Opposition Brief — Arpaio v. Demery

No. 04-983

IN THE

Supreme Court of the United States

JOE ARPAIO,

Maricopa County Sheriff, in his official capacity,

Petitioner,

vi

JAMIE DEMERY, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ULISES A. FERRAGUT SCOTT AMBROSE

FERRAGUT & ASSOCIATES Counsel of Record

Suite 1615 AMBROSE LAW FIRM

111 West Monroe Suite 185

Phoenix, AZ 85003 11000 N. Scottsdale Rd.

(602) 324-5300 Scottsdale, AZ 85254

(480) 607-2822

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Respondents

May 27, 2005

i

QUESTION PRESENTED

Whether the court of appeals properly upheld a

preliminary injunction barring a county sheriff from placing

video cameras in the non-public areas of a jail—including the

men’s bunk bed area, the women’s toilet, and the areas in which

pretrial detainees are subjected to patdown searches—and

broadcasting live images from those cameras through a

commercial Internet site 24 hours a day, because such a practice

likely violates the due process rights of pretrial detainees to be

free from punishment.

ll

TABLE OF CONTENTS

QUESTION PRESENTED .6.c60 Sci cccivdevccccesces i

TABLE OF AUTHORITIES ..........ccccveccscess iii

RESPONDENT’S BRIEF IN OPPOSITION ........... l

STATEMENT 2.0 cncesccsunededcaeeedeenseapeees 2

A. Factal BaGkgrOW: 3. oo5.o4 ods chwadeateuseauns 2

B. The Court of Appeals’ Decision ..............-. 5

REASONS FOR DENYING THE WRIT .............-. 7

I. There Is No Conflict Over the Appropriate Legal

Standard for Conditions-of-Confinement Claims

by Pretrial EWE. sik ccacn venesaewaneees 7

Il. The Decision Below Does Not Conflict With

Cases Concerning Megan’s Laws or Perp

Welle. oo cktasiehicete ee eee 10

Ii. The Decision Below Does Not Conflict With

A ree ry yr tt es 13

IV. _ The Interlocutory Posture of the Case and the

Unique Nature of the Facts Make This Case

Particularly Unsuitable for Review. ............ 15

CONCLUBION ... .0css000¢kagned beueeeeweuneneees 17

ill

TABLE OF AUTHORITIES

CASES

Bell v. Wolfish,

a eee rrr 5, 6, 7-9

Benjamin v. Fraser,

Pe GU GA DOOD 6 66.66 ca nscdcccvswccs 8

*Caldarola v. County of Westchester,

343 F.3d 570 (2d Cir. 2003) ............ 10, 11-12

City of Revere v. Mass. General Hosp.,

SN MT CREED 6 eS pee soe edinenseuneesada 9

Covino v. Patrissi,

of & yet ok Dh . . rrr 8-9

E.B. v. Verniero,

119 F.3d 1077 (3d Cir. 1997)........... Oe

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

I ino WE wc a Kk Ore on 054s ue 6s 15

Hause v. Vaught,

eee ree ROOD CU Ge, BOGS) oc ccccccccncccees 8

Hope v. Pelzer,

ee PPT ee ee eer ee eereTee 15

Houchins v. KQED, Inc.,

as Cc abd6 ede beu sea dhee we 6

eee ee

IV

Lauro v. Charles,

ri, pm pote ie | Perrrerrrrrr rer 11

Paul v. Davis,

ee Gi CRT ox onc ce dvceducewenees 13-14

Sandin v. Conner,

pik Rts PPP ererer rrr rer errr 10

Slade v. Hampton Roads Regional Jail, --- F.3d ---,

2005 WL 1076559 (4th Cir. May 9, 2005) ..... 7-8

Smith v. Doe,

ge Os err errr e 10-11, 12-13, 15

Thornburgh v. Abbott,

Ae ek CUO 6 6 eo cs Rese he cee dceceeeiwe 8

Turner v. Safley,

gm Fo. rer rrr: To ee eT

Virginia Military Inst. v. United States,

ek et PP eer Tere rire eee 16

Wilson v. Layne,

ost) eli. | Pere eer rere rr Try . 6,10

MISCELLANEOUS

Anderson County, Tennessee Sheriff's Department Website,

http://www.tnacso.net/cont/jailcam.php (last visited

gg ee errr tert eer er ee 16

Vv

Barry Graham, Star of Justice,

Harper’s, Apr. 30, 2001

Heather Haddon, Sneak Peek: ‘Jail Cam’ Raises Hackles and

a Lawsuit When Links to Porno Sites Are Discovered,

Village Voice, June 6-12, 2001 ................ 4

Joe Arpaio for Sheriff Website,

www .reelectjoe.com (last visited May 16, 2005) .. 3

Richard Lacayo, The Real Hard Cell,

Pa HE 4 TAS ion ea Srna eka eet ewes 2

Farhad Manjoo, The Sheriff Can't Beat the Rap,

Wired News, http://wired-vig.wired.com/news/culture/

0,1284,42872,00.html (last visited May 16, 2005)

PPT OCs ee ery eer eer re Teer 4,16

Maricopa County Sheriff’s Office Website,

http://www.mcso.org/submenu.asp? file=aboutmcso&

page=main (last visited May 16, 2005) .......... 2

Margo Schlanger, Jnmate Litigation,

116 Harv. L. Rev. 1555 (2003) .............00. 2

Stern and Gressman,

Supreme Court Practice (8th ed. 2002) ......... 16

l

RESPONDENTS’ BRIEF IN OPPOSITION

The district court’s order granting 2 preliminary

injunction in this case, which the decision below affirmed,

applied well-settled legal principles to an extremely unusual set

of facts. As far as respondents are aware, no other jailer in the

United States has done what petitioner has done here: place

video cameras in the non-public areas of a jail and continuously

broadcast live images of pretrial detainees as they are

fingerprinted, photographed, booked, and searched; as they

sleep; and even as they use the toilet. The unique nature of

these facts, standing alone, demonstrates that this case does not

present a recurring question worthy of this Court’s review. And

given the significance of a factual record in a case of this kind,

the interlocutory posture of the case provides an additional

reason to deny certiorari.

This Court should also decline review because the

conflicts claimed by the petition are illusory. The petition

argues that the decision below implicates a circuit split

concerning the correct legal standard to apply to conditions of

confinement claims by pretrial detainees, but the circuits -

uniformly apply the same standard. The petition also attempts

to manufacture a conflict with cases involving sex offender

notification laws and perp walks. Far from conflicting with the

decision below, however, these other cases support it: They

suggest that a policy of public humiliation that goes beyond the

dissemination of information is likely to be deemed punitive,

and that the government’s role in such matters must be carefully

circumscribed. Finally, the petition’s broad suggestion that any

governmental infliction of humiliation is insulated from

constitutional scrutiny is without support in this Court’s cases.

2

STATEMENT

A. Factual Background

Petitioner Joe Arpaio is the Sheriff of Maricopa County,

Arizona. Sheriff Arpaio has become widely known for his

unconventional correctional practices. Pretrial detainees in his

jails are forced to wear pink underwear, eat green bologna,

work on chain gangs, dig graves, and sleep in tents in the

Arizona desert. See Barry Graham, Star of Justice, Harper’s,

Apr. 30, 2001, at 59. Arpaio’s website boasts about the unique

nature of his practices. See Maricopa County Sheriff's Office

Website, http://www.mcso.org/submenu.asp? file=aboutmcso

&page=main (last visited May 16, 2005) (“No other detention

facility in the country . . . can boast of 1200 convicts in tents; no

other county or state facility can boast of a gleaning program

that results in costs of under 45 cents per meal per inmate; few

others can say they have women in tents or on chain gangs.”).

Arpaio has said of his jails: “I want to make this place so

unpleasant that they won’t even think about doing something

that could bring them back. . . . I want them to suffer.” Richard

Lacayo, The Real Hard Cell, Time, Sept. 4, 1995, at 31. One

commentator has observed that Arpaio “boasts of being

‘America’s toughest sheriff and has the litigation docket to

prove it.” Margo Schlanger, Inmate Litigation, 116 Harv. L.

Rev. 1555, 1581 n.82 (2003).

Respondents are pretrial detainees at the Madison Street

Jail who sued both Arpaio and the County, challenging Arpaio’s

practice of installing video cameras, known as “webcams,” in

four locations within the jail and broadcasting live images of

the detainees over the Internet. The petition repeatedly

describes the location of the cameras as the “public area of [the]

jail.” Pet. i. This description is inaccurate. As the court of

3

appeals explained, “(t]he four webcams were placed within

areas of the jail that were not open to the public except through

prearranged tours.” App. 2a. The cameras were installed in four

locations: the men’s holding cell, including the men’s bunk bed

area; the area in which detainees are photographed,

fingerprinted and booked; the area in which detainees are

subjected to patdown searches; and the toilet and surrounding

area in the women’s holding cell. Jd. at 2a-3a. The camera in

the latter location was eventually moved to a hallway in

response to this lawsuit. /d. at 3a.

After the capacity of his web servers became

overwhelmed by viewers from around the world, Arpaio entered

into an arrangement with a commercial website known as

Crime.com to broadcast the webcam images on a 24-hour basis.

Id. Crime.com presented the images as a form of entertainment,

offering visitors the opportunity to see detainees “booked,

searched and locked-up,” and “[w]atch as SWAT teams raid

male and female inmate holding cells in search of smuggled

drugs and crude weapons.” Jd. at 4a. A link labeled “Meet

Sheriff Joe” allowed visitors to “[s]pend 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.” Jd.

In addition to broadcasting the video footage, the site also sold

merchandise associated with Arpaio, including a videotape of

“A Day With Sheriff Joe,” which was described as a

documentary film about the Sheriffs “unconventional”

methods, and a souvenir version of the pink underwear worn by

Maricopa County detainees, which was emblazoned with a gold

star insignia, Arpaio’s personal signature, and the slogan “Go

Joe.” See Complaint, Exh. B; Joe Arpaio for Sheriff Website,

www.reelectjoe.com (last visited May 16, 2005) (describing

“commercial” version of pink underwear).

4

The webcam broadcasts attracted “3 million to 10

million hits daily.” Heather Haddon, Sneak Peek: ‘Jail Cam’

Raises Hackles and a Lawsuit When Links to Porno Sites Are

Discovered, Village Voice, June 6-12, 2001. Among the

millions of visitors to the site were those directed “from

hundreds of hardcore pornography sites.” Jd.; see also Ninth

Circuit Excerpts of Record (“EOR”) Tab 71 at 13-15. For

reasons that are not disclosed in the record, the Crime.com site

ceased operation after this suit was filed.

Arpaio gave numerous interviews to the media

concerning the webcam broadcasts. He bragged that the

broadcasts drew “people from Sweden, Britain, and Germany

to watch officers snap on rubber gloves and frisk incoming

arrestees” and chuckled over the broadcasts’ ability to

“embarrass the inmates.” Haddon, supra. Asked whether he

expected other jails or prisons to adopt his webcam policy,

Arpaio said that he did not: “I don’t think anybody’s going to

do it. I’ve done a lot of controversial things. Nobody’s copied

it, but I don’t care.” See Farhad Manjoo, The Sheriff Can’t Beat

the Rap, Wired News http://wired-vig.wired.com/news/culture/

0,1284,42872,00.html (last visited May 16, 2005).

The detainees filed this suit in Arizona state court and

the defendants removed the case to federal court. After

determining that there was a live controversy because Arpaio

was seeking a new host for the webcam images, the district

court preliminarily enjoined Arpaio from broadcasting the

webcam images on the ground that doing so subjected the

detainees to punishment in violation of the Fourteenth

Amendment. Arpaio appealed. Maricopa County did not

appeal.

5

B. The Court of Appeals’ Decision

Although neither party raised the issue on appeal, the

court of appeals began by assuring itself that the appeal was not

moot because Arpaio intended to, and likely would, find

another host for the website, and because, although the

plaintiffs had been released from the jail, the controversy fell

within the capable-of-repetition-but-evading-review exception

to the mootness doctrine. App. 5a-9a.

_ The court next concluded that the district court had

correctly analyzed plaintiffs’ claims under the test set forth in

Bell v. Wolfish, 441 U.S. 520 (1979). App. 10a-12a. In Bell,

the Court 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. The Bell

test asks whether a particular condition of confinement

constitutes punishment 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 that

purpose. Jd. at 538. The court of appeals concluded that the

four-part “rational relation” test for Eighth Amendment claims

set forth in Turner v. Safley, 482 U.S. 78 (1987), was

inapplicable because Turner dealt with convicted prisoners

rather than pretrial detainees and because Turner involved a

claim of cruel and unusual punishment under the Eighth

Amendment rather than a substantive due process claim. App.

Ila.

Having found that Arpaio had “failed to demonstrate

that the district court applied an erroneous legal standard,” the

court of appeals next turned to Arpaio’s arguments concerning

“the district court’s application of Bell to the facts of this case.”

Id. at 12a. These arguments, the court concluded, ignored the

6

standard for review of a preliminary injunction, under which

“fa]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.” Id.

“Additionally,” the court “agree[d] with the district

court’s application of the law to the facts.” Jd. Arpaio’s actions

constituted punishment because the humiliation ofhaving one’s

daily activities in jail broadcast over the Internet would be

regarded by anyone as profoundly undesirable and because the

harm caused significantly exceeded, and was independent of,

the ordinary discomfort involved in being jailed. Jd. at 13a. The

practice could not be justified based on an interest in deterrence

alone because “[rJetribution and deterrence are not legitimate

nonpunitive governmental objectives.” Bell, 441 U.S. at 539

n.20. Moreoever, the court explained, Arpaio’s practices could

not be justified based on the otherwise valid interest in ensuring

accountability and public scrutiny because none of the purposes

of pretrial detention was served by the broad exposure involved

in the Internet broadcasts. App. 15a-17a (citing Houchins v.

KQED, Inc., 438 U.S. 1, 5 n.2 (1978) (plurality) (“Inmates 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.”); Wilson v. Layne, 526 U.S. 603

(1999)).

Finally, the court rejected Arpaio’s argument that the

injunction violated his First Amendment rights because, as the

district court put it, “the Bill of Rights protect the individual

from the government, not the other way around.” Jd. at 18a.

Judge Bea dissented, explaining that he would have

reversed on mootness grounds. Jd. at 20a-23a. He also

7

expressed his disagreement on the merits, reasoning in part that

the Internet broadcasts would not have been historically

regarded as punishment because they “are too new to have a

historical characterization,” id. at 27a, and suggesting that

public shaming is punitive only when “characterized by face-to-

face confrontation or banishment.” Jd. at 29a n.7.

Arpaio filed a petition for rehearing en banc. No judge

of the court of appeals requested a vote on the petition, and the

petition was denied.

REASONS FOR DENYING THE WRIT

I. There Is No Conflict Over the Appropriate Legal

Standard for Conditions-of-Confinement Claims by

Pretrial Detainees.

The petition asserts that the “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.” Pet.

12. There is no such split. Every federal circuit holds that Bell

supplies the correct test for conditions-of-confinement claims

by pretrial detainees. .

The absence of any conflict is made clear by recent

decisions of the Fourth and Second Circuits—the two circuits

that the petition identifies as following a different rule—both of

which have reaffirmed their use of the Bell test for claims of

pretrial detainees. See Slade v. Hampton Roads Regional Jail,

--- F.3d ---, 2005 WL 1076559 (4th Cir. May 9, 2005), at * 7

(The federal circuits’ decisions “reviewing conditions of pretrial

detention and confinement still rely exclusively on Bell.

Accordingly, absent an explicit indication to the contrary from

8

the Supreme Court, we will continue to apply Bell . . . to claims

by pretrial detainees that certain conditions of confinement

amount to punishment.”) (citations omitted); Benjamin v.

Fraser, 343 F.3d 35, 49-50 (2d Cir. 2003) (holding that Bell

supplies the correct test for claims by pretrial detainees).

Indeed, the Fourth Circuit’s opinion in Slade specifically cites

the decision below as reflecting the circuits’ uniform approach.

2005 WL 1076559, at *7.

The petition creates its “split” only by distorting Hause

v. Vaught, 993 F.2d 1079 (4th Cir. 1993), and Covino v.

Patrissi, 967 F.2d 73 (2d Cir. 1992)—the only two decisions it

describes as having applied Turner to claims by pretrial -

detainees. Pet. 23. Although both decisions refer to Eighth

Amendment jurisprudence, neither rejects Bell in favor of

Turner as the appropriate framework. On the contrary, Hause

cites Bell as the appropriate standard to evaluate restrictions

placed on the receipt of outside publications by pretrial

detainees and merely seeks guidance from Thornburgh v.

Abbott, 490 U.S. 401, 404 (1989), which analyzed similar

restrictions in the prison context under Turner. Hause, 993 F.2d

at 1082. The court notes that, “[a]lthough Thornburgh did not

involve pretrial detainees,” the security concerns at issue were

essentially the same and thus followed Thornburgh’s analysis

“with due regard for the particular circumstances of pretrial

detainment.” /d. (citing Bell, 441 U.S. at 546 n. 28).

Similarly, in Covino, the Second Circuit found Turner

“instructive” on the issue of whether prison officials were

justified in intruding on the Fourth Amendment rights of a pre-

trial detainee who was housed in a prison alongside convicted

criminals and who challenged the prison’s search policy. Jd. at

78. But Covino expressly declined to consider whether the

plaintiff's “status as a pre-trial detainee entitled him to more

9

extensive fourth amendment protection with respect to visual

body-cavity searches than a convicted, incarcerated inmate”

because, as to both pre-trial detainees and convicted inmates,

the proper inquiry was whether the searches were reasonable.

Id. at 78 n.4 (citing Bell, 441 U.S. at 558).

That courts make reference to this Court’s Eighth

Amendment precedents in the context of claims by pretrial

detainees does not mean that there is a conflict concerning the

appropriate legal standard. It is not surprising that courts seek

guidance from Eighth Amendment jurisprudence, particularly

in cases where this Court has already addressed the

constitutionality of the type of restriction at issue in the prison

context. Because the Court has made clear that the protections

afforded by the Due Process Clause are “at least as great as the

Eighth Amendment protections available to a convicted

prisoner,” City of Revere v. Mass. General Hosp., 463 U.S. 239,

244 (1983), the Eighth Amendment provides a minimum

standard for determining the constitutional rights of pretrial

detainees.'

'The petition studiously avoids stating a position on whether the

court of appeals should have applied Turner instead of Bell—or

whether it would even make any difference on the facts of this case.

Indeed, petitioner’s briefing in the court below analyzed the due

process claim only under Bell and recognized that the Turner test is

“incompatible” with the right of pretrial detainees to be free from

punishment. Def’s Opening Br. at 15 n.9 (“Sheriff Arpaio does not

include any discussion of the four-part Turner test because it is

inherently incompatible with the nature of the constitutional right

relied on by the District [Court]—a detainee’s freedom from

‘punishment.””). In any event, the suggestion in the petition that

Turner may have somehow displaced Bell or eliminated the

important distinction between the rights of pretrial detainees and the

10

Because there is no conflict concerning the appropriate

legal standard, the petition should be denied.

\

Il. The Decision Below Does Not Conflict With Cases

Concerning Megan’s Laws or Perp Walks.

The petition also contends that the decision below

conflicts with decisions “holding that enhancing transparency

of the criminal justice system and deterring the viewing public

are legitimate governmental objectives.” Pet. 11. That assertion

is belied by the court of appeals’ specific recognition that the

government does have a “legitimate interest in ‘informing the

public about the administration of criminal justice.”” App. 17a

(quoting Wilson v. Layne, 526 U.S. 603 (1999)). Far from

rejecting that principle, the decision below held that, based on

the particular facts in this case, the plaintiffs would likely

succeed in establishing that, under Bell, the practice of

broadcasting live images of pretrial detainees in their cells over

the Internet could not be justified by the “otherwise valid

governmental interest in assuring accountability and public

scrutiny.” Jd.

In an effort to manufacture a conflict on this point, the

petition cites cases in which courts have upheld sex offender

notification laws and perp walks as reasonably related to

legitimate state interests. Pet. 11 (citing Caldarola v. County of

Westchester, 343 F.3d 570 (2d Cir. 2003); Smith v. Doe, 538

rights of convicted prisoners (Pet. 5, 22-24) is wrong. See, e.g.,

Sandin v. Conner, 515 U.S. 472, 484 (1995) (post-7urner decision

stating that “Bell correctly noted that a detainee ‘may not be

punished prior to an adjudication of guilt in accordance with due

process of law.’ ... The punishment of incarcerated prisoners, on the

other hand, serves different aims than those found invalid in Bell.”).

11

U.S. 84 (2002); E.B. v. Vernerio, 119 F.3d 1077 (3d Cir.

1997)). These cases involve not only very different facts, but

entirely different constitutional provisions—the Double

Jeopardy Clause, the Ex Post Facto Clause, and the Fourth

Amendment.

More importantly, not one of these decisions holds that

any practice that happens to disseminate truthful arrest or

conviction information is a/ways reasonably related to a

legitimate state interest. On the contrary, these cases suggest

that the government’s role in such matters must be carefully

circumscribed, that constitutional analysis must take into

account all of the relevant facts and circumstances, and that

public shaming that goes beyond the dissemination of

information will likely be deemed punitive.

In Caldarola, for example, the question was whether a

perp walk—in which a public officer arrested on corruption

charges was videotaped as he was escorted across the parking

lot of a government building to a police car—was an

unreasonable search or seizure under the Fourth Amendment.

Only after engaging in “a contextualized reasonableness

analysis that seeks to balance the intrusion on privacy caused by

law enforcement against the justification asserted for it by the

state,” 343 F.3d at 576, and taking into account-all of the

circumstances, including the officer’s “minimal expectation in

privacy in the parking lot,” did the court conclude that there was

no Fourth Amendment violation, id. at 577; compare Lauro v.

Charles, 219 F.3d 202 (2d Cir. 2000) (perp walk staged for the

benefit of videotaping was unconstitutional). Most importantly,

in a passage that appears particularly prescient here, the court

stressed that its decision did “not suggest that government

actors have free reign to use videotape or other potentially

overly intrusive means to achieve the government purposes” of

i ii

12

informing the public, enhancing the transparency of the criminal

justice system, or deterring others from attempting similar

crimes. 343 F.3d at 577.

Cases involving sex offender notification laws, also

known as Megan’s Laws, provide even less support for the

petition’s claims of conflict. In Smith v. Doe, this Court held

that Alaska’s Megan’s Law did not violate the Ex Post Facto

Clause because the law was rationally related to the nonpunitive

purpose of protecting the public by alerting citizens to the risk

of sex offenders in the community, and because the law was not

excessive in relation to that purpose. Smith, 538 U.S. at 102-3;

accord Verniero, 119 F.3d at 1098. No similar governmental

interest is even remotely implicated in this case, and neither

Smith nor Verniero held that transparency or deterrence

concerns alone could justify the Alaska or New Jersey laws

under review.

The petition, however, quotes isolated language from

Smith and Verniero discussing the virtue of transparency in the

criminal justice system and attempts to extract from that

language a blanket approval for government policies executed

in the name of transparency. Pet. 15, 21 (asserting that “federal

courts uniformly hold that disseminating accurate public

information regarding criminal history does not constitute

punishment”). A quick glance at these decisions demonstrates

that the petition has taken this language out of context and

twisted its meaning. If anything, this Court’s decision in Smith

lends considerable support to the decision below. Smith’s

comments on transparency in the criminal justice system are

found in a passage in which this Court expressly distinguished

Alaska’s Megan’s Law from colonial punishments “that were

meant to inflict public disgrace,” “such as public shaming” and

“humiliation,” which, like the webcam broadcasts at issue here,

13

“involved more than the dissemination of information.” 538

U.S. at 97-98; accord Verniero, 119 F.3d at 1100

(distinguishing New Jersey’s Megan’s Law from “the stocks,

cages and scarlet letters”). “By contrast,” the Court noted, “the

stigma of Alaska’s Megan’s Law results not from the public

display for ridicule and shaming but from the dissemination of

accurate information about a criminal record, most of which is

already public.” 538 U.S. at 98; accord Verniero, 119 F.3d at

1099 (“The ‘sting’ of Megan’s Law for [sex offenders] results

not from their being publicly displayed for ridicule and shaming

but rather from the dissemination of accurate public record

information about their past criminal activities. . . . This

distinction makes a substantial difference when one looks for

the relevant historical understanding of our society.”’”). Arpaio

cannot draw the same distinction in this case.

III. The Decision Below Does Not Conflict With Paul v.

Davis

The petition argues, without much elaboration, that the

decision below conflicts with this Court’s decision in Paul v.

Davis, 424 U.S. 693 (1976). Pet. 11,20. There, aman who had

been arrested for shoplifting sued the police, who had

disseminated a flyer including his name and photograph under

the heading “Active Shoplifters.” The Court held that the

man’s interest in his reputation, standing alone, did not

implicate any “liberty” or “property” interests sufficient to

invoke the procedural protections of due process. 424 U.S. at

710-12. To hold otherwise, the Court reasoned, would result in

the wide-ranging constitutionalization of ordinary defamation.

The plaintiff in Paul also alleged a violation of a “right to

privacy guaranteed by the First, Fourth, Fifth, Ninth, and

Fourteenth Amendments.” Jd. at 712. Because the plaintiffs

claim was “based, not upon any challenge to the State’s ability

14

to restrict his freedom of action in a sphere contended to be

‘private,’ but instead on a claim that the State may not publicize

a record of an official act such as an arrest,” the Court rejected

this claim as too “far afield” of its substantive privacy

jurisprudence. Jd.

In this case, the court of appeals itself succinctly

explained why its decision is fully consistent with Paul. First,

Paul involved procedural due process and substantive privacy

claims. It did not involve the substantive due process right of

pretrial detainees to be free from punishment, and the release of

the information was not a condition of detention. App. 17a n.6.

Second, “there is stark difference between releasing an arrest

record and thereby publicizing only ‘the fact of [a detainee’s]

arrest,’ and streaming live images of a pretrial detainee’s every

movement across the Internet.” Jd. (quoting Paul, 424 U.S. at

713). Third, “[nJothing in Bell requires that, to be punishment,

a harm must be independently cognizable as a separate

constitutional violation.” Jd. 13a. Thus, the holding here that

particular conditions of pretrial detention involving humiliation

can constitute punishment does not suggest that reputational

harm alone may otherwise give rise to an independent

constitutional tort.

Stretching to invent a conflict on this point, the petition

suggests that Paul stands for a categorical rule that

“{rjeputational harm is not an injury that is constitutionally

redressible,” (Pet. 19), and asserts that “every federal circuit has

recognized that reputational harm is not constitutionally

redressable,” (Pet. 20), but the petition cites not a single case in

support of that bold proposition. Under the petition’s novel and

expansive reading of Paul, any governmental practice that

involves the infliction of humiliation or stigma—including the

colonial shaming punishments discussed by this Court in Smith

15

v. Doe—would be immune from constitutional scrutiny, even

if inflicted on citizens who have not been convicted of a crime.

But see Smith, 538 U.S. at 99 (Megan’s Law, “[i]n contrast to

the colonial shaming punishments,” “does not make publicity

and the resulting stigma an integral part” of its scheme); Hope

v. Pelzer, 536 U.S. 730, 738 (2002) (recognizing the “risk of

particular discomfort and humiliation” as a component of an

“obvious” Eighth Amendment violation). Nothing in this

Court’s decisions or American constitutional jurisprudence

supports such a theory.

Ill. The Interlocutory Posture of This Case and Its

Unique Facts Make This Case Particularly

Unsuitable for Review.

Finally, even apart from the absence of any conflicts

implicated by the decision below, certiorari should be denied

because the procedural posture of the case and the unusual

nature of the facts make this case particularly unsuitable for

review.

This case comes to the Court in an interlocutory posture,

which “of itself alone furnishe[s] sufficient ground for the

denial” of the petition. Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co., 240 U.S. 251, 258 (1916). Although the district court

found that plaintiffs had demonstrated a sufficient likelihood of

success on their substantive due process claim to warrant

preliminary injunctive relief, proceedings on the merits have not

yet begun. Moreover, the district court made no formal factual

findings, there is only a barebones record, and the court below

exercised only the “limited review” appropriate to an appeal

from a district court’s order granting a preliminary injunction.

App. 9a. Because the parties have not yet taken discovery,

many potentially important factual issues remain unexamined,

16

including the nature of Arpaio’s contract with the Crime.com

website, if any; whether Arpaio was paid for the webcam

broadcasts or the sales of merchandise on the website; and the

circumstances surrounding the placement of a camera in the

women’s toilet area. Indeed, factual issues prevent the parties

from even agreeing on how the issue in this case should

properly be framed: Arpaio maintains that the webcams

broadcast images of the “public area” of the jail, while the

plaintiffs insist that the relevant areas are non-public. See App.

3a. Obstacles of this sort are among the reasons that, even

when an important threshold question has been decided by a

court of appeals, this Court will “generally await final judgment

in the lower courts before exercising [its] certiorari

jurisdiction.” Virginia Military Inst. v. United States, 508 U.S.

946 (1993) (Scalia, J., respecting the denial of certiorari); see

Stern and Gressman, Supreme Court Practice § 4.18 (8th ed.

2002). That customary practice is well-suited for the

interlocutory petition in this case. |

The unusual, indeed unique, nature of the facts here also

counsels against review. Unlike the Megan’s Laws and perp

walks at issue in the cases cited in the petition, there is no

indication that Arpaio’s webcam broadcasting is any more

likely to become widespread among correctional agencies than

his other unusual practices.’ As noted at the outset, Arpaio has

publicly stated that he does not expect other jails to imitate his

webcam policy. See Manjoo, supra. There is therefore no

Respondents are aware of only one other jail or prison in the

nation that has installed a webcam. See Anderson County, Tennessee

Sheriff's Department Website, http://www.tnacso.net/cont/jailcam

.php (last visited May 16, 2005). This single camera appears to show

only the front desk of the jail.

17.

reason to believe that the question presented will recur. Absent

any indication that this case presents recurring issues of national

importance, this Court should decline review.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

ULISES A. FERRAGUT SCOTT AMBROSE

FERRAGUT & ASSOCIATES Counsel of Record

Suite 1615 AMBROSE LAW FIRM

111 West Monroe Suite 185

Phoenix, AZ 85003 11000 N. Scottsdale Rd.

(602) 324-5300 Scottsdale, AZ 85254

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Respondents*

May 27, 2005 .

Counsel acknowledge the work of Deepak Gupta, a graduate of

Georgetown University Law Center and Alan Morrison Supreme

Court Assistance Project Fellow at Public Citizen Litigation Group,

who took a lead role in preparing this opposition.