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 v. Joe ARPAIO, Maricopa County Sheriff, in his official capacity, Defendant-Appellant, and County of Maricopa; John/Jane Does 1-100, Defendants.
No. 03-15698
United States Court of Appeals, Ninth Circuit
August 6, 2004
378 F.3d 1020
What we have already held largely disposes of Nissan Motor‘s cross-appeal asking that the injunction be broadened to require transfer of nissan.com and nissan.net. The district court declined to enter such an order and did not abuse its discretion in doing so. See Interstellar, 304 F.3d at 948 (emphasizing discretion to fashion relief, and noting that only upon proving the rigorous elements of cybersquatting under the Anticybersquatting Consumer Protection Act,
V
Conclusion
Having held that the first use of a mark for purposes of the Federal Trademark Dilution Act is that use which is arguably offending, and such use in this case occurred when NISSAN was used in “Nissan Computer” in commerce, we must reverse and remand the partial summary judgment on dilution for the district court to consider the fame of the NISSAN mark as of 1991. On remand, it must also consider whether Nissan Computer “actually diluted” the NISSAN mark as required by Moseley. Injunctive relief may not restrain Nissan Computer from placing links on nissan.com and nissan.net to other sites that post negative commentary about Nissan Motor; to this extent, the relief granted is overbroad, reaches non-commercial speech, and runs afoul of the FTDA and the First Amendment. On all other issues, we affirm.
Each party shall bear its own costs.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Scott A. Ambrose, Phoenix, AZ, Ulises A. Ferragut, Jr., Ferragut & Associates, Phoenix, AZ, for the plaintiffs-appellees.
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 (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 preliminary injunction. We have jurisdiction under
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 monitored twenty-four hours a day by Sheriff‘s 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 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 Sheriff‘s website1 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 find yourself sitting on this bunk, you probably 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:
- “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.” - “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.”
- “Jail Cam: See the first live camera in a working jail. Watch what‘s happening at Madison Street Jail NOW.”
- “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 Sheriff‘s 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.
This suit was brought by twenty-four former Madison Street Jail detainees who challenged the Sheriff‘s 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 Sheriff‘s 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.
II.
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 (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 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 nor-
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 (2000) (describing how the Federal Government voluntarily 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 other private, medical conditions did not moot the plaintiffs’ claims). Nonetheless, as the voluntary cessation and capable-of-repetition-yet-evading-review cases, discussed infra, both illustrate, a more general principle underlies the mootness determination. Once a defendant has engaged in conduct the plaintiff contends is unlawful and the courts have devoted resources to determining the dispute, there is Article III jurisdiction to decide the case as long 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 (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 preliminary 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 Sheriff‘s 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 subjected to the same offending conduct. Spencer v. Kemna, 523 U.S. 1, 17-18 (1998); Mitchell v. Dupnik, 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 constitutional claim decided on appeal before he is either released or convicted.” Gerstein v. Pugh, 420 U.S. 103, 111 n. 11 (1975). In these circumstances, the plaintiffs readily satisfy the first prong of the capable-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 expectation’ that [they] would be transferred back to[the Madison Street Jail] or released and reincarcerated there.” Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (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 plaintiff‘s petitions for post-conviction relief had since been denied. Id. at 528.
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.
III.
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 Commc‘ns, 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 Commc‘ns, 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 (2002).
Sheriff Arpaio‘s challenges to the district court‘s order boil down to two arguments: the district court misidentified the 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. 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 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (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 Substantive 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.”
Alternatively, Sheriff Arpaio argues that the four-part “reasonable relation” test of Turner v. Safley, 482 U.S. 78 (1987),2 replaced the Bell punishment 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 (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 Cir. 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 punishment challenge, not a claim brought under the Substantive Due Process Clause of the
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 determined 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.” Id. at 538. 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 application 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. For a particular governmental action to constitute punishment, (1) that action must cause the detainee to suffer some harm or “disability,” and (2) the purpose of the governmental action must be to punish the detainee. Bell, 441 U.S. at 538 (“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 requirements are met here.
Plaintiffs were certainly harmed by Sheriff Arpaio‘s actions. Having every moment of one‘s daily activities exposed 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 employers, as one is booked, fingerprinted, and generally processed as an arrestee, and as one sits, stands, or lies in a holding
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. Bell, 441 U.S. at 537 (“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. In that case, however, the Court‘s premise was that any pretrial detention inherently involved some discomfort; a detainee‘s sleeping conditions even when not double-bunked were far from ideal, and the additional discomfort of having to share the already close quarters 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. 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 Sheriff‘s 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 webcams 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 “[r]etribution and deterrence are not legitimate nonpunitive governmental objectives” that can justify
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 officials wide latitude in administering pretrial detention facilities, in guaranteeing detainees’ attendance at trial, and in promoting prison safety. Id. But we fail to see how turning pretrial detainees into the unwilling objects of the latest reality show serves any of these legitimate goals.5 As the Supreme Court
We also reject Sheriff Arpaio‘s contention that the injunction violates his First Amendment rights. The webcam transmissions were not Sheriff Arpaio‘s personal communications. 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 (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 (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. Id. Nowhere did Downs suggest that the government has a cognizable First Amendment 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 that placing webcams in a pretrial detention center violates the Fourteenth Amendment substantive due process rights of pretrial detainees by subjecting them to punishment. Accordingly, we hold that the district court did not abuse its discretion 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.
BEA, Circuit Judge, dissenting.
Perhaps in an effort to express their repugnance for the Madison Street Jail webcast policy, the majority opinion substitutes conjecture for analysis of the mootness issue. On the issue whether the webcasts constitute constitutionally impermissible pre-conviction punishment, the majority opinion substitutes the personal tastes of the Court of Appeals judges for the analysis the Supreme Court directs us to use as to what constitutes such punishment. Last, the majority opinion simply refuses to consider any rational relation between the webcasts and the legally permissible governmental purposes stated by the Sheriff. The result is the imposition of the majority‘s will in the place of the judgment of the lawfully elected representative of Maricopa County voters. Because of these inadequacies, I respectfully dissent.
I.
Mootness
Notwithstanding the parties’ failure to brief the issue, the majority opinion correctly acknowledges our responsibility to address the mootness question: whether this action presents a live case or controversy. Then, somewhat perfunctorily, they conclude that this case falls within the “capable-of-repetition-yet-evading-review” exception to mootness. See Spencer v. Kemna, 523 U.S. 1, 17-18 (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 (1983) (district court granted preliminary injunction to stop use of police chokeholds; Court of Appeals affirmed; Supreme Court reversed, finding Plaintiffs lacked standing to seek injunctive relief absent a showing of realistic threat to Plaintiffs—not others—of future injury).
The majority opinion determines that because some of the Plaintiffs have experienced detention by Appellant Sheriff on earlier occasions, this constitutes “compelling evidence that the Plaintiffs likely will be reincarcerated.” I do not take such a dim view of either the ineffectiveness of our criminal justice system or of human
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. “Respondents themselves are able—and indeed required by law—to prevent such a possibility from occurring.” ... “[W]e are unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction.”
Spencer v. Kemna, 523 U.S. 1, 15 (1998) (citations omitted); see also O‘Shea v. Littleton, 414 U.S. 488 (1974) (district court dismissed class action challenging bond, sentencing, and jury fee practices in criminal cases; Court of Appeals reversed; Supreme Court reversed, finding that Plaintiffs lacked standing because they had not alleged that they had been or would be improperly charged with violating the criminal law). Because Plaintiffs here cannot show that, but for their future arrest and incarceration, they again would be subjected to being viewed on the Sheriff‘s webcasts, they have not shown a legally cognizable case or controversy. Only by speculating, without proof, that at some unspecified time in the future they (not others) will again be arrested and taken to the Madison Street Jail, and again be viewed on the Sheriff‘s webcasts, can Plaintiffs state a cognizable case or controversy. Such speculation is not enough to confer standing on Plaintiffs under the Supreme Court cases cited above.2
A finding of lack of standing would seem mandated by a case cited by the majority, Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996). Once Mitchell was removed from the detention center and his petitions for post-conviction relief were denied, Mitchell lost standing to seek injunctive relief from detention center practices because there was no reasonable expectation that he would be returned to the detention center. Mitchell, 75 F.3d at 528. The majority opinion maintains the plaintiffs here have standing because, in view of their prior arrest records, they are likely to be rearrested. Mitchell arguably had a greater
I would reverse the district court‘s order granting a preliminary injunction on the ground that Plaintiffs have not presented a justiciable case or controversy in this action.
II.
Claimed “Punishment”
The majority‘s conclusion that the webcasts inflict punishment prohibited by the Constitution is likewise unconvincing. As public servants, county sheriffs are charged with several important duties under Arizona law. These duties include preserving the peace, “arrest[ing] and tak[ing] before the nearest magistrate for examination all persons who attempt to commit or who have committed a public offense,” “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.”
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:
[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have... additional reason to accord deference to the appropriate prison authorities.
Turner v. Safley, 482 U.S. 78, 84-85 (1987) (in class action challenge to prison regulations regarding correspondence and inmate marriage, district court granted preliminary injunction in favor of inmates; Eighth Circuit affirmed, finding regulations violated First Amendment; Supreme Court reversed ruling on correspondence regulation, but affirmed order enjoining inmate marriage prohibition). This rationale is no less applicable in the context of jails and detention facilities. See Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) (district court granted summary judgment in favor of county on challenge by prisoners and detainees to jail‘s rule against sexually explicit periodicals; Court of Appeals affirmed, finding regulation reasonably related to legitimate penological interests).
The district court‘s injunction was predicated on the belief that webcam broadcasts constitute impermissible pre-conviction “punishment” in violation of Fourteenth Amendment substantive due process. Although, “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt,” Bell v. Wolfish, 441 U.S. 520, 535 (1979), “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more,
The majority opinion gives needlessly short shrift to the governmental objectives proffered by Sheriff Arpaio. Although the majority opinion briefly acknowledges that the Sheriff‘s legitimate governmental purpose in the webcasts is to deter the non-jailed public from conduct which might obligate them to visit the jail other than by virtual means, the majority opinion leaves unexamined whether the webcasts are rationally related to the achievement of this goal. The majority opinion jumps to the question of whether the webcasts deter the already-jailed, but does not say a word about whether the webcasts were intended to deter the general public from illegal conduct.
Let us then apply the rational relation test to each of the Sheriff‘s proposed purposes:
Is it rational to believe that broadcasting pictures of detention installations will deter viewers from conduct that may land them there? Any traffic school attendee who is required to view ghastly photographs of crashes that result from speeding can attest that the consequences of actions are displayed to deter certain behavior. The rational relationship between prison views and deterrence of criminal behavior is similarly clear.
Do webcasts provide transparency to governmental operation of the facility? Clearly so. Of course, there are other means by which to provide such transparency. The Sheriff could give civic-minded groups tours of the jail to assure them of proper conditions and well-spent taxes. But whether the choice to expose detainees by webcast to millions or by tours to dozens is surely a matter of degree, left to the discretion of an elected official, restrained only by notions of whether choice of the larger number of viewers makes the measure “excessive” under Bell.
Do webcasts deter the filing of frivolous lawsuits against the county and county officials? Given that security cameras are already in place to videotape what actually happens in the jail, this purpose may suffer from the same redundancy as does the jail security rationale. On the other hand, the webcasts may reach more potentially frivolous litigants than would the knowledge that the jails had security cameras in place.
It bears repeating that this is a case where we may review governmental action only to determine whether that action bears a rational basis to legitimate governmental interests. See Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999) (en banc). This is not a case where the Sheriff‘s actions are subject to a “strict scrutiny” test.
By the proper “rational relation” test, the webcasts seem clearly allowable to attain public deterrence and transparency purposes. Bell stands for the proposition that if there is a “reasonable relation” between the measure and a legitimate governmental purpose, the measure will not be found to be punishment, “without more.” Bell, 441 U.S. at 539. What is this “more” that may nonetheless invalidate a measure, even after a finding it is “reasonably related” to a legit-
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.
Bell, 441 U.S. at 537-38 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). The Bell Court noted that the objective of deterrence of the person punished is only one of a series of “useful guideposts” in determining whether a restriction or condition is “punishment,” while acknowledging the possible existence of a constitutionally-valid “alternative purpose,” later recognized in Turner.4 Bell, 441 U.S. at 538. Reviewing these guideposts in the context of this case, the conclusion that the webcasts purport to visit constitutionally-prohibited punishment on detainees is untenable.
Let us examine each of the Bell factors. An affirmative answer indicates a factor in favor of finding the measure to be prohibited punishment; a negative answer, indicates the measure is not punishment: a factor favoring permitting the measure.
- 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.
- Are the webcasts historically regarded as punishment? No. They are too new to have a historical characterization.
- Are the webcasts activated only on a finding of scienter? No. The inmates are detained or arrested on misdemeanors, such as minor traffic offenses and drunkenness, which do not require scienter.
- Do the webcasts promote the traditional aims of punishment—retribution and deterrence? Yes, to the extent that emotional discomfort—shame—is visited on the detainees, that can be retribution and deterrence of the detainees. Indeed, the Sheriff admits he hopes the experience will deter recidivism. But No as to deterrence of the viewing public. There can be no punishment of the viewing public because that public is not shown on the webcasts, and because if offended the public viewer need only single-click to close the screen. Thus, the retribution and deterrence factor presents a mixed response.5
- 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.
Does it appear excessive in relation to the alternative purpose of public deterrence? No, when compared to the constitutionally permissible publicity routinely given to “perp walks” on local and nationally broadcast television.
The balance of Bell factors weighs heavily—almost exclusively—against the existence of the additional characteristics required by Bell to disqualify a measure reasonably related to the achievement of a legitimate governmental objective as punishment. Nonetheless, the majority opinion accepts a contrary assessment wholesale, seemingly as an article of faith. It is particularly telling that in the portion of the majority opinion concluding the webcasts constitute punishment, the majority cite no authority, case or statute, for the proposition that webcasts are punishment. That majority opinion‘s aversion to the webcasts is not shared by the voters of Maricopa County, who re-elected Appellant Arpaio shortly after the webcasts commenced.
The majority opinion omits the Bell analysis6 and equates webcasts with harm without establishing that such harm rises to the level of constitutionally-prohibited punishment. The webcasts publicize the arrest and, to that extent, may result in shame being inflicted on detainees. While shaming has long been a method of societal ostracism, it has nowhere been cited as a form of penological punishment, much less is there any authority for the claim that shaming causes violations of individual rights protected by the U.S. Constitution.7
The majority opinion attempts to dispose of the Supreme Court‘s holding in Paul v. Davis in a footnote. Paul, 424 U.S. 693 (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
The so-called dignitary harms asserted by the Plaintiffs in this case are also similar to the Fourth Amendment8 objections 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 advance legitimate law enforcement purposes, it is not the case “that all, or even most, perp walks are violations of the Fourth Amendment.” Lauro v. Charles, 219 F.3d 202, 213 (2d Cir. 2000) (reversed in part district court‘s partial summary judgment which found staged perp walk had violated Fourth Amendment rights of Plaintiff and denying qualified immunity to defendants; appellate court found Fourth Amendment violation, but also found defendant police officers were entitled to qualified immunity).
Perp walks and their attendant shaming do not constitute constitutionally impermissible pre-conviction punishment for the same reasons webcasts do not. Whatever the consequence of an arrestee‘s being “displayed to the world, against his will, in handcuffs, and in a posture connoting guilt,” Id. at 212 n. 7, perp walks promote many of the same governmental purposes put forward here by Sheriff Arpaio.
Yet, perp walks also serve the more serious purpose of educating the public about law enforcement efforts. The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes.
Divulging the arrests also enhances the transparency of the criminal justice system, and it may deter others from attempting similar crimes. Furthermore, allowing the public to view images of an arrestee informs and enables members of the public who may come forward with additional information relevant to the law enforcement investigation ...
Caldarola v. County of Westchester, 343 F.3d 570, 572-73 & 576 n. 3 (2d Cir. 2003) (citations and quotations omitted, emphasis added) (affirming district court‘s summary judgment in favor of defendants, holding arrestee‘s privacy interests outweighed by legitimate governmental objectives of perp walk); see also Rosenberg v. Martin, 478 F.2d 520, 525-26 (2d Cir. 1973) (reversing jury award of damages in
Likewise, sex offender registration laws which involve the “dissemination of accurate information about a criminal record, most of which is already public,” have survived Ex Post Facto challenges because, although such registration laws may shame, their application does not effect penal punishment. Smith v. Doe, 538 U.S. 84 (2002) (rejecting ex post facto challenge to Alaska sex offender registration statute). The argument that any governmental program which has the goal of public deterrence must visit impermissible punishment is not persuasive.
[It] proves too much. Any number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deter-
rent purpose renders such sanctions ‘criminal’ ... would severely undermine the Government‘s ability to engage in effective regulation.
Smith v. Doe, 538 U.S. at 102; see also Hatton v. Bonner, 346 F.3d 938, 948 (9th Cir. 2003) (applying Smith to California sex offender registration statute).
Where the sole effect of a measure is deterrence of the preconviction detainee, the measure may violate the fourth factor listed in Bell.10 Here, as in the perp walk, the webcast‘s effect is purposely beyond deterrence of the detainees; its purposeful effect is also to deter unlawful conduct by members of the public who have as yet not been—and one hopes never will be—detained.11
Persons arrested cannot choose to whom the fact of their arrest can be publicized, whether it is through a perp walk shown on nationwide television, or an arraignment calendar detailing the charged crimes, hanging outside a courtroom.12
“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.”
Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).
Sheriff Arpaio articulated a number of purposes justifying the webcasts, only one of which—jail security—was addressed by the district court in its preliminary injunction order. Clearly, “maintaining institutional security and preserving internal order and discipline are essential goals” in the operation of a detention facility. Bell v. Wolfish, 441 U.S. at 546. However, the district court rejected the Sheriff‘s contention that webcams contribute to jail security, finding this task was accomplished by closed-circuit security cameras. The redundant placement of the webcams next to the security monitors indicates the webcams were an excessive response13 to this otherwise legitimate objective. See Valdez v. Rosenbaum, 302 F.3d at 1046. The district court did not abuse its discretion in such finding of unnecessary redundancy.
But nowhere in the district court‘s order is there a discussion of the Sheriff‘s other justifications14 for the webcasts: (1) deterrence of crime outside the jail; and (2) transparency of jail operations for civic purposes. The majority opinion attempts to take up this slack by addressing the first of these remaining justifications, but the attempt misses the Sheriff‘s points.
The district court concluded that “deterrence” of the Maricopa detainees from committing future crimes was impermissible pre-conviction punishment of the Maricopa detainees. Likewise, the majority opinion cites Bell by a disembodied quotation: “[R]etribution and deterrence are not legitimate nonpunitive governmental objectives.” Bell, 441 U.S. at 539, n. 20. However, a complete reading of the Bell decision indicates that the Court there was talking about deterring detainees‘—rather than the public‘s—future commission of crimes. Deterrence of the unarrested public from committing acts which would result in arrests is a different governmental purpose and presents a different issue entirely. See Smith v. Doe, 538 U.S. at 102 (“Any number of governmental programs might deter crimes without imposing punishment.“).
What the majority opinion avoids—perhaps because of the all-too-predictable result—is to ask the question basic to any review questioning the validity of governmental action under a rational basis analysis: were the webcasts reasonably related to the purpose of deterring public behavior that could result in pre-trial detention? The answer clearly is Yes.
As noted above, in addition to operating the Madison Street Jail, Sheriff Arpaio has been charged with the prevention of crime.
Sheriff Arpaio‘s methods to achieve his purposes of public deterrence and governmental transparency may not suit the fine sensibilities of some group advocates and jurists. But absent a violation of the constitutional rights of Plaintiffs—and I see none—such differences of opinion must be vindicated, if at all, in the ballot box, not in the courtroom.
A district court abuses its discretion when it fails to consider appropriate factors in fashioning an equitable remedy. See Sony Computer Entm‘t, Inc. v. Connectix Corp., 203 F.3d 596, 602-07 (9th Cir. 2000). The injunction was improvidently issued in this case because the district court‘s order (1) is not supported by adequate consideration of the Sheriff‘s stated legitimate, governmental objectives, and (2) is based on the legally erroneous conclusion that all levels of possible shame constitute constitutionally prohibited “punishment,” without any consideration of the factors discussed in Bell.
Accordingly, I respectfully dissent, and would reverse the judgment of the district court granting the preliminary injunction.
CARLOS T. BEA
UNITED STATES CIRCUIT JUDGE