[00:00:03] Speaker 03:
Our final argument this morning is number 2315524, Houston versus Maricopa County.

[00:00:44] Speaker 03:
Mr. Cloverdance.

[00:00:45] Speaker 04:
Thank you.

[00:00:46] Speaker 04:
If it may please the court, good morning.

[00:00:48] Speaker 04:
My name is Dan Cloverdance.

[00:00:49] Speaker 04:
I'm the attorney for the plaintiff and appellant, Brian Houston.

[00:00:53] Speaker 04:
I'd like to reserve maybe three or four minutes for rebuttal, if you're so inclined, hopefully.

[00:00:59] Speaker 04:
Thank you.

[00:01:00] Speaker 04:
Brian Houston alleges that Maricopa County Sheriff Paul Benzone violated his constitutional rights when the sheriff forced him to take part in an involuntary public lineup of mugshots on the sheriff's official website, mcso.org.

[00:01:14] Speaker 04:
As a condition of the booking process of the sheriff for three consecutive days, the sheriff published Brian Houston's name, birth date, mugshot, and other personal information on the internet.

[00:01:26] Speaker 04:
Sheriff Pinzone takes the position that any person booked in his jail system is not entitled to any due process whatsoever before the sheriff publishes their mugshot, birth date, and other personal information on the internet for the entire world to see.

[00:01:41] Speaker 01:
What due process are you asking for?

[00:01:43] Speaker 01:
What process?

[00:01:45] Speaker 04:
The process here, if we're talking about, we have a procedural due process claim.

[00:01:51] Speaker 01:
I understand.

[00:01:52] Speaker 01:
I understand that.

[00:01:52] Speaker 04:
I want to know, for the procedural due process claim, what process are you seeking?

[00:01:56] Speaker 04:
With respect to procedural due process, we're requesting that the sheriff perform a balancing test, as required by the Arizona Supreme Court in the Scottsdale... Well, but no, that's just the... That's why I'm having difficulty, too.

[00:02:09] Speaker 05:
The Arizona Supreme Court, in interpreting the Public Records Act,

[00:02:13] Speaker 05:
suggests that the sheriff, when asked to whether or not to make something a public record, has the discretion to weigh privacy interests against other interests.

[00:02:25] Speaker 05:
But it seems to me your procedural due process claim doesn't derive from the Arizona Public Records Act, does it?

[00:02:36] Speaker 04:
It does, as interpreted by the Arizona Supreme Court.

[00:02:38] Speaker 05:
Well, but see, the Arizona Supreme Court

[00:02:40] Speaker 05:
didn't talk about a procedure or anything else in that case.

[00:02:44] Speaker 05:
What it said was the Scottsdale School District was justified in not producing the record sought under a balancing test.

[00:02:56] Speaker 05:
But it didn't say there was a procedure to go through.

[00:02:59] Speaker 05:
There was a trial or a hearing.

[00:03:01] Speaker 05:
Now, I must admit, I understood your procedural due process claim to be.

[00:03:06] Speaker 05:
My client's only been accused of a crime.

[00:03:08] Speaker 05:
He's only been arrested.

[00:03:10] Speaker 05:
There's never been any judicial process yet.

[00:03:13] Speaker 05:
And posting his thing on his face on the website hurts him.

[00:03:18] Speaker 05:
And there's not a sufficient public interest to the contrary under our Demery decision.

[00:03:26] Speaker 04:
But I'm still, is that your procedural due process claim?

[00:03:30] Speaker 04:
It's more than that, Your Honor.

[00:03:31] Speaker 04:
Thank you for the question.

[00:03:33] Speaker 04:
The actual due process related to the constitutional claim relates to some kind of adjudication of guilt before publishing the information.

[00:03:41] Speaker 05:
Well, that's okay.

[00:03:42] Speaker 05:
Thank you.

[00:03:42] Speaker 01:
Now we're getting to... So your claim is they can't, so the due process that should have been, the process that should have been accorded.

[00:03:50] Speaker 01:
So I understand your procedural due process claim.

[00:03:53] Speaker 01:
It's that Scottsdale creates

[00:03:56] Speaker 01:
a state privacy interest in the mugshot, or not even in the mugshot, in the date of birth.

[00:04:06] Speaker 04:
Both, Your Honor.

[00:04:07] Speaker 04:
Date of birth and by extension of the FOIA cases to use as guidance, mugshot.

[00:04:13] Speaker 04:
But let's talk about the birthday because that's specially stated in it.

[00:04:17] Speaker 05:
I want you to respond to Judge Berzon on procedural due process first because I have questions on substantive, but I want to make sure you've responded to her question.

[00:04:27] Speaker 03:
your liberty or property or privacy interests to trigger due process?

[00:04:31] Speaker 03:
What process is due?

[00:04:33] Speaker 04:
Before Sheriff Panzone publishes someone's mugshot, which obviously implies guilt.

[00:04:39] Speaker 04:
I mean, there's a ton of case law in Arizona and federal case law saying a mugshot, even the term mugshot implies guilt.

[00:04:45] Speaker 04:
Before he makes that publication on the internet for the entire world to see, there needs to be a due process, some type of a hearing or determination,

[00:04:54] Speaker 04:
this person's actually guilty of the crime being accused of.

[00:04:57] Speaker 05:
So you don't think his mugshot can be shown after a preliminary hearing?

[00:05:03] Speaker 04:
Was there a preliminary hearing where there's a determination of guilt?

[00:05:06] Speaker 04:
No, preliminary hearing that determines that there's probable cause.

[00:05:09] Speaker 04:
There's probable cause.

[00:05:10] Speaker 04:
Okay, probable cause.

[00:05:11] Speaker 04:
Well, then there's been some due process at that point.

[00:05:15] Speaker 05:
So your position is that prior to any court proceeding, you can't show the mugshot?

[00:05:23] Speaker 04:
That wouldn't be my only position.

[00:05:25] Speaker 05:
That would certainly be my... So if the newspaper... I want to test this.

[00:05:29] Speaker 05:
The newspaper calls up the sheriff and says the mugshot is a public record.

[00:05:35] Speaker 05:
We'd like to publish a story about the arrest of your client.

[00:05:41] Speaker 05:
He may not... He has a privacy interest in that mugshot not being given to the newspaper.

[00:05:48] Speaker 04:
Correct.

[00:05:48] Speaker 05:
Where do you get that from?

[00:05:49] Speaker 04:
I get that from Scottsdale Unified.

[00:05:52] Speaker 01:
See, that's the other question here.

[00:05:54] Speaker 01:
Scottsdale says it's about a public records issue.

[00:05:58] Speaker 01:
And it says they don't have to give it to you.

[00:06:03] Speaker 01:
Clearly, Scottsdale would say in answer to that request, the sheriff could say, no, I'm not going to give it to you because I think that this comes within the privacy exception.

[00:06:15] Speaker 01:
What if you said, yes, I'm going to give it to you?

[00:06:17] Speaker 01:
Does anything at Scottsdale say he can't give it to you?

[00:06:20] Speaker 01:
Yes.

[00:06:21] Speaker 05:
No, there isn't.

[00:06:22] Speaker 05:
Scottsdale simply says, look, we have a public records law which on its, I mean, I've dealt with this issue before.

[00:06:30] Speaker 05:
We have a public issue, records law, which on its face is absolute.

[00:06:34] Speaker 05:
And so somebody reading it, except for specified exceptions, which don't apply in this case, someone reading it would think that, and the newspaper thought, or the TV station thought in that case, that it was therefore absolutely entitled to every public record didn't fall in the exception.

[00:06:50] Speaker 05:
And the court said, now you've got some discretion despite its absolute language, public official.

[00:06:58] Speaker 05:
And so you're entitled, you're entitled to exercise your discretion to

[00:07:03] Speaker 05:
think about the privacy interests of someone and think about the reason that somebody's asking for the records and to balance those two.

[00:07:12] Speaker 05:
And we don't think you abused your discretion in exercising the balance.

[00:07:16] Speaker 05:
But I can't find anything in Scottsdale or any of us in Arizona law that sets up a procedure under which somebody has to follow that.

[00:07:27] Speaker 05:
And I can't imagine that Scottsdale

[00:07:30] Speaker 05:
in interpreting the public records law, the Arizona Supreme Court enacted what we said in March has to be an explicitly mandatory language specifying the outcome that must be reached, given that it said it was a balancing test.

[00:07:44] Speaker 04:
Your Honor, what Scottsdale Unified does say is that a person, all persons in the state of Arizona have a privacy interest in their birthdays.

[00:07:54] Speaker 01:
in the context of interpreting a statute that creates an exception from the public records law.

[00:08:01] Speaker 01:
What, I mean, what, doesn't it happen all, to take the media example, for example, if somebody went into the police station and said, I want to see today's, you know, arraignment list, and it showed so-and-so was arrested.

[00:08:22] Speaker 01:
or not arraignment, just booking, and shows so-and-so was arrested for something.

[00:08:29] Speaker 01:
And he says, can you show me what the records are about, show me his picture, and can you show me his date of birth?

[00:08:40] Speaker 01:
Doesn't that happen all the time?

[00:08:41] Speaker 01:
I mean, the problem here is that, you know, and that's why I think your substantive due process case after Demery has a lot more to it.

[00:08:49] Speaker 01:
I mean, the problem here is that it's being shown to the world.

[00:08:52] Speaker 01:
in terms of whether it could be shown to somebody who walks in and asks for it.

[00:08:57] Speaker 04:
We don't have to deal with that issue because here it's being shown to the world without any due process.

[00:09:02] Speaker 05:
Here's the problem with that.

[00:09:04] Speaker 05:
I thought your argument was you're putting these pictures on a website.

[00:09:11] Speaker 05:
That is punishment to my guy under the Demery case because he's suffered harm from it and your reason for doing so is not sufficient to

[00:09:22] Speaker 05:
make it not punishment.

[00:09:24] Speaker 05:
But I don't see how you take out of Demery or Scottsdale the notion that this is private information that may never be released by the... That's not a position that may never be released.

[00:09:36] Speaker 05:
Okay.

[00:09:39] Speaker 05:
So tell me how your client was hurt by the release of his date of birth.

[00:09:44] Speaker 05:
Well, unless you think there's a separate protectable legal interest in the date of birth, which I don't think there is, as the Demery, how was he hurt by the release of the date of birth?

[00:09:54] Speaker 05:
Aren't you only talking about the pictures?

[00:09:56] Speaker 04:
We're talking about the pictures, but, however, because of the date of birth being disclosed with the name and with the mugshot, I'm not an expert on the internet, but when that is put on the internet, it is captured by the world.

[00:10:09] Speaker 01:
And in general, if you would look this guy up,

[00:10:12] Speaker 01:
I don't know if I did this, but if you went and looked me up, you could certainly find my date of birth pretty easily.

[00:10:18] Speaker 04:
You could, but as Scottsdale Unified says, the fact that it's available through other public means is not... Yeah, but Scottsdale Unified doesn't establish... I'm sorry.

[00:10:26] Speaker 03:
I guess my problem with the procedural, and it might be... I think you're getting some hints to turn to the substantive, is that even if we assume that there's a state liberty interest sufficient to trigger procedural due process,

[00:10:43] Speaker 03:
The state process doesn't usually come with.

[00:10:46] Speaker 03:
I see your point about probable cause.

[00:10:48] Speaker 03:
And we've also got the Paul V. Davis case to get around.

[00:10:53] Speaker 04:
Well, we do get around Paul V. Davis because Paul V. Davis, at least in the state of Arizona, Paul V. Davis specifically states that you can have a procedural due process claim if there's a violation of a state-created privacy right.

[00:11:07] Speaker 04:
Scottsdale Unified creates the birth date.

[00:11:12] Speaker 05:
Without arguing about what it says or doesn't say, is your only source of this state-created privacy interest the decision of the Supreme Court in Scottsdale?

[00:11:23] Speaker 04:
As well as some other, Carlson perhaps as well.

[00:11:26] Speaker 05:
Carlson doesn't deal with the birth date.

[00:11:29] Speaker 04:
We apply a balancing test, so I'm just trying to find out where the... Yes, it's Scottsdale Unified that creates that privacy.

[00:11:35] Speaker 05:
Okay, and if I don't think Scottsdale Unified created this substantive privacy... Can we talk about substantive due process?

[00:11:40] Speaker 05:
Okay, yes, please, please.

[00:11:41] Speaker 04:
I'm running out of time.

[00:11:43] Speaker 04:
Yeah, I mean, but if I... That's the only place I can look for it.

[00:11:46] Speaker 04:
Thank you, thank you.

[00:11:48] Speaker 04:
Questions on substantive due process?

[00:11:50] Speaker 04:
You had, I think.

[00:11:51] Speaker 04:
No, no, I missed right now.

[00:11:53] Speaker 04:
Well, Demery, 20 years ago, this court determined that the sheriff opiles use of a webcam to put a public display of inmates, pretrial detainees, who are innocent until proven guilty.

[00:12:08] Speaker 04:
We all agree on that.

[00:12:09] Speaker 04:
That was a violation of the Substantive Due Process Clause of the 14th Amendment.

[00:12:13] Speaker 04:
That's Demery.

[00:12:15] Speaker 04:
Here, what Sheriff Pinzone is doing is much worse to the harm of the reputation

[00:12:20] Speaker 04:
of the pre-trial detail.

[00:12:23] Speaker 03:
But why isn't the public information interest, they frame it as transparency, a legitimate non-punitive government purpose?

[00:12:35] Speaker 04:
There is no, and this is where we, Scottsdale Unified says we're going to use FOIA cases as guidance, cites and adopts and agrees with a Reporters Committee case from the United States Supreme Court

[00:12:49] Speaker 04:
and which recognizes privacy rights in one's rap sheet or criminal record.

[00:12:52] Speaker 04:
You have a privacy right under Arizona's public record laws through Scottsdale Unified adopting FOIA.

[00:12:59] Speaker 01:
But your stronger argument on the substantive process is if you start talking about a privacy or reputational interest, you're going to walk into Paul versus Davis.

[00:13:11] Speaker 01:
If you're talking about this as being punitive, as in Demery, it seems to me that you're

[00:13:18] Speaker 01:
out from under those cases.

[00:13:19] Speaker 01:
So the question is, and as I understand what Judge Johnston is asking, is what is the punitive, if it's punitive, you can still have a legitimate, um, ideological interest.

[00:13:33] Speaker 01:
So what's the, or, or law enforcement interests.

[00:13:37] Speaker 01:
They're claiming transparency, what you said about that.

[00:13:40] Speaker 04:
Transparency in the activities of the government.

[00:13:44] Speaker 04:
Someone's mugshot in date of birth of a pretrial detainee does not tell you anything about government activity or law enforcement purposes.

[00:13:52] Speaker 03:
But how do we draw that line when we're in substantive rather than procedural due process and we no longer, I mean it was difficult enough to deal with the press inquiry,

[00:14:02] Speaker 03:
Now we add that here.

[00:14:03] Speaker 03:
What if the purpose is, on request, we're going to hand it out?

[00:14:05] Speaker 04:
We deal with that.

[00:14:07] Speaker 04:
But in this case, Sheriff Pazone takes it on his own initiative to digitally publish on the internet the mugshots and birthdates and names of... Well, I'd like to know how we deal with that, because that happens a lot.

[00:14:20] Speaker 03:
The media request.

[00:14:22] Speaker 03:
So is there a substitute?

[00:14:23] Speaker 03:
Do we have to ask whether it's nearly tailored to a compelling state interest?

[00:14:25] Speaker 03:
How does Bell map on to the next case we'll get if you succeed here?

[00:14:31] Speaker 04:
on a case-by-case basis, I think you get into some kind, you do some weighing.

[00:14:36] Speaker 01:
There are three circuit court cases that... Well, I mean, in fact, there was no media request, and he's doing this routinely, and he's doing it with photos, and it's not because anybody is interested.

[00:14:47] Speaker 01:
He's just doing it.

[00:14:48] Speaker 01:
And the oddity here is that he's only doing it for three days.

[00:14:52] Speaker 01:
I gather your allegation is that that's because he knows that within three days it's going to be picked up by other companies.

[00:15:00] Speaker 01:
Perhaps.

[00:15:01] Speaker 04:
I can't tell you his intent in that regard.

[00:15:03] Speaker 01:
Is there an explanation of why he's only doing it for three days?

[00:15:08] Speaker 03:
I think there's a suggestion that there's a possibility the county could be monetizing this in some way.

[00:15:14] Speaker 03:
Does the county benefit from the dissemination of these after it's taken them down?

[00:15:18] Speaker 04:
We've asserted that and I think that's a little different than the substantive due process claim.

[00:15:24] Speaker 03:
Well, that certainly wouldn't be a legitimate non-punitive interest.

[00:15:26] Speaker 04:
It wouldn't be legitimate if they're breaking the law by publishing mugshots and exploiting mugshots to earn money.

[00:15:34] Speaker 04:
That's not a legitimate government purpose.

[00:15:36] Speaker 04:
That's a non-legitimate government purpose because it violates the law.

[00:15:39] Speaker 04:
We have three circuit court cases that said there's no discernible government interest or law enforcement purpose to release mugshots to the public.

[00:15:48] Speaker 04:
Um, and this court should follow those cases.

[00:15:50] Speaker 05:
And by definition, we don't have to go that far in this case.

[00:15:56] Speaker 05:
If, if somebody from the public, and this is what judge Johnston was asking about, came to the sheriff and said, I want to have, I want to see the mugshot of your client.

[00:16:08] Speaker 05:
I'm not sure that would violate anything.

[00:16:11] Speaker 05:
Very different situation with your contention is that putting it on a website.

[00:16:16] Speaker 05:
hurts him and doesn't have a correspondingly important governmental purpose, it doesn't matter whether that mugshot is private or not private for your substantive due process claim.

[00:16:29] Speaker 04:
Correct.

[00:16:29] Speaker 05:
For your procedural due process claim, though, you need a state-created privacy right, don't you?

[00:16:34] Speaker 04:
Absolutely, yes.

[00:16:35] Speaker 05:
Okay.

[00:16:35] Speaker 05:
Thank you.

[00:16:37] Speaker 04:
May I reserve my time?

[00:16:39] Speaker 03:
We'll leave a couple minutes for you on the clock.

[00:16:41] Speaker 04:
All right.

[00:16:41] Speaker 04:
Thank you very much.

[00:16:42] Speaker 03:
Yes.

[00:16:42] Speaker 03:
Thank you, Mr. Clubberdance.

[00:16:50] Speaker 02:
Good afternoon.

[00:16:50] Speaker 02:
May it please the court, Sarah Barnes for the Maricopa County and Sheriff, former Sheriff Penn's own defendants.

[00:16:58] Speaker 05:
Should we substitute Sheriff Skinner in this case?

[00:17:01] Speaker 02:
Should we, should we, I'm not going to do that to him here and now.

[00:17:04] Speaker 02:
We'll, we'll leave him out of it.

[00:17:05] Speaker 02:
He was just, uh, just announced yesterday.

[00:17:08] Speaker 02:
I want to just jump right in to some of the points that this.

[00:17:12] Speaker 01:
This is just my curiosity.

[00:17:13] Speaker 01:
Is this practice still going on?

[00:17:16] Speaker 01:
I'm sorry.

[00:17:16] Speaker 01:
What was that?

[00:17:17] Speaker 01:
Is this practice still going on?

[00:17:19] Speaker 01:
Whose practice?

[00:17:19] Speaker 01:
The practice of posting these mugshots.

[00:17:22] Speaker 02:
As far as I understand.

[00:17:23] Speaker 01:
I mean, this is not, he was not singled out.

[00:17:26] Speaker 01:
It's just done for everybody.

[00:17:28] Speaker 02:
Not at all.

[00:17:28] Speaker 02:
Was not singled out and I believe at some point.

[00:17:32] Speaker 05:
The record has a hole in it somewhere.

[00:17:35] Speaker 02:
It does not go into the details.

[00:17:36] Speaker 05:
A picture of the whole page with lots of people on it.

[00:17:39] Speaker 02:
That's correct.

[00:17:39] Speaker 02:
And in fact, that brings a good point up Judge Hurwitz, which is,

[00:17:44] Speaker 02:
There's not even an allegation in the complaint that the mugshot happened at any particular time.

[00:17:51] Speaker 02:
This panel brought up the point, well, what process needs to occur?

[00:17:55] Speaker 02:
There is no allegation.

[00:17:56] Speaker 05:
But the charges were dismissed, correct?

[00:17:58] Speaker 02:
The charges were dismissed, but there's no allegation of what happened or when, how this mugshot was published.

[00:18:04] Speaker 05:
Let me tell you what troubles me about this case.

[00:18:07] Speaker 05:
And it's the, I always get the two mixed up, but it's the substantive due process claim.

[00:18:11] Speaker 02:
I have the same problems in my outline, Your Honor.

[00:18:15] Speaker 05:
It seems like they should be the opposite way, but they're not.

[00:18:18] Speaker 05:
The substantive due process claim in this case, I'm having a difficult time getting it out of the Demery box.

[00:18:26] Speaker 05:
Because Demery says, well, showing a picture of someone who's a pretrial detainee, admittedly not a mugshot, but other stuff, can give rise to a substantive due process claim.

[00:18:40] Speaker 05:
Which is to say, you're being punished with that.

[00:18:43] Speaker 05:
You're being punished.

[00:18:44] Speaker 05:
If the, if there's the well-plenty complaint says to establishes to establishes that somebody suffered some harm.

[00:18:52] Speaker 05:
And in this case, the complaint says, I suffered some harm from this.

[00:18:56] Speaker 05:
I lost business and whatever.

[00:18:59] Speaker 05:
Um, and the governmental interest offered in return isn't substantial enough to justify the action.

[00:19:07] Speaker 05:
And in Demery, the.

[00:19:10] Speaker 05:
Sheriff's office said, well, we have an interest in transparency.

[00:19:15] Speaker 05:
And the court said, that's not enough if somebody, you know, that that's not enough to defeat, to defeat this at the pleading stage.

[00:19:23] Speaker 05:
There may be more later you can show.

[00:19:26] Speaker 05:
And what difficulty with this case is it seems to be in exactly the same posture.

[00:19:32] Speaker 05:
He says, I was hurt by this action and the only interest you're asserting is transparency.

[00:19:38] Speaker 05:
and that was rejected in Demery.

[00:19:41] Speaker 05:
So help me.

[00:19:42] Speaker 05:
Help me get past that in this case, if you will.

[00:19:44] Speaker 02:
Yes, Your Honor.

[00:19:45] Speaker 02:
I respectfully disagree with the contention that Demery rejected the principle that transparency is a legitimate matter.

[00:19:51] Speaker 05:
Well, it said it was not enough to justify dismissal of the complaint.

[00:19:56] Speaker 02:
In a very distinguishable situation, yes.

[00:19:59] Speaker 02:
So Demery said that there is a legitimate government interest in transparency, and more particularly, public scrutiny of the arrest process.

[00:20:09] Speaker 02:
And in fact, Demery specifically distinguished

[00:20:11] Speaker 02:
this very situation.

[00:20:13] Speaker 02:
In Demery, this court said that there is a difference, a stark difference between releasing an arrest record, which is not even a condition of pretrial confinement or release for that matter, versus having a camera come in and film these detainees.

[00:20:32] Speaker 03:
That's if we view, I guess it kind of depends on whether we see this case as being on the release side of things or the publication or broadcast side of things, doesn't it?

[00:20:41] Speaker 03:
that you're not releasing an arrest record on request here.

[00:20:45] Speaker 03:
You are broadcasting the faces of people who have simply been arrested.

[00:20:50] Speaker 02:
I don't believe that the Ninth Circuit makes that distinguishing point.

[00:20:53] Speaker 01:
Well, it does, because it says exactly, there's a stark difference between releasing an arrest record and thereby publicizing only the fact of a detainee's arrest and streaming live images.

[00:21:05] Speaker 02:
But Your Honor, it does say, thereby publicizing.

[00:21:08] Speaker 02:
So I don't believe that the court... The fact of the arrest.

[00:21:11] Speaker 01:
Right.

[00:21:12] Speaker 01:
But his face is date of birth and so on.

[00:21:15] Speaker 02:
Correct.

[00:21:15] Speaker 02:
But it does talk about publicizing it.

[00:21:17] Speaker 02:
So it's not just turning on whether or not somebody requests it.

[00:21:21] Speaker 01:
I mean, the interesting thing is that in Demery, the transparency interest at least had some cogency in the fact that people were seeing how the detention facility operated.

[00:21:33] Speaker 01:
What is the transparency interest here?

[00:21:35] Speaker 01:
What are you demonstrating to anybody that's transparent other than who you arrested?

[00:21:40] Speaker 02:
Well, there's a couple of things.

[00:21:42] Speaker 02:
First, I do want to point out, and it's not to sidestep your question, but to make sure that I make the point that that is not even alleged by appellant in the underlying complaint.

[00:21:50] Speaker 01:
What's not alleged?

[00:21:51] Speaker 01:
That you don't have a legitimate interest?

[00:21:53] Speaker 02:
That there's anything more than a conclusory statement about there not being a legitimate interest.

[00:21:58] Speaker 01:
Well, what else are you supposed to say?

[00:21:59] Speaker 01:
I mean, what else am I saying?

[00:22:01] Speaker 01:
I'm saying, tell me, you're the one, it's your defense anyway.

[00:22:04] Speaker 01:
What is the transparency interest?

[00:22:06] Speaker 01:
What is it?

[00:22:07] Speaker 02:
It is a long-standing policy by the courts of this country.

[00:22:14] Speaker 02:
The United States Supreme Court has repeatedly said that public scrutiny of arrests... That's not even federal policy.

[00:22:20] Speaker 03:
The federal government has abandoned this practice long ago, and to the extent there's a precedent for publicizing it, they're not usually reflected as great moments in our history.

[00:22:31] Speaker 03:
I mean, this is knowing publication of someone's face, knowing

[00:22:37] Speaker 03:
at least indifferent to the fact that those will be swept up and kept in perpetuity as the personal information of an arrestee.

[00:22:47] Speaker 02:
It's not alleged that it was a knowing that this will be swept up and scraped and kept in perpetuity.

[00:22:51] Speaker 05:
Oh, but of course it's on the internet.

[00:22:53] Speaker 05:
I mean, we all live in the real world.

[00:22:55] Speaker 05:
You put this fellow's picture on the internet and said, here's a picture of him and he was arrested and here's his date of birth.

[00:23:02] Speaker 05:
And so I assume, although maybe I should assume that my law clerks can do it and I can't.

[00:23:08] Speaker 05:
If I went on the internet today, I could find that picture.

[00:23:11] Speaker 05:
So it is on for perpetuity.

[00:23:14] Speaker 05:
And he says, because it's on there, I'm suffering damage.

[00:23:19] Speaker 05:
And I think Demary says, although Judge Berzon was on the panel, maybe she has a different view, that Demary says if he alleges damage, you've got to come back with a public interest.

[00:23:31] Speaker 05:
And your public interest is, well, we've always done it and people want to know.

[00:23:36] Speaker 05:
And I thought Demery said, that's not enough.

[00:23:41] Speaker 02:
Again, respectfully disagree that that's what Demery says.

[00:23:43] Speaker 02:
And obviously I have to defer.

[00:23:45] Speaker 01:
I saw what Demery said.

[00:23:46] Speaker 01:
I still want three sentences that tell me what, as I said, you can make sentences in Demery about what the transparency interest was, but what's the transparency interest here?

[00:24:00] Speaker 01:
What are you showing people?

[00:24:01] Speaker 01:
about the operation of the government by putting somebody else's face up there and saying, we arrested him.

[00:24:06] Speaker 02:
You're showing that the sheriff's office is engaging- Is arresting people?

[00:24:10] Speaker 02:
Is arresting people accused of various crimes, some dangerous, some not.

[00:24:16] Speaker 02:
It is showing that they are out there doing the job that the citizens expect them to do.

[00:24:21] Speaker 01:
That's transparency.

[00:24:23] Speaker 02:
That's part of the transparency.

[00:24:24] Speaker 02:
The other part of the transparency is again- Everybody knows that already.

[00:24:27] Speaker 01:
So what else?

[00:24:28] Speaker 01:
I'm sorry, I misheard that.

[00:24:29] Speaker 01:
I mean, there's any secret about the fact that the sheriff of people is arresting people?

[00:24:35] Speaker 01:
But again, the public nature of the arrest record... But you could just put up numbers that say, yesterday we arrested 50 people.

[00:24:42] Speaker 01:
What's the difference who you arrested in terms of transparency?

[00:24:45] Speaker 02:
Because the plain statistics don't carry the day of all the other factors behind the public scrutiny aspect of transparency, allowing... To me, it's a bunch of words that don't have any substance.

[00:24:57] Speaker 01:
in this instance.

[00:24:59] Speaker 01:
I mean, because transparency, it's not, these pictures are pictures of people and they're with information about them and the fact that they are arrested.

[00:25:08] Speaker 01:
And what that tells you about how the government operates, I can't see.

[00:25:13] Speaker 02:
But because the argument isn't just the transparency of how the government operates, it's the public scrutiny aspect as well, which is a legitimate purpose.

[00:25:21] Speaker 03:
The public scrutiny of the arrestee.

[00:25:25] Speaker 02:
The arrest record, not just the arrestee.

[00:25:28] Speaker 02:
the crime for which the person is accused.

[00:25:30] Speaker 02:
It is allows, which the cases have said, it allows unknown witnesses to come forward.

[00:25:36] Speaker 02:
It prevents awards against the evils of having some secrets.

[00:25:39] Speaker 05:
You don't assert that in this case.

[00:25:41] Speaker 05:
In other words, had your public interest been, we do this to help develop leads on cases so that witnesses can look at this.

[00:25:51] Speaker 05:
And you may be able to assert that on summary judgment.

[00:25:53] Speaker 05:
I'm not saying you've forfeited it.

[00:25:55] Speaker 05:
But the only public interest I see asserted in your brief is one of transparency.

[00:26:00] Speaker 02:
Am I right?

[00:26:01] Speaker 02:
I would disagree with that in the sense that more in the Sixth Amendment section of the brief, it does talk about all the reasons why the public arrest record and the nature of the public scrutiny and all the reasons, therefore, and I think it's citing the, I'm sorry, Gannon v. Pasquale case.

[00:26:23] Speaker 02:
along those lines.

[00:26:24] Speaker 02:
So it does talk about that.

[00:26:26] Speaker 02:
Maybe it is not as squarely touched upon in the sections about the substantive and procedural due process arguments, but it is certainly referenced.

[00:26:37] Speaker 05:
You're right.

[00:26:38] Speaker 05:
There is a Sixth Amendment claim here, which we haven't talked about, but you don't suggest in the substantive due process portion of the brief that your interest is

[00:26:52] Speaker 05:
Developing leads and finding witnesses.

[00:26:56] Speaker 02:
No, not per se.

[00:26:57] Speaker 05:
And you didn't say that.

[00:26:58] Speaker 05:
You didn't suggest that below either.

[00:26:59] Speaker 02:
not in the other two sections, the development of leads.

[00:27:05] Speaker 02:
And I'm not suggesting that it's the development of leads now.

[00:27:08] Speaker 02:
What I'm talking about is just the public scrutiny of it.

[00:27:11] Speaker 02:
The ability for someone to come forward, if they have an interest, if they're a victim, if they're a witness, I'm not talking about them using it as a proactive tool for finding other people.

[00:27:22] Speaker 02:
Just the public's ability to know what's happening, to participate in the process,

[00:27:26] Speaker 02:
to ward off the potential of the secrecy, and those things are long-standing principles, and that's true even in cases that aren't not looked upon so favorably.

[00:27:39] Speaker 05:
Can I ask you a question about the procedural due process part of the case?

[00:27:45] Speaker 05:
Everybody's invoking the Arizona public records law here, and I'm just not sure on either side why it's relevant.

[00:27:51] Speaker 05:
On your side,

[00:27:53] Speaker 05:
Um, there's nothing in the public records law that requires you to run this website with the pictures on it, is there?

[00:28:01] Speaker 05:
I would argue the public records law says when somebody requests a public record, you got to give it to them unless there's something else out there.

[00:28:10] Speaker 02:
Uh, you, that's the other, that's the other basis for the legitimate interest.

[00:28:14] Speaker 05:
And that was the legitimate interest.

[00:28:15] Speaker 05:
See that tell me what the, why the public records law provides a legitimate interest for you.

[00:28:23] Speaker 05:
Broadcasting these pictures to the world as opposed simply saying to somebody I have a public record here.

[00:28:29] Speaker 05:
They're in the sheriff's office They're all here.

[00:28:30] Speaker 05:
You want to come and see him come and see him.

[00:28:32] Speaker 05:
You've done more here you've you've broadcast these to the world and I just don't see that there's anything in the public records law that Requires you to do that or if you've committed Some due process violation and doing it purports to excuse it.

[00:28:49] Speaker 05:
What am I missing?

[00:28:50] Speaker 02:
I do think that complying with the public records law in that it shall be available cuts out the ability to then turn around and say the fact that they do it ahead of time, preemptively, makes it some sort of privacy concern.

[00:29:03] Speaker 01:
Under that view.

[00:29:04] Speaker 01:
Under that view.

[00:29:04] Speaker 01:
Under that public records law, what Scottsdale does hold is that you don't have any obligation to release this under the public records law.

[00:29:14] Speaker 02:
No obligation, that's correct.

[00:29:15] Speaker 01:
Correct.

[00:29:16] Speaker 01:
So you said they shall release, but it doesn't say shall release.

[00:29:19] Speaker 01:
It says you don't have to release.

[00:29:23] Speaker 02:
The statute itself says shall release.

[00:29:25] Speaker 05:
Shall release.

[00:29:26] Speaker 05:
Correct.

[00:29:28] Speaker 02:
And the fact that it's preempted doesn't then somehow turn it into a privacy concern.

[00:29:33] Speaker 05:
Okay, so let me change the facts on it.

[00:29:36] Speaker 05:
Whenever I do this, somebody tells me those are not the facts in this case.

[00:29:38] Speaker 05:
So I assume you've already said that.

[00:29:42] Speaker 05:
Could you take the mugshot picture?

[00:29:44] Speaker 05:
and deliver it to every household in Maricopa County?

[00:29:48] Speaker 02:
Under Paul versus Davis, yes.

[00:29:50] Speaker 05:
Individually deliver it to every place in Maricopa County?

[00:29:54] Speaker 02:
I believe that's accurate.

[00:29:55] Speaker 02:
And in fact, the way it was done in Paul versus Davis, I realized it was on a little bit smaller scale with the number and what year it was.

[00:30:03] Speaker 02:
Not little bit.

[00:30:04] Speaker 02:
Massively.

[00:30:05] Speaker 02:
Potentially, Your Honor.

[00:30:06] Speaker 02:
Potentially, respectfully, because somebody has to go online and look up this information.

[00:30:11] Speaker 02:
If they don't, nobody sees it.

[00:30:14] Speaker 05:
Well, that's what I'm asking.

[00:30:15] Speaker 05:
So could you say, hey, we're afraid enough people don't go online.

[00:30:20] Speaker 05:
Only six million visit this website, and we'd love more to see it.

[00:30:23] Speaker 05:
So we're sending out a letter to everybody in the United States today with a picture of this guy's mugshot.

[00:30:31] Speaker 05:
Would that pose any substantive due process problems in your view?

[00:30:35] Speaker 02:
Not according to the Supreme Court in Paul versus Davis.

[00:30:38] Speaker 03:
What about everyone's home address?

[00:30:43] Speaker 03:
ought to know if they're living next to someone who got picked up overnight for something?

[00:30:48] Speaker 02:
That is farther than I believe this inquiry goes.

[00:30:54] Speaker 03:
However... Which inquiry?

[00:30:57] Speaker 03:
Whether it's punishment or whether there's a legitimate purpose?

[00:31:00] Speaker 02:
Both.

[00:31:00] Speaker 02:
I think it's both.

[00:31:02] Speaker 03:
Okay.

[00:31:02] Speaker 02:
And so we don't have that issue here.

[00:31:07] Speaker 02:
But it could.

[00:31:08] Speaker 02:
I said it anyway.

[00:31:09] Speaker 02:
I said I wasn't going to say it, and I said it.

[00:31:10] Speaker 05:
I apologize.

[00:31:11] Speaker 05:
I knew you were going to.

[00:31:12] Speaker 05:
I just wanted to make it easy.

[00:31:13] Speaker 05:
OK.

[00:31:13] Speaker 05:
What are the two pieces?

[00:31:14] Speaker 02:
That's trying to stumble over what the next answer is going to be.

[00:31:17] Speaker 02:
So based on the law that the United States Supreme Court law that we have on these issues, I don't believe that it triggers a privacy interest for purposes of substantive or procedural due process, because it's the same thing.

[00:31:34] Speaker 02:
It's just like in Paul versus Davis when they send out all those flyers.

[00:31:38] Speaker 02:
And again, in that situation, it's a small area.

[00:31:40] Speaker 01:
Well, for example, I mean, I don't know what the, first of all, they, they, my understanding is they say they have follow flyers, but to people who had a direct interest.

[00:31:50] Speaker 01:
But leaving, but, but ultimately it was a procedural due process case anyway.

[00:31:55] Speaker 01:
The question is, though, if there was no, were there addresses in Paul versus Davis?

[00:32:01] Speaker 01:
I mean, one would have to think that there were, there was a much greater privacy interest in your address.

[00:32:07] Speaker 01:
in terms of safety and so on, such as a safety issue.

[00:32:11] Speaker 02:
Well, addresses are also publicly available for just about everybody.

[00:32:15] Speaker 02:
So I don't think that that changes it that much.

[00:32:17] Speaker 02:
However, the flyer that was actually sent out in Paul versus Davis, arguably, is more offensive.

[00:32:26] Speaker 02:
in the sense that it showed this person and said, this is an active shoplifter in your area.

[00:32:31] Speaker 02:
So it goes a step further than just posting the mugshot and says, this person is doing this, thereby already suggesting that they're guilty and that this is what they do.

[00:32:44] Speaker 02:
And that is not the case here.

[00:32:46] Speaker 05:
Is Paul a substantive due process case or a procedural due process case?

[00:32:51] Speaker 02:
I think it overlaps, and I have the same issue.

[00:32:53] Speaker 02:
Right, it's only a procedural.

[00:32:55] Speaker 05:
Isn't it only procedural?

[00:32:57] Speaker 02:
It's procedural in the sense of the liberty interest in whether it exists.

[00:33:00] Speaker 05:
It says there's no liberty interest here, therefore we're not worried.

[00:33:03] Speaker 05:
There's no state-created liberty interest and there's no federal liberty interest and so that ends our analysis.

[00:33:10] Speaker 05:
It doesn't deal with the procedural side of whether or not this is punishment.

[00:33:16] Speaker 02:
But it does touch on that and it gives us a good example of what was considered by this court

[00:33:21] Speaker 02:
to not be excessive punishment that is... Well, there's no Eighth Amendment argument in the case, is there?

[00:33:31] Speaker 02:
Right, but there's still no concern under the substantive due process under the Fourteenth Amendment for pretrial detainees, which is what that person was in that case, is not right.

[00:33:39] Speaker 05:
Or is it just that the court was only dealing with the issue in front of it?

[00:33:43] Speaker 02:
I agree, but for purposes of extrapolation, that's what I'm saying in comparison.

[00:33:46] Speaker 01:
But that's how Demary distinguished Paul and said that was not about punishment.

[00:33:52] Speaker 02:
The Demery doesn't just distinguish it that way.

[00:33:55] Speaker 02:
It distinguishes in the sense that it's just the publication of an arrest record that is a very distinct point that it says the difference between- That's the second point, but the first point was that this wasn't about punishment.

[00:34:11] Speaker 01:
Because it was just because.

[00:34:13] Speaker 01:
No, not because, not because.

[00:34:14] Speaker 01:
But okay, go ahead.

[00:34:15] Speaker 03:
Ms.

[00:34:15] Speaker 03:
Barnes, I wonder before you finished if you could address a question that I'll have for your friend as well.

[00:34:21] Speaker 03:
What do you understand

[00:34:23] Speaker 03:
the relief that I know there's a putative class in the background.

[00:34:29] Speaker 03:
What do you understand the relief Mr. Houston's seeking here from the county?

[00:34:35] Speaker 02:
Well, it's several fold according to the complaint.

[00:34:37] Speaker 02:
The relief was $10,000 of damages per putative class member to include Mr. Houston.

[00:34:43] Speaker 03:
Can he get injunctive relief?

[00:34:46] Speaker 03:
Does he have standing to seek injunctive relief going forward against the county on publication?

[00:34:52] Speaker 02:
The argument, if that ever comes to a head, would be no, is that he doesn't.

[00:34:56] Speaker 02:
That photograph is gone.

[00:34:58] Speaker 02:
He doesn't have that issue.

[00:34:59] Speaker 02:
He's claiming that there's some other scraped third party entity out there that has it.

[00:35:05] Speaker 02:
But I believe there's going to be a problem for him for standing.

[00:35:09] Speaker 02:
He doesn't have charges anymore.

[00:35:10] Speaker 02:
It's not up anymore.

[00:35:11] Speaker 02:
So that might be an issue.

[00:35:12] Speaker 02:
But we definitely haven't gone that far.

[00:35:14] Speaker 02:
But they have stopped both the damages and injunctive relief.

[00:35:17] Speaker 02:
It's unclear to me.

[00:35:18] Speaker 01:
If he could show that it was still on the internet.

[00:35:21] Speaker 01:
because of the scraping?

[00:35:22] Speaker 01:
What do you have standing?

[00:35:24] Speaker 02:
No, because that is a third party, the third party defense.

[00:35:28] Speaker 01:
But you see, what is the explanation for why this is only up for three days if it's so important to show transparency?

[00:35:35] Speaker 01:
If you're trying to show transparency, presumably you would leave it up.

[00:35:38] Speaker 01:
You want people to know this.

[00:35:39] Speaker 01:
But apparently you don't really want people to know it.

[00:35:41] Speaker 01:
You just want to put it up for three days.

[00:35:43] Speaker 01:
People happen to see it in three days.

[00:35:45] Speaker 01:
But if not, I mean, what is the explanation for that?

[00:35:48] Speaker 01:
Other than you know that it's going to be scraped.

[00:35:51] Speaker 02:
I would say that there's an obvious explanation beyond that you know it's going to be scraped, because we're not conceding that that's the case, is that you're doing something for a legitimate purpose and trying not to be putative.

[00:36:02] Speaker 01:
And therefore what?

[00:36:04] Speaker 01:
And people are going to see this in three days?

[00:36:08] Speaker 01:
If they don't, then they don't.

[00:36:09] Speaker 01:
And that's the whole point.

[00:36:10] Speaker 03:
It's up for three days, even if the charges are dismissed.

[00:36:14] Speaker 03:
It's the IT department that handles it, not the prosecutor or the sheriff's office.

[00:36:21] Speaker 03:
It's up for three days regardless, because there's no process.

[00:36:24] Speaker 02:
I believe that it's up for three days, but the timing of it, I think, is unclear when it goes up and when it's taken down.

[00:36:29] Speaker 05:
Can I ask you a question that I'm not sure the record tells me the answer to?

[00:36:32] Speaker 05:
I'm just intuiting it.

[00:36:35] Speaker 05:
If the charges are dismissed against someone, do you take his picture off the website?

[00:36:41] Speaker 05:
Do you somehow?

[00:36:43] Speaker 05:
I understand it's only up for three days, but people can find things that were up before.

[00:36:49] Speaker 05:
Is there any way to remove the picture?

[00:36:51] Speaker 02:
I don't.

[00:36:51] Speaker 02:
I honestly don't know the answer to that, Your Honor.

[00:36:53] Speaker 02:
I don't either.

[00:36:56] Speaker 03:
Okay.

[00:36:56] Speaker 03:
Thank you.

[00:36:58] Speaker 02:
And I'm well out of time.

[00:36:58] Speaker 02:
So I just asked that the court, uh, affirm the district court below for the reasons stated that there is no substantive, no demonstrated, uh, substantive or procedural due process and certainly no six amendment, which I know we didn't get to, but I think we'll rest on our papers in that regard.

[00:37:13] Speaker 03:
Thank you, Ms.

[00:37:14] Speaker 03:
Barnes.

[00:37:14] Speaker 02:
Thank you.

[00:37:16] Speaker 03:
Mr. Glover dance.

[00:37:18] Speaker 03:
Thank you, Your Honors.

[00:37:19] Speaker 03:
Would you be able to start with a standing question, at least as to injunctive relief?

[00:37:26] Speaker 04:
Yes, we do have a prayer for relief for injunctive relief.

[00:37:28] Speaker 04:
And that really is the driving force of this case to try to prevent this.

[00:37:33] Speaker 04:
This court has the opportunity to stop this what I would call barbaric practice.

[00:37:37] Speaker 03:
But it's not happening to your client anymore.

[00:37:40] Speaker 04:
Not today.

[00:37:40] Speaker 03:
Why isn't that a problem?

[00:37:42] Speaker 04:
I didn't understand your question.

[00:37:44] Speaker 04:
For injunctive relief?

[00:37:45] Speaker 04:
Yes.

[00:37:46] Speaker 04:
The district court granted a motion to dismiss.

[00:37:49] Speaker 04:
We didn't get the opportunity to do any discovery.

[00:37:51] Speaker 04:
We didn't get the opportunity, which we would require before we filed a meaningful injunctive relief.

[00:37:58] Speaker 01:
We have to determine standing, although there is a claim for monetary relief here, right?

[00:38:04] Speaker 04:
Yes, there is.

[00:38:05] Speaker 01:
So we don't have a standing-ish problem as such as to deciding anything.

[00:38:10] Speaker 01:
I think it's lions, but whatever the Supreme Court

[00:38:16] Speaker 01:
There's clear law that when the question is whether you're going to get arrested again, you usually don't have standing, unless you have some reason to allege that you're going to get arrested again.

[00:38:28] Speaker 01:
So how, as to injunctive relief, how do you have standing?

[00:38:36] Speaker 04:
Well, we'd have to have the class certified to be able to, we've asked for a class that's continuing on today.

[00:38:44] Speaker 03:
Right, but class certification requires standing at the time of the filing of the complaint for the plaintiff.

[00:38:49] Speaker 04:
We would have, the process would be, we filed the complaint, we did file a motion for class certification that the district court did not rule upon because the motion dismissed was granted.

[00:38:59] Speaker 04:
So if the motion for class certification was granted,

[00:39:02] Speaker 04:
we could then request injunctive relief.

[00:39:03] Speaker 05:
No, you'd still have to have a, you'd still have to have a plaintiff.

[00:39:09] Speaker 05:
You'd have to amend the complaint to find somebody who, you'd have to have a plaintiff who faced future injury from the publication.

[00:39:16] Speaker 05:
And your client certainly doesn't, unless you're representing to us the intent to commit another crime or be arrested for one.

[00:39:22] Speaker 04:
No, although Brian Houston may not, someone in this class does.

[00:39:26] Speaker 04:
We represent the class, even the people who are on this website today, and there are people today

[00:39:32] Speaker 04:
There's over 100 to 200 faces, mug shots posted every day.

[00:39:37] Speaker 04:
Those persons would have standing for injunctive relief at any given time.

[00:39:41] Speaker 03:
I'm sorry, I interrupted you.

[00:39:42] Speaker 03:
We'll get ahead of ourselves.

[00:39:43] Speaker 03:
I'll let you finish your rebuttal points.

[00:39:45] Speaker 04:
Okay, thank you.

[00:39:46] Speaker 04:
The issue of deterrence came up and I want to point out that in Demery, page 1030, specifically said that deterrence is not a good grounds for the, in this case, for sheriff or Pyle to, you know,

[00:40:02] Speaker 04:
use this internet to shame and humiliate the pretrial detainees who are, and I need to emphasize, are innocent until proven guilty, as are all the persons that appear on the MCSO mugshot.

[00:40:19] Speaker 04:
The Mugshot Lookup, that's the title that's on that website, those persons are all innocent until proven guilty.

[00:40:25] Speaker 04:
They're also all in confinement.

[00:40:27] Speaker 04:
So the fact that the defenses are arguing that... Well, they're not all in confinement, but some of them are.

[00:40:35] Speaker 04:
The mugshot, if you looked at the mugshot, even look at it today, and it is a matter of, you know, this court can take judicial notice of a government website, people being booked today are on that website.

[00:40:47] Speaker 04:
So as far as the... And some of them are detained and some of them are not.

[00:40:51] Speaker 04:
They're all, they're all, the photos are taken at the sheriff's office, Maricopa County Sheriff's Office.

[00:40:57] Speaker 04:
Now a lot of these people are arrested by, in Brian Euston's case, he was arrested by the Phoenix Police Department.

[00:41:03] Speaker 04:
You can't tell that from the website because it doesn't even disclose the name of the police agency that made the arrest.

[00:41:09] Speaker 01:
It's really not an arrest record at all.

[00:41:11] Speaker 01:
For transparency, but my understanding is that he, for example, was not detained

[00:41:18] Speaker 01:
I mean, he was detained long enough to be booked, but then he was let go.

[00:41:22] Speaker 01:
Is that right?

[00:41:22] Speaker 04:
Eventually, yes.

[00:41:23] Speaker 01:
But some of these people remain in detention.

[00:41:25] Speaker 04:
Some of them remain in detention.

[00:41:26] Speaker 04:
Some of them are released within between a day or two, maybe sometime sooner, but usually a day or two, they're released.

[00:41:36] Speaker 01:
So would you, one of the things that Jemery said that was that Paul was not, the circulation was not a condition of detention.

[00:41:45] Speaker 01:
Would you say this was a condition of detention?

[00:41:48] Speaker 04:
Absolutely.

[00:41:48] Speaker 04:
Absolutely.

[00:41:49] Speaker 04:
It was, it was, again, the website itself shows that the, the, if you look at the booking date, these people, these are, the bug shots are posted on the day they're booked.

[00:42:00] Speaker 04:
So it's absolutely a condition of confinement.

[00:42:02] Speaker 04:
We've alleged that in the complaint.

[00:42:04] Speaker 04:
Um, and the, which again is a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a,

[00:42:18] Speaker 04:
after Paul V. Davis.

[00:42:21] Speaker 04:
Although Justice Brennan wrote, I think, a very well-written, thoughtful dissent that talks a little bit about punishment, majority opinion Paul V. Davis doesn't touch upon any of the elements that would be relevant to a substantive due process claim.

[00:42:38] Speaker 03:
Thank you very much, Mr. Klobberdanski.

[00:42:39] Speaker 04:
Thank you very much.

[00:42:40] Speaker 03:
Thanks both to counsel, and this is the end of our calendar.

[00:42:43] Speaker 03:
The case will be submitted.

[00:42:45] Speaker 03:
I'd like to thank the staff here

[00:42:47] Speaker 03:
and my co-panelists for a lovely week here, warm in heart, if not in weather, we are adjourned.