O'SCANNLAIN, Circuit Judge:
We must decide what process the Constitution requires in setting bail for indigent arrestees.
When this lawsuit began, Maurice Walker was a 54-year-old unemployed man with a mental health disability, whose income consisted only of $530 in monthly Social Security disability payments. On Thursday, September 3, 2015, Walker was arrested in the City of Calhoun, Georgia by the Calhoun Police Department for being a pedestrian under the influence of alcohol, in violation of Ga. Code Ann. § 40-6-95. A violation of that section of Georgia's code "is a misdemeanor and is punishable upon conviction by a fine not to exceed $500.00." The statute does not provide for any possible jail sentence.
Walker alleges that, after he was taken to jail, he was told by an officer that "he would not be released unless he paid the standard $160 cash bond" required for those charged with being a pedestrian under the influence. Walker says that neither he nor his family had enough money to post the bond. Walker alleges that while he was jailed, he was not given his necessary mental disorder medication, and he was confined to a single-person cell except for one hour each day.
Walker filed this suit five days after his arrest, while still detained, alleging on behalf
Walker alleges that, at the time of his arrest, the City followed a policy of using a secured-money bail schedule with bond amounts based on the fine an arrestee could expect to pay if found guilty, plus applicable fees. Defendants who could afford to deposit the bail amount were released immediately, whereas those who could not pay were held until the next court session on the following non-holiday Monday. In Walker's case, because the Monday after his arrest was Labor Day, he would have had to wait eleven days after his arrest to see a judge for a bail hearing.
Shortly after Walker's suit was filed, the Municipal Court of the City of Calhoun altered the prevailing bail policy by issuing a Standing Bail Order, which adopted a bail schedule for State offenses within the Municipal Court's jurisdiction, with cash bail set at "amount[s] represent[ing] the expected fine with applicable surcharges... should the accused later enter a plea, or be found guilty." As alternatives to cash bail, the Standing Bail Order recognized an arrestee's ability to use a driver's license as collateral or to "make secured bail by property or surety" at an amount "twice that set forth in [the] schedule."
"For those individuals who do not obtain release pursuant to the secured bail schedule," the Standing Bail Order provides that they "shall ... be brought before the [Municipal] Court" within 48 hours from their arrest, shall "be represented by court appointed counsel," and "will be given the opportunity to object to the bail amount..., including any claim of indigency." The Municipal Court will then "determine whether the accused is unable to post secured bail because he/she is indigent, making an individualized determination based upon the evidence provided." The Standing Bail Order adopts a standard of indigency as "earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person has other resources that might be reasonably used." If the court finds that the defendant is indigent under that standard, "then he/she shall be subject to release on recognizance without making a secured bail." If no hearing is held within 48 hours, "then the accused shall be released on a recognizance bond." Finally, the Standing Bail Order provides that those charged with a violation of the City Code (as opposed to State law) "shall be released on an unsecured bond in the amount established by the ... bail schedule."
In summary, the Standing Bail Order envisions three forms of release depending on the type of offense charged and the financial means of the arrestee. First, arrestees charged with State offenses within the Municipal Court's jurisdiction will be released immediately on a secured bond if they are able and willing to deposit money bail in the amount set by the bail schedule. They can post cash bail themselves or use a commercial surety at twice the amount set by the bail schedule. Second, arrestees charged with State offenses who do not post bail immediately must wait for a bail hearing with court-appointed counsel, to take place within 48 hours from arrest. Those who can prove they are indigent at the hearing will be released on a recognizance
Several months after Walker filed suit, and after the Standing Bail Order had gone into effect, the district court entered a preliminary injunction ordering the City "to implement post-arrest procedures that comply with the Constitution." Walker v. City of Calhoun, Ga. (Walker I), No. 4:15-CV-0170-HLM, 2016 WL 361612, at *14 (N.D. Ga. Jan. 28, 2016). As the legal basis for the injunction, the district court found that "[a]ny bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause." Id. at *10. On the same day it issued the injunction order, the district court certified a class under Federal Rule of Civil Procedure 23, consisting of "[a]ll arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation."
We vacated such preliminary injunction, holding that it violated Federal Rule of Civil Procedure 65 because it was insufficiently specific. See Walker v. City of Calhoun, Ga. (Walker II), 682 F. App'x 721, 724-25 (11th Cir. 2017) (per curiam) (unpublished). We declined at that time to consider "whether, substantively, [the] district court properly issued a preliminary injunction." Id. at 724.
On remand, the district court again found the City's bail policy under the Standing Bail Order to be unconstitutional and entered a new preliminary injunction. It reaffirmed its merits rulings from the original preliminary injunction order and found that the Standing Bail Order "still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond ... to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing." Walker v. City of Calhoun, Ga. (Walker III), No. 4:15-CV-0170-HLM, 2017 WL 2794064, at *2-3 (N.D. Ga. June 16, 2017). The court enjoined the City "from detaining indigent... arrestees who are otherwise eligible for release but are unable, because of their poverty, to pay a secured or money bail." Id. at *4.
The order granting the new injunction prescribed an affidavit-based process for making such determination:
Id. Such affidavit must include information about the arrestee's finances and the opportunity for the arrestee to attest indigency, which the injunction order defines as "less than 100 percent of the applicable federal poverty guidelines." Id. An official must evaluate the affidavit "within twenty-four hours after arrest." Id. at *5. Those found indigent "shall be subject to release on ... recognizance without making secured bail ... or subject to release on an unsecured bond." Id.
The City timely appealed the new preliminary injunction order,
Before reaching the merits of the constitutional issues underlying the preliminary injunction, we must address two threshold challenges that the City raises to the district court's ability to enjoin the City at all.
First, the City argues that the district court should have declined to exercise jurisdiction altogether under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which "restrain[s] courts of equity from interfering with criminal prosecutions." Younger is "based not on jurisdiction, but on the principles of equity and comity," and it commands that "`absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions.'" Hughes v. Att'y Gen. of Fla., 377 F.3d 1258, 1262-63 (11th Cir. 2004) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 364, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989)). Abstention, however, has become disfavored in recent Supreme Court decisions. See, e.g., Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77-78, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013) ("Jurisdiction existing, this Court has cautioned, a federal court's obligation to hear and decide a case is virtually unflagging," and "only exceptional circumstances ... justify a federal court's refusal to decide a case in deference to the States." (internal quotation marks and alterations omitted)).
Younger does not readily apply here because Walker is not asking to enjoin any prosecution. Rather, he merely seeks prompt bail determinations for himself and his fellow class members. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), is instructive. There, Florida detainees sought injunctive relief to receive prompt probable cause determinations, and the State argued that Younger should have barred the district court from considering the claim. The Supreme Court disagreed, holding that Younger abstention did not apply because "[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution." Gerstein, 420 U.S. at 108 n.9, 95 S.Ct. 854. So too here.
The City seeks to avoid the import of Gerstein by pointing to case law indicating that in some circumstances Younger abstention will apply even if the district court is not being asked to enjoin a prosecution, where injunctive relief would entail intrusive federal court interference with State prosecutions generally. In O'Shea v. Littleton, for instance, the plaintiffs alleged that a county judge engaged in a host of unconstitutional practices in setting bonds, imposing discriminatory sentences, and setting fees for jury trials. 414 U.S. 488, 491-92, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). As the Supreme Court characterized it, the plaintiffs sought "an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal
But Walker does not ask for the sort of pervasive federal court supervision of State criminal proceedings that was at issue in O'Shea. Instead, as in Gerstein, Walker merely asks for a prompt pretrial determination of a distinct issue, which will not interfere with subsequent prosecution. At the very least, the district court could reasonably find that the relief Walker seeks is not sufficiently intrusive to implicate Younger. Because we review a Younger abstention decision for abuse of discretion, see Hughes, 377 F.3d at 1262, we are satisfied that the district court was not required to abstain.
Next, the City argues that it is not responsible for its bail policy and hence cannot be liable for any constitutional violations related to bail under 42 U.S.C. § 1983. The City claims that bail policy is attributable only to the Municipal Court, which it says is independent of the City. The district court disagreed, finding that the Municipal Court acted on behalf of the City and that the City could itself set bail policy directly through its control of its police. See Walker I, 2016 WL 361612, at *13; Walker III, 2017 WL 2794064, at *2 (re-adopting reasoning of Walker I).
A municipality is liable under § 1983 where an "`official policy' causes a constitutional violation." Grech v. Clayton County, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "A plaintiff ... has two methods by which to establish a [municipality's] policy: identify either (1) an officially promulgated [] policy or (2) an unofficial custom or practice ... shown through the repeated acts of a final policymaker for the [municipality]." Id. at 1329. Liability may be established "by acquiescence in a longstanding practice or custom which constitutes the `standard operating procedure' of the local governmental entity." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Because we review the grant of a preliminary injunction for abuse of discretion, Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002), we can upend the injunction for lack of § 1983 liability only if the district court applied an "incorrect legal standard" or its "factual findings are clearly erroneous." Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016).
Here, Georgia law indicates that the City has the authority to set bail policy. In Georgia, a municipality's authority flows from "the state, manifested in the constitution, state laws, and the municipal charter." Porter v. City of Atlanta, 259 Ga. 526, 384 S.E.2d 631, 632 (1989). By statute, Georgia "grants a city the legislative power to adopt ordinances `relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the [Georgia] Constitution.'" City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517,
Such broad grant of authority enables the City to regulate bail. In fact, the City already does so. The City requires that, for traffic violations, an "officer, upon receiving the written promise of the alleged violator to answer as specified in the citation, shall release such person from custody." Calhoun Mun. Code § 90-39. Many other municipalities in Georgia act on the same understanding that Georgia law permits them to regulate bail by city ordinance.
The City contends that those municipalities (and presumably itself) are acting in contravention of Georgia law, which, by permitting "the judge of any court of inquiry... [to] establish a schedule of bails," Ga. Code Ann. § 17-6-1(f)(1), implicitly strips municipalities of concurrent authority to set bail policy. But reading the statute's permissive grant of authority to courts to establish bail schedules as implicitly preempting all municipal regulation of bail is hardly a plausible interpretation. Like the district court, we are unwilling to conclude that Georgia cities setting bail by ordinance are flouting State law or that the Supreme Court of Georgia incorrectly interpreted Georgia law when it promulgated Uniform Municipal Court Rule 18.1. The district court did not clearly err, then, in finding that the City could directly regulate bail if it wished to and so may be held responsible for acquiescing in an unconstitutional policy and practice by its Municipal Court and its police.
Based on the plain meaning of Georgia law and the thin factual record before us at this preliminary stage, we are unpersuaded that the City is immune from § 1983 liability for the bail policy prevailing within its jurisdiction.
Turning to the merits, the City contends that the district court erred in finding the Standing Bail Order to be unconstitutional, a conclusion that led to the district court's issuance of the injunction now before us. The City argues that we should vacate this injunction.
As the party seeking a preliminary injunction, Walker bore the burden of establishing that he has a substantial likelihood of success on the merits.
The district court ruled that the City's bail policy ran afoul of the Fourteenth Amendment because "[a]ny bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause." Walker I, 2016 WL 361612, at *10. Although the district court considered the Standing Bail Order to be "a step in the right direction" over the prior policy, it found that "[t]he Standing Bail Order ... still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond (or to have one posted for them) to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing." Walker III, 2017 WL 2794064, at *3.
The City argues that the district court applied the wrong legal standard in two ways: first, by analyzing this case under the Fourteenth Amendment rather than the Eighth Amendment; and second, by applying too exacting a form of scrutiny to the City's bail policy. We consider each challenge in turn.
First, the City, and amici supporting it, contend that we should evaluate this dispute only under the Eighth Amendment, which provides that "[e]xcessive bail shall not be required."
If the City is correct that the Eighth Amendment standard governs, not only did the district court commit legal error by instead applying equal protection and due process standards, but the City will be on favorable terrain. In Stack v. Boyle, the Supreme Court explained that "bail set at a figure higher than an amount reasonably calculated to ensure the defendant's presence at trial is `excessive' under the Eighth Amendment." United States v. Salerno, 481 U.S. 739, 752, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (internal quotation marks and alterations omitted) (quoting Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 S.Ct. 3 (1951)). But the Excessive Bail Clause "says nothing about whether bail shall be available at all," and it is meant "`merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.'" Id. at 752, 754, 107 S.Ct. 2095 (quoting Carlson v. Landon, 342 U.S. 524, 545, 72 S.Ct. 525, 96 S.Ct. 547 (1952)).
In applying that standard, we have implicitly held that bail is not excessive under the Eighth Amendment merely because it is unaffordable. In United States v. James, we considered a case in which the district court set a $2 million cash or surety bond requirement, which the defendants did not have the ability to pay. 674 F.2d 886, 888 (11th Cir. 1982). We rejected their Eighth Amendment challenge to that bail condition, holding that "[t]he basic test for excessive bail is whether the amount is higher than reasonably necessary to assure the accused's presence at trial," and that "[a]s long as the primary reason in setting bond is to produce the defendant's presence, the final amount, type, and other conditions of release are within the sound discretion of the releasing authority." Id. at 891. If such standard applied to this case, Walker would have a difficult time showing that his $160 bail amount was unconstitutional.
The district court was correct, however, to evaluate this case under due process and equal protection rubrics rather than the Eighth Amendment. The decisive case is Pugh v. Rainwater, in which the former Fifth Circuit considered en banc whether, "in the case of indigents, equal protection standards require a presumption against money bail." 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).
Weighing those competing interests, the court observed that "[t]he demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail." Id. at 1057 (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)). Therefore, "[t]he incarceration of those who cannot" meet a master bond schedule's requirements, "without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements." Id.
We are cognizant that the Supreme Court's Graham decision "requires that if a constitutional claim is covered by a specific constitutional provision, such as the ... Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n.9, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). But Walker's claim, like the plaintiffs' in Rainwater, is different. It challenges not the amount and conditions of bail per se, but the process by which those terms are set, which Walker alleges invidiously discriminates against the indigent.
Claims of unlawful discrimination against the indigent in criminal proceedings have a long pedigree in Fourteenth Amendment case law.
Id. at 672-73, 103 S.Ct. 2064.
The sine qua non of a Bearden- or Rainwater-style claim, then, is that the State is treating the indigent and the non-indigent categorically differently. Only someone who can show that the indigent are being treated systematically worse "solely because of [their] lack of financial resources," id. at 661, 103 S.Ct. 2064 — and not for some legitimate State interest — will be able to make out such a claim. Those who simply find their own bail conditions too onerous must proceed under the Eighth Amendment's Excessive Bail Clause unless they can point to a separate due process violation.
Because Walker's claim indeed rests on an allegation of categorically worse treatment of the indigent, it falls within the Bearden and Rainwater framework, and the district court was correct to apply those cases' hybrid analysis of equal protection and due process principles.
The City further contends that the district court applied the wrong legal standard by imposing too high a level of scrutiny in its equal protection and due process analysis. The City argues that only rational basis review should apply because there is no suspect classification involved or fundamental right at stake. Although somewhat ambiguous about what form of scrutiny it was applying, the district court was clear that it believed some form of heightened scrutiny applied to this case. See Walker III, 2017 WL 2794064, at *3 n.2.
The district court acknowledged that "generally, an individual's indigence does not make that individual a member of a suspect class," but it contended that "detention based on wealth is an exception to the general rule that rational basis review applies to wealth-based classifications." Id. (internal quotation marks omitted). In the district court's view, because the Standing Bail Order treated differently those who could afford immediately to pay the bail schedule amount and those who could not, it was subject to heightened scrutiny. See id. at *3 & n.2. Walker has fully embraced the district court's reasoning, going so far as to argue that that the use of a bail schedule is analogous to the City's imposing "pretrial detention only for black, female, or Catholic arrestees."
But such argument runs headlong into Rainwater. There, the court approved the "[u]tilization of a master bond schedule" without applying any heightened form of scrutiny. Rainwater, 572 F.2d at 1057. It explained that a bond schedule "provides speedy and convenient release for those who have no difficulty in meeting its requirements." Id. Of course, if the bond schedule provided "speedy" release to those who could meet its requirements, it necessarily provided less speedy release to those who could not. Nevertheless, the Rainwater court upheld the scheme because it gave indigent defendants who could not satisfy the master bond schedule a constitutionally permissible secondary option: a bail hearing at which the judge could consider "all relevant factors" when deciding the conditions of release. See id. at 1058.
Other cases bolster the line drawn in Rodriguez between mere diminishment of some benefit and total deprivation based solely on wealth. In Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 41 L.Ed.2d 341 (U.S. 1974), the Court explained that in criminal proceedings involving indigents, "[t]he duty of the State ... is not to duplicate the legal arsenal that may be privately retained by a criminal defendant..., but only to assure the indigent defendant an adequate opportunity to present his claims fairly." In M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), the Court explained the Bearden line of cases to mean that wealth-based sanctions are impermissible when they are "not merely disproportionate in impact," but "[r]ather, they are wholly contingent on one's ability to pay." Id. at 127, 117 S.Ct. 555. In McGinnis v. Royster, the Supreme Court considered an equal protection challenge to a New York sentencing scheme that gave good-behavior credit on an equal basis to those who had and had not been bailed before trial, even though those who could not afford pretrial bail had already spent time incarcerated in jail. 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). The Court "inquire[d] only whether the challenged distinction rationally furthers some legitimate, articulated state purpose." Id. at 270, 93 S.Ct. 1055 (emphasis added). It upheld the scheme because jails lacked the rehabilitative programs of prisons, which provided "a rational justification" — independent of wealth — "for declining to give good-time credit" for pretrial time served in jail. Id. at 273, 93 S.Ct. 1055. Ross,
Under the Standing Bail Order, Walker and other indigents suffer no "absolute deprivation" of the benefit they seek, namely pretrial release. Rather, they must merely wait some appropriate amount of time to receive the same benefit as the more affluent.
Nor do we see how it could. If Walker were correct that wealth should be treated like race, sex, or religion, and that every policy that affects people differently based on ability to pay must be justified under heightened scrutiny, the courts would be flooded with litigation. Innumerable government programs — heretofore considered entirely benign — would be in grave constitutional danger. If the Postal Service wanted to continue to deny express service to those unwilling or unable to pay a fee, it would have to justify that decision under the same standard it would have to meet to justify providing express service only to white patrons. The University of Georgia would be unable to condition matriculation on ability to pay tuition unless it could meet the same constitutional standard that would allow it to deny admission to Catholics. In Walker's preferred constitutional world, taxes that are independent of income, such as property taxes or sales taxes, would be the target of perpetual litigation. All that is to say, we do not believe that Bearden or Rainwater announced such radical results with so little fanfare, and we therefore reject Walker's equal protection theory. The district court was wrong to apply heightened scrutiny under the Equal Protection Clause.
As an alternative basis for applying heightened scrutiny, Walker defends the district court on the ground that "the City's bail system infringes the fundamental right to pretrial liberty." He argues this is so under the Due Process Clause, pointing to United States v. Salerno, in which the Supreme Court considered the federal Bail Reform Act's provision for preventative detention of dangerous defendants. 481 U.S. at 741, 107 S.Ct. 2095. In Salerno, the Court recognized that "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception," id. at 755, 107 S.Ct. 2095; but it also stated that an arrestee may be incarcerated before trial "if he presents a risk of flight or a danger to witnesses," id. at 749, 107 S.Ct. 2095 (citing Bell v. Wolfish, 441 U.S. 520, 534, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). The Court ultimately permitted preventative detention if the arrestee "pose[s] a threat to the safety of individuals or to the community which no condition of release can dispel." Id. at 755, 107 S.Ct. 2095. Walker contends that this form of analysis is tantamount to heightened scrutiny and that it should be applied to his case.
But the Salerno Court's analysis was much closer to a relatively lenient procedural due process analysis than it was any form of heightened scrutiny. Rather than asking if preventative detention of dangerous defendants served a compelling or important State interest and then demanding relatively narrow tailoring, the Court employed a general due process balancing test between the State's interest and the detainee's. See id. at 746-51, 107 S.Ct. 2095. The Court's analysis borrowed heavily from a prior decision, Schall v. Martin, in which the Court upheld preventative detention of likely-to-reoffend juveniles based on an analysis that asked "whether preventative detention ... is compatible with the `fundamental fairness' required by due process." 467 U.S. 253, 263, 104 S.Ct. 2403,
Moreover, even if Salerno did embrace a form of heightened scrutiny, we do not believe it applies to this case because the City is not seeking to impose any form of preventative detention. Here, Walker himself was released, and the Standing Bail Order presently guarantees release within 48 hours of arrest to all indigent defendants in Walker's shoes. In a future case that raises the question whether a municipality may detain an indigent defendant because no feasible release conditions will assure his appearance in court, perhaps Salerno's framework might apply.
The appropriate level of scrutiny is the point of departure for the dissent, and its contrary conclusion on that issue is the foundation for the rest of its analysis. The dissent would adopt Walker's theory that any marginal increase in the length of detention attributable to inability to pay bail amounts to invidious discrimination warranting heightened scrutiny. As we have explained, accepting that premise effectively abandons the limitations on wealth-based equal protection claims drawn in Rodriguez and its successors.
The dissent provides a hypothetical that proves how far it would go. It asks us to consider two persons arrested for the same crime under the same circumstances, whose sole difference is the amount of money each has. The dissent says there is an equal protection problem because: "The person who has money pays it and walks away. The indigent can't pay, so he goes to jail." Dissent at 1274 (emphasis added). But this hypothetical could apply to any government benefit contingent on ability to pay, including all the examples we used above. To illustrate, let's simply switch out, by substituting the italicized phrases, the dispensation sought by the hypothetical persons:
"The person who has money pays it and matriculates at the state university. The indigent can't pay, so he stays home."
"The person who has money pays it and satisfies his property tax bill. The indigent can't pay, so he loses his home to a tax foreclosure."
Any government benefit or dispensation can be framed in artificially narrow fashion to transform a diminishment into total deprivation. The dissent takes the interest identified by Rainwater — the "right to freedom before conviction," or the "right to bail before trial," 572 F.2d at 1056-56 — and narrows it to something like "the right not to be held a moment longer than a person who can satisfy a bail schedule." If such narrowing is permissible, then any wealth-based equal protection claim becomes valid so long as the plaintiff frames his interest in a cramped enough style. Under the dissent's theory, then, the only reason the Rodriguez plaintiffs' equal protection claim failed was that they challenged overall disparities in school budgets (which was what they actually cared about). If instead they had focused on something smaller and less important — perhaps claiming that differences in school district funding completely deprived them of specialized art classes — then, in the dissent's world, they would have prevailed. That turns the Equal Protection Clause into a game of word play, a result inconsistent with the thrust of Rodriguez and its successors.
Recognizing its tension with Rodriguez, the dissent suggests that Walker's claim could fit into a "narrow exception" to the general rule against applying heightened scrutiny to wealth-based equal protection arguments. Dissent at 1277-78. But the dissent provides no limiting principle to such an exception. Although it suggests "access to judicial processes in [criminal] cases" as one category of exception, id. (quoting M.L.B., 519 U.S. at 124, 117 S.Ct. 555), it does not explain what judicial proceeding an indigent person cannot access by the terms of the Standing Bail Order. More critically, as just demonstrated, the dissent's analysis is not amenable to so narrow an exception and would apply to any government action that treats people of different means differently. Disparate treatment based on wealth, in the dissent's constitutional methodology, would be treated the same as official religious or racial discrimination. The Supreme Court has rejected so radical an application of the Equal Protection Clause, see Rodriguez, 411 U.S. at 24, 93 S.Ct. 1278, and we cannot adopt it on the unprincipled ad hoc basis urged by the dissent.
Perhaps the basis for the dissent's proposed "narrow exception" could be the importance to indigents of being released from jail. But that quickly starts to sound like a claim based on a fundamental liberty interest, and the dissent has disavowed reliance on Walker's substantive due process argument. See Dissent at 1278 n.8. Perhaps that is so as to elide Salerno and Schall. Although the dissent formally relies only on the Equal Protection Clause, however, its tenor reveals that it is motivated by the importance of Walker's liberty interest, and it persuasively describes at length the value of pretrial liberty. See Dissent at 1275-76. We do not for a moment doubt the value of freedom from jail. But the Supreme Court in Salerno made clear that the government also has important interests at stake when considering whether to release an accused who may be a flight risk or public danger. Accordingly, it has instructed us to apply a less demanding level of scrutiny than the one necessary to support the dissent's conclusions. The dissent cannot avoid the Supreme Court's holding by smuggling a substantive
Thus the district court was correct to apply the Bearden/Rainwater style of analysis for cases in which "[d]ue process and equal protection principles converge," Bearden, 461 U.S. at 665, 103 S.Ct. 2064, yet it was wrong to apply heightened scrutiny from traditional equal protection analysis.
The confusion is perhaps unsurprising because neither Bearden nor Rainwater is a model of clarity in setting out the standard of analysis to apply. As Bearden puts it, the proper analysis "requires a careful inquiry into such factors as `the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose.'" 461 U.S. at 666-67, 103 S.Ct. 2064 (alteration in original) (quoting Williams v. Illinois, 399 U.S. 235, 260, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (Harlan, J., concurring in the result)); accord Rainwater, 572 F.2d at 1056 ("Resolution of the problems concerning pretrial bail requires a delicate balancing of the vital interests of the state with those of the individual.").
We take Bearden's quotation of Justice Harlan's Williams concurrence as a sign that the Bearden Court shared his assessment that these kinds of questions should be evaluated along something akin to a traditional due process rubric. See Williams, 399 U.S. at 260, 90 S.Ct. 2018 (Harlan, J., concurring in the result) ("An analysis under due process standards, correctly understood, is ... more conducive to judicial restraint than an approach couched in slogans and ringing phrases... that blur analysis by shifting focus away from the nature of the individual interest affected."). That makes particular sense in this case because the relief Walker seeks is essentially procedural: a prompt process by which to prove his indigency and to gain release.
In such due process analysis, "[t]he fundamental requirement ... is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks omitted). Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances," but rather is "flexible" and "requires analysis of the governmental and private interests that are affected." Id. at 334, 96 S.Ct. 893 (internal quotation marks omitted). The district court should have applied such analysis in evaluating whether the Standing Bail Order comported with the Constitution's equal protection and due process guarantees.
Having established that Bearden and Rainwater command that courts should apply something akin to a procedural due process mode of analysis to claims like Walker's, it remains to be determined whether the district court acted within its discretion in entering its preliminary injunction. At this stage of litigation, the City seeks to overturn the preliminary injunction in order to maintain the Standing Bail Order, so we must focus our inquiry on the concrete distinctions between the preliminary injunction and the Standing Bail Order.
Under the Standing Bail Order, arrestees are guaranteed a hearing within 48 hours of arrest to prove their indigency (with court-appointed counsel) or they will be released. See supra Part I.B. In contrast, the preliminary injunction commands an affidavit-based process for determining indigency within 24 hours of arrest. See supra Part I.C.3. Both procedures
Within what time must the City make an indigency determination? To answer this question, the City asks us not to write on a blank slate but to borrow from Supreme Court precedent on the timing required for a probable cause determination. In County of Riverside v. McLaughlin, the Supreme Court considered what "prompt" meant for providing a constitutionally required prompt probable cause hearing for those arrested without a warrant. 500 U.S. 44, 55, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). "Taking into account the competing interests" of the individual and the government, the Court concluded that "a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement." Id. at 56, 111 S.Ct. 1661 (emphasis added). The McLaughlin Court expressly rejected a 24-hour bright-line limitation suggested by Justice Scalia in dissent. See id. at 57-58, 111 S.Ct. 1661.
Walker argues that we should not import McLaughlin's 48-hour presumption into the bail context because that case did not involve differential treatment based on wealth. He contends that any disparate treatment by wealth in granting bail must satisfy heightened scrutiny, thereby placing a strict burden on the government to justify its bail policy. That argument fails, however, because, as we explained above, the use of a bail schedule does not trigger heightened scrutiny. Instead, we evaluate the 48-hour window for making bail determinations on its own terms to ensure that it satisfies the due process mode of analysis in Bearden and Rainwater.
We are persuaded that it does. Under McLaughlin, the City can presumptively hold a person for 48 hours before even establishing probable cause — that is, without even proving that it has evidence that he has committed a crime. It stands to reason that that the City can take the same 48 hours to set bail for somebody held with probable cause. Indeed, McLaughlin expressly envisioned that one reason for the 48-hour window is so that probable cause hearings could be combined with "bail hearings and arraignments." 500 U.S. at 58, 111 S.Ct. 1661. For those reasons, the Fifth Circuit in ODonnell recently imported the McLaughlin 48-hour rule to the bail determination context. 892 F.3d at 160-61. The ODonnell court was reviewing an injunction that imposed a 24-hour time limit for a bail determination — identical in that respect to the one we are reviewing — and it rejected such time limit because it worked a "heavy administrative burden" and was therefore "too strict." Id.
We agree with the Fifth Circuit; indigency determinations for purposes of setting bail are presumptively constitutional if made within 48 hours of arrest.
The City also challenges the preliminary injunction's command to adopt an affidavit-based process for determining indigency, which overrode the Standing Bail Order's system based on judicial bail hearings before the Municipal Court. Walker defends the injunction by arguing that the City never provided a reason that a judicial hearing was preferable to the affidavit-based process. He also contends that the
Indeed, the law cuts the other way and indicates that federal courts should give States wide latitude to fashion procedures for setting bail. Directly on point, the bail rule upheld in Rainwater was based on formal hearings at which judges would consider the arrestee's financial resources, just as the Standing Bail Order provides. See Rainwater, 572 F.2d at 1055 & n.2 (citing Fla. R. Crim. P. 3.130(b) (1977)); id. at 1058 & n.8.
Even if Rainwater were not dispositive, however, there is no constitutional basis for the district court's imposition of its preferred method of setting bail. In the context of probable cause determinations, the Supreme Court has "recognized that `state systems of criminal procedure vary widely' in the nature and number of pretrial procedures they provide," and it has "noted that there is no single `preferred' approach." McLaughlin, 500 U.S. at 53, 111 S.Ct. 1661 (quoting Gerstein, 420 U.S. at 123, 95 S.Ct. 854). The Court explained that "`flexibility and experimentation by the States'" is "desirable and that each State should settle upon an approach `to accord with [the] State's pretrial procedure viewed as a whole.'" Id. (alteration in original) (quoting Gerstein, 420 U.S. at 123, 95 S.Ct. 854). Respecting that flexibility gives "proper deference to the demands of federalism." Id. The same logic applies to bail determinations, and the district court provided no justification for substituting its preferred policy for the City's.
Indeed, the City may have had good reasons for preferring a judicial hearing to a purely paper-based process for evaluating indigency. It may reasonably prefer that a judge have the opportunity to probe arrestees' claims of indigency in open court, where the importance of honesty may more clearly be impressed on the arrestee than would be the case in filling out an affidavit in the jailhouse. In more complex cases, a judicial hearing would allow the court iteratively to examine with the arrestee, his counsel, and the government what conditions of release are reasonable and within the arrestee's means, thereby tailoring case-specific conditions of release that balance the individual's pretrial liberty interest with the government's interest in assuring his subsequent appearance.
Parallel areas of case law support the reasonableness of the Standing Bail Order's preference for judicial hearings. The Supreme Court's Eighth Amendment jurisprudence envisions that bail determinations will be made at judicial hearings. See Stack, 342 U.S. at 6, 72 S.Ct. 1 ("If bail in an amount greater than that usually fixed... is required ..., that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved." (emphasis added)). And in the procedural due process context, "[t]he judicial model of an evidentiary hearing" is treated as the most extensive form of process that can be required. Mathews, 424 U.S. at 348, 96 S.Ct. 893; see also Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ("[W]ritten submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, ... written submissions are a wholly unsatisfactory basis for decision.").
Whatever limits may exist on a jurisdiction's flexibility to craft procedures for setting
In sum, Walker failed to make the necessary showing that he is likely to succeed on the merits of his claim that the Standing Bail order is unconstitutional. Neither the 48-hour window for a bail determination nor the use of an adversarial bail hearing in lieu of an affidavit-based process runs afoul of the Constitution. Walker therefore failed to satisfy one of the necessary conditions for a preliminary injunction against the Standing Bail Order, Wreal, 840 F.3d at 1247, and the district court erred in granting it.
As a fallback position, Walker further asks us to defer to the "breadth and flexibility" of the district court's equitable power to cure constitutional violations that arose prior to the issuance of the Standing Bail Order. Brown v. Plata, 563 U.S. 493, 538, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (internal quotation marks omitted). Walker contends that because the City's original bail policy, in place at the time the litigation was initiated, was plainly unconstitutional, it does not matter that the subsequent Standing Bail Order is entirely constitutional. Instead, Walker argues, the existence of an initial constitutionally defective policy gave the district court equitable discretion to insert into a perfectly constitutional subsequent policy additional conditions nowhere required by the Constitution.
The City's leading counter-argument is that, if the Standing Bail Order is constitutional, then Walker's claim for injunctive relief is entirely moot. The City contends that because a new policy has been promulgated after this litigation began, which supplanted the original policy, the claim against the original policy is now moot, and no relief may follow from it.
Walker responds that the dispute over the constitutionality over the City's original bail policy is not moot because, at the conclusion of this litigation, the City may revert to that policy if there is no injunction in place. As noted, early in the litigation, the Municipal Court issued the Standing Bail Order, at which point the City ceased to defend the constitutionality of the original policy. Walker alleges that the City adopted the policy merely to manipulate the district court's jurisdiction and that the Standing Bail Order may be easily repealed when an injunction is no longer hanging over the City. He rejects an inference that the Municipal Court realized the potential constitutional infirmity of the existing bail policy and acted promptly to rectify it.
The district court agreed with Walker. It concluded that the City's adoption of the Standing Bail Order did not moot Walker's suit for injunctive relief against the original bail policy because there was a reasonable expectation that the City might return to its original policy after this litigation ended. See Walker I, 2016 WL 361612, at *12. As the district court put it, the request for injunction relief is not moot because "it is not absolutely clear that the allegedly wrongful behavior could not be reasonably expected to recur." Id. (quoting Cook v. Bennett, 792 F.3d 1294, 1300 (11th Cir. 2015) (internal quotation marks omitted)).
"[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc) (internal quotation marks omitted). A case is therefore moot "only when [the court] ha[s] no reasonable expectation that the challenged practice will resume after the lawsuit is dismissed." Id. at 1255-56 (internal quotation marks omitted). "[T]he burden of proving mootness generally falls heavily on the party asserting it." Id. at 1256.
When a government voluntarily ceases the challenged action, however, there is a presumption that the government will not later resume the action, so the plaintiff bears the burden of showing that there is "a reasonable expectation" that the government "will reverse course and reenact the allegedly offensive" policy. Id. at 1256. "The key inquiry in this mootness analysis therefore is whether the evidence leads [the court] to a reasonable expectation that the City will reverse course and reenact the allegedly offensive" bail policy after this litigation ends. Id.
To determine whether such a reasonable expectation exists, courts look to "three broad factors." Id. at 1257. First, "whether the change in conduct resulted from substantial deliberation or is merely an attempt to manipulate our jurisdiction." Id. This requires examining "the timing of the repeal, the procedures used in enacting it, and any explanations independent of this litigation which may have motivated it." Id. Second, "whether the government's decision to terminate the challenged conduct was `unambiguous'" — i.e., "whether the actions that have been taken to allegedly moot the case reflect a rejection of the challenged conduct that is both permanent and complete." Id. And, third, "whether the government has consistently maintained its commitment to the new policy or legislative scheme." Id.
The City's adoption of the Standing Bail Order is somewhat analogous to the mootness issue presented in Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010). In Harrell, the plaintiff challenged the Florida Bar's advertising rules and regulations, including the Bar's specific decision to reject one of the plaintiff's proposed advertising slogans. Id. at 1249-50. After the lawsuit began, the Bar reversed its earlier decision and approved the slogan without issuing a reasoned opinion. Id. at 1252-53. The district court held that the decision approving the slogan mooted the plaintiff's challenge, but we reversed. Id. at 1253, 1268. For the first mootness factor, we observed that the Bar "acted in secrecy, meeting behind closed doors and, notably, fail[ed] to disclose any basis for its decision." Id. at 1267. Thus, we had "no idea whether the ... decision was `well-reasoned' and therefore likely to endure." Id. And because the Bar had changed its position after litigation had begun, "the circumstances ... raise[d] a substantial probability that" the Bar had "changed course simply to deprive the court of jurisdiction." Id. (internal quotation marks omitted). We also concluded that the second factor weighed against the suit's mootness. Because the Bar's decision to approve the slogan was unexplained and had been made through an irregular process, we were "unable to say that the [Bar], through its decision, `unambiguously terminated' the challenged application" of its
Applying such analysis here, we conclude that Walker's claim for injunctive relief against the City's original bail policy is likewise not moot. The first factor — whether the change in conduct resulted from substantial deliberation or is instead an attempt to manipulate jurisdiction — weighs against mootness. While we may doubt that it was the City's intent to manipulate jurisdiction, as opposed to simply correcting a deficient policy, the fact is that the City has been unnecessarily secretive. The process for adopting the Standing Bail Order is unknown because the City has refused to explain that process. In fact, in response to interrogatories, the City asserted that information about "the process of creating" the Standing Bail Order was protected by "the work-product doctrine and/or attorney-client privilege," and it refused to divulge any information except to say that the Order was executed by the Chief Judge of the Municipal Court.
The second factor also weighs against mootness because the City's abandonment of its original bail policy is not unambiguous. The City did not change its bail policy through a legislative act, which might well have mooted the original claim. Instead, a single judge issued the Standing Bail Order and, while it is perhaps unlikely, we cannot say that this judge might not revert to the original policy, given the lack of transparency surrounding the issuance of the Standing Bail Order. Thus, "it can hardly be said that [the City's] `termination'" of its original bail policy is unambiguous. Harrell, 608 F.3d at 1266-67.
Finally, as to the third factor — whether the government has consistently maintained its commitment to the new policy or legislative scheme — that does not cut strongly either way because only two months after the Standing Bail Order was adopted, the district court stopped its implementation with the first preliminary injunction.
Altogether, Walker presented sufficient evidence for the district court to conclude that his challenge to the original bail policy was not moot. Because the City does not defend the constitutionality of its original bail policy on appeal, we may assume that Walker's arguments against the City's original bail policy have a substantial likelihood of success on the merits. Just as the City has not defended its original bail policy on the merits, it also has not shown that the district court abused its discretion when it concluded that the other factors favoring an injunction were met with respect to that original policy. The district court therefore did not err in declaring the original bail policy to be unconstitutional, and it accordingly may enjoin the City's future use of that policy.
But the conclusion that Walker's claim for injunctive relief against the City's original bail policy is not moot does not mean that the preliminary injunction against the Standing Bail Order is valid. Even assuming that the City intended to revert to its original policy at the conclusion of this litigation — something that will not occur given the terms of our ruling and remand here — such possibility does not salvage the preliminary injunction. The district court's rationale for entering the injunction was not that the City was likely to walk back the Standing Bail Order, but rather that the Standing Bail Order was itself unconstitutional "insofar as it permits
Walker essentially asks us to hold that a governmental body that ceases to follow an unconstitutional policy, and that instead promulgates a constitutional policy, is nonetheless and forever forced to comply with an even more stringent policy devised by a district court — with conditions found nowhere in the Constitution — merely because it had once followed an unconstitutional policy. It would be absurd to so hold.
"A district court abuses its discretion... when it applies the incorrect legal standard." Wreal, 840 F.3d at 1247. The district court did so here when it issued its preliminary injunction. As a result, the preliminary injunction is infirm regardless of the City's motivation for the Standing Bail Order.
In sum, because the City did not establish that Walker's suit for injunctive relief was moot and because it has effectively conceded that its original bail policy was unconstitutional, the district court may enjoin a return to that original policy. But the district court abused its discretion in also enjoining the entirely constitutional Standing Bail Order, so the preliminary injunction cannot stand.
For the foregoing reasons, the preliminary injunction entered by the district court is
MARTIN, Circuit Judge, concurring in part and dissenting in part
Maurice Walker was jailed by the City of Calhoun for six days because he was too poor to pay his bail. He challenges the City's practice of jailing people before trial when they are too poor to make bond, arguing it violates the constitutional guarantees of due process and equal protection. The Majority rejects this claim, characterizing the pretrial jailing as "merely wait[ing] some appropriate amount of time to receive the same benefit as the more
The Supreme Court has repeatedly recognized that wealth-based detention is not permitted by our Constitution.
The Majority is right when it says Mr. Walker's claim "fits squarely" within the Bearden-like cases that raise both due process and equal protection concerns. Maj. Op. at 1258-59. But I part ways with the Majority, because I read these cases to support the District Court's application of heightened scrutiny under the Equal Protection Clause to the City's bail policy.
The Majority relies on
The Majority never addresses whether the Standing Bail Order discriminates against indigents.
The Majority Opinion says this hypothetical shows I would require the government to be involved in all sorts of wealth-based interactions — including intervening to make pricier express mail options available to all postal patrons.
As to Rodriguez's second question, the Majority relies on the fact that the Standing Bail Order caps an indigent arrestee's pretrial detention at 48 hours to conclude that the detention isn't an "absolute deprivation."
In my view, an incarcerated person suffers a complete deprivation of liberty within the meaning of Rodriguez, whether their jail time lasts two days or two years. Certainly the Rodriguez Court had no problem concluding there was an "absolute deprivation" of liberty in Williams and
I am not alone in this view. In addressing a challenge to the bail policies of Harris County, Texas, the Fifth Circuit looked to Rodriguez in holding that "indigent misdemeanor arrestees are unable to pay secured bail, and, as a result, sustain an absolute deprivation of their most basic liberty interests — freedom from incarceration."
It seems unremarkable to say that being jailed for 48 hours is more than a mere
I am puzzled by the Majority's conclusion that detained indigents are somehow better off than their free and wealthy counterparts. Maj. Op. at 1261-62. It is true that a person with money will be out-of-pocket whatever funds they paid as bond. But these wealthier bond payers have a choice: they can pay the bond or not. The poor have no choice. I simply reject the idea that people who have the ability to pay bond decide to keep it and go to jail to gain some sort of financial advantage.
Neither do I view the Bearden Court's single quotation from Justice Harlan's concurrence in
Second, while the Court did reference Justice Harlan's view that a "due process approach more accurately captures the competing concerns" in this type of analysis, it made clear that cases implicating both due process and equal protection concerns "cannot be resolved by resort to easy slogans or pigeonhole analysis" and require a context-specific inquiry.
In light of Supreme Court precedent, our sister circuit's agreement that Rainwater requires application of heightened scrutiny under the Equal Protection Clause to claims like Mr. Walker's, and the significant consequences stemming from incarceration, the Justice Harlan quote is simply not enough to support the Majority's due-process-only approach.
I also reject the Majority's concern that a flood of litigation will result from treating wealth "like race, sex, or religion" as a reason not to apply heightened scrutiny. Maj. Op. at 1260-62. First, there will be no flood. The Supreme Court has already placed limits on bringing equal protection challenges to wealth-based classifications. Beyond the requirements set out in Rodriguez discussed above, the Supreme Court has also said that "fee requirements ordinarily are examined only for rationality,"
In sum, I read Rodriguez (and Bearden for that matter) to require that Mr. Walker's claim of wealth-based discrimination be subject to heightened scrutiny under a traditional equal protection framework. Thus, I would have affirmed the District Court's analysis.
In applying heightened scrutiny to Mr. Walker's claim, I recognize that the Supreme Court has not made clear whether the level of scrutiny to be applied in Bearden-like cases is intermediate or strict scrutiny.
The City makes no effort to justify its policy of detaining those who cannot pay for 48 hours, because it says it doesn't need to. It argues only that capping detentions at 48 hours is "sufficient to immunize the City from a challenge to its process for a determination of indigency." In making this argument, the City relies on two cases:
According to the City, "this case is to Rainwater what
Second,
Finally, my view of
It seems worthy of mention that the Fifth Circuit's modified injunction in
I believe Mr. Walker has shown a substantial likelihood of success on the merits.
Finally, to the extent the City challenges the scope of the District Court's injunction, I would also find no abuse of discretion.
I read Supreme Court precedent and Rainwater to require a traditional equal protection analysis of the City of Calhoun's Standing Bail Order, applying heightened scrutiny review. On the record before us, I would have upheld the District Court's grant of a preliminary injunction to Mr. Walker. I recognize that the City has not yet had a chance to develop an evidentiary record about its need for a 48-hour detention policy for indigents only. For that reason, I would have allowed the City an opportunity to develop that record on remand and seek a different result when this case is considered on the merits.
Wreal, 840 F.3d at 1247 (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)). Although the parties dispute all four elements, the principal point of dispute is likelihood of success on the merits.
Such history may support reinvigorating the Eighth Amendment as the proper vehicle for evaluating whether a State has imposed impermissible conditions of pretrial release. Cf. Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 805-07 (9th Cir. 2014) (en banc) (O'Scannlain, J., dissenting) (arguing that legislation governing pretrial detention based on flight risk should be evaluated under the Eighth Amendment). In any event, it will be for a future court to decide whether Salerno's framework or an Eighth Amendment analysis applies when a defendant is eligible for bail but is detained because he cannot provide adequate assurance of his future appearance.
It is true that, in a separate part of its opinion, the ODonnell court applied heightened scrutiny under the Equal Protection Clause, after concluding that the facts of that case fit into the Rodriguez classification of plaintiffs who suffer an "absolute deprivation of their most basic liberty interests." Id. at 162. But there, the court had extensive factual findings from the district court, resulting from a lengthy evidentiary hearing, that Harris County did not provide arrestees "any opportunity to submit evidence of relative ability to post bond at the scheduled amount," id. at 154 (emphasis added), evidence that permitted the Fifth Circuit to conclude that the County acted with a "discriminatory purpose" that "resulted in [indefinite] detainment solely due to a person's indigency," id. at 161. Were the facts of this case the same, Walker would have a much stronger argument that indigents in the City face an absolute deprivation on account of wealth that would trigger the Rodriguez exception, but the Standing Bail Order guarantees release to indigents within 48 hours. It therefore accords entirely with ODonnell's holding that what the Constitution requires is "an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker." Id. at 163. The dissent would demand more and so is inconsistent with ODonnell.
Nor do we decide whether a jurisdiction could adopt a system that allows a longer period of time than 48 hours to make a bail determination, because the City does not seek to take longer than 48 hours. As amicus pointed out at oral argument, the federal system permits a court to delay a bail hearing by three days after an arrestee's first appearance (plus intervening weekends or holidays) upon the government's motion. See 18 U.S.C. § 3142(f). And Georgia law allows 72 hours for an officer making an arrest pursuant to a warrant to bring the arrestee before a judicial officer. See Ga. Code Ann. § 17-4-26. Whether such lengths of delay are permissible is not a question before us. We are satisfied that McLaughlin establishes at least a 48-hour presumptive safe harbor for making bail determinations without deciding if that safe harbor extends longer. Because a probable cause determination establishes whether the government has a basis to detain a person at all, see Gerstein, 420 U.S. at 125, 95 S.Ct. 854, the onus on the government to make a probable cause determination promptly must be at least as great as it is to set the conditions of pretrial release. Whether jurisdictions have greater leeway in making bail determinations than probable cause determinations is a question for another case with a more complete factual record. The dispute between the parties over whether the preliminary injunction led to an increase in the non-appearance rate in the City may be relevant to such inquiry, but we need not resolve that dispute to determine that the Standing Bail Order facially passes constitutional muster.
