in the united states court of appeals · /s/ sarah hawkins warren sarah hawkins warren counsel of...

No. 17-13139-GG

In the

United States Court of Appeals for the Eleventh Circuit

MAURICE WALKER, on behalf of himself and others similarly situated,

Plaintiff-Appellee, v.

CITY OF CALHOUN, GEORGIA, Defendant-Appellant.

On Appeal from the United States District Court for the

Northern District of Georgia, No. 4:15-cv-00170-HLM

BRIEF OF THE STATES OF GEORGIA, ALABAMA, AND FLORIDA AS AMICI CURIAE IN SUPPORT OF THE CITY OF

CALHOUN AND REVERSAL OF THE PRELIMINARY INJUNCTION

Steve Marshall Christopher M. Carr Attorney General of Alabama Attorney General of Georgia

Sarah Hawkins Warren* Solicitor General

Pamela Jo Bondi Ross W. Bergethon Attorney General of Florida Deputy Solicitor General

40 Capitol Square, SW Atlanta, Georgia 30334 (404) 656-3300 [email protected] *Counsel of Record Counsel for Amici Curiae

Case: 17-13139 Date Filed: 09/27/2017 Page: 1 of 28

Walker v. City of Calhoun, No. 17-13139-GG

C1 of 1

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Eleventh Circuit Rules 26.1-1, 26.1-2, and 26.1-3, Amicus

Curiae State of Georgia certifies that, in addition to the persons and entities

identified in the briefs of Defendant-Appellant, Plaintiff-Appellee, and all of

the amici curiae, the following persons may have an interest in the outcome of

this case:

The State of Georgia did not participate in the district court below, but

will participate as Amicus Curiae in support of Appellant before this Court.

The State of Alabama did not participate in the district court below,

but will participate as Amicus Curiae in support of Appellant before this

Court.

The State of Florida did not participate in the district court below, but

will participate as Amicus Curiae in support of Appellant before this Court.

/s/ Sarah Hawkins Warren Sarah Hawkins Warren Counsel of Record


TABLE OF CONTENTS

Page

i

Table of Citations ............................................................................................... ii

Statement of Interest ........................................................................................... 1

Statement of the Issue ......................................................................................... 1

Summary of Argument ........................................................................................ 2

Argument ............................................................................................................. 4

I. The Griffin-Williams-Bearden analytical framework should not be extended to the context of bail. .................................................................................... 4

II. The City’s bail system should have been analyzed under traditional equal protection or procedural due process rubrics. ............................................ 12

III. Pugh v. Rainwater does not support the district court’s ruling. .................. 17

Conclusion ........................................................................................................ 20


ii

TABLE OF CITATIONS Cases Pages

Albright v. Oliver, 510 U.S. 266 (1994) ....................................................................................... 6

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ..................................................................................... 16

Bearden v. Georgia, 461 U.S. 660 (1983) ............................................................................... passim

Bell v. Wolfish, 441 U.S. 520 (1979) ....................................................................................... 1

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) .......................................................................... 15, 16, 17

Doyle v. Elsea, 658 F.2d 512 (7th Cir. 1981) ............................................................... 10, 13

Fields v. Henry Cnty., 701 F.3d 180 (6th Cir. 2012) .................................................................. 5, 14

Gerstein v. Pugh, 420 U.S. 103 (1975) .............................................................................. 16, 17

Graham v. Connor, 490 U.S. 386 (1989) ....................................................................................... 6

Griffin v. Illinois, 351 U.S. 12 (1956) ............................................................................ 2, 6, 8, 9

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ....................................................................................... 8

Maher v. Roe, 432 U.S. 464 (1977) ..................................................................................... 12


iii

Mathews v. Eldridge, 424 U.S. 319 (1976) ..................................................................................... 15

McGinnis v. Royster, 410 U.S. 263 (1973) .............................................................................. 12, 13

Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc) .............................................. passim

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) .................................................................................. 12, 13

Schall v. Martin, 467 U.S. 253 (1984) ..................................................................................... 15

Schilb v. Kuebel, 404 U.S. 357 (1971) ....................................................................................... 4

Smith v. Bennett, 365 U.S. 708 (1961) ...............................................................................6, 8, 9

Stack v. Boyle, 342 U.S. 1 (1951) ................................................................................ 4, 9, 13

Tate v. Short, 401 U.S. 395 (1971) .......................................................................... 6, 7, 8, 9

United States v. McConnell, 842 F.2d 105 (5th Cir. 1988) ........................................................................ 4

United States v. Salerno, 481 U.S. 739 (1987) ................................................................................. 9, 15

Williams v. Illinois, 399 U.S. 235 (1970) .......................................................................... 6, 7, 8, 9

Statutes

O.C.G.A. § 17-6-1(f)(1) ....................................................................................... 5


iv

Constitutional Provisions

U.S. Const. amend. VIII ..................................................................................... 4

Other Authorities

American Money Bail System, Equal Justice Under Law, http://bit.ly/1TXOgJv (last visited September 25, 2017) .......................... 11

Federal Rule of Appellate Procedure 29(a) ......................................................... 1


1

STATEMENT OF INTEREST

The States of the Eleventh Circuit—Georgia, Alabama, and Florida—

have a “substantial interest in ensuring that persons accused of crimes are

available for trials and, ultimately, for service of their sentences.” Bell v.

Wolfish, 441 U.S. 520, 534 (1979). The Eighth Amendment expressly

contemplates the use of bail for this purpose, and communities across the

amici States have long relied on monetary bail to advance their legitimate

governmental interests. The district court’s order in this case undermines

these interests by severely limiting communities’ ability to implement

constitutional bail procedures.

Pursuant to Federal Rule of Appellate Procedure 29(a), the amici States

are not required to obtain the consent of the parties or leave of court before

filing this brief. No party or any party’s counsel authored any part of this

brief, and no person or entity, other than the States, made a monetary

contribution for the preparation and submission of this brief.

STATEMENT OF THE ISSUE

This brief addresses only the question of which legal standards should

be used to evaluate the merits of Plaintiff’s constitutional claims.


2

SUMMARY OF ARGUMENT

Bail has been an integral part of our nation’s criminal justice system for

centuries, and the Constitution explicitly contemplates its use. The Supreme

Court has never as much as suggested that monetary bail is per se

constitutionally suspect. Nonetheless, the district court in this case found

that Plaintiff demonstrated a likelihood of success on the merits of his claim

that the City of Calhoun’s (the “City”) misdemeanor bail system amounts to

unconstitutional “wealth-based jailing,” and entered an injunction placing

substantial restrictions on the City’s bail procedures. The district court’s

constitutional analysis was flawed.

First, the court mistakenly interpreted a line of Supreme Court

decisions beginning with Griffin v. Illinois, 351 U.S. 12 (1956), and

culminating with Bearden v. Georgia, 461 U.S. 660 (1983), as requiring

application of heightened scrutiny in this case. The Supreme Court has never

extended the Griffin line to the context of bail, and for good reason. Those

decisions employed a unique analytical framework that the Court has

described as a convergence of equal protection and due process principles;

their primary concern was that indigents not be punished, or be deprived of

the opportunity to contest their punishment, “solely by reason of their

indigency.” But that concern is not implicated here because the government

interest served by monetary bail is not to punish but instead to provide


3

effective incentives for the accused to show up for trial—a legitimate

government interest that monetary bail repeatedly has been found to further.

Second, when properly considered under established equal protection or

due process frameworks, bail systems like the City’s pass constitutional muster.

Plaintiff’s equal protection challenge is a wealth-based disparate-impact claim,

and because indigency is not a suspect class, the City’s bail system is entitled

to rational-basis review. Monetary bail rationally serves the legitimate interest

of providing criminal defendants with pretrial liberty while also assuring their

appearance at trial, thus satisfying rational-basis review. And the Supreme

Court’s due process precedents allow localities to detain arrestees for up to 48

hours following arrest before holding a probable cause hearing and expressly

contemplate combining probable cause hearings with bail proceedings. Bail

systems that require an individualized bail determination within 48 hours

thus pose no apparent due process problem either. The district court’s

imposition of a strict 24-hour period for conducting bail determinations is

inconsistent with these precedents and strips away the City’s ability to

implement workable procedures based on the realities of law enforcement.

Third, and finally, the former Fifth Circuit’s decision in Pugh v.

Rainwater does not support the district court’s ruling. The Pugh court rejected

a facial challenge to a Florida bail rule, noting that “all relevant factors . . . be

considered in determining what form of release is necessary to assure the

defendant’s appearance,” and that, when necessary, a “judge [would]


4

determine the amount of monetary bail.” The City’s Standing Bail Order

(“Standing Order”), which currently provides for individualized hearings

within 48 hours, similarly affords consideration of relevant factors bearing on

pretrial release—including indigency.

ARGUMENT

I. The Griffin-Williams-Bearden analytical framework should not be extended to the context of bail.

A. “Bail . . . is basic to our system of law.” Schilb v. Kuebel, 404 U.S.

357, 365 (1971). Indeed, the Eighth Amendment presupposes its use by

providing that “[e]xcessive bail shall not be required.” U.S. Const. amend.

VIII. The Supreme Court has held that bail is “excessive” when it is set “at a

figure higher than an amount reasonably calculated to fulfill th[e] purpose” of

assuring the accused’s presence at trial. Stack v. Boyle, 342 U.S. 1, 5 (1951).

An Eighth Amendment inquiry thus turns not on whether the accused has

the financial means to post bail, but rather on whether the bail amount is

unreasonably greater than required to serve the government’s legitimate

interests. See United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988)

(holding that “a bail setting is not constitutionally excessive merely because a

defendant is financially unable to satisfy the requirement”).

Local governments have long been afforded the ability to implement

bail systems that suit the particular needs of their communities. The City

does so through use of a bail schedule, which sets bail at a standard amount


5

based on the charged offense and thereby “represents an assessment of what

bail amount would ensure the appearance of the average defendant facing

such a charge.” See Fields v. Henry Cnty., 701 F.3d 180, 184 (6th Cir. 2012).1

Georgia law authorizes the use of bail schedules, see O.C.G.A. § 17-6-1(f)(1),

and the “mere use of a schedule does not itself pose a constitutional problem

under the Eighth Amendment,” Fields, 701 F.3d at 184 (citing Pugh v.

Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc)).

B. Rather than challenge the City’s bail system under the

constitutional provision that specifically deals with bail—the Eighth

Amendment—Plaintiff has turned instead to the Fourteenth Amendment. In

so doing, he relies on a patchwork of excerpts from Supreme Court cases

dealing with indigency in contexts other than bail to argue that the City’s bail

system violates some combination of the Due Process and Equal Protection

Clauses. Specifically, he maintains that the City’s system “carves out jail for

those who cannot afford to pay the City and freedom for those who can.”

1 Under the terms of its municipal court’s Standing Order of November 23,

2015, the City currently uses a combination of a bail schedule and individualized hearings. See generally Doc. 29-5 (Standing Order). The bail amounts for misdemeanors are fixed according to a schedule of offenses. Id. at 3-5. Arrestees may either post the bail amount set by the schedule or assert their indigency at a “first appearance” hearing, which must be held within 48 hours of arrest. Id. at 5-6. “In the unlikely event that no hearing can be held within the [48] hour time frame . . . then the accused shall be released on a recognizance bond.” Id. at 6.


6

Doc. 5-1 (Plaintiff’s Memorandum in Support of Preliminary Injunction) at

13.

As a threshold matter, the Supreme Court has disapproved the tactic

Plaintiff uses here to challenge monetary bail. “Where a particular

Amendment ‘provides an explicit textual source of constitutional protection’

against a particular sort of government behavior, ‘that Amendment, not the

more generalized notion of “substantive due process” must be the guide for

analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality

opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). By accepting

Plaintiff’s novel Fourteenth Amendment arguments at face value, the district

court not only departed from the traditional Eighth Amendment framework

for considering bail claims, but also adopted just the sort of generalized

substantive due process analysis the Supreme Court cautioned against in

Albright and Graham.

C. Even assuming that Plaintiff’s claim is amenable to analysis under

the Fourteenth Amendment—rather than the Eighth—the district court

nonetheless erred by applying the incorrect Fourteenth Amendment analytical

framework to that claim. See Doc. 40 (Jan. 28, 2016 Order) at 48-51. The root

of the district court’s error was its extension of a line of Supreme Court

decisions, including Griffin v. Illinois, 351 U.S. 12, 19 (1956); Smith v. Bennett,

365 U.S. 708, 709 (1961); Williams v. Illinois, 399 U.S. 235, 240-41 (1970); Tate

v. Short, 401 U.S. 395, 398 (1971); and Bearden v. Georgia, 461 U.S. 660, 671


7

(1983) (the “Griffin line”), to the context of monetary bail. As discussed

below, however, Supreme Court precedent does not warrant—much less

mandate—extending the Griffin line to this case.

To the extent the decisions in the Griffin line share a common thread, it

is their application of a generalized Fourteenth Amendment analysis in

certain contexts involving indigency. While some of these decisions couch

their discussions in terms of equal protection, see, e.g., Williams, 399 U.S. at

244; Tate, 401 U.S. at 398-99, they do not employ a traditional equal

protection framework. Instead, their analyses appear to incorporate an

amalgam of equal protection and due process principles. See Bearden, 461 U.S.

at 665-66 (noting that “[d]ue process and equal protection principles converge

in the Court’s analysis in these cases”). In the Griffin line of cases, the Court

departed from the rational-basis review that would typically apply to wealth-

based claims under a traditional equal protection framework and instead

employed a sort of heightened-scrutiny balancing test to weigh the interests at

issue. Id. at 666-67, 673 (discussing various factors to be considered to ensure

“the fundamental fairness required by the Fourteenth Amendment,”

including the nature of the individual interest affected, the extent to which it

is affected, the rationality of the connection between the legislative means and

purpose, and the existence of alternative means for effectuating the purpose).


8

Whatever the validity of these decisions’ reasoning,2 the Supreme

Court has never extended this hybrid constitutional analysis to the bail

context—and for good reason. Griffin and Smith addressed mandatory

payment for transcripts and filing fees that effectively denied indigent

defendants the ability to appeal their convictions or file habeas petitions

challenging those convictions. Griffin, 351 U.S. at 15; Smith, 365 U.S. at 708-

09. And Williams, Tate, and Bearden each addressed additional criminal

penalties imposed after a convicted indigent defendant was unable to pay

court-ordered fines or restitution. Williams, 399 U.S. at 236-37; Tate, 401 U.S.

at 396-97; Bearden, 461 U.S. at 661. Those holdings, moreover, were carefully

limited to their particular contexts. In Williams, for example, the Court

declined to extend its holding beyond the particular practice at issue—i.e.,

lengthening a prison term beyond the statutory maximum based on inability

to pay a fine—to sentencing practices more generally. The Court emphasized

that “[t]he mere fact that an indigent in a particular case may be imprisoned

for a longer time than a non-indigent convicted of the same offense does not,

2 See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 133, 138 (1996) (Thomas, J.,

dissenting) (characterizing this line of cases as “dubious ab initio” and perpetuating “an equalizing notion of the Equal Protection Clause that would . . . have startled the Fourteenth Amendment’s Framers”); Williams, 399 U.S. at 260 (Harlan, J., concurring) (criticizing the Court’s “rhetorical preoccupation with ‘equalizing’ rather than analyzing the rationality of the legislative distinction in relation to legislative purpose”) (emphasis in original).


9

of course, give rise to a violation of the Equal Protection Clause.” 399 U.S. at

243-44. The district court’s extrapolation of the Griffin line’s substantive-due-

process-style analysis to the context of bail was therefore inconsistent with the

limited reach of those decisions.

D. The concern animating the Griffin line—ensuring that convicted

defendants not be punished, or denied the opportunity to contest their

punishment, “solely by reason of their indigency,” id. at 242—is not implicated

in the context of bail. The purpose of monetary bail is not to punish. See

United States v. Salerno, 481 U.S. 739, 746 (1987) (“[T]he mere fact that a

person is detained does not inexorably lead to the conclusion that the

government has imposed punishment.”). Rather, it serves a legitimate and

important government interest by providing an effective incentive for the

accused to show up for trial. See Stack, 342 U.S. at 5.3

3 By contrast, the Supreme Court held that the policies challenged in the

Griffin line either served less significant interests or did not advance those interests effectively. See Bearden, 461 U.S. at 670-72 (explaining that revoking probation and re-incarcerating indigent defendants for inability to pay fines or restitution is not necessary to further the state’s punishment and deterrence goals); Tate, 401 U.S. at 399 (explaining that imposing incarceration on indigent defendants for failure to pay fines undermines the state’s interest in revenue collection due to costs incurred by the state in incarcerating the defendant); Williams, 399 U.S. at 241-42 (holding that a state lacks legitimate penological interest in incarcerating defendants for terms beyond the statutory maximum solely because of defendant’s inability to pay fines and court costs); Smith, 365 U.S. at 713-14 (holding that a state lacks legitimate interest in requiring indigent prisoners to pay filing fees prior to docketing of applications for habeas relief); Griffin, 351 U.S. at 18


10

The decisions in the Griffin line, in short, do not stand for the

“sweeping proposition . . . that, whenever a person spends more time

incarcerated than a wealthier person would have spent, the equal protection

clause is violated.” Doyle v. Elsea, 658 F.2d 512, 518 (7th Cir. 1981) (discussing

Griffin line). By extending the unique constitutional analysis from these cases

to a novel context—bail—the district court not only erred, but also established

a precedent that could lead to a variety of negative consequences.

E. One such problem with applying a Griffin-type analysis here is the

lack of any limiting principle. Although this case concerns misdemeanor bail,

there is no apparent analytical distinction under the hybrid constitutional

analysis Plaintiff imports from the Griffin line that would dictate a different

result for felony (or any other kind of) bail.4 The upshot is that a successful

challenge to misdemeanor bail systems under the Griffin line’s hybrid

constitutional analysis opens the door to challenges to the constitutionality of

monetary bail as a whole.5

(holding that a state lacks legitimate interest in requiring indigent defendants to pay filing fee as a condition for appealing a conviction).

4 Indeed, Plaintiff’s counsel has already challenged felony bail practices in Randolph County, Alabama, in a federal class-action suit, contending that the Griffin-type analysis applies in the felony-bail context. See Doc. 4, Memorandum in Support of Plaintiff’s Motion for Temporary Restraining Order and/or Preliminary Injunction, Edwards v. Cofield, No. 3:17-cv-00321-WKW-TFM (M.D. Ala. May 18, 2017).

5 That is, in fact, Plaintiff’s counsel’s stated goal. Counsel brought this case as part of strategic litigation expressly aimed at “ending the American money


11

Eliminating monetary bail altogether, however, would stand in stark

tension with the Eighth Amendment and would fundamentally reshape the

criminal justice systems of the amici States and their localities. That is not a

path to be taken lightly, and it should not be imposed by court order absent

explicit Supreme Court precedent mandating that result. Put another way:

there may be good policy reasons to examine the administration of money-bail

systems in state and local governments, and many states—including Georgia—

have initiated those policy evaluations. But normative, policy-based reforms

are properly suited for policy-making bodies and are distinct from the legal

analysis required under the United States Constitution and Supreme Court

precedent.

F. In sum, by interpreting the Griffin line in a way that undercuts the

constitutionality of monetary bail—a centuries-old institution—the district

court stretched the Fourteenth Amendment beyond the bounds of existing

Supreme Court precedent. The expansion of the Griffin-line’s substantive-

due-process-style reasoning to new, factually distinct contexts opens the door

for courts to substitute their policy preferences for those of the States and

their localities.

bail system” altogether. Ending the American Money Bail System, Equal Justice Under Law, http://bit.ly/1TXOgJv (last visited September 25, 2017).


12

II. The City’s bail system should have been analyzed under traditional equal protection or procedural due process rubrics.

Rather than importing the unique Fourteenth Amendment analysis of

the Griffin line decisions into the context of bail, the district court should

have analyzed Plaintiff’s claims under established equal protection or

procedural due process frameworks.

A. Stripped of the substantive due process trappings of the Griffin line,

Plaintiff’s equal protection challenge is properly viewed as a wealth-based

disparate-impact claim. Indigency is not a suspect class under the Fourteenth

Amendment, see Maher v. Roe, 432 U.S. 464, 470-71 (1977), so wealth-based

challenges to monetary bail systems are subject only to the highly deferential

rational-basis review, see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17

(1973).

McGinnis v. Royster, 410 U.S. 263 (1973), is instructive on this point.

There, the plaintiff challenged New York’s good-time credit scheme on equal

protection grounds. Under that system, a person sentenced to one year in

prison who had spent four months in pretrial detention would have been

required to serve only eight months in prison, but would have received good-

time credit for only those eight months and not for the four months spent in

pretrial detention. By contrast, a person sentenced to one year who had been

free on bail before trial would have received good-time credit on all twelve

months of the sentence. See id. at 266-67; see also Doyle, 658 F.2d at 518

(discussing McGinnis and providing timeline example). Under that system,


13

defendants who were unable to afford bail served longer sentences than those

who could. The Supreme Court nonetheless held that the sole constitutional

inquiry was whether the challenged policy “rationally further[ed] some

legitimate, articulated state purpose.” McGinnis, 410 U.S. at 270. The Court

accordingly upheld the good-time policy because it “rationally promote[d] the

legitimate desire of the state legislature to afford state prison officials an

adequate opportunity to evaluate both an inmate’s conduct and his

rehabilitative progress before he is eligible for parole.” Id. at 277.

Under the analytical framework employed by McGinnis and in other

wealth-based equal protection challenges, bail systems are constitutional under

the Equal Protection Clause so long as they rationally further any legitimate

government interest. Id. at 270; see also, e.g., Rodriguez, 411 U.S. at 55. And

the City offered reasons why its Standing Order satisfies this requirement,

including that it ensures that arrestees have financial incentives to appear at

trial while providing alternative release arrangements for those unable to post

bail. See Appellant’s Br. at 15, 26; accord Stack, 342 U.S at 5 (explaining that

monetary bail serves the legitimate interest of providing arrestees with pretrial

liberty while also assuring their appearance at trial through the “deposit of a

sum of money subject to forfeiture”).6 For example, the City points to its

experience following the entry of the district court’s first injunction—a system

6 That interest, in fact, has been deemed even more than legitimate—it is

“compelling.” Pugh, 572 F.2d at 1056.


14

of mandatory unsecured release—which resulted in a substantial increase in

the number of defendants who failed to appear for trial. See Doc. 63 (Second

Affidavit of Matthew Chad Silvers) at ¶¶ 3, 11, 20 (deputy marshal of the

City’s municipal court stating that the number of failures to appear had risen

by approximately 150% during the 15-month period after the district court

entered its first injunction, as compared to the same period before the

injunction).

The City has also offered valid reasons why its bail schedule rationally

serves legitimate government interests. Such schedules are less resource-

intensive for localities because they do not require hearings for all cases, and

they also allow many defendants to quickly post bail. See Appellant’s Br. at 15,

26; see also Fields, 701 F.3d at 184 (explaining that a “bond schedule represents

an assessment of what bail amount would ensure the appearance of the

average defendant facing such a charge” and is “therefore aimed at assuring

the presence of a defendant”).

B. Although the district court did not frame its analysis in due process

terms, its injunction focuses entirely on the procedures the City must

implement to protect the constitutional rights of indigent misdemeanor

arrestees. Among other things, the court required that the City make an

assessment of arrestees’ indigency within 24 hours of arrest. But no decision

of the Supreme Court or this Court supports such a rule.


15

Pretrial detention undoubtedly implicates due process because it

deprives arrestees of their liberty. Yet, despite an arrestee’s “strong interest in

liberty,” the Supreme Court has not held that pretrial detention under the

types of circumstances involved here “offends some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as

fundamental.” Salerno, 481 U.S. at 750-51 (internal quotation marks omitted).

That means that a jurisdiction need only afford an arrestee a fair process

through which his eligibility for bail may be considered. See, e.g., Schall v.

Martin, 467 U.S. 253, 274 (1984) (“Given the legitimacy of the State’s interest

in preventive detention, and the nonpunitive nature of that detention, the

remaining question is whether the procedures afforded [arrestees] detained

prior to factfinding provide sufficient protection against erroneous and

unnecessary deprivations of liberty.” (citing Mathews v. Eldridge, 424 U.S. 319,

335 (1976))).

The Supreme Court has never set a time limit for when a bail hearing

must occur. It has done so, however, in the context of probable cause

determinations: in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the

Court held that it is presumptively constitutional to detain an arrestee for up

to 48 hours following arrest before holding a probable cause hearing. Id. at

56; see also Atwater v. City of Lago Vista, 532 U.S. 318, 352 (2001) (holding that

McLaughlin applies to both felony and misdemeanor arrests). And although

the Court has opined that the “[m]aximum protection of individual rights


16

could be assured by requiring a magistrate’s review of the factual justification

prior to any arrest,” it has also acknowledged that “such a requirement would

constitute an intolerable handicap for legitimate law enforcement.” Gerstein v.

Pugh, 420 U.S. 103, 113 (1975). A 48-hour period thus reflects a “‘practical

compromise’ between the rights of individuals and the realities of law

enforcement,” which include delays caused by the need to retrieve records or

arrange for appearance of counsel; transportation of arrestees from one facility

to another; obtaining the presence of an arresting officer who might be busy

with other cases; and the higher volume of arrests on weekends, when staff

and other resources tend to be limited. McLaughlin, 500 U.S. at 53, 55-57.

If affording probable cause hearings to arrestees within 48 hours is

presumptively constitutional, bail systems that provide the same timeframe for

bail hearings must be too. This is especially so given that the Supreme Court

has expressly contemplated combined probable cause and bail hearings. See

Gerstein, 420 U.S. at 123-24 (recognizing “the desirability of flexibility and

experimentation by the States” and noting that it “may be found desirable . . .

[f]or the determination [to] be incorporated into the procedure for setting

bail”); McLaughlin, 500 U.S. at 54 (noting that requiring immediate probable

cause hearings would make it “impossible” to combine such hearings with bail


17

hearings). Any argument that bail hearings must occur even faster than

probable cause hearings would wholly disregard this reasoning.7

But that is exactly what the district court’s injunction does. By

requiring a strict 24-hour deadline for City officials to distribute, collect, and

evaluate affidavits attesting to arrestees’ indigency, the district court’s

injunction has stripped away the City’s ability to balance within a

constitutional framework “the rights of individuals and the realities of law

enforcement.” McLaughlin, 500 U.S. at 53. The court’s ruling clashes with

Gerstein and McLaughlin and interprets the Fourteenth Amendment in a

manner unsupported by precedent.

III. Pugh v. Rainwater does not support the district court’s ruling.

The district court also erred by basing its decision on the former Fifth

Circuit’s decision in Pugh v. Rainwater, which it cited for the proposition that

“a bond scheme that did not take into account indigency would fail to pass

constitutional muster.” Doc. 40 at 51-52 (citing Pugh, 572 F.2d at 1057). Pugh

does not support the district court’s holding because, unlike the bail scheme

that was originally challenged in Pugh, the City’s Standing Order does “take

into account indigency” and accordingly satisfies the requirements set out in

7 It does not follow, however, that 48 hours should necessarily mark the outer

boundary for bail determinations to be considered presumptively constitutional. Regardless, this Court need not determine the outermost temporal boundary for bail hearings to decide that the City’s Standing Order is facially constitutional.


18

that decision. Doc. 29-5 (Standing Order) at 5-6 (providing that “the accused

will be given the opportunity [at the bail hearing] to object to the bail amount

set for him or her, including any claim of indigency and the need for

appointed legal counsel to assist in their release”).

The plaintiff in Pugh challenged Florida’s bail scheme under the

Fourteenth Amendment, arguing that the scheme was facially

unconstitutional because it did not express a “presumption” in favor of non-

monetary bail for indigent arrestees. Pugh, 572 F.2d at 1055-56 & n.2. The en

banc Fifth Circuit rejected that argument. To be sure, the court opined that

“in the case of an indigent, whose appearance at trial could reasonably be

assured by one of the alternate forms of release, pretrial confinement for

inability to post money bail would constitute imposition of an excessive

restraint.” Id. at 1058. But the court ultimately concluded that the Florida

bail scheme at issue, which had been amended during the course of the

litigation, id. at 1055, was facially valid because it ensured that indigent

defendants would be considered for—though not promised—non-monetary

forms of bail for release pending trial, id. at 1058.

The City’s bail system comports with Pugh. It does not entail the

singular use of a bail schedule “without meaningful consideration of other

possible alternatives” that troubled the Court in Pugh. Id. at 1057. Instead, it

combines use of a bail schedule with individualized bail hearings at which


19

indigent misdemeanor arrestees are considered for non-monetary forms of

pretrial release. Doc. 29-5 at 3-6.

Moreover, Pugh did not contemplate, let alone require, that indigent

arrestees must be considered for non-monetary bail on any particular timeline,

as the district court’s injunction requires in this case. The Pugh court’s

concern was not that an arrestee was entitled to an immediate evaluation of

his indigency; it was that he might not receive such consideration at all.

Indeed, the court deemed the Florida bail scheme in question facially

constitutional on the basis that it provided for individualized consideration—

not because it did so within a certain amount of time. Pugh, 572 F.2d at 1058.

Here, again, the City’s Standing Order satisfies this test by ensuring that

misdemeanor arrestees are entitled to individualized hearings within 48 hours

of arrest, at which time they may object to the set bail amount or otherwise

prove indigency. Doc. 29-5 at 5. The City has even taken the additional step

of providing that any arrestees who do not receive a hearing within that

timeframe will be released on their own recognizance. Id. at 6.

Pugh therefore does not mandate a determination that the City’s

Standing Order is unconstitutional.


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CONCLUSION

For the foregoing reasons, this Court should reverse the preliminary

injunction.

Respectfully submitted,

/s/ Sarah Hawkins Warren

Steve Marshall Christopher M. Carr Attorney General of Alabama Attorney General of Georgia

Sarah Hawkins Warren* Pamela Jo Bondi Solicitor General

Attorney General of Florida Ross W. Bergethon Deputy Solicitor General

Office of the Georgia Attorney General 40 Capitol Square, SW Atlanta, Georgia 30334 (404) 656-3300 [email protected] Counsel for Amici Curiae *Lead Counsel


CERTIFICATE OF COMPLIANCE

This document complies with the type-volume limitation of Rule

32(a)(7)(B) of the Federal Rules of Appellate Procedure because it contains

4,574 words as counted by the word-processing system used to prepare the

document.

/s/ Sarah Hawkins Warren Sarah Hawkins Warren


CERTIFICATE OF SERVICE

I hereby certify that on September 27, 2017, I served this brief by

electronically filing it with this Court’s ECF system, which constitutes service

on all attorneys who have appeared in this case and are registered to use the

ECF system.

/s/ Sarah Hawkins Warren Sarah Hawkins Warren


in the united states court of appeals · /s/ sarah hawkins warren sarah hawkins warren counsel of...

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