how a black pregnant female was treated quite differently
than a white pregnant female who was in. the same cell at the
same time.” [Dkt. 21]. Specifically, Plaintiffs allege that one
pregnant Caucasian woman was provided extra milk and an
extra sandwich while other pregnant non-Caucasian women
in the same holding cell were not given extra milk or
sandwiches.’ [Dkt. 1, Complaint at § 40].
* This allegation is not found under Count 6 of Plaintiffs’ Complaint,
but is stated in the “Charging / llegations” section of the Complaint under
the heading “Inadequate Care and Treatment for Pregnant Women.” [Dkt.
1, Complaint at 140].
44a
—= In Count 6, Plaintiffs have not alleged that any of the non-
Caucasian pregnant women referred to in their Complaint are
named plaintiffs. [/d., at § 40]. “At least one named plaintiff
must satisfy the actual injury component of standing in order
to seek relief on behalf of himself or the class.” Casey v.
Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993).
Furthermore, in order for a plaintiff to prove a violation of
equal protection in a § 1983 claim, the plaintiff must prove
that the defendant acted in a discriminatory manner and that
the discrimination was intentional. FD/C v. Henderson, 940
F.2d 465, 471 (9th Cir. 1991). Plaintiffs have not alleged in
their Complaint that Defendants intentionally discriminated
against non-Caucasian pregnant women.
With respect to Plaintiffs’ equal protection claim as it
concerns the webcameras, Plaintiffs have not alleged that
they are members of a suspect class or that Defendants acted
with a discriminatory purpose or intent. Accordingly, the
Court will dismiss Count 6 of Plaintiffs’ Complaint.
c) Count 7: Right to Be Free From Unreasonable
Search and Seizure (4th and 14th Amendments)
As discussed infra with regard to Plaintiffs’ Motion for
Preliminary Injunction, Plaintiffs are unlikely to succeed on
the merits of their Fourth Amendment claim with respect to
unreasonable searches. However, Plaintiffs arguably have a
claim for unreasonable seizure under the. Fourth Amend-
ment. See Ayeni v. Mottola, 35 F 3d 680, 688 (2nd Cir. 1994).
Therefore, the Court will not dismiss Count 7 at this time.
4. Claims Based Upon “Conditions of Confinement”
Because Plaintiffs were pretrial detainees while at Madison
Street Jail and not convicted persons, their claims based upon
the conditions of confinement arise under the Fourteenth
Amendment’s Due Process Clause rather than the Eight
Amendment’s prohibition against cruel and unusual punish-
ment. See Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.
45a
1986) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S.
Ct. 1861, 1872 n.16 (1979)). Although Plaintiffs’ claims arise
under the Due Process Clause, the Eighth Amendment
guarantees provide a minimum standard for determining
Plaintiffs’ constitutional rights as pretrial detainees. See id.
To state an Eighth Amendment conditions of confinement
claim, Plaintiffs must satisfy both an objective and subjective
component to the claim. Under the objective component,
Plaintiffs must demonstrate that the prison official’s act
or omission resulted in the denial of “the minimal civilized
measure of life’s necessities.” See Farmer v. Brennan, 511
U.S. 825, 834, 114.S. Ct. 1970, 1977 (1994); Keenan, 83 F.3d
1083, 1089 (9th Cir. 1996). Under the subjective component,
Plaintiffs must demonstrate that this denial occurred through
the deliberate indifference of prison personnel or officers. See
Farmer, 511 U.S. at 834, 114 S. Ct. at 1977; Keenan, 83 F.3d
at 1089. “[A] prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions
of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.” Farmer, 511 U.S.
at 837, 114S. Ct. at 1979.
a) Count 8: Sexually Hostile Environment (14th
Amendment)
Defendants argue that Counts 8, 9, and 10, claims that
concern the conditions of confinement, should be dismissed
because Plaintiffs fail to allege the deliberate indifference
necessary to state a conditions of confinement claim. [Dkt. 7].
In Plaintiffs’ Eighth Cause of Action, Plaintiffs allege that
Defendants’ practices and policies at Madison Street Jail in
1) conducting intake processing for males and females in the
same area at the same time; 2) permitting male detainees to
stand outside the windows of the women’s holding cell and
peer into the women’s cell, including at times when women
were using the toilet; 3) sulbactiy female Plaintiffs to the
sight of activities in the men’s holding cell (next door to the
46a
women’s holding cell);* 4) permitting female Plaintiffs to be
subjected to men yelling lewd, gross, and sexually suggestive
remarks as Plaintiffs walked past the men’s holding cell
(while Plaintiffs were in the coripany of jail staff); and
5) allowing male Plaintiffs to the sight of women exposing
themselves and making sexually inviting remarks, with
Defendants taking no reasonable steps to reduce or prevent
the sexual harassment or to alter the sexually hostile envir-
onment, violates their substantive due process rights. [Dkt. 1
at [67]. Plaintiffs also seek to halt the pat search procedure
for both male and female detainees, contending that it
facilitates a sexually hostile environment and sexually haras-
sing activities. [/d. at 25].
Plaintiffs have alleged that such situations are “embar-
rassing, humiliating, and emotionally difficult,’ but have
failed to allege that they were denied the “minimal civilized
measure of life’s necessities.” Accordingly, Plaintiffs have
failed to state a valid conditions of confinement claim. The
Court will therefore dismiss Count 8 of Plaintiffs’ Complaint.
b) Count 9: Treatment for Serious Medical Condi-
tions, i.e, Pregnancy (14th Amendment)
In their ninth cause of action, Plaintiffs claim that the
special needs of pregnant women were not met, thereby
violating their substantive due process right. [Dkt. 1, Com-
plaint at 49 27-34, 70]. Specifically, Plaintiffs allege that
Defendants provided patently inadequate care and treatment
for pregnant women by 1) failing to provide an alternative
source of water (other than from a water fountain directly
> The Court has toured the detainee area. A solid wall separates the
male and female holding areas; it is impossible for a person in one holding
area to view a person in the other holding area. Both holding areas can
only be viewed from the outside hallway. The parties should consider this
when filing future pleadings.
* Again, the male and female holding cells are separated by a solid wall.
47a
over the toilet), 2) forcing pregnant women to wait up to two
hours for toilet paper so they could use the toilet; 3) failing to
provide pregnant women with pads, pillows, mattresses, or
other cushioning from the bare concrete floor or the bare
stainless steel. bunks for up to days at a time; 4) failing to
provide blankets for pregnant women in the cold holding cell;
5) forcing pregnant women to remain in a single overcrowded
room with 25 to 30 other women who have not been screened
for measies, tuberculosis, hepatitis, or other communicable
diseases extremely dangerous to the health of the unborn
children of pregnant women; 6) selectively providing preg-
nant women with prenatal vitamins or extra food while
denying vitamins and extra food to other pregnant women;
7) denying Plaintiffs access to medical care by not responding
to cries uf distress and pain from pregnant women who begin
to experience severe cramping and potential labor pains; and
8) calling pregnant women who complain and seek medical
assistance “bitches”, and refusing to allow them to see a nurse
for their problems when the pregnant women are within
several hours of their release. As discussed supra in Count 6,
Plaintiffs have not specifically named which pregnant women
referred to in their Complaint have been subjected to these
alleged violations.
Although not mentioned in the “Charging Allegations”
portion of their Complaint, Plaintiffs allege under Count 9
that Defendants failed “to provide blankets for pregnant
women in the cold holding cell.” [Dkt. 1, Complaint at J 70].
Attached to Plaintiffs Complaint is an affidavit by Plaintiff
Jamie Demery, in which she state that she “was never
provided with a pillow, pad, blanket, or any other physical
accommodation for my pregnancy.” Demery never alleges,
though, that she was placed in a cold holding cell. Further-
more, Plaintiffs do not specify whether any of the named
Plaintiffs were denied blankets in the cold holding cell.
Some conditions of confinement may establish an
Eighth Amendment violation “in combination” when
48a
each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food,
warmth, or exercise—for example, a low cell tempera-
ture at night combined with a failure to issue blankets.
Wilson v. Seiter, 501 U.S. 294, 304,111 S. Ct. 2321, 2327
(1991).
Because Plaintiffs have not alleged facts in support of this
claim which may entitle them to relief, the Court will dismiss
Count 9.
c) Count 10: Overcrowding, unsanitary conditions,
exposure to diseases
In Plaintiffs’ Tenth Cause of Action, Plaintiffs allege that
they were placed in overcrowded cells, subjected to unsani-
tary conditions®, and exposed to communicable diseases.
[Dkt. 1, Complaint at § 72]. Although Plaintiffs allege that the
overcrowded condition of the jail holding cells jeopardizes
their physical safety, Plaintiffs have not alleged that anyone
was denied food, water, or toilet facilities, or that anyone
became injured or ill as a result of the overcrowded condi-
tions. Accordingly, Plaintiffs have not made sufficient
allegations to state a conditions of confinement claim upon
which relief can be granted. The Court will therefore dismiss
Count 10 of Plaintiffs’ Complaint.
> Plaintiffs allege that some of the unsanitary conditions they were
exposed to include Defendants’ failure to provide alternative source of
drinking water other than from a single fountain located directly over the
only toilet, Defendants’ failure to provide toilet paper in a timely or
reasonable matter, and Defendants’ maintenance of an overcrowded cell
which forced a majority of the Plaintiffs to sleep on the bare concrete
floors inches from the doors or single operating toilet. [Dix. 1, Complaint
at § 72).
49a
5. Claim 11: Minors
Sheriff Arpaio argues that all claims brought by Plaintiff
Sean Botkin, a minor, and other juvenile plaintiffs, including
Count 11 which alleges that they, as minors, were improperly
mixed with adults, must be dismissed because minors cannot
bring civil lawsuits on their own behalf.
| An individual’s capacity to sue is determined by the law of
the individual’s domicile. Fed.R.Civ.P. 17(b); see Johns v.
County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997)
(holding that federal civil rights action was properly
| dismissed as to minor who lacked capacity to sue on his own
under California law). Under Arizona law, “an infant cannot
bring or defend a legal proceeding in person, but must sue or
be sued by a legally appointed general guardian, or next
friend or a guardian ad litem.” Pintek v, Superior Court, 78
| Ariz. 179, 184, 277 P.2d 265, 268 (1954); see also Byers-
Watts v, Parker, 199 Ariz. 466, 18 P.3d 1265 (App. 2001).
| Accordingly, the Court will dismiss Count 11 and all other
claims brought on behalf of minors in this action.
6. Claim 12: 42 U.S.C. § 1983
Plaintiffs’ twelfth cause of action does not allege a consti-
tutional violation separate from Plaintiffs’ other causes of
action but merely outlines elements that are arguably neces-
sary to assert civil rights claims against Defendants (e.g.,
acting under color of state law, recurring events). The Court
will dismiss Count 12, but the Court will not disregard the
allegations contained in the paragraphs therein.
7. Claim 13: Declaratory Relief
“Declaratory judgment relief is an appropriate vehicle for
resolving controversies as to the legality of acts of public
officials.” Riley v. Cnty of Cochise, 10 Ariz. App. 55, 59,
‘455 P.2d 1005, 1009 Sor Therefore, the Court will not
dismiss Plaintiffs’ claim for declaratory relief.
50a
8. Punitive Damages
In his Motion to Dismiss, Sheriff Arpaio argues that
Plaintiffs have failed to state a claim for punitive damages
against him under either state or federal law. [Dkt. 7]. Plain-
tiffs have sued Sheriff Arpaio only in his official capacity.
[Dkt. 1, §§ 8, 10]. Under Arizona law, “[n]either a public
entity nor a public employee acting within the scope of his
employment is liable for punitive or exemplary damages.”
A.R.S. §12-820.04. Furthermore, 42 U.S.C. § 1983 precludes
an award of punitive damages against a governmental officer
in his official capacity. Mitchell v. Dupnik, 75 F.3d 517, 527
(9th Cir. 1996) (holding that it was error to award punitive
damages against the County Sheriff in his official capacity
because an award of punitive damages against the County
Sheriff in his official capacity is in reality an assessment
against the County, which is immune from such damages).
Accordingly, Plaintiffs’ claims for punitive damages against
Sheriff Arpaio will be dismissed.
E. Plaintiffs’ Motion for Issuance of Preliminary Injunction
1. Standard of Review
In order to obtain a preliminary injunction, a movant must
show either (1) the likelihood of success on the merits and the
possibility of irreparable injury or (2) the existence of serious
questions going to the merits and the balance of hardships
tippin: in the movant’s favor. Mai Systems Corp. v. Peak
Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993);
Diamontiney v. Borg, 91% F.2d 793, 795 (9th Cir. 1990);
“These two formulations represent two points oil a sliding
scale in which the required degree of irreparable harm in-
creases as the probability of success decreases” Diamontiney,
918 F.2d at 795.
Sla
2. Inte: et Cameras
a) Mootness
Sheriff Arpaio and Maricopa County filed a Memorandum
Re: Mootness against Plaintiffs Jamie Demery, et al. on May
17, 2002. [Dkt. 42]. Defendants allege that any violations of
Plaintiffs’ constitutional rights in connection with the
installment of four video cameras used to broadcast images of
pre-trial detainees while the detainees were being processed
into the jail are now moot.
Defendants’ Memorandum Re: Mootness is precipitated by
a cessation of the complained-of filming via Internet cameras.
The complaint originated because Sheriff Arpaio installed
four, live, 24-hour cameras in the intake, booking, search, and
holding cell areas of the Madison Street Jail. These cameras
recorded the daily activities of pre-trial detainees in four
separate locations, including a holding cell area. The holding
cell area included three other cameras that pointed into cells
or areas in which detainees were either held, searched, or
photographed for mug shots.
Defendants filed a Memorandum Re: Mootness, now be-
fore this court, to assert that Plaintiffs’ Motion for Issuance of
Preliminary Injunctior is moot because the continual public
dissemination via the Internet of footage recorded while pre-
trial detainees were being processed into the jail is no longer
occurring.
The general rule is that “[w]here the activities sought to be
enjoined already have occurred, and the appellate® courts can-
° The rule always is stated with the word “appellate” used to modify
the word “courts.” Bernhardt v. County of Los Angeles, 279 F.3d 862, 871
(9th Cir.2002) (See also Seven Words LLC v. Network Solutions, 260 F.3d
1089, 1095 (9th Cir.2001); Friends of the Earth, Inc. v. Bergland, 576
F.2d 1377, 1379 (9th Cir.1978)). However, the Bernhardt general rule is
to be applied to both appellate and district courts within the 9th Circuit,
not just to appellate courts.
52a
not undo what has already been done, the action is moot, and
must be dismissed.” Bernhardt v. County of Los Angeles, 279
F.3d 862 (9th Cir.2002) (quoting Seven Words LLC v. Net-
work Solutions, 260 F.3d 1089, 1095 (9th Cir.2001)). How-
ever, an exception exists for injuries that are “capable of
repetition; yet evading review.” /d. The exception only ap-
plies when (1) the challenged action is too short in duration to
be fully litigated before cessation or expiration, and (2) there
is a reasonable expectation that the same complaining party
will be subjected to the same action again; /d. at 871-872; see
also Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092,
1098 (9th Cir.2000).
Plaintiffs concede Sheriff Arpaio is no longer using the
Internet to disperse images of pretrial detainees. Because
Crime.com has ceased carrying the live feed from the jail,
Sheriff Arpaio argues that the activities that Plaintiffs seek to
enjoin have already occurred, thus rendering the action moot.
Plaintiffs, in turn, assert that this action meets the exception
to the general rule for mootness, as outlined in Bernhardt.
Plaintiffs allege, and Defendants have not denied, that Sheriff
Arpaio actively is searching for a new Internet host.’ Sheriff
Arpaio’s active searching increases the likelihood that Plain-
tiffs will. be subjected to the same complained of activity,
namely the filming of pre-trial detainees via Internet cameras.
Sheriff Arpaio’s active searching amounts to a reasonable
expectation that the activity willl be repeated.
Sheriff Arpaio argues the isisue is also moot because the
Plaintiffs are no longer in custtody. In support of this argu-
ment, he has submitted a chart of the Plaintiffs’ detention
history. (Defendant Arpaio’s Supplemental Brief Addressing
’ The former hosting site, http://www.crime.com, contains the follow-
ing statement: “For fans of the JAIIL CAM, it will be temporarily un-
available. However, the Maricopa Sheriffs office is currently seeking a
new host for the site.”
re ee
53a
PLRA Issues, Exh. A) [Dkt. 51]. However, the chart is
inaccurate. For example, Plaintiff Benny Berryman is listed
as having been detained only three times, when if fact he has
been incarcerated—over a dozen times, including four times
during the course of this lawsuit. (Defendant Arpaio’s Reply
re: Mootness, Exh. A) [Dkt. 44]. The Court does not know
whether any Plaintiffs are currently being detained.
Sheriff Arpaio’s “burden of demonstrating mootness is a
heavy one.” Natural Resources Defense Council, Inc. v.
Evans, 316 F.3d 904, 910 (9th Cir. 2003). The Court finds
Sheriff Arpaio has failed to meet this burden.
b) Likelihood of Sucess on the Merits
Fourth Amendment
“Notwithstanding our caution in approaching claims that
the Fourth Amendment is inapplicable in a given context,® we
hold that society is not prepared to recognize as legitimate
any subjective expectation of privacy that a prisoner might
have in his prison cell, and that, accordingly, the Fourth
Amendment proscription against unreasonable searches does
not apply within the confines of the prison cell.” Hudson v.
Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200 (1984).
Although the plaintiff in Hudson was a prisoner instead of a
pretrial detzinee, the Court did not hold prisoners lost their
Fourth Amendment rights because they were convicted
prisoners. Rather, the reasoning was similar to the pragmatic
rationale for restricting the constitutional rights of pretrial
detainees—that the realities of running a prison make the
Fourth Amendment “fundamentally incompatible with the
close and continual surveillance of inmate and their cells
required to ensure institutional security and internal order.”
Hudson, 468 U.S. at 527-28, 104 S. Ct. at 3201; cf. Bell
v. Wolfish, 99 S. Ct. 1861, 1878, 441 U.S. 535, 546-47 (1979)
* The present case arguably demonstrates why such caution is necessary.
54a
(limiting the constitutional rights of pretrial detainees based
on administrative and security concerns). Therefore, the
holding in Hudson arguably applies to pretrial detainees as
well, and Plaintiffs do not have a Fourth Amendment right to
enjoin Defendants’ use of the web-based cameras.
Due Process Clause of the Fourteenth Amendment
“Our holding that respondent does not have a reasonable
expectation of privacy enabling him to invoke the protections
of the Fourth Amendment does not mean that he is without a
remedy for calculated harassment unrelated to prison needs.”
Hudson, 468 at 530, 104 S. Ct. at 3202. “It is true that
inmates lose many rights when they are lawfully confined,
but they do not lose all civil rights.” Houchins v. KOED, Inc.,
438 U.S. 1, 5 n.2, 98 S.Ct. 2588, 2592 n.2. (1978) (Burger,
C.J., plurality opinion). “Inmates in jails, prisons or mental
institutions retain certain fundamental rights of privacy; they
are not like animals in a zoo to be filmed and photographed at
will by the public or by media reporters, however
‘educational’ the process may be for others.” Jd.
To determine whether a jail policy violates the Due Process
rights of a pretrial detainee, a court must decide whether the
policy “is imposed for the purpose of punishment or whether
it is but an incident of some other legitimate governmental
purpose.” Wolfish, 441 U.S. at 538, 99 S. Ct. at 1873 “Absent
a showing of an expressed intent to punish on the part of
detention facility officials, that determination generally will
turn on ‘whether an alternative purpose to which [the
restriction] may, rationally be connected is assignable for it,
and whether it appears excessive in relation to the alternative
purpose assigned [to it].”” Jd. (quoting Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68
(1963)). “In determining whether restrictions or conditions
are reasonably related to the Government’s interest in main-
taining security and order and operating the institution in a
manageable fashion, courts must heed our warning that such
55a
considerations are peculiarly within the province and pro-
fessional expertise of corrections officials, and, in the absence
of substantial evidence in the record to indicate that the
officials have exaggerated their response to these consid-
erations, courts should ordinarily defer to their expert
judgment in such matters?’ Jd., 441 U.S. at 540 n.23, 99 S.Ct.
at 1875 n.23.
Here, Sheriff Arpaio asserts that the main purpose of the
Internet cameras is secunity and, as such, public policy would
not favor a Preliminary Injunction. Sheriff Arpaio asserts that
the web-based cameras are necessitated by security concerns;
however, this Court finds that closed-circuit security cameras
already exist in the same areas. Web-based cameras are
merely duplicative and used solely for public viewing, for
which no need exist. The web-based cameras thus amount to
an exaggerated response to an already-fulfilled security need.
With closed-circuit cameras located within inches of the web-
based cameras, this Court finds Defendant’s security argu-
ment unpersuasive. The extended search that occurs when a
camera allows the public o peer in from a remote location is
manifestly unreasonable due to the absence of any security
or administrative need. Despite the need for contraband
searches, no need exists for web-based cameras. Therefore,
the filming via web based camera amounts to punishment in.
violation of Plaintiffs” Fourteenth Amendment Due Process
rights.
Defendants, As State Actors, Do Not Have a First Amend-
ment Right to Free
In defense of their use of web-based cameras, Defendants
argue an “arm of local government” has a First Amendment
right to discuss political positions. See Downs v. Los Angeles
Unified School District, 228 Feed 1003 (9th Cir. 2000).
However, Downs speaks to whether a school board may
restrict the speech of an employee when such speech, in the
form of a bulletin board posting, is in contravention to the
I
56a
tolerance of homosexuals advocated by the school. The court
did not determine that the school’s position was protected by
the First Amendment. Rather, the court held that the school
had the right to restrict opposing views of speech attributable-
to the school. 228 F.3d at 1009.
The Court is unaware of any authority holding a local
government may assert a First Amendment right against
private individuals. The freedoms guaranteed in the Bill of
Right protect the individual from the government, not the
other way around.”
3. Mixing of Adults and Juveniles
Although Plaintiffs fail to argue the point in their Motion
for Issuance of Preliminary Injunction in their Complaint,
Plaintiffs request an injunction preventing Defendants from
housing adult inmates with inmates that are minors. [Dkt.
1, Complaint at 28]. According to Defendants, adults and
juveniles are housed separately at Maricopa County Jail, and
Plaintiffs cannot show a substantial likelihood of success on
this claim.
Accordingly,
IT IS ORDERED that Sheriff Arpaio’s and Maricopa
County’s Renewed Motions to Dismiss [Dkts. 61, 62] are
GRANTED IN PART and DEN
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