YVONNE GONZALEZ ROGERS, District Judge.
Pending before the Court are plaintiffs' and California Bail Agents Association's ("CBAA") cross motions for summary judgment on plaintiffs' Equal Protection and Due Process claims. Plaintiffs argue, principally, that San Francisco County's (the "County") system of pretrial bail violates the Equal Protection and Due Process clauses of the United States Constitution because it not only contravenes the absolute proscription against wealth-based discrimination in the criminal justice system, but also because personal liberty is a fundamental right, and the County's system cannot pass strict scrutiny review. In contrast, CBAA essentially argues that no constitutional right to pre-arraignment release exists, that the County's pre-arraignment policies are subject to rational basis review, and that the County's policies are constitutional under that standard.
Having carefully considered the pleadings, the fully-briefed motions, and the hearing held on December 12, 2017, and for the reasons set forth below, the Court
The Court finds the following facts not subject to reasonable dispute:
San Francisco police arrested plaintiff Riana Buffin on October 26, 2015 for grand theft of personal property and conspiracy. Plaintiff Buffin was taken to jail and informed that her bail amount was set at $30,000. She did not post bail. Rather, she was released after the District Attorney's office decided not to file formal charges against her, at which point she had spent approximately 46 hours in jail and had not been brought to court for an initial appearance.
San Francisco police arrested plaintiff Crystal Patterson on October 27, 2015 for assault with a deadly weapon or instrument other than a firearm. She was taken to jail, where she was informed that her bail amount was set at $150,000. After approximately 29 hours, and prior to her initial appearance, plaintiff Patterson was able to post a bond with the financial assistance of relatives and was released.
In California, state law imposes a duty on superior court judges to "prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions." Cal. Penal Code § 1269b(c). In San Francisco, the superior court establishes the Felony and Misdemeanor Bail Schedule (the "Bail Schedule"). The Sheriff's Department, currently led by defendant Sheriff Vicki Hennessy (the "Sheriff"), determines an arrestee's bail amount by reference to the Bail Schedule, which sets forth bail amounts based on specific booking charges. The Sheriff's Department releases arrestees who are eligible for release on bail upon payment of the applicable bail amount as set forth in the Bail Schedule or the posting of a bail bond for the applicable bail amount as set forth in the Bail Schedule.
Under state law, some arrestees may apply to a magistrate for pre-arraignment release on lower bail or on his or her own recognizance ("OR"). See Cal. Penal Code § 1269c. This application may be made without a hearing. Id. Pursuant to California Penal Code ("Penal Code") sections 1269b and 1269c, individuals charged with certain offenses are ineligible to apply pre-arraignment for OR release or a reduction in bail, though they may obtain pre-arraignment release by paying the applicable amount under the Bail Schedule if specified therein, or any greater amount set by a judge pursuant to Penal Code section 1269c, absent some other legal impediment to their release. Individuals ineligible for pre-arraignment OR release or pre-arraignment reduction in bail may be ordered released on their OR, or on reduced bail, after a hearing in open court in accordance with Penal Code section 1270.1.
In setting bail, a judge or magistrate may consider the information included in a report prepared by an investigative staff employed by the court for the purpose of recommending whether a defendant should be released on his or her OR. Cal. Penal Code §§ 1275(a)(1), 1318.1. In San Francisco, the San Francisco Pretrial Diversion Project contracts with the Sheriff's Department to provide certain pretrial services, including the OR Project. One of the purposes of the OR Project is to provide the superior court with information to decide whether to release an arrestee on his or her OR prior to arraignment.
On April 30, 2016, the OR Project staff began using a Public Safety Assessment Tool (the "PSA Tool") developed by the Laura and John Arnold Foundation. The purpose of the PSA Tool is to assess the risk that an arrestee, if released pretrial, will fail to appear or will engage in new criminal activity, and to generate a release recommendation based on the assessed risk.
Prior to the implementation of the PSA Tool, the OR Project staff prepared a report called an "OR Workup" after interviewing the arrestee, which consisted of the information gathered from the interview and references, a criminal history report, a summary of the criminal history report, and a cover sheet. For those arrestees eligible for pre-arraignment release, the OR Workup was presented to the duty judge.
Since implementation of the PSA Tool, the OR project staff are no longer required to interview the arrestee. Rather, they prepare an OR Workup for each arrestee eligible for OR release (whether at arraignment or before), which includes a summary of the arrestee's individual and criminal history, the criminal history printouts, the police report, a cover sheet, and the release recommendation generated by the PSA Tool and the DMF. As before, for those arrestees eligible for pre-arraignment release, the OR Workup is either presented to the duty judge in the first instance or presented to the court for consideration at arraignment. There is no guaranteed timeline for when the OR Workup will be completed.
In assigning bail to plaintiffs, the Sheriff's predecessor followed California laws governing the setting of bail and complied with the Bail Schedule.
Plaintiffs filed their original complaint on October 28, 2015 against the County and "the State of California" generically. (Dkt. No. 1.) The operative complaint is the Third Amended Complaint. (Dkt. No. 71 ("3AC").) Since plaintiffs filed their 3AC, the Court has dismissed all defendants except for the Sheriff, who announced that she would not defend this action. (See Dkt. No. 101 at 1.)
In this context, CBAA filed its fourth motion to intervene, which the Court granted subject to certain conditions. (See Dkt. No. 119 ("Intervention Order").) Subsequently, plaintiffs, CBAA, and the Sheriff (collectively, the "parties") agreed upon certain stipulated facts and conducted discovery regarding those facts that were not established through stipulation.
While the Court has articulated the scope of this case on numerous occasions,
In light of the overreaching, and unauthorized, scope of the relief sought by plaintiffs at this late stage in the litigation, the Court asked them recently to clarify the relief they are seeking. (See Dkt. No. 178.) Plaintiffs responded that they "seek an order declaring unconstitutional and enjoining the use of the bail schedule for the class . . . ." (Dkt. No. 181 at 2.)
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact as to the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
Where the moving party has the burden of proof at trial, it "must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. See Anderson, 477 U.S. at 250; Soremekun, 509 F.3d at 984; see also Fed. R. Civ. P. 56(c), (e). The opposing party's evidence must be more than "merely colorable" and must be "significantly probative." Anderson, 477 U.S. at 249-50. Further, the opposing party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence showing a genuine dispute of material fact exists. See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Nevertheless, when deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. See Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). A district court may only base a ruling on a motion for summary judgment upon facts that would be admissible in evidence at trial. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 2010); Fed. R. Civ. P. 56(c).
As a threshold matter, CBAA argues that plaintiffs' claims actually constitute a challenge under the Eighth Amendment's Excessive Bail Clause and should not be considered under a Fourteenth Amendment analytical framework. According to CBAA, it is entitled to summary judgment as to this claim on the ground that the bail amounts assigned to plaintiffs were not unconstitutionally excessive in light of the County's valid government interests. Citing Galen v. County of Los Angeles, 477 F.3d 652 (9th Cir. 2007), CBAA avers that because the Sheriff followed California's bail laws and Bail Schedule in assigning bail to plaintiffs, plaintiffs are foreclosed from arguing that the bail amounts are unconstitutionally excessive.
Plaintiffs respond that not every claim related to pretrial detention must necessarily be an excessive bail claim. Namely, they argue that rather than challenging the specific bail amounts on the Bail Schedule, they challenge the County's discriminatory practices. Because plaintiffs have not raised an Eighth Amendment claim, they deem CBAA's argument irrelevant.
The Court agrees with plaintiffs. CBAA's mischaracterization of the issues as an Eighth Amendment challenge to excessive bail is merely a red herring. As plaintiffs note, they do not challenge the specific amounts set out in the Bail Schedule. (Plaintiffs' Opposition to CBAA's Motion for Summary Judgment, Dkt. No. 153 at 22 ("Plaintiffs' Opposition").) Rather, their claims concern the effect the Sheriff's use of the Bail Schedule has on those who cannot afford to pay the set amounts in relation to those who can. CBAA's efforts to recast plaintiffs' claims as Eighth Amendment claims thus ignore the Supreme Court's express acknowledgement that federal courts "generally analyze the fairness of relations between the criminal defendant and the State under the Due Process Clause, while [they] approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause." Bearden v. Georgia, 461 U.S. 660, 665 (1983).
The parties principally dispute whether the Sheriff's use of the Bail Schedule implicates a fundamental right and whether the rational basis or strict scrutiny standard of review applies to plaintiffs' Due Process and Equal Protection claims. The ensuing discussion addresses both issues.
The Due Process Clause of the Fourteenth Amendment prohibits the government from depriving individuals of their life, liberty, or property, without due process of law. U.S. Const. amend. XIV, § 1. In general, it "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Accordingly, the threshold inquiry in every Due Process challenge is "whether the plaintiff has been deprived of a protected interest in . . . `liberty.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (quoting Fourteenth Amendment); see also Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008) ("To state a substantive due process claim, the plaintiff must show as a threshold matter that a state actor deprived it of a constitutionally protected life, liberty, or property interest."). The Supreme Court has long recognized constitutional limits on pretrial detention.
By way of background, the Supreme Court in Salerno considered, inter alia, the substantive Due Process implications of the Bail Reform Act of 1984, which required pretrial detention of arrestees charged with certain serious felonies if the government demonstrated by clear and convincing evidence after an adversary hearing that no release conditions "will reasonably assure . . . the safety of any other person and the community." 18 U.S.C. § 3142(e). Applying general Due Process principles, the Court considered whether the law constituted an impermissible infringement of arrestees' liberty interest. The Court explained that the "individual's strong interest in liberty" is "fundamental," Salerno, 481 U.S. at 750, and cited the "general rule of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial." Id. at 749 (internal quotation marks omitted). But the Court concluded that the Bail Reform Act passed constitutional muster because it both served a "compelling" and "overwhelming" governmental interest "in preventing crime by arrestees" and was "carefully limited" to achieve that purpose. Id. at 749-50, 755. Additionally, the Act "careful[ly] delineat[ed] . . . the circumstances under which detention will be permitted . . . ." Id. at 751.
In Lopez-Valenzuela v. Arpaio, the Ninth Circuit, sitting en banc, interpreted Salerno to require strict scrutiny of pretrial detention conditions. 770 F.3d 772, 780-81 (9th Cir. 2014).
Based on the foregoing, this Court concludes that the Sheriff's use of the Bail Schedule implicates plaintiffs' fundamental right to liberty, and any infringement on such right requires a strict scrutiny analysis. According to the Ninth Circuit, that liberty is a fundamental right is "beyond dispute." Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017); id. ("[T]he private interest at issue here is `fundamental': freedom from imprisonment is at the `core of the liberty protected by the Due Process Clause.'") (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)); see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) ("Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects."); Foucha, 504 U.S. at 80 ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.").
Relying on Gerstein v. Pugh, 420 U.S. 103 (1975) and County of Riverside v. McLaughlin, 500 U.S. 44 (1991), CBAA attempts to frame the right at issue here narrowly, that is, as the "right to liberty in the brief period between arrest and arraignment." (CBAA's Opposition to Plaintiffs' Motion for Summary Judgment, Dkt. No. 143 at 9 ("CBAA's Opposition"); see also CBAA's Motion for Summary Judgment, Dkt. No. 132 at 18 ("CBAA's Motion").) Using this construction, CBAA argues that no such fundamental right exists but rather that detention is "justified and constitutional." (CBAA's Motion at 17.) In Gerstein, the Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. 420 U.S. at 124-25. The Court did not specify what would meet the promptness standard, instead noting that "the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole." Id. at 123. Subsequently, in considering what constitutes a "prompt" probable cause determination under Gerstein, the Supreme Court held in McLaughlin that a judicial determination of probable cause within 48 hours of arrest generally will pass constitutional muster. 500 U.S. at 56.
CBAA's narrow reading of McLaughlin ignores that the Court treated the 48-hour rule merely as a presumption. The fact that a person is given a determination of probable cause within 48 hours after arrest does not mean that "the probable cause determination in a particular case passes constitutional muster . . . ." McLaughlin, 500 U.S. at 56. Such a hearing may nonetheless violate the Constitution "if the arrested individual can prove that his or her probable cause determination was delayed unreasonably." Id. CBAA's reference to the "48-hour outer-limit found constitutional for probable cause hearings" is thus misleading. (CBAA's Motion at 17) (emphasis supplied). Moreover, it is not clear that the McLaughlin 48-hour presumption applies to the inquiry into an arrestee's eligibility for pre-arraignment release. CBAA baldly asserts that "the context of pre-arraignment bail hearings . . . also implicates the realities of law enforcement and the heavy burden on the criminal justice system to process defendants in a timely yet effective manner after arrest." (Id.) However, it offers no evidence to support its claim. As one court noted in a case similar to this one, "[t]he 48-hour probable-cause-hearing standard announced in [McLaughlin] is not a safe harbor . . . ." ODonnell v. Harris Cty., 227 F.Supp.3d 706, 732 (S.D. Tex. 2016) (noting "plaintiffs do not challenge the timing of probable-cause hearings"). Finally, Gerstein and McLaughlin dealt with the procedural safeguards necessary to effect limited post-arrest detention, and plaintiffs' claim here purports to be of a substantive nature.
Accordingly, CBAA's claim is unavailing. The Ninth Circuit has not drawn the narrow demarcation proffered, instead announcing general Due Process principles in cases involving detention of adults.
The Equal Protection Clause of the Fourteenth Amendment prohibits the government from denying individuals equal protection of the laws. U.S. Const. amend. XIV, § 1. While Equal Protection is typically used to analyze government actions that draw a distinction among people based on specific characteristics, it is also used if the government discriminates among people as to the exercise of a fundamental right.
Strict scrutiny under the Equal Protection Clause applies where the classification impinges on a fundamental right or the classification itself is suspect. See Rodriguez, 411 U.S. at 2 (the "strict judicial scrutiny . . . test is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution." ); cf. Pugh v. Rainwater, 557 F.2d 1189, 1197 (5th Cir. 1977), vacated, 572 F.2d 1053 (5th Cir. 1978) (en banc) (where plaintiffs claimed that imprisonment prior to trial solely due to inability to pay bail violated Equal Protection, court applied strict scrutiny in part because "the inability to raise money bail necessarily affects fundamental rights of the indigent defendant").
To the extent CBAA frames plaintiffs' Equal Protection claim as one based purely on a "wealth-based" classification, (see CBAA's Motion at 13-14), the Court agrees, as a matter of legal theory, that wealth-based challenges generally do not warrant strict scrutiny.
With respect to plaintiffs' claim, given their muddled briefing, counsel attempted orally to clarify plaintiffs' theories. Relying principally on the Bearden-Tate-Williams line of cases, counsel described (i) an Equal Protection claim based on the deprivation of the fundamental right to personal liberty on an unequal basis; (ii) a Due Process claim based on the deprivation of the fundamental right to personal liberty; and (iii) a claim based on the "fundamental fairness" principle, which plaintiffs say involves a "blended analysis between the equal protection and due process clause[s]."
That said, an examination of the Bearden-Tate-Williams line of cases persuades the Court that strict scrutiny applies to plaintiffs' Due Process and Equal Protection claims. In Williams, the Supreme Court held that a facially neutral system of imprisoning convicted defendants who did not pay their fines "works an invidious discrimination" as applied to indigent defendants and therefore violated the Equal Protection Clause. 399 U.S. at 242. Though the majority did not explicitly call for heightened scrutiny, it used a functionally similar analysis, finding the government's "substantial and legitimate" interest in collecting revenues from fines did not justify "invidious discrimination" against those financially unable to pay the fines. Id. at 238, 242. In Tate, the Supreme Court followed and extended the rule in Williams, holding:
Tate, 401 U.S. at 398 (internal quotation marks omitted). The Court similarly found that the "invidious discrimination" was not justified in light of "other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines." Id. at 399.
In Bearden, the Supreme Court summarized the rule of Williams and Tate as follows: "[I]f the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it." 461 U.S. at 667-68. Rather, the Constitution requires the government to use the least-restrictive alternative:
Id. at 672-73. In so holding, the Court noted that "[d]ue process and equal protection principles converge in the Court's analysis" in cases involving the fair treatment of indigents in the criminal justice system. Id. at 665. The Court explained that the question whether differential treatment violates Equal Protection in such cases is "substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine." Bearden, 461 U.S. at 665-66. The Court reasoned that the answer to that question "cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather 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 . . . .'" Bearden, 461 U.S. at 666-67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)) (alterations in original).
While the Court disagrees that these cases establish an unambiguous constitutional right not to be detained based on indigence as plaintiffs apparently suggest,
Accordingly, the Court is satisfied that strict scrutiny review applies to plaintiffs' Due Process and Equal Protection claims. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978) ("[A] government practice or statute which restricts `fundamental rights' . . . is to be subjected to `strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available."); see also Bearden, 461 U.S. at 665 (in cases of detaining the indigent, "[d]ue process and equal protection principles converge in the Court's analysis.").
Applying these principles, the Court must determine (i) whether the Sheriff, through use of the Bail Schedule, has significantly deprived plaintiffs of their fundamental right to liberty, and, if so, (ii) whether, under the strict scrutiny standard of review, the Sheriff's use of the Bail Schedule is the least restrictive alternative for achieving the government's compelling interests.
Plaintiffs first claim that the County's current bail system infringes on the fundamental right to pretrial liberty because the "non-monetary release alternatives" it affords to arrestees "are slower than monetary release" and "those who can afford bail procure release much faster than those who must wait for the OR Project." (Plaintiffs' Motion at 10.) The Court finds genuine disputes of fact exist as to plaintiffs' claim of a significant deprivation of liberty.
Plaintiffs contend: "Of the 513 people released in 2016 through the OR Project, only 4% were released in less than 24 hours; nearly 11% spent 24-48 hours waiting for their release; 71% waited at least two full days; roughly 14% waited for at least three full days." (Plaintiff's Motion at 10.) However, the Sheriff (and CBAA
In light of the factual dispute as to the meaning of the data, the Court cannot say, as a matter of law, that the Sheriff significantly infringed on plaintiffs' fundamental right to liberty by "detain[ing] [them] longer" (Plaintiffs' Motion at 10), let alone that the Sheriff has done so by sole reason of their indigence.
Plaintiffs' motion also fails because plaintiffs have not met their initial burden as to the existence of a less restrictive alternative to achieve the government's interests as compared to the Sheriff's use of the Bail Schedule. As plaintiffs concede, they must first make a prima facie showing in this regard. (See Plaintiffs' Reply ISO Motion for Summary Judgment, Dkt. No. 161 at 8.) That is, they must make a showing of a "plausible, less restrictive alternative[],"Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (emphasis supplied). The proposed alternative need not be "more effective," id. at 669 (emphasis supplied)—plaintiffs must show only that it would be "at least as effective," Reno v. ACLU, 521 U.S. 844, 874 (1997) (emphasis supplied). The current record is insufficient on this point. Even plaintiffs' designated expert witness, Michael Jones, testified at his deposition that he is "very ignorant" about the County's pretrial practices and was not offering any opinion about whether any alternatives to the County's current system of pretrial release would be effective in achieving the government's interests in this County.
Once plaintiffs have made a showing of a plausible, less restrictive alternative, the government has the burden of proof under the strict scrutiny standard.
Given plaintiffs' numerous failures of proof, their motion is denied. CBAA's motion also fails because it is based on the assumption that no fundamental right is at issue and relies on a rational basis analysis.
For the foregoing reasons, plaintiffs' motion for summary judgment is
This Order terminates Docket Numbers 132 and 136.
(Dkt. No. 99 at 1.) Moreover, in its order granting CBAA permissive intervention, the Court explained that the 3AC "challenges the San Francisco Sheriff's use of a bail schedule to detain a person prior to being seen by a judicial officer" as required by Penal Code section 1269b, and "allege[s] section 1269b has the effect of requiring secured money bail and causes San Francisco to detain individuals solely because they cannot afford the cost of release." (Intervention Order at 1-2.)
Moreover, the District Court for the Eastern District of California, in a case involving a Due Process claim similar to the one at hand and which CBAA cites in support of its Equal Protection contentions, agreed with the plaintiff in that case that "pretrial liberty is a fundamental right" and that "detention conditioned upon posting of bail . . . is subject to strict scrutiny review." Welchen v. Cty. of Sacramento, No. 2:16-cv-00185-TLN-KJN, 2016 WL 5930563, at *9-10 (E.D. Cal. Oct. 11, 2016).
While the court in Welchen determined that the plaintiff's Equal Protection claim was subject to rational basis review, it did so based on the premise that "wealth status is not a suspect class" and is therefore irrelevant here. Welchen, 2016 WL 5930563 at *11. In any event, when the Supreme Court ruled in San Antonio Independent School District v. Rodriguez that wealth-based classifications ordinarily require rational basis review, it specifically exempted cases in which "the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum." 411 U.S. 1, 22 (1973).
