# Petition for Writ of Certiorari — Arpaio v. Demery > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1311%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 545 U.S. 1139 ## Text 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 lauda [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1311%3A1. Public record. Not legal advice.