IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                                No. 16-60690
                                                                       FILED
                                                                 March 29, 2018
                                                                  Lyle W. Cayce
JESSICA JAUCH,                                                         Clerk

            Plaintiff - Appellant

v.

CHOCTAW COUNTY; CLOYD HALFORD, in his Individual Capacity,

            Defendants - Appellees




                Appeal from the United States District Court
                  for the Northern District of Mississippi


                ON PETITION FOR REHEARING EN BANC
                 (Opinion: October 24, 2017, 

)


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
REAVLEY, Circuit Judge:

      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5TH Cir. R. 35), the Petition
for Rehearing En Banc is DENIED.
                                No. 16-60690
     In the en banc poll, six judges voted in favor of rehearing (Judges Jones,
Smith, Owen, Southwick, Willett, and Ho) and nine judges voted against
rehearing (Chief Judge Stewart and Judges Dennis, Clement, Prado, Elrod,
Haynes, Graves, Higginson, and Costa).


ENTERED FOR THE COURT:




__________________________________
THOMAS M. REAVLEY
UNITED STATES CIRCUIT JUDGE




                                      2
                                  No. 16-60690
LESLIE H. SOUTHWICK, Circuit Judge, joined by EDITH H. JONES, JERRY
E. SMITH, PRISCILLA R. OWEN, DON R. WILLETT, and JAMES C. HO,
Circuit Judges, dissenting from denial of rehearing en banc:


      I respectfully dissent from our failure to rehear this case en banc. The
panel opinion — for the first time in this or any circuit — declared that a sheriff
violated the Constitution when an indicted, pretrial detainee was held until
the next regular term of the local criminal court before being afforded an
opportunity to have bail set. A capias warrant instructed the sheriff to hold
her until the term of court, which was when a judge with authority over that
prisoner would be in the county.       The sheriff did so, following a practice
authorized by the state’s Supreme Court. There is no law to the contrary that
is established with the clarity the United States Supreme Court requires under
recent caselaw that was not considered because it postdates the panel opinion.
      At its most basic, my concern is that in assessing the liability of the
County and the sheriff, the panel opinion used precedents that are inapplicable
to the process afforded in this case, a process drawn from statutes, court rules,
and perhaps even policies of the local judges. I cannot discern how these
defendants had any effect on when this plaintiff was considered for release.
Thus, as to these parties, I believe the panel was wrong. More relevant to
whether to take a case en banc, what rights prisoners have to be released on
bail or otherwise before trial is a profoundly significant question due to its
implications for individual liberty. The full court should rework the answer.
      I start with a summary of the Mississippi statutes and court rules that
led to an allegedly unconstitutional detention. Each of the state’s 82 counties
is placed into one of 22 districts for circuit courts, the courts handling felony
criminal cases. See MISS. CODE ANN. §§ 9-7-1 through 9-7-57. Almost all
circuit court districts contain multiple counties. 

districts,
                                        3
                                       No. 16-60690
there is not a continuous functioning of the circuit court. Instead, each county’s
circuit court is to schedule at least two court terms per year, which are set by
the circuit judges themselves with notice published annually by the Mississippi
Secretary of State. See § 9-7-3. Choctaw County is in the Fifth Circuit Court
District, consisting of seven counties. § 9-7-19. As shown in the Secretary of
State’s publication, Choctaw County’s two circuit court terms are for three
weeks each in February and August. MISSISSIPPI JUDICIARY DIRECTORY AND
COURT CALENDAR 35 (2017). 1
       When Jauch was arrested, court rules required an initial appearance
within 48 hours of arrest for considering probable cause for the arrest and bail,
MISS. UNIF. CIR. & CNTY. CT. R. 6.03, and a later preliminary hearing to
examine probable cause and reconsider bail, Rule 6.04. These requirements
become moot if a grand jury indicted the individual before the arrest:
             In all cases wherein the defendant shall post bond and is
       released from custody, or is allowed release on his/her own
       recognizance, or has been indicted by a grand jury, the defendant
       shall not be entitled to an initial appearance. A defendant who has
       been indicted by a grand jury shall not be entitled to a preliminary
       hearing.
Rule 6.05. 2 The plaintiff, Jessica Jauch, had been indicted before she was
arrested. Thus state law directed that neither an initial appearance nor a


       1 Though the parties discuss terms of court and their import, any of these details not
identified by the parties may be judicially noticed from official state publications. See R2
Investments LDC v. Phillips, 

, 639 n.2 (5th Cir. 2005). A Mississippi court used
its equivalent evidentiary rule to the one we used in R2 Investments to take judicial notice of
the same publication. Gray v. State, 

, 546 (Miss. Ct. App. 2001).

       2 The sections in the Uniform Rules that dealt with criminal procedure were removed
effective July 1, 2017, revised, and placed into a new Mississippi Rules of Criminal Procedure.
MISS. R. CRIM. P. 1.1 (scope). The provisions requiring initial appearances and preliminary
hearings continue to exempt prisoners who have been indicted. See Rule 5.2(a) (initial
appearance) and 6.1(a)(1) (preliminary hearing). Also, a new rule was added which “gives
                                              4
                                     No. 16-60690
preliminary hearing needed to be held. There is Mississippi caselaw that the
sheriff’s office has the responsibility to arrange an initial appearance or
preliminary hearing for one of its prisoners. See Jones v. State, 

,
131–32 (Miss. 2003). Because Jauch had been indicted, though, the sheriff’s
state-law obligation did not apply to her.
       A statute Jauch relies upon, Section 99-3-17, which provides for prompt
taking of a prisoner before a magistrate, is the statutory analog to the court
rule on initial appearances. The Mississippi Supreme Court has held that the
court rules displace any contrary statutes as a matter of separation of powers.
See State v. Delaney, 

, 351 (Miss. 2011). Thus, the statute also is
inapplicable because of Jauch’s indictment.
       The January 24, 2012 capias issued after Jauch’s indictment followed
those rules. It instructed the sheriff to take into custody and “keep” Jauch so
she could be taken to the circuit court of Choctaw County one week later on
January 31. It is evident that date was the docket call for the February term
of court in the county, at which time she would have been arraigned and bail
considered. She was not arrested until April, though. As the County and the
sheriff’s brief states, because the capias ordering Jauch’s arrest was not
executed until April 26, she “effectively miss[ed] the February term of court.
The next term of court was August[.]”             The County and sheriff cited the
following statute as support for waiting until the August court term:
       The process for arrest on an indictment shall be a capias, which
       shall be issued immediately on the return of the indictment into
       court, and made returnable instanter, unless otherwise ordered by
       the court, and if the capias be not returned executed, the clerk



official sanction to common existing practice” of immediate post-arrest release on personal
recognizance or on bond. Rule 5.1 & cmt.
                                            5
                                   No. 16-60690
      shall issue an alias, returnable to the next term, without an order
      for that purpose.
MISS. CODE ANN. § 99-9-1. Thus insofar as a court order, i.e., the capias issued
by the circuit court clerk on behalf of the court, directed the defendant sheriff
to do anything, that statutorily-revised obligation after Jauch’s April arrest
was to hold her until the next term of court. The sheriff did so.
      Defendants are correct that overlaying Jauch’s legal arguments onto the
facts of the case leads to this difficulty:
            Appellant’s procedural due process argument is about the
      impact of state law rules of criminal procedure on her detention
      between execution of the capias and the first day of the next term
      of court where she formally waived reading of the indictment
      before a Circuit Court Judge.
      Following through to the finish on the facts, the capias along with the
cited Section 99-9-1 led to Jauch’s being held until the August term,
approximately 90 days later. According to a notice given to her on July 16, the
circuit court would call the docket on July 31. On August 8, a court order
recited that on July 31 Jauch was served a copy of the indictment, was officially
appointed counsel, entered a not guilty plea, and obtained release on bond and
a trial setting. All charges were dropped soon thereafter.
      Caselaw has ratified these procedures. The state court concluded that
the potential “grievous harm” to a detainee due to “varying and sometimes
lengthy intervals between our counties’ terms of court demand that a detainee
be accorded the right to a preliminary hearing.” Esparaza v. State, 

, 423 (Miss. 1992). Caselaw also approves that no preliminary hearing is
necessary once a grand jury has returned an indictment. 

(reaffirming Mayfield v. State, 

, 1129 (Miss. 1992)).
      Already mentioned, but a reminder and elaboration would be useful, is
that by the court rules in effect at the time of Delaney (and of Jauch’s arrest),
                                         6
                                  No. 16-60690
an initial appearance within 48 hours of arrest was required. UNIF. R. CIR. &
CNTY CT. P. 6.03. “Conditions under which the defendant may obtain release,
if any,” were also to be addressed. 

also a “common existing
practice” to allow the person to be released immediately on personal
recognizance, on an appearance bond, or on any “provision for bail or personal
recognizance . . . made by the judge” in an arrest warrant. MISS. R. CRIM. P.
5.1 & cmt. If none of those common practices applied, the initial appearance
within 48 hours would address bail. 

different court rule in effect when
Jauch was arrested, “[a]t a preliminary hearing the judicial officer shall
determine probable cause and the conditions for release, if any.” UNIF. R. CIR.
& CNTY CT. P. 6.04.
      These rules and common practices must have been known to the Delaney
court when it discussed the result of an indictment. Still, that court focused
only on the purpose of determining probable cause, then held that after “a
defendant is indicted by a grand jury, that purpose is fulfilled and the whole
issue of a preliminary hearing and all privileges which attach thereto become
moot.” 

(quoting 

)
(emphasis added). Though Delaney did not discuss that a preliminary hearing
was also a place for consideration of bail, the decision it principally relied upon,
Mayfield, had overruled a precedent in which the issue of bail was discussed.
See Avery v. State, 

, 1041–42 (Miss. 1990) (overruling noted in

–29). I acknowledge that defendant Delaney, a
police officer, though arrested after indictment, seems to have been
immediately allowed bail and was never jailed. 

–49.
Though it is unreasonable to posit that the court in Mayfield was oblivious to
the issue of bail when it discussed Avery, and ungenerous to conclude that the
Delaney court was also oblivious when it analyzed Mayfield, it is also true that
                                         7
                                 No. 16-60690
nothing before the court required it to consider qualifying when these post-
arrest procedures become moot. At least the sheriff in our case was not clearly
informed of the opposite, namely, that he must promptly take Jauch to a
judicial officer despite what Delaney held.
      A contextual point for the analysis in the just-cited cases from 1990 and
1992 is that an initial appearance or a preliminary hearing was apparently the
only mandated means for bringing a prisoner with some promptness before a
judge. Mississippi did not provide for a prompt arraignment either by rule or
statute. See Spencer v. State, 

, 1389–90 (Miss. 1991). Not long
after the 1991 Spencer decision, a rule of court was adopted that required an
arraignment within 30 days of a defendant’s being served with an indictment.
UNIF. CIR. & CNTY. CT. R. 8.01 (adopted May 1, 1995). At arraignment, issues
of bail may be considered. Rule 8.02.
      Though Jauch relies on the current obligation for timely arraignments
as another basis for her claim against the sheriff and County, the district court
held that the right to an arraignment within 30 days was offset by the court
rules I have discussed providing that after indictment, an accused does not
have the right to a preliminary hearing or an initial appearance. I do not adopt
or reject that reasoning.   Regardless of how to read these rules together,
nothing in this record supports that the obligation to schedule an arraignment
falls on the County or the sheriff. I review what does appear in the record.
      In the district court, Jauch cited a Mississippi Attorney General opinion
answering the question of “who actually has the responsibility to physically
transport or see to the transportation of the prisoner to a scheduled hearing,”
the sheriff who ran the jail or a different law enforcement agency who made
the arrest? Miss. Op. Att’y Gen. 

(April 22, 1992). Rephrased,
the basic question was “who drives?” Though the answer was “the sheriff,” our
                                        8
                                     No. 16-60690
question is hardly the same. The circuit court itself decides whether to hear
matters in vacation, i.e., that time period between terms of court. MISS. CODE
ANN. § 9-7-87. As I will discuss, only a circuit judge could resolve issues
regarding Jauch’s bail after her indictment, so getting such a judge back to
Choctaw County was required. Reasonably, arraignments would be scheduled
either by the court and its staff or the prosecutor, perhaps working together.
Though I do not see an explicit answer as to whose responsibility it is, nothing
supports that it is the sheriff’s.
      The clear responsibilities relevant to this case are those of the county’s
circuit court judges. Of course, I have already discussed that in the usual case,
someone arrested may be released on personal recognizance, might have bail
set in the arrest warrant itself, or at least is entitled to a quick initial
appearance. MISS. R. CRIM. P. 5.1, 5.2. If a court is involved, it is likely a
justice (of the peace) court, where the accused would respond to charges
prepared by an arresting officer; bail is set by that court’s judge. See MISS.
CODE ANN. § 99-5-11. The form of the bond requires the individual to appear
at the next term of the circuit court, which is when the next grand jury in the
county will meet and decide whether to indict. § 99-5-1. After indictment,
though, exclusive criminal jurisdiction over the accused is acquired by the
circuit court. Lyons v. State, 

, 1134–35 (Miss. Ct. App. 2016).
Accordingly, release post-indictment is no longer within the authority of any
local judge except for the county’s circuit judges. The availability of one of
those judges in the county is subject to the vagaries described in this opinion.
Until there was, the sheriff had no judge to drive Jauch to see.
      In summary, under state law the sheriff had no clear obligation to take
Jauch before a judicial officer for an initial appearance or for a preliminary
hearing because she had been indicted. There was no obligation on the sheriff
                                          9
                                 No. 16-60690
to have Jauch arraigned because that is a duty that falls elsewhere. The
explicit obligation under the court-issued capias was to hold Jauch until the
next circuit court term, which is just what the sheriff did. Those legal points
are clear, to my eyes at least. The controlling question, then, is whether there
was other law that with better clarity established that every reasonable sheriff
would have known Jauch had a federal right that overrode these state
procedures. See Anderson v. Creighton, 

, 641 (1987).
      The only precedent the Jauch panel considered to be directly on point
involved jail procedures in Jackson, Mississippi. Jauch v. Choctaw Cnty., 

, 429 (5th Cir. 2017) (citing Jones v. City of Jackson, 

(5th
Cir. 2000)). That is a decision that set no specific time limit for presenting a
detainee to a magistrate, did not discuss the practice of waiting until the next
term of court, and did not address a sheriff’s responsibility in such matters.
Absolutely critical, Jones had not been jailed after indictment. Thus, in light
of what I have already discussed about indicted detainees, Jones seems all but
irrelevant. Silence in these varied respects is itself enough to say Jones did
not clearly establish the relevant law for the Choctaw County sheriff.
      I will look more closely. The plaintiff Jones had been jailed on minor
offenses in June 1994 but quickly determined to be innocent. 

. Nevertheless, he was detained on a judge’s year-old bench warrant
that had been issued for his failure to appear for sentencing in another matter.

given no opportunity to appear in court until March 1995, and at
that time all charges were dismissed. 

filed suit under Section
1983 against, among others, the sheriff for the county in which the City of
Jackson is located. 

denied summary judgment, including on the
sheriff’s claim of qualified immunity. 

                                       10
                                 No. 16-60690
      In one paragraph, we explained our ruling.        First, we held Jones’s
Fourteenth Amendment due process right had been violated because that
amendment protects individuals “from unconstitutional actions by state
actors.” 

Then this court cited DeShaney v. Winnebago Cnty.,

, 196 (1989), a case dealing with a public agency’s responsibility
for child abuse by a private actor. Finally, Jones cited Bd. of Regents v. Roth,

, 573 (1972), which analyzed whether a university had violated an
instructor’s First Amendment rights. That’s it for analysis.
      Jones fails to put every, and I would say any, reasonable jail official on
notice as to the constitutionally permissible limit of detention following a
capias warrant. There is no indication that, in keeping Jones detained for
months on a bench warrant, jailers were awaiting the next term of court. In
Mississippi’s capital of Jackson, the circuit court has essentially continuous
terms of court. See MISS. JUD. DIR., at 36 (showing existence of 48- or 54-day
terms of court beginning every other month). In Choctaw County, in contrast,
the circuit judges sit periodically and then move on to intervening terms in the
other counties. Jones did not place Choctaw County’s sheriff on notice of a
constitutional duty in these circumstances.
      Of course, Jones is the law of this circuit. Nonetheless, its analysis was
perfunctory, drawn from two very general Supreme Court pronouncements in
civil cases.   Neither DeShaney nor Roth could possibly constitute clearly
established law about detention of prisoners; they are not criminal-law cases.
As I will explain after discussing how the panel here applied Jones, qualified
immunity law now makes clear that law enforcement officials are not required
to discern how civil cases in much different contexts would apply to their
activities. Even in Jones, a panel dissent contended that the law was not
clearly established. 

–82 (Garza, J., dissenting).
                                      11
                                 No. 16-60690
      Besides Jones, the Jauch panel relied on two other due process holdings.

–32 (citing Mathews v. Eldridge, 

(1976),
and Medina v. California, 

, 443 (1992)). They fail to provide
guidance on sufficiently analogous facts to satisfy the qualified immunity
standard. Insofar as Eldridge establishes a due process balancing test, that
should automatically imply a lack of clearly established law until courts have
declared on similar facts how to strike the procedural balance. Medina may
provide even less guidance. The Jauch opinion states that it asks if a rule of
criminal procedure “(i) ‘offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental,’ or (ii)
‘transgresses any recognized principle of “fundamental fairness” in operation.’”

(citation omitted). Given the dearth of cases saying how long is too
long before an indicted individual must obtain a bail-setting hearing, Medina
cannot have sufficiently informed the Choctaw County sheriff how he could
avoid liability to Jauch.
      I mentioned that a recent Supreme Court decision, so recent that the
panel did not have its benefit, clarifies just what law is sufficiently clear to
create a basis for liability. See District of Columbia v. Wesby, 

(2018). In that opinion, the Supreme Court informs us how closely analogous
the facts in Jones must be to those in the current case in order for Jones to
have clearly established the relevant law. The Wesby Court reversed the denial
of qualified immunity to police officers whose assessment of probable cause had
been challenged. 

What is required before a precedent sufficiently
establishes the law is a close congruence between the facts confronting a law
enforcement officer and the precedent:
             To be clearly established, a legal principle must have a
      sufficiently clear foundation in then-existing precedent. The rule

                                      12
                                 No. 16-60690
      must be “settled law,” which means it is dictated by “controlling
      authority” or “a robust ‘consensus of cases of persuasive authority
      . . . .’” It is not enough that the rule is suggested by then-existing
      precedent. The precedent must be clear enough that every
      reasonable official would interpret it to establish the particular
      rule the plaintiff seeks to apply.

(citations omitted). Particularly clear in showing Jones is not a
good fit, the Court said that its “‘clearly established’ standard also requires
that the legal principle clearly prohibit the officer’s conduct in the particular
circumstances before him.” 

(emphasis added).
      For all these reasons, the governing law was not clearly established to
justify denying qualified immunity to the sheriff. Under Wesby, Jones is not a
closely analogous case. Whether Jauch was detained unconstitutionally while
awaiting the return of a circuit court judge is not clearly established by Jones,
which did not set a specific time limitation and did not involve a circuit-riding
judge. Eldridge and Medina offer general pronouncements about due process
without remotely similar facts. Finally, this is not a case about indefinite
detention. It is about unfairly delayed consideration for bail, but not a delay
yet clearly announced as unconstitutional.
      Of some importance as well, Mississippi’s highest court, presumably
informed of clearly established law, decided in Delaney that there was no need
to take an indicted prisoner before a judicial official prior to the next term of
court. Its decision was handed down a decade after our Jones decision and a
year before the events in this case. Though the court did not consider that
conditions of release could be addressed at a preliminary hearing, it still made
its broad pronouncement that after an indictment, no preliminary hearing (and
apparently no initial appearance either) was needed. This sheriff, in deciding
obligations towards Jauch, had quite clear direction from the state court and

                                       13
                                 No. 16-60690
this court’s opaque Jones opinion. I do not see that every reasonable sheriff
would have known that because of Jones, the state court wrote too broadly.
      My able colleagues on the Jauch panel held that based on Jones and
these more general authorities, it was “clearly established” that Mississippi’s
“policy whereby certain arrestees were indefinitely detained without access to
courts” violates an individual’s constitutional due process rights. 

. No such clarity was established by Jones — it did not even deal
with the relevant post-indictment procedures. The panel also concluded it was
“clearly established” that “the Constitution forbids confining criminal
defendants for a prolonged period” before bringing them before a judge. 

what was not clear at all to someone responsible for detention is how
prolonged detention must be to constitute a violation of rights. The caselaw
would not have informed very many officials that the state’s post-indictment
rules violated the federal Constitution. Thus, qualified immunity applies.
      Our function in this appeal is to determine whether clearly established
rights of this prisoner were violated. They were not. Also clear, though, is that
a county should not be allowing a prisoner’s pretrial release to be unaddressed
for extended periods. Judges and jailers could cooperate to minimize delays in
consideration. A more robust public defender system would play a significant
part by providing an early advocate to seek relief. Even a sheriff, though not
having the power to schedule a hearing, might rattle the cage on behalf of such
a prisoner so that those who have the authority to do something will hear.
                                    * * *
      Had the court agreed to rehear this case en banc, we could have
thoroughly assessed the panel’s due process reasoning for the sake of future




                                       14
                                      No. 16-60690
cases. 3 We should have relieved the sheriff of having to go to trial. Qualified
immunity, after all, is immunity from suit, not simply from liability.
Importantly, we might also have reconsidered the holding that Choctaw
County has any liability for Jauch’s detention. I respectfully dissent.




       3 The scope of any constitutional pretrial right to a bail hearing — as opposed to a
preliminary probable cause hearing — is unclear, as the Jauch panel acknowledges. Courts
have split over the applicable due process theory and reasoning. But there is an antecedent
question whether such detention should be evaluated under the Sixth Amendment speedy
trial right, a specific constitutional provision, rather than the amorphous standard of
Fourteenth Amendment due process. In Baker v. McCollan, the Court held that a person
cannot be detained indefinitely, in part because “the Constitution likewise guarantees an
accused the right to a speedy trial, and invocation of the speedy trial right need not await
indictment[.]” 

, 144, 145–46 (1979). The Court has also repeatedly held that
where a particular amendment textually provides constitutional protection of a right, that
amendment should be the guide rather than the more generalized notion of due process. See
Albright v. Oliver, 

, 273 (1994).
                                            15