[00:00:00] Speaker 01:
To maintain quiet in the courtroom.

[00:00:02] Speaker 00:
Thank you Take your time whenever you're ready council May it please the court my name is Kristen price and I'm representing the plaintiff appellant and I'd like to reserve two minutes for rebuttal if I may and

[00:00:18] Speaker 00:
This appeal is about whether a sex trafficking victim has sufficiently alleged at the motion to dismiss stage that her injuries from being sex trafficked by legal brothels are fairly traceable to the counties that authorized, oversaw, protected, and profited from those brothels.

[00:00:36] Speaker 00:
The court below held that none of the public actors in this case can be held to account, not even the one who runs his own brothel, and made two errors in reaching this conclusion.

[00:00:47] Speaker 00:
It applied the wrong standard for traceability, and it rewrote, ignored, and minimized plaintiff's facts.

[00:00:55] Speaker 00:
First of all, as to the standard for traceability, Jane Doe's injuries are not in question and can be redressed by damages against the counties, so it's just causation that's at issue on appeal.

[00:01:06] Speaker 00:
Under Lujan, a plaintiff must generally show her injury is fairly traceable to the defendant's conduct and not the result of independent action, of the independent action of some third party not before the court.

[00:01:19] Speaker 00:
The independent third party rule was at the heart of the district court's analysis.

[00:01:23] Speaker 00:
But the legal brothels that sex traffic Jane Doe aren't independent third parties, they're co-defendants who are before the court.

[00:01:32] Speaker 00:
The plaintiff sued the brothels that sex trafficked her, along with the county's nigh story.

[00:01:36] Speaker 04:
Ms.

[00:01:37] Speaker 04:
Price, for purposes of standing, does it matter whether the third parties happen to be sued in the case versus not?

[00:01:44] Speaker 04:
I mean, I take the third party analysis to be you're trying to reach a government defendant and there's an intermediary, a third party.

[00:01:53] Speaker 04:
Why does it matter if the third party happens to be sued in the same lawsuit versus not for purposes of tracing causation for standing purposes?

[00:02:03] Speaker 00:
For the purposes of traceability, the issue is how attenuated, of course, the injury is from the, and so the third party

[00:02:12] Speaker 04:
I mean, I take your point.

[00:02:14] Speaker 04:
These third parties happen to also be defendants in this suit, and we're going to hear arguments about them in the next case.

[00:02:19] Speaker 04:
But does it matter whether it's a third?

[00:02:24] Speaker 04:
I mean, does it make a difference?

[00:02:25] Speaker 04:
You were making a point, and you've made it in the briefing, that they're not really third parties because there are parties to this case.

[00:02:31] Speaker 04:
But should that matter for standing analysis?

[00:02:34] Speaker 00:
Yes, because it should matter because you don't have to speculate about the actions of parties because they can be asked directly.

[00:02:43] Speaker 00:
outside the case and the way that the role has been articulated by the Supreme Court and by all the other federal circuits, including this one, has emphasized the not before the court part of that.

[00:02:54] Speaker 01:
I have trouble understanding that argument.

[00:02:58] Speaker 01:
Somebody who is a non-party can be subject to discovery.

[00:03:06] Speaker 01:
If for some reason they're not subject to discovery, there can be a motion to dismiss because they're possibly a necessary party or a party that should be there.

[00:03:21] Speaker 01:
So I have trouble understanding similar to

[00:03:24] Speaker 01:
Judge Sanchez's question why it would make any difference to our analysis Whether somebody is named in a complaint whether they appeared whether there was a default judgment against them whether they're not subject to service I have a lot of trouble seeing how their presence in the case could affect the standing analysis It is what the

[00:03:48] Speaker 00:
the president has stated, but it's not necessary to reach that issue or agree that it does make a difference because the Supreme Court in FDA versus Alliance for Hypocritic Medicine said essentially that it's a predictability analysis where a plaintiff is alleging that the government regulation of a third party

[00:04:10] Speaker 00:
or failure to regulate a third party is at issue, the plaintiff just has to show a predictable chain of events leading from the government action to the injury at issue.

[00:04:21] Speaker 01:
Let me give you a hypothetical.

[00:04:22] Speaker 01:
Let's assume counterfactually that the United States didn't have sovereign immunity.

[00:04:32] Speaker 01:
Let's put that aside.

[00:04:33] Speaker 01:
So you're familiar obviously with the Mann Act.

[00:04:37] Speaker 01:
So let's say the United States decided that because of resource issues, it wasn't going to enforce the Mann Act.

[00:04:48] Speaker 01:
So in a case like that, if the United States made a decision, you know, we have limited resources, we're not going to enforce the Mann Act.

[00:04:56] Speaker 01:
and that you could show that the United States' decision not to enforce the Mann Act significantly increased sex trafficking and harmed, for example, your client, that you could sue the United States and that there would be standing because their decision not to enforce a particular statute had traceable harm even though the actual sex traffickers were others.

[00:05:23] Speaker 00:
I think, Your Honor, in that scenario, it would be harder to show standing, although an argument could be made that because of the Mann Act's juxtaposition with the 13th Amendment, the right to be free from slavery is a fundamental constitutional right, and the way the amendment is worded, it's just a categorical abolition.

[00:05:43] Speaker 00:
So I think there could be an argument that that, especially if it was a publicized decision to just say, we don't have the resources to deal with this hands off,

[00:05:52] Speaker 00:
Sex traffickers run amok, you're not going to be held accountable under this law.

[00:05:56] Speaker 00:
I think there's an argument there that that could violate the 13th Amendment.

[00:05:59] Speaker 00:
But that's not this situation, because the counties did more than just having a hands-off, we're not going to investigate or prosecute for this, because they authorized the brothels in the first place.

[00:06:12] Speaker 00:
They issued licenses.

[00:06:14] Speaker 00:
They wrote, they enacted one-sided regulations that didn't protect the people who were in the brothels.

[00:06:21] Speaker 00:
They profited from the brothels.

[00:06:24] Speaker 00:
And then, of course, in the case of Story County, Lance Skillman was himself a brothel owner whose brothel directly trafficked the plaintiff in this case.

[00:06:34] Speaker 04:
Let's let's talk about that.

[00:06:35] Speaker 04:
So I was trying to pinpoint what county actions you were relying on for for the traceability analysis.

[00:06:42] Speaker 04:
So you you mentioned that there's a regulation to require, you know, the the the workers to the one side of regulation, I think is your reference to being required to take an STI test.

[00:06:57] Speaker 04:
Is that is that correct?

[00:06:58] Speaker 00:
Yes, your honor, that's one of them.

[00:07:00] Speaker 04:
So what what else?

[00:07:03] Speaker 04:
I'm trying to understand what you conceive of the county's actions, where it's fairly predictable that that would result in sex trafficking.

[00:07:10] Speaker 04:
I think, you know, workers also have to obtain a license or a certification of some kind.

[00:07:15] Speaker 04:
So what are the things that the county is doing that makes it predictable that it would result in sex trafficking?

[00:07:22] Speaker 00:
Your honor, in terms of the county's own actions, so if I could say one other thing about the regulation requiring the license, it's not just that prostitution, you have to have a license for it, but the license has to be for a particular brothel.

[00:07:41] Speaker 00:
You have to be under the control of that brothel to get the license, and then you can only have a license for one brothel at a time.

[00:07:47] Speaker 00:
So if you want to switch, you have to go through the whole application process again, pay the fees, get tested again.

[00:07:53] Speaker 00:
And so it's essentially saying you have to be under the control of a brothel in order to do this, which is already by itself setting people up.

[00:08:01] Speaker 04:
Well, I mean, it's saying you have to be an employee of a certain brothel.

[00:08:04] Speaker 04:
Whether there's control, I guess, would amount to factual distinctions about particular brothels.

[00:08:09] Speaker 04:
But what is it about the regulation itself though that puts people under the control of a brothel?

[00:08:18] Speaker 00:
The brothel itself is, as we've alleged in the complaint, they all have the same coercive practices, including requiring the women to pay 50% off the top and live on site.

[00:08:33] Speaker 00:
They lock them inside.

[00:08:34] Speaker 00:
They can't leave.

[00:08:35] Speaker 00:
So they're very coercive conditions.

[00:08:38] Speaker 00:
And the plaintiff alleges, and I think because we get reasonable inferences at this stage in the case,

[00:08:47] Speaker 00:
that these things together help to create a coercive environment.

[00:08:52] Speaker 00:
And there are a few other things, like in ELCO, if a prostitute person test positive for any contagious disease, they have to be detained at the brothel by operation of law until the State Board of Health contacts them.

[00:09:09] Speaker 00:
And if they leave the brothel for more than 24 hours, they have to be subjected to testing again.

[00:09:14] Speaker 00:
And the testing we've alleged is not neutral.

[00:09:17] Speaker 00:
The plaintiff did give some historical context on how forceful STI testing has a long history of being quite abusive and coercive.

[00:09:28] Speaker 00:
And then beyond the regulations themselves, the plaintiff also alleged some facts that suggest official corruption and collusion.

[00:09:37] Speaker 00:
Specifically, one of the brothel owners

[00:09:39] Speaker 00:
Shot off his gun in the brothel nearly shot a woman in the foot and the county's response was just to tell him not to do it again.

[00:09:46] Speaker 00:
He bragged in the brothel about how he paid alco officials under the table to protect his brothel.

[00:09:53] Speaker 04:
It seems to me that your main argument, tell me, correct me if I'm wrong, is that sex trafficking is occurring at these brothels and the counties are not doing enough to enforce the laws to protect the workers.

[00:10:08] Speaker 04:
It's almost a flavor of what Judge Bennett said with the Mann Act, a flavor of you're not enforcing your laws.

[00:10:14] Speaker 04:
And I'm just not sure at this point that that's enough to establish traceability the absence of law enforcement activity As being fairly predictive of sex trafficking occurring and it might am I characterizing your arguments correctly or no No, not exactly your honor because while the failure to investigate or intervene is an important part of the allegations against the counties It's also the fact that they have these one-sided

[00:10:44] Speaker 00:
regulations to start with, the fact that they're allowing this at all despite what we alleged in the complaint about the massive correlation between sex trafficking and legalized prostitution.

[00:10:54] Speaker 00:
We gave that as context in the complaint and the court below said that it was just distracting and didn't take it as true or considerate.

[00:11:02] Speaker 00:
And then we also alleged that the counties profited and there's an affirmative duty under the trafficking victims protection act not to profit

[00:11:09] Speaker 00:
from sex trafficking.

[00:11:10] Speaker 00:
So those, it's the collusion.

[00:11:13] Speaker 04:
And how do you allege the county's profit?

[00:11:15] Speaker 00:
Through the brothel and prostitution licensing fees and through tax revenues, Your Honor.

[00:11:21] Speaker 03:
Backing, oh, I'm sorry.

[00:11:23] Speaker 03:
No, no, please go ahead.

[00:11:23] Speaker 03:
Backing up to Judge Bennett's question about the, with his man act hypothetical.

[00:11:31] Speaker 03:
I understood you to say that you think there would be standing in that circumstance failure to

[00:11:38] Speaker 03:
to prosecute or enforce the Mann Act because of the 13th Amendment.

[00:11:43] Speaker 03:
And could you say more about that?

[00:11:45] Speaker 03:
Is there something special about the 13th Amendment that would convey standing?

[00:11:49] Speaker 03:
Or are you saying that a constitutional right necessarily conveys standing?

[00:11:55] Speaker 03:
And play that out, please, a little bit.

[00:11:58] Speaker 03:
And what's your authority for that?

[00:11:59] Speaker 00:
Yes, Your Honor.

[00:12:01] Speaker 00:
So I believe the case is Jones v. Mayor, which was a case, a 13th Amendment case that talked about how the 13th Amendment is self-executing by its own effect.

[00:12:13] Speaker 00:
It immediately abolished slavery wherever it might be found.

[00:12:16] Speaker 00:
And it's a little bit different from other rights in the Constitution that forbid the government from doing something.

[00:12:21] Speaker 00:
And so there's a line of case law that talks about that aspect of the 13th Amendment.

[00:12:26] Speaker 00:
And so this is getting a little bit, I think, into

[00:12:29] Speaker 00:
Merit somewhat because we do have a 13th amendment claim in this case against the counties, but it is an argument judge Just quick aside to the judge dismissed though the 13th amendment the judge The judge did not reach the 13th amendment claims as to the counties it dismissed them as to the brothels

[00:12:50] Speaker 00:
So the 13th Amendment is different because the right to be free from slavery is a fundamental right.

[00:12:57] Speaker 00:
And just practically speaking, slavery was primarily a private enterprise when it was legal in this country and when it was abolished.

[00:13:06] Speaker 00:
If the government had had the option to just sort of ignore it, then the 13th Amendment would have been a dead letter.

[00:13:11] Speaker 00:
And so I realize that's a little bit more into the merits, but the plaintiffs are arguing the 13th Amendment makes a difference here.

[00:13:17] Speaker 01:
But counsel, I know that our decision in the Williams case from 2024 is an unpublished, non-precedential decision.

[00:13:28] Speaker 01:
That being said, is there anything that distinguishes this case from the allegations that were made in the Williams case before Judge Thomas, Judge Bress, and Judge Ezra?

[00:13:40] Speaker 00:
Yes, your honor there are two primary distinctions in this case the plaintiff was not trafficked by any illegal third-party traffickers who were separate for the case or whose actions also committed to Contributed to the harm.

[00:13:54] Speaker 00:
She was only truck traffic directly by the brothel So there are no third-party traffickers, which was an issue for the Williams Court and the second

[00:14:06] Speaker 00:
The second distinction is that Lance Gilman was both a county official and a brothel owner while he was trafficking the plaintiff and so the The chain of causation with him is of course very short.

[00:14:19] Speaker 01:
Did you want to reserve some time?

[00:14:21] Speaker 01:
Yes, if I may we've taken up a lot of your time with questions We'll give you two minutes for rebuttal.

[00:14:26] Speaker 00:
Thank you very much

[00:14:41] Speaker 02:
May it please the court.

[00:14:43] Speaker 02:
Good morning.

[00:14:44] Speaker 02:
I'm Brent Ryman on behalf of the County Defendant Apolize and it's my pleasure to appear in this beautiful facility before the panel this morning.

[00:14:54] Speaker 02:
This is a case that's been brought two times before and as Judge Sanchez noted it was recently dismissed in the Williams case.

[00:15:04] Speaker 02:
This case has changed a little bit since Judge Dew issued her order and it's because of several

[00:15:10] Speaker 02:
decisions that appellant has made on appeal, both in this appeal and in the second portion of the case that you'll hear on appeal after this.

[00:15:19] Speaker 02:
And the way it's changed I think is important to note

[00:15:23] Speaker 02:
before the panel gets into questions because appellant has dismissed or chosen apparently not to appeal either her claims against the state of Nevada or her claims for prospective relief.

[00:15:35] Speaker 02:
So changing the statutes is off the board.

[00:15:39] Speaker 02:
With that in mind, and we didn't have confirmation of that until I believe page 19 of the reply briefing, I believe that the political question doctrine arguments

[00:15:50] Speaker 02:
are also off the table at this time.

[00:15:53] Speaker 02:
And so I think what I need to do is talk to this panel about attenuation and traceability, although redressability may also be a concern in my mind, especially with the idea that there's none of this third party standing out there, and there are no more opportunities in this case to change the law and theoretically redress those issues of third party standing.

[00:16:19] Speaker 02:
Judge Dew, in this case, issued a nice order.

[00:16:25] Speaker 02:
And we feel it should be upheld.

[00:16:27] Speaker 02:
And in doing so, she was able to parse out the fact, as to one of the panel's questions earlier that I heard, as to whether third party actions can defeat standing, whether those third parties are actually named in the case, or whether they're just out there lurking in the background somewhere.

[00:16:45] Speaker 02:
And here, plaintiff.

[00:16:48] Speaker 02:
is represented by attorneys who have represented plaintiffs in the other two cases and hoping that third time will be a charm.

[00:16:57] Speaker 02:
They included the third party actors in this case with the apparent intent to say that because they're here, their actions can't defeat standing as against the governmental entities, in this case, Elko, Story, and Nye Counties.

[00:17:16] Speaker 02:
But the actions

[00:17:18] Speaker 02:
Think it's important to note are not entirely predictable when the actions of third parties go completely against the law when those actions are Not in compliance with the law or the regulatory scheme that's being challenged and those third parties completely violate the law 180 degrees acting criminally then

[00:17:41] Speaker 02:
It's not traceable.

[00:17:42] Speaker 02:
It's not entirely predictable.

[00:17:44] Speaker 02:
And I think that's sufficient to defeat traceability.

[00:17:48] Speaker 04:
Mr. Remy, what's your best case for that?

[00:17:49] Speaker 04:
So if I understand that you're saying government regulates an entity, and if the entity goes and violates the law, that can never be traced back to any of the government's actions.

[00:18:01] Speaker 02:
I wouldn't say never, Your Honor.

[00:18:03] Speaker 02:
I'd say it's not entirely predictable that that set of circumstances.

[00:18:06] Speaker 02:
But could it be predictable?

[00:18:08] Speaker 04:
I was hearing you to say that once someone violates a law, goes against what the law requires, you cannot trace it back to a government entity.

[00:18:18] Speaker 04:
But you're not going so far.

[00:18:19] Speaker 02:
I'm not saying never, Your Honor.

[00:18:21] Speaker 02:
I'm saying in this case, what they're doing should not be able to be traced back to the counties.

[00:18:25] Speaker 02:
I don't know that I would say it's never entirely predictable.

[00:18:29] Speaker 02:
But in this case, I think it's too much of a stretch.

[00:18:33] Speaker 02:
And that's been determined in two cases before this one and upheld by the Ninth Circuit in each of them.

[00:18:38] Speaker 02:
it's too much of a stretch there's too much attenuation there between

[00:18:43] Speaker 02:
the ecosystem argument.

[00:18:44] Speaker 04:
I guess one of the differences potentially that I saw from Williams was that if there were other third parties that were not being regulated by the county, that is an additional point of attenuation.

[00:18:58] Speaker 04:
Whereas here the county defendants are just, you know, they're being directly regulated by the counties themselves.

[00:19:04] Speaker 04:
Would you agree that that's a little bit of a difference from Williams?

[00:19:07] Speaker 02:
I see the point you're making, Your Honor.

[00:19:08] Speaker 02:
And in the Williams case, the plaintiffs in that case,

[00:19:13] Speaker 02:
There were multiple plaintiffs in that case one was a Jane Doe as well.

[00:19:15] Speaker 02:
I think two were Jane Doe's in that cases in that case and they sued not only brothels in the counties, but they also sued They had suits against counties including Clark County that do not allow legal prostitution And we're simply regulating strip clubs and these kinds of other businesses so there was a lot there, but the point that you're making is that here the regulations are against

[00:19:40] Speaker 02:
or are pertaining to the brothels and therefore somehow flow to the plaintiff here.

[00:19:46] Speaker 02:
But the brothels are still, Your Honor, acting completely contrary to those laws.

[00:19:50] Speaker 02:
They're not acting in compliance with some kind of regulatory scheme that predictably forces them to do something.

[00:19:58] Speaker 02:
And therefore, I think there's the attenuation that I was trying to talk about.

[00:20:01] Speaker 04:
So in your view, regulations such as requiring a worker to stay at the brothel or be kept there for purposes, I guess, maybe of a failed STI test or something else, that is not enough to fairly predict that they might be sex trafficked by the brothel.

[00:20:22] Speaker 02:
I would agree with that, Your Honor.

[00:20:25] Speaker 04:
And is there no obligation?

[00:20:26] Speaker 04:
Do you agree then that if the county is not doing enough to enforce the law against sex trafficking laws, is traceability off the table for that always as well or no?

[00:20:42] Speaker 02:
I think that the failure to enforce laws scheme of trying to establish standing is going to be the very, very, very rare case when that could ever

[00:20:54] Speaker 02:
be enforced, and it's almost the creation of a...

[00:21:01] Speaker 02:
the creation of a duty doctrine kind of idea that's out there, and that's not present in this case.

[00:21:07] Speaker 01:
Although I presume that if Nevada or the agents or the particular county government authorities wanted to provide citizens a remedy, if citizens believed that the state or the counties weren't enforcing their laws, they could provide such a remedy, including some type of mandamus, yes.

[00:21:31] Speaker 02:
I believe they could, Your Honor.

[00:21:32] Speaker 02:
I haven't seen it here.

[00:21:33] Speaker 02:
It doesn't exist here.

[00:21:34] Speaker 02:
I think the state of Nevada could potentially do something along those lines under a waiver of sovereign immunity.

[00:21:42] Speaker 02:
Here we have NRS chapter 41, which is the limited waiver of sovereign immunity.

[00:21:48] Speaker 02:
So yes, Your Honor, absolutely.

[00:21:53] Speaker 04:
Does it change with one of the defendants being Commissioner Lance Gilman?

[00:21:58] Speaker 04:
I mean, I took that to be allegations being brought in an individual capacity, not in an official capacity as serving as a commissioner.

[00:22:09] Speaker 04:
But does any of this analysis change with respect to that defendant?

[00:22:14] Speaker 02:
I think two parts to that question, Your Honor.

[00:22:17] Speaker 02:
First, I represent Mr. Gilman here in his official capacity, which is, of course, merely

[00:22:22] Speaker 02:
suit against the political entity that he's representing at the time.

[00:22:27] Speaker 02:
And so there's that portion of it.

[00:22:30] Speaker 02:
And there was some discussion of that in the district court case.

[00:22:33] Speaker 02:
So I just wanted to make that clear here.

[00:22:36] Speaker 02:
As far as whether it changes the standing analysis, I don't believe it does.

[00:22:39] Speaker 02:
Because again, you'll see in the brief, we've cited all of the rules and regulations that prevent him from doing the criminal activities that they're alleging that he did.

[00:22:52] Speaker 02:
If he's acting in his individual capacity, and he's again then merely one of these third parties, albeit named in the case here, he therefore is acting completely unpredictably, I would suggest, because he's violating the laws.

[00:23:08] Speaker 02:
And that doesn't change the standing here.

[00:23:13] Speaker 02:
It says Judge Dew reasoned still too far attenuated.

[00:23:17] Speaker 02:
We believe her order was correct, and we just requested the panel affirm it.

[00:23:22] Speaker 01:
Thank you.

[00:23:23] Speaker 00:
Thank you Just three quick things on rebuttal your honors first of all the plaintiffs alleged that Lance Gilman was allowed to regulate himself essentially as being a commissioner on the brothel licensing board and

[00:23:47] Speaker 00:
while he was running his own brothel and that the licensing process for his brothel was irregular.

[00:23:53] Speaker 00:
The plaintiff and the other women with her were taken into the sheriff's office and handed the license within five minutes without any ID checks or other kind of checks.

[00:24:02] Speaker 00:
And when she asked the driver from the brothel who'd brought them there about it, because she knew it wasn't correct, he told her to stop talking.

[00:24:09] Speaker 00:
And so there's a reasonable inference there that some kind of

[00:24:14] Speaker 00:
corruption irregularity was in play.

[00:24:17] Speaker 00:
The second thing I just wanted to note quickly on the third party traffickers, which is that the court below decided to infer their existence, even though the plaintiff explicitly said there weren't any.

[00:24:29] Speaker 00:
was not taking the plaintiff's facts as true.

[00:24:31] Speaker 00:
And then finally, FDA says that causation is ordinarily easy to establish when the plaintiff is themselves a regulated party, which is the case here.

[00:24:41] Speaker 00:
And the plaintiff has argued that the one-sided SDI testing rules that applied only to her and not to the men, buying sexual access to her, served to encourage them to buy sex in these legal brothels by assuring them that it was safe.

[00:24:55] Speaker 00:
But the court below didn't draw this inference, instead saying basically that plaintiff was asking for something contradictory because necessarily the SDI regulations must have been a safety measure to benefit her.

[00:25:08] Speaker 00:
Jane Doe's injuries from being sex trafficked can be fairly traced to the counties that licensed and colluded with her traffickers.

[00:25:15] Speaker 00:
And so she asked this court to reverse.

[00:25:17] Speaker 00:
Thank you.

[00:25:18] Speaker 00:
All right.

[00:25:18] Speaker 01:
We thank counsel for their arguments.

[00:25:20] Speaker 01:
The case just argued is submitted.