Demery v. Arpaio

• Decision Date: 06 August 2004
• Docket Number: No. 03-15698.,03-15698.
• Citation: 378 F.3d 1020
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.3d 1020

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.

No. 03-15698.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2003.

Filed August 6, 2004.

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Daniel P. Struck, Phoenix, AZ, for the defendant-appellant.

Scott A. Ambrose, Phoenix, AZ, Ulises A. Ferragut, Jr., Ferragut & Associates, Phoenix, AZ, for the plaintiffs-appellees.

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.

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 preliminary injunction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

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:

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 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, 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 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 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...