confidential police video in one fell swoop it did four things because the ripple injury to my clients it rendered the appeal moot it violated our rights our fundamental right to appellate review  denied this court its proper appellate jurisdiction can i ask you a question i'm very concerned about a terrorist action here and i have two questions one of if i'm reading your brace correctly you're characterizing the appeal as arguing that the district court abuse is discretion in denying the motion for a temporary stay of unsealing the videos pending appeal do i understand that correctly ok then my second question isn't in order your  argument that it's not moot because it's capable of repetition at evading review there would have to be a reasonable expectation or sometimes a demonstrated probability that the same complaining party will be subject to the a post judgment order that would cause irreparable injury and it is mediately acted upon that is something that's always going to be there will always of eight appellate review right but how do i know it's going to happen to the city of gardena again i didn't see those arguments at least not expressly in your brace but i think it could happen to city the city of gardena i think it could happen to any agency and it's i think it's bigger frankly than the four corners of this case which involve law enforcement it could happen in any number of situations and guns from this court is necessary and in those circumstances so you didn't put anything in the record that would show why the city of gardena has a reasonable expectation that you would be subject to the same action again it's hard to say what's going to happen in the future in any particular case i do know that body one cameras are out there i think we're going to be seeing more of these types of cases not less as as hel it looks reasonably likely that that same party is going to do the same and join will conduct again here it is as you say fairly speculative whether anything will arise regarding the city again i also wonder whether the capable of repetition part is problematic because the cases can differ so much i don't know quite how grand you want our holding if we don't dismiss is moot to be on stage orders and movies of police citizen encounters well i think that's an that's an excellent observation because to a certain extent the answer we get is going to depend on the question that we ask in this case you know if we if we slice it very narrowly in terms of is a is another is this police video going to get release again why can't it sorry it's already been released it's already gone viral if we slice it that narrow then the case is moot and that's the end of it but if we take a more you know expansive view at it from thirty thousand feet and we look at  and we say what happens in a situation where you have a a litigant who was it was subject to irreparable injury and not necessarily in the police context it could be anything as i said in the papers it could be we're talking about cutting down a hundred year old oak tree or demolishing and i don't know if it'll get again it's going to be subject to the irreparable injury zaccheus i mean it's a little hard to say from the briefing what the irreparable injury is but i think what what the briefing is suggesting is that the video might be inflammatory and there might be riots if i got that right that's right and you know part of this is we have to remember back two years ago in context when we did have riots in other parts of the country and we did have officers who were minding their own business in the fascinated walking in the street so it was a very real concern at the time that this was in front of judge wilson and there was only a cursory argument first for the stay below as i recall and there was no affidavit no analysis of the four part test there wasn't anything that i remember saying the video shows all this bad stuff that's likely to riots if people see it i don't know why we should expand upon that and and speculate on whether there'd be something about this case that was common to others well again like you say you are think it depends on how narrowly you slice it if you want to slice it that simile it would be very easy for the court to say this is this is moot this is not going to come up again i think the real troubling aspect is when you you you go to a client and you say look we've we've obtained in one circuit stay and we're going to have our day in court there is a process for hearing a dispute and then you find out that the district court judge on his own has released a video knowing that the stay requests coming in and honestly that you know the record shows that we did everything is as humanly possible in terms of getting the stay order before the court and you know but the why isn't it a lunch off situation though the capable of repetition evading review is not meant to apply broadly in the future there very well may be situations with the district judge would give you sufficient time to file an emergency motion before the release of privileged information right here it just might by happenstance was just a very narrow window of time that despite your best effort  of this case you know i'm and i'm actually i want to be clear i'm not saying that the media organizations that he thing wrong they really didn't they they moved to unseal the court to move the i feel the documents they were they were released and they ran with them and that's what a lot of attorneys were doing at that you know they took an opportunity of a window there but you know it didn't and it might not necessarily be this it could be you know can we roll the wrecking ball right now to him we remove life support right now and the answer is yes you can there's no there's no stay you know we had a five minute delay in getting in the us of appeal on file and that wasn't that wasn't enough by the time the court opened up the file here our stay request was an eighteen minute and judge kozinski granted just a few minutes later so i think it's it's a little bit of a whitewash on history to say that there wasn't sufficient showing that was made because this court granted a stay and i don't really understand the prejudice to the me organizations because this was a two year old shooting at the time and they didn't move didn't steal it any time before this hearing and then we couldn't delay a day or two days to get a say request on file again like i said they didn't do anything wrong they they they went with the with the position they had and that's what a lot of the you know that's actually most attorneys  assume that we got to the merits and we decided that it wasn't moot you would have had to show likelihood of success on the merits for preventing the unsealing and showing compelling play itself out of you if there is a dispute you go before a tribunal if you if you lose the tribunal you take it up on appeal there is a process that happens and what happened in this case it was really anathema to all of a chance for a higher court to consider the case is not part of what the supreme court says merits a stay it like a again you're i would repeat it is a bit of a walk back from what did happen because we would have like court kelly sager for the media interveners and alleys there is no life controversy presented by this case the city defendants have conceded that the ceiling issue is moot because the video was released more than fifteen months ago the city doesn't even address the ceiling issues in any of its papers to this court it's not completely clear what the say that they are i think it isn't completely clear but it's pretty clear what they want is some language  judicial decision saying you don't just release these videos from police shootings without going through a trial court an appellate court because they may cause riots well your honor what it appears whether it whether that satisfies the forepart tester or not i'd appreciate it if you would address it there we want to people were some people died and a lot of people were injured and a lot of people had property destroyed in riots resulting from videos over the last two or three years and it does seem like if this case is a mood we can't pretend we don't know that this court have identified for any party wanting a stay of a district court order and the district court addressed those in in his order the city chose not to do so the city's request for a sta consisted of three paragraphs one of which was a repeat of one of the prior paragraphs so two paragraphs asking the district court to stay his order even though they were you know you're right on that but could you still talk about whether release of videos of police shooting should not go through a judicial process before being released so that the public interest can be adequately weighed i don't know if we'll get there but i but on the off chance or maybe it's not an off chance that we do i want to help thinking about it absolutely your honor and addressing the assumption that the release of a place that it video automatically will lead to widespread wyatt's and destruction that exactly the question is whether automatic release of the video has a reasonable likelihood of leading to riots and destruction the understand the difference i do your honor but the automatic release moot i ask you a broader question but your i've given you two chances to answer it this is the third and then i'll forget about it ok or if the question is if i understand it whether or not every chance you have rephrased other words in every released routinely in many cases as a district court released the video at a time when he knew the ninth circuit that then a motion before the ninth circuit was not only pending but it was in motion and so i understand gardena is frustration that they had done everything i said within minutes to ensure a ninth circuit review the ninth circuit agreed to review and just record nevertheless released the videos which then mooted the appeal  and so the question has was fat and abuse of discretion and apps the issue as i understand it that guardian argues is capable of repetition and evading review so so i think it's a fair question i i don't know  whether the winter standard would say we would say that's an abuse of discretion whether it would take into account the fact that an appeal was pending but certainly we take that seriously that we thought it was important or valid enough to to agree to review the to rule that it does then that not only turns on its head the law regarding stays which says there is no automatic right to a state the city concedes that fact they had to make a bet had the burden of showing to the district court that there was a basis for  and they put nothing in their papers explaining to judge wilson why he should grant a stay even knowing the day of the hearing the judge wilson was inclined to release the video and they didn't file anything supplemental with judge wilson explaining why there was any basis for granting a stay the four part test is never mentioned in the papers was never mentioned at the hearing so the filing of a notice of appeal they apparently feel is enough to put a district judge on notice that they should not then unseal court records even though there's been no showing in the district court that there is any reason not to release a video that was part of a court file their argument before the district court indicated they had a likelihood of success on the merits they argued why they thought they at the compelling reason standard and they argued that if it were released there would be riots or the police would not want to use their body count or what they think if some reasons for that they argued those in connection with whether there was a basis for hope it was all in the same motion right it was before that just recorded this like it was mysterious what they were their arguments were as to why it's a bad idea to release the video they argued that they had a likelihood of success which as wilson found was completely unsupported by the case law in fact he said that the law was clear that they did not have a basis for sealing a record that was filed in a in a court which they by the way chose to file in a court file they didn't have to file that was summary judgment but they chose to do that they didn't have to take the position that they did in the litigation they could have settled the case even prior to litigation but instead after eighteen months of litigation they apparently felt that they had a right to agree to keep the court documents sealed but that's not what the law says with respect to the injury that might result which they argued only in connection with whether there was a compelling interest to justify stealing they presented no evidence they simply said well it's a police video and that might lead to riots even though the shooting in question was two years earlier and there was nothing in the record that suggested there would be any kind of public outcry about the video that was released that would lead to violent action in fact the record shows that that didn't happen so the idea that you should never relea police video because people might be upset by it that people might write in the streets is that they will therefore commit violence is not supported by any evidence in the record and with respect to the over the knowledge that this court has as counsel has but there have been protests against police because of police shootings by and large the reaction from the public has been outrage at police shootings that are completely unexplained the city apparently believes that the video would exonerate the officers they the court in support of their motion for summary judgment yet they didn't release it to the public and took great efforts to try to settle the case so that the public would never know what actually happened that's what this case is really about and the question that they've asked this court to address whether they should get an automatic stay notwithstanding the supreme court authority that says you have no right to an automatic stay notwithstanding the fact that they didn't take the time to actually go through any of the factors or discuss whether there was a basis for the say that they nonetheless say that the presumption of public openness of court records should be turned on its head if the records in question are simply asserted to be the kind of record that might cause someone to be upset enough to commit violence without any evidence whatsoever and yet when when this court is faced with that there's no law that supports the city's appeal here either and setting aside your ethics in here on any of the grounds that was required judge wilson to have stayed his order judge kozinski issued a stay based on their assertion that something was about something bad was about to happen he had apparently eighteen or nineteen minutes to act and did s without the benefit of any response on this day from opposing counsel so the idea that that order somehow suggest to the judge wilson acted improvidently or didn't have the authority to do what he did i think is it is a gross overstating of what judge judge  to persons of the particular defendant in the case well in the first place your honor that limited exception has never been applied more broadly than than a party and it's intended to address a very specific situation where something is so inherently incapable of being subject to review because of the limited duration that that particularly to the crew when you did not have a motion for a temporary stay of unsealing privileged in for or controversial information because in every case either the the appellate court will act in time in which case the district courts the nile of a take notice that they will probably be recording other incidents of interest to to the news media so why why isn't the specific appeal which i stated at the beginning which is did the district court abuse this discretion in denying the motion for a temporary stay of unsealing a video pending appeal why isn't that capable of repetition anything with you even with respect to the city of gardena well there's nothing  other decisions of the district court so that they can be reviewed except one exigent circumstances of some sort may make that undesirable why should there be a presumption presumption of a stay at otherwise the district judge can always prevent appellate review of his decision by not stating it if it's a disclosure decision and it's not just police riots it's all sorts of cases  intellectual property bids secret trade secrets all sorts of stuff that routinely comes up with days disclosure of things regarding educational practices law comes up  stays what does names in criminal cases what they're really asking this court to do is reverse that the constitutional presumption of openness of court records in proceedings what th absolute presumption for example all sorts of stuff in criminal cases a secret such as pre sentence reports and a lot of the reason is to protect snitches because as soon as the media gets hold for example of a snitches name and prince it he he runs a high risk of death it's not true that everything is open well your honor with respect to the records at issue here i don't think there's any there's certainly no case law cited nor has the city contested that these kinds of records are subject to the contest i know you want to talk about that but i'm giving you an opportunity to address something that's on my mind  last time you rejected it three times the syme your own lee gets rejected what do you want to talk to me about the have something to say about whether we ought to interpret the rules in such a way as to create a presumption of the day of disclosure orders so that they can be subjected to review yes your honor i would like to address that and i think there are two reasons why the court should not do that actually three one is it is not up to this court to add new rules to the rules of either the ninth circuit of the central district that may be something that could be considered but there is a process for doing that that is not before this court it is not up to this court to legislate or to issue advisory opinions for to make new rules and that's what the city is asking this court to do then that's an improper request at this court and there are other avenues that they can pursue if they want to do that the second reason is both a law on stays and a loss on access to court records are completely inconsistent with what the city is asking this court to do there is a process for seeking a say in their specific requirements for getting a say and for the court to then impose a centrally automatic right to a stay would fly in the face of the u s supreme court's decision in the i don't know how to pronounce it but can case and katie and which says that there is no automatic right to a stay in the city concedes that that would be exactly the opposite of this course saying but everything should be stayed if there's any release of information and there should be an automatic stay and third even though with due respect your honor is right that not every document that a court has is subject to an automatic right under the first amendment or the common law there are categories of documents where that constitutional and common law presumption exists and what the city is asking this court to do is to reverse that presumption and say that you automatically get feeling you automatically get an order saying in the unsealing or refusal to seal in every case and what that means from a practical standpoint is every time a party wants to seal a document and the district court says no an appeal is going to be filed with this court and a period of time equal to or greater than six months to three years is going to pass before that record is unsealed because it will be stayed and that's simply an inconsistent with the constitutional guidelines and the common law you can't have a situation where a district judge who read the record and acted within article three authority is somehow then told that his authority doesn't exist but instead he has to wait until an appellate court reviews his authority to determine whether or not he acted appropriately there may be situations where district judge has acted inappropriately but with due respect i don't think that this case they have the burden of putting before judge wilson it's just a lot of time now can you  e certainly your honor and i just simply saying they had the burden of justifying to judge wilson their position and a request for a stay and they did not do that for them to then be unhappy at the result doesn't justify a change in the rules or in pyrrhic victory this one really is it's a loss either way our client has already had these records released and there's nothing what nothing we can do about it what they did do is they went forward because they were very concerned about this happening not just to other law enforcement agencies but to other individuals and other entities in the in the future you know when i told them that we had to obtain a stay and you know they were they were very happy they said ok we'll get it we'll get our shot within a circuit and ice and then they said he actually called me said the l a times has published this information how can they do that and i said they can't and then we got to the bottom of and we saw what happened and they said how can it happen isn't there a process for this and i said well the there sort of is if this were a final judgment there would be the automatic stay if the l a times would have sued us directly to try to get these things released and there would have been a judgment there would have been an automatic stay but that's not what happened it piggyback on to an existing case became a post post judgment order and that rule as interpreted now at least by judge wilson only applied to final judgments it did not apply to find the post judgment orders and that's why we're here and by the way while we're at talking about the standard the showing we would have had that made honestly there is no standing or there's no showing that we could have made that would have justified a stay in judge wilson's mind because when we did raise these issues they were met with comments like i have two words for you so what and that's not the court's concern so there really i mean we're talking about abuse of discretion it's clearly been established but i think it's more fundamental than that because when you have this right to have a higher court take a look at something you're not just talking about i'm an abuse of discretion type standard you're talking about a more fundamental constitutional type error that existed one last word about the showing that was made a lot of this your honor if you have to remember in context when we talk about the probability of a of an incident of a riot of something that was going on that was going on every day and it was in everybody's hearts and minds at the time of the hearings the temperature has changed now we're talking about different issues now but if we were to say right now if the if the president were to sign another executive order and you'd have protests in the street every would not their heads and except that because that is what's going on right now at the time of this hearing there were riots there were protests and there was criminal activities there were there was looting  was killing there burning places than you had officers that were in fear for their safety and this was a very real concern that was met with not just a not just a rejection of this but just on the part of the district court that said things like i have words two words for you so what so i just think that the district court and the federal courts can do better than this and they have to do better than this and i see my time's up thank you