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Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 1 of 27

Case No. 23-55607
In the United States Court of Appeals
for the Ninth Circuit
____________________________
COUNTY OF SAN DIEGO
Defendant and Appellant,
v.
FRANKIE GREER
Plaintiff,
and
THE SAN DIEGO UNION-TRIBUNE, LLC, PRISON LEGAL NEWS,
AND VOICE OF SAN DIEGO
Intervenors and Appellees
____________________________
On Appeal From the United States District Court
for the Southern District of California
Honorable Jinsook Ohta
Case No. 3:19-cv-0378-JO-DEB
_________________________________________________________
BRIEF OF AMICI CURIAE COALITION OF PRESS AND OPEN
GOVERNMENT ORGANIZATIONS IN SUPPORT OF APPELLEES
Jaqueline Aranda Osorno
Sarah Ortlip-Sommers
PUBLIC JUSTICE
1620 L St. NW, Suite 630
Washington, DC 20036
jaosorno@publicjustice.net
sortlip-sommmers@publicjustice.net
Counsel for Amici Curiae

Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 2 of 27

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1(a), the undersigned
counsel states that The Appeal, Californians Aware, the First Amendment Coalition,
Freedom of the Press Foundation, Public Justice, and the Washington Coalition for
Open Government are all 501(c)(3) organizations and are not publicly held
corporations; none has any parent corporation; and none has shares owned by any
publicly held corporation.
The Society of Professional Journalists is a 501(c)(6) organization and is not
a publicly held corporation; does not have a parent corporation; and has no shares
owned by any publicly held corporation.

Dated: February 23, 2024

By:

/s/ Jaqueline Aranda Osorno
Jaqueline Aranda Osorno
PUBLIC JUSTICE
Counsel for Amici Curiae

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENTS OF INTEREST................................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................4
ARGUMENT .............................................................................................................5
I.

Openness Is Fundamental to the Workings of Our System of Government and
Law ......................................................................................................................6

II. The Law Requires That the CIRB Records Be Unsealed ...................................8
A.

The CIRB Records Are Presumptively Public Because They Were
Attached to an Opposition to a Motion for Summary Judgment ..........8

B.

There Is No Compelling Interest that Overcomes the Significant
Public Interest in Unsealing ................................................................10

III. Access to Court Records is Particularly Critical in Covering Carceral
Institutions ..........................................................................................................14
CONCLUSION ........................................................................................................18
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES
Page(s)
Cases
Associated Press v. U.S. Dist. Ct. for Cent. Dist. of Calif.,
705 F.2d 1143 (9th Cir. 1983) .............................................................................. 6
Braggs v. Dunn,
382 F. Supp. 3d 1267 (M.D. Ala. 2019) .............................................................12
Ctr. for Auto Safety v. Chrysler Grp., LLC,
809 F.3d 1092 (9th Cir. 2016) ..............................................................6, 9, 10, 11
Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122 (9th Cir. 2003) ............................................................................10
Forbes Media LLC v. United States,
61 F.4th 1072 (9th Cir. 2023) ............................................................................... 9
Greer v. Cnty. of San Diego,
No. 19-CV-378, 2023 WL 2316203 (S.D. Cal. Mar. 1, 2023) ...........................10
Hernandez v. Cnty. of Monterey,
No. 13-CV-02354-BLF, 2023 WL 5418753 (N.D. Cal. Aug. 21,
2023) ...................................................................................................................11
Kamakana v. City & Cnty. of Honolulu,
447 F.3d 1172 (9th Cir. 2006) .....................................................................passim
Kelly v. Wengler,
979 F. Supp. 2d 1243 (D. Idaho 2013) ...............................................................12
Newman v. Graddick,
696 F.2d 796 (11th Cir. 1983) ............................................................................11
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978) ........................................................................................6, 11
Phoenix Newspapers Inc. v. U.S. Dist. Ct. for Dist. of Ariz.,
156 F.3d 940 (9th Cir. 1998) ................................................................................ 6
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Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ................................................................................6, 7, 9, 15
Storm v. Twitchell,
No. 12-CV-00179-CWD, 2014 WL 4926119 (D. Idaho Sept. 29,
2014) ...................................................................................................................12
Union Oil Co. of Calif. v. Leavell,
220 F.3d 562 (7th Cir. 2000) ................................................................................ 6
United States v. Index Newspapers LLC,
766 F.3d 1072 (9th Cir. 2014) .............................................................................. 8
United States v. Stoterau,
524 F.3d 988 (9th Cir. 2008) ................................................................................7
Other Authorities
Brian Nam-Sonenstein, Breaking News From Inside: How Prisons
Suppress Prison Journalism, Prison Policy Initiative (June 15,
2023), https://perma.cc/VQZ8-6JXT . ...............................................................16
First Amendment...............................................................................................passim
Jeff McDonald & Kelly Davis, San Diego-Area Lawmakers File Joint
Request For State Audit Of County Jail Deaths, San Diego UnionTribune (May 14, 2021), https://perma.cc/CU89-RW2S . .................................14
Jennifer Valentino-DeVries & Allie Pitchon, As the Pandemic Swept
America, Deaths in Prisons Rose Nearly 50 Percent, N.Y. Times
(Feb. 19, 2023), https://perma.cc/7AUP-LRMQ ..............................................17
Prison Policy Initiative, Mass Incarceration, The Whole Pie 2023
(Mar. 14, 2023), https://perma.cc/2ZH9-FELX . .............................................17
Report: Every Second, The Impact of the Incarceration Crisis on
America’s Families, FWD.us (Dec. 2018), https://perma.cc/2GCDNKTZ .. ...............................................................................................................17
San Diego County Sheriff’s Department, Homicide, In-Custody
Deaths, Officer Involved Shootings (last visited Feb. 22, 2024),
https://perma.cc/8HBD-R7LD . ..........................................................................14
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San Diego County Sheriff’s Department, Report 2021-109, California
State Auditor (Feb. 2022), https://perma.cc/S6FM-LPF3 ...........................8, 14
Shaila Dewan, Inside America’s Black Box: A Rare Look at the
Violence of Incarceration, N.Y. Times (Mar. 30, 2019),
https://perma.cc/D6TF-BX7B . ....................................................................15, 16
Staff of S. Permanent Subcomm. on Investigations, Comm. on
Homeland Sec. & Gov’t Affairs, 117th Cong., Uncounted Deaths
in America’s Prisons & Jails: How the Department of Justice
Failed to Implement the Death in Custody Reporting Act (Sept. 20,
2022) ...................................................................................................................18
The Trouble With Reporting On Prisons, WNYC Studios (Sept. 23,
2016), https://perma.cc/7QXN-JM68 . ..............................................................16

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STATEMENTS OF INTEREST
Amici are a coalition of news media and open government organizations with
a deep commitment to protecting First Amendment rights and ensuring government
transparency.1
The Appeal is a nonprofit news organization that exposes the harms of the
American criminal legal system and elevates the solutions that emerge from the
communities most affected by policing, jails, and prisons in the U.S. The Appeal helps

shape the national narrative about justice and punishment through fact-based
reporting and analysis that centers the voices of the people directly impacted by the
issues it covers and educates the public on how the criminal legal system works. The
Appeal has a special focus on communities and policy debates often ignored by
traditional national media, or increasingly lost in the consolidation and closure of
local news outlets. The Appeal relies heavily on access to public records, including
court documents, to produce timely and relevant news coverage.
Californians Aware (CalAware) is a nonpartisan nonprofit corporation
organized under the laws of California and eligible for tax exempt contributions as

No party’s counsel authored this brief in whole or in part nor did a party,
its counsel, or any other person contribute money to fund preparing or submitting
this brief. See Fed. R. App. P. 29(a)(4). All parties have consented to the filing of
this amicus brief.
1

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a 501(c)(3) charity pursuant to the Internal Revenue Code. Its mission is to foster
the improvement of, compliance with, and public understanding of the First
Amendment and our state’s transparency laws, in order to ensure that the public has
access to the information it needs to be well-informed about the actions of its
government. To that end, CalAware frequently advises on and advocates for greater
public access to courts, public records, and public meetings.
The First Amendment Coalition (FAC) is a nonpartisan, nonprofit public
interest organization dedicated to defending free speech, free press, and the people’s
right to know. FAC believes that the broadest range of engaged and informed
communities is essential to the health of our democracy—that the values expressed
by the First Amendment provide a blueprint for an inclusive, equitable society and
a responsive, accountable government. To that end, FAC educates, advocates, and
litigates to advance government transparency and First Amendment protections for
all, especially in the area of access to court records and proceedings.
Freedom of the Press Foundation (FPF) is a non-profit organization that
protects, defends, and empowers public-interest journalism. FPF regularly writes
about and participates in legal proceedings to oppose legislation and judicial orders
that violate the First Amendment and undermine press freedoms, including court
sealings, gag orders, and prior restraints.

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Public Justice is a national public interest advocacy organization that
specializes in precedent-setting, socially significant civil litigation, with a focus on
fighting to preserve access to justice for victims of corporate and governmental
misconduct and preserving the civil justice system as an effective tool for holding
the powerful accountable. To further its goal of defending access to justice for all,
Public Justice has long conducted a special project devoted to ensuring court
transparency. Public Justice regularly engages in litigation to unseal court records.
The Society of Professional Journalists (SPJ) is dedicated to improving and
protecting journalism. It is the nation’s largest and most broad-based journalism
organization, dedicated to encouraging the free practice of journalism and
stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi,
SPJ promotes the free flow of information vital to a well-informed citizenry, works
to inspire and educate the next generation of journalists and protects First
Amendment guarantees of freedom of speech and press.
The Washington Coalition for Open Government (WCOG) is a
Washington State-based independent, nonpartisan, nonprofit organization dedicated
to promoting the public’s right to know in matters of public interest and in the
conduct of the public’s business. Its mission is to foster open government, supervised
by an informed citizenry, which is the cornerstone of democracy. WCOG and its

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members believe government agencies exercise their authority by consent of the
governed, and therefore have a duty to act in a transparent manner, including through
compliance with disclosure of court and public records.
INTRODUCTION AND SUMMARY OF ARGUMENT
Forty-seven people have died in the San Diego County jails since 2021. Many
more have suffered serious injuries. The public has a right to know why. It also has
a right to know whether these deaths and injuries were preventable and, if so,
whether Appellant County of San Diego (hereafter “the County”)—who controls of
the health and safety of those it incarcerates—has taken reasonable steps to prevent
further deaths or injuries. Despite the public’s significant interest in understanding
and scrutinizing the County’s operation of the jails, or perhaps precisely because of
that significant interest, the County has spent years fighting to keep information
relating to in-custody deaths from the public.
This appeal arises out of the district court’s order to unseal documents created
by the San Diego Sheriff’s Department Critical Incident Review Board (CIRB), an
internal oversight board that investigates deaths and serious injuries in San Diego
County jails. 1-SER-3. Specifically, Appellees-Intervenors seek to unseal CIRB
memoranda, records, and reports (together, the “CIRB documents”) relating to
twelve deaths at the jail, which were submitted to and relied on by the district court

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in its adjudication of dispositive motions in the underlying case. 1-SER-271, 276. In
a thorough opinion granting Intervenors’ motion to unseal, the district court found
that the County failed to meet its burden of demonstrating compelling reasons for
keeping the CIRB documents sealed. 2 The district court granted the motion to
unseal. 1-SER-10.
This Court should affirm the district court’s order. As explained in Section I,
access to court records and proceedings by the public, including the media, is
fundamental to the operation and integrity of our government. As explained in
Section II, the right of access attaches to the CIRB documents because they were
submitted in support of a dispositive motion. Because the right of access attaches, it
is the County’s burden to rebut the strong presumption of access created by common
law and the First Amendment. The County has failed to establish a compelling
interest in secrecy that overcomes that presumption. Finally, as explained in Section
III, vindication of the right of access is particularly critical when court records relate
to carceral institutions, such as in this case. The CIRB documents must be unsealed.
ARGUMENT

The district court’s finding that the CIRB documents are not protected by
attorney-client or work product privilege is also the subject of this appeal. Amici
express no opinion on that issue.
2

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I.

Openness Is Fundamental to the Workings of Our System of
Government and Law
Access to public records, including judicial records, is a fundamental element

of the U.S. legal system. See generally Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 572–73 (1980); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597–98
(1978); Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006);
Phoenix Newspapers Inc. v. U.S. Dist. Ct. for Dist. of Ariz., 156 F.3d 940, 946 (9th
Cir. 1998). The right of access “is justified by the interest of citizens in ‘keep[ing] a
watchful eye on the workings of public agencies.’” Kamakana, 447 F.3d at 1178
(citing Nixon, 435 U.S. at 598); see also Associated Press v. U.S. Dist. Ct. for Cent.
Dist. of Calif., 705 F.2d 1143, 1145 (9th Cir. 1983) (noting that access is “often
important to a full understanding of the way in which the judicial process and the
government as a whole are functioning”) (internal quotations and citation omitted).
Specifically, the right of access to judicial records and proceedings is “‘based on the
need for federal courts, although independent—indeed, particularly because they are
independent—to have a measure of accountability and for the public to have
confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler Grp.,
LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d
1044, 1048 (2d Cir. 1995)). As courts have reasoned, “[t]he political branches of
government claim legitimacy by election, judges by reason.” Union Oil Co. of Calif.

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v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). “Any step that withdraws an element
of the judicial process from public view makes the ensuing decision look more like
fiat, which requires compelling justification.” United States v. Stoterau, 524 F.3d
988, 1012 (9th Cir. 2008) (quoting Union Oil Co. of Calif., 220 F.3d at 568).
The press serves a critical function in gathering and disseminating information
that allows the public to keep that “watchful eye” over the government. Kamakana,
447 F.3d at 1178 (noting that the public’s “vigilance is aided by the efforts of
newspapers”). This is because reporters function as “surrogates for the public,”
which relies on news coverage to learn about events or issues of concern. See
Richmond Newspapers, 448 U.S. at 573. As has long been recognized, public
opinion is a key restraint on abuse of government power; “without publicity, all other
checks are insufficient.” Id. at 596 (Brennan, J., concurring in the judgment)
(quoting 1 J. Bentham, Rationale of Judicial Evidence 524 (1827)). When reporters
face needless obstacles in investigating, publishing, and disseminating the news, the
public suffers the consequences.

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II.

The Law Requires That the CIRB Records Be Unsealed
The CIRB documents will shine a light inside a jail that has long failed to

prevent and respond to deaths of people in the County’s custody. 3 Because the
County has failed to establish a compelling reason to maintain the CIRB documents
under seal, this Court should affirm the district court’s decision ordering unsealing.
A.

The CIRB Records Are Presumptively Public Because They Were
Attached to an Opposition to a Motion for Summary Judgment

The County argues that the right of access does not attach to the CIRB
documents at all because they have been “traditionally kept secret.” Appellant's
Opening Brief (“Opening Br.”) at 48–49. But the County misunderstands, or
disregards, established caselaw on the applicability of the right of access.
“Determining whether there is a public right of access requires looking at the class
of proceedings as a whole[.]” United States v. Index Newspapers LLC, 766 F.3d
1072, 1086 (9th Cir. 2014). Unlike grand jury transcripts, which are court records
that have not been historically accessible to the public, see Kamakana, 447 F.3d at
1185, the CIRB documents were attached to Plaintiff’s opposition to the County’s
motion for summary judgment—a motion related to civil trial proceedings to which

See generally San Diego County Sheriff’s Department, Report 2021-109,
California State Auditor (Feb. 2022), https://perma.cc/S6FM-LPF3.
3

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a historical right of access undoubtedly exists.4 See Richmond Newspapers, 448 U.S.
at 580 n.17 (Burger, C.J.) (plurality opinion) (“Whether the public has a right to
attend trials of civil cases is a question not raised by this case, but we note that
historically both civil and criminal trials have been presumptively open.”); id. at
596–97 (Brennan, J., concurring) (referring to the value of open proceedings in civil
cases); id. at 599 (Stewart, J., concurring) (“[T]he First and Fourteenth Amendments
clearly give the press and the public a right of access to trials themselves, civil as
well as criminal.”). Accordingly, because “the strong presumption of access to
judicial records applies fully to dispositive pleadings, including motions for
summary judgment and related attachments,” Kamakana, 447 F.3d at 1179, the
CIRB documents are presumptively public. See also Ctr. for Auto Safety, 809 F.3d
at 1101 (“[P]ublic access to filed motions and their attachments does not merely

For this reason, the County’s reliance on Forbes Media LLC v. United States,
61 F.4th 1072 (9th Cir. 2023), is misplaced. Forbes involved whether a presumptive
right of access attached to records filed in third-party technical assistance
proceedings under the All Writs Act that were connected to ongoing criminal
investigations—not a civil pretrial motion. The Court found the records were
“traditionally kept secret” and were not subject to a presumptive right of access
under the common law. Id. at 1081–83. In contrast, the CIRB documents at issue
here were filed in connection with a motion for summary judgment. As discussed,
Ninth Circuit case law makes clear that the public has a presumptive right to such
records. See id. at 1179; Ctr. for Auto Safety, 809 F.3d at 1101, 1103.
4

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depend on whether the motion is technically ‘dispositive.’ Rather, public access will
turn on whether the motion is more than tangentially related to the merits of a case.”).
B.

There Is No Compelling Interest that Overcomes the Significant
Public Interest in Unsealing

Because the right of access attaches to the CIRB documents, the County can
overcome the strong presumption of public access only by showing there are
“compelling reasons” for keeping the CIRB documents sealed, which it cannot do
here. See Ctr. for Auto Safety, 809 F.3d at 1098–99. Specifically, the County has not
met its burden of establishing a compelling interest in secrecy that outweighs the
public interest in unsealing records that were submitted to and relied on by the
district court in its adjudication of a motion for summary judgment. See Greer v.
Cnty. of San Diego, No. 19-CV-378, 2023 WL 2316203, at *6, *16 (S.D. Cal. Mar.
1, 2023).
The question of whether a court record should be sealed begins with a “strong
presumption in favor of access to court records.” Foltz v. State Farm Mut. Auto. Ins.
Co., 331 F.3d 1122, 1135 (9th Cir. 2003). This presumption can be overridden only
if the party seeking secrecy can establish there are “sufficiently compelling reasons
for doing so.” Id. (citing San Jose Mercury News, Inc. v. U.S. Dist. Ct.--N. Dist. (San
Jose), 187 F.3d 1096, 1102 (9th Cir. 1999)). In determining whether there are
compelling reasons to seal, the court must “conscientiously balance[] the competing

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interests of the public and the party who seeks to keep judicial records secret.” Ctr.
for Auto Safety, 809 F.3d at 1097 (quoting Kamakana, 447 F.3d at 1179). “What
constitutes a compelling reason [to seal documents] is a determination best left to
the sound discretion of the trial court.” Id. (quoting Nixon, 435 U.S. at 599) (internal
quotations omitted).
In this case, the district court rightfully concluded that the County failed to
rebut the strong presumption in favor of unsealing the CIRB documents. 1-SER-12–
13; see Kamakana, 447 F.3d at 1182 (“[A] judge need not document compelling
reasons to unseal; rather the proponent of sealing bears the burden with respect to
sealing.”). The district court recognized that “[i]nformation about the County’s
possible mistreatment of [incarcerated people] is inherently a matter of significant
public interest.” 1-SER-11. Indeed, courts across the country have similarly found
that the public has a significant interest in matters relating to conditions of
confinement in carceral institutions. See, e.g., Newman v. Graddick, 696 F.2d 796,
801 (11th Cir. 1983) (“[L]itigation concerning penal administration in Alabama is
of paramount importance to the citizens of that state.”); Hernandez v. Cnty. of
Monterey, No. 13-CV-02354-BLF, 2023 WL 5418753, at *4 (N.D. Cal. Aug. 21,
2023) (acknowledging that, with regard to jail operations, “the public has a strong
interest in knowing how their tax dollars are spent, and in evaluating the performance

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of public officials and contractors”); Braggs v. Dunn, 382 F. Supp. 3d 1267, 1272
(M.D. Ala. 2019) (“[C]ertain Alabamians may care about correctional understaffing
because they care about whether their tax dollars are misspent; others may care about
the issue because they do not want their government to violate the Constitution.
Either way one looks at it, Alabamians indisputably have a powerful interest in
overseeing [the Alabama Department of Corrections’] performance.”); Storm v.
Twitchell, No. 1:12-CV-00179-CWD, 2014 WL 4926119, at *14 (D. Idaho Sept. 29,
2014) (“[T]he public has a strong interest in knowing what occurs at the county jails,
which are funded entirely by taxpayer dollars. Whether conditions at the county jails
violate the Eighth Amendment of the United States Constitution is important
information for the general public to know, so that our country can continue to
maintain humane incarceration facilities.”); Kelly v. Wengler, 979 F. Supp. 2d 1243,
1246 (D. Idaho 2013) (“Idaho taxpayers pay [a private prison company] to operate
one of their prisons. With public money comes a public concern about how that
money is spent.”).
Further, the district court correctly concluded that the County failed to
establish a “compelling reason” for denying the public access to the CIRB
documents. 1-SER-10-13. On appeal, the County insists that it has “a profound
interest in maintaining a culture of trust between law enforcement and legal

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counsel.” Opening Br. at 50–52. The County further warns that, if these records are
unsealed, “[w]here communications had been candid and open, they will become
hesitant. Where debate about lessons learned and future mitigation had been robust,
it will become guarded.” Id. at 51. The County offers no specific factual basis for
these assertions. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)
(“Th[e] presumption of access may be overcome only ‘on the basis of articulable
facts known to the court, not on the basis of unsupported hypothesis or conjecture.’”)
(quoting Valley Broad. Co. v. U.S. Dist. Ct. for Dist. of Nev., 798 F.2d 1289, 1293
(9th Cir. 1986)). And ultimately, the ability of the County to maintain trust and
candor between client and counsel going forward simply does not turn on whether
the CIRB records are unsealed but on how the County communicates the nature and
scope of confidentiality to those who participate in the CIRB reviews. And to the
extent the County suggests that disclosure of CIRB documents will impair its ability
to remedy its well-documented inability to keep people alive, this Court should reject
that argument. By the County’s admission, CIRB investigations and related
documents have been shielded from the public for over twenty years. Opening Br.
at 9. Given the increasing number of deaths, that secrecy hardly seems to be
facilitating any meaningful change.

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Ultimately, the public has a right to access the CIRB documents to determine
whether the County is carrying out its constitutional obligation to keep people in its
custody safe and whether the courts are properly resolving cases involving violations
of that obligation. See E.E.O.C. v. Erection Co., 900 F.2d 168, 171–72 (9th Cir.
1990) (Reinhardt, J., concurring in part and dissenting in part) (noting that “[s]ince
it is important for people to be able to assess the conduct of public institutions, the
presumption [of access] weighs even more heavily in favor of public access” in cases
involving government entities).
III.

Access to Court Records is Particularly Critical in Covering Carceral
Institutions

The power of transparency through media coverage has been well-illustrated
in San Diego, home of the jails implicated in this appeal. A recent California state
audit found that 185 people died in custody between 2006 and 2020, concluding that
systemic deficiencies in intake screenings, medical and mental health care, and
safety checks have likely contributed to the high rate of deaths.5 See Report 2021109 at 53. That state audit was conducted only after local lawmakers asked the state
auditor to investigate years of deaths at the jail. Jeff McDonald & Kelly Davis, San

At least forty-eight people have died in the same jails since then, including
three deaths in the current calendar year alone. San Diego County Sheriff’s
Department, Homicide, In-Custody Deaths, Officer Involved Shootings (last visited
Feb. 22, 2024), https://perma.cc/8HBD-R7LD.
5

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Diego-Area Lawmakers File Joint Request For State Audit Of County Jail Deaths,
San Diego Union-Tribune (May 14, 2021), https://perma.cc/CU89-RW2S.
Remarkably, lawmakers credited The San Diego Union-Tribune’s “Dying Behind
Bars” investigation published in 2019 as an impetus for requesting the audit.
In general, reporters who cover issues relating to incarceration shine a light
into America’s darkest institutions. See Shaila Dewan, Inside America’s Black Box:
A Rare Look at the Violence of Incarceration, N.Y. Times (Mar. 30, 2019),
https://perma.cc/D6TF-BX7B (“Prisons are the black boxes of our society. With
their vast complexes and razor wire barriers, everyone knows where they are, but
few know what goes on inside.”). As demonstrated in San Diego, this media
coverage is critical. After all, “[p]eople in an open society do not demand infallibility
from their institutions, but it is difficult for them to accept what they are prohibited
from observing.” Richmond Newspapers, 448 U.S. at 572.
But investigating and producing news relating to carceral institutions can be
an uphill battle. While the First Amendment protects the rights of non-incarcerated
people to communicate by mail with incarcerated people and the rights of
incarcerated people to send and receive mail, these rights are not absolute. See
Turner v. Safley, 482 U.S. 78, 89 (1987); Procunier v. Martinez, 416 U.S. 396, 408
(1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989);

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Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 22 of 27

Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1209–10 (9th Cir. 2017) (discussing First
Amendment caselaw relating to prison correspondence). Additionally, carceral
institutions are highly surveilled, chilling the exercise of First Amendment rights.
Phone calls and in-person interviews between journalists and their incarcerated
sources may be recorded and listened to by corrections staff, so talking to the press
inherently carries a risk of retaliation for people seeking to share their stories. See
Brian Nam-Sonenstein, Breaking News From Inside: How Prisons Suppress Prison
Journalism,

Prison

Policy

Initiative

(June

15,

2023),

https://perma.cc/VQZ8-6JXT (explaining it is “standard prison practice” to censor
and surveil incarcerated people’s mail, messages, phone calls, and video visits, all
of which “are central to a journalist’s ability to maintain sources, work closely with
editors, and report the news without interference”); Dewan (“Prisoner
communication is sharply curtailed—it is monitored, censored and costly.”). And
facilities may forbid incarcerated people from speaking to journalists entirely. See
The Trouble With Reporting On Prisons, WNYC Studios (Sept. 23, 2016),
https://perma.cc/7QXN-JM68. Consequently, reporters who cover incarceration
rely heavily on access to public records and court dockets.
The risks to incarcerated people when speaking to the press and the steep
obstacles reporters face in gathering information affect both the quality and scope of

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Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 23 of 27

reporting about the possible mistreatment of incarcerated people. Their treatment is
undoubtedly an issue of significant public concern. Millions of people are
incarcerated on any given day,6 and millions more are under control of the carceral
system or have had family members in jail or prison.7 The need for transparency is
clear. As the New York Times recently reported, at least 6,182 people died in
American prisons in 2020, and it is likely that hundreds more died in county jails
across the country. See Jennifer Valentino-DeVries & Allie Pitchon, As the
Pandemic Swept America, Deaths in Prisons Rose Nearly 50 Percent, N.Y. Times
(Feb. 19, 2023), https://perma.cc/7AUP-LRMQ. Centralized, comprehensive data
about carceral mortality rates does not exist, leaving advocates and reporters with
the arduous task of collecting that data themselves. Id. Ultimately, hundreds of
deaths go unreported by the media, and many may go unseen to anyone other than
their loved ones and those who work or are confined at the carceral institution where

According to the Prison Policy Initiative, almost two million people can be
held in “1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile
correctional facilities, 181 immigration detention facilities, and 80 Indian country
jails, as well as in military prisons, civil commitment centers, state psychiatric
hospitals, and prisons in the U.S. territories.” Prison Policy Initiative, Mass
Incarceration, The Whole Pie 2023 (Mar. 14, 2023), https://perma.cc/2ZH9-FELX
(citing sources).
7
Mass Incarceration, The Whole Pie 2023 (reporting that in addition to the
millions of people incarcerated, an additional 803,000 are on parole and 2.9 million
are on probation); Report: Every Second, The Impact of the Incarceration Crisis on
America’s Families, FWD.us (Dec. 2018), https://perma.cc/2GCD-NKTZ.
6

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the death occurred. According to a recent Congressional subcommittee investigation
into the Department of Justice’s compliance with a 2013 law requiring the collection
of custodial death data, the Department failed to identify almost one thousand incustody deaths in Fiscal Year 2021 alone. Staff of S. Permanent Subcomm. on
Investigations, Comm. on Homeland Sec. & Gov’t Affairs, 117th Cong., Uncounted
Deaths in America’s Prisons & Jails: How the Department of Justice Failed to
Implement the Death in Custody Reporting Act (Sept. 20, 2022). Without the ability
to obtain even the barest minimum of information relating to a death—its mere
existence—the public interest in disclosure of any documents relating to any incustody deaths, such as the CIRB records in this case, is clear: Without transparency,
there can be no accountability. And without accountability, people will keep dying.
CONCLUSION
For the reasons stated above and in Appellees’ response brief, the Court
should affirm the district court’s order unsealing the CIRB documents.
Dated: February 23, 2024

Respectfully submitted,
/s/ Jaqueline Aranda Osorno
Jaqueline Aranda Osorno
Counsel for Amici Curiae

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Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 25 of 27

Sarah Ortlip-Sommers
PUBLIC JUSTICE
1620 L St. NW, Suite 630
Washington, DC 20036
jaosorno@publicjustice.net
sortlip-sommmers@publicjustice.net

19

Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 26 of 27

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B), Fed. R. App. P. 29(a)(5), and Ninth Circuit Rule 32-1(a) because this
brief contains 3,415 words, excluding the parts of the brief exempted by Fed. R.
App. P. 32(f), as calculated by Microsoft Word for Microsoft 365, Version 2312.
This brief complies with the typeface and type style requirements of Fed. R. App. P.
32(a) because this brief has been prepared in proportionally spaced typeface using
14-point Times New Roman font.
Dated: February 23, 2024

Signed,
/s/ Jaqueline Aranda Osorno
Jaqueline Aranda Osorno
PUBLIC JUSTICE
1620 L St. NW, Suite 630
Washington, DC 20036
jaosorno@publicjustice.net
Counsel for Amici Curiae

20

Case: 23-55607, 02/23/2024, ID: 12862766, DktEntry: 36, Page 27 of 27

CERTIFICATE OF SERVICE
I certify that on February 23, 2023, the foregoing document was served on all
parties or their counsel of record through CM/ECF system.
Dated: February 23, 2024

Signed,
/s/ Jaqueline Aranda Osorno
Jaqueline Aranda Osorno
PUBLIC JUSTICE
1620 L St. NW, Suite 630
Washington, DC 20036
jaosorno@publicjustice.net
Counsel for Amici Curiae

21
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