ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; DENYING CBAA'S CROSS-MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION TO REVOKE CBAA'S INTERVENOR STATUS

Re: Dkt. Nos. 282, 300, 287

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiffs challenge the use of San Francisco's Felony and Misdemeanor Bail Schedule1 as a basis for defendant Sheriff Vicki Hennessy (the "Sheriff") to release detainees prior to arraignment where those detainees do not have the means to afford the amounts set forth therein. Plaintiffs argue that plausible alternatives exist which would allow for their release and that the continued use of such a schedule violates the Due Process and Equal Protection clauses of the United States Constitution. When the Sheriff refused to defend the use of the Schedule, the Court granted California Bail Agents Association ("CBAA") limited intervenor status.

Now before the Court are plaintiffs' motion to revoke CBAA's intervenor status, and plaintiffs' and CBAA's cross-motions for summary judgment on plaintiffs' Equal Protection and Due Process claims.2 Having carefully considered the pleadings in this action, the fully-briefed motions, and the hearing held on January 8, 2019, and for the reasons set forth below, the Court DENIES plaintiffs' motion to revoke CBAA's intervenor status; GRANTS plaintiffs' motion for summary judgment; and DENIES CBAA's cross-motion for summary judgment on the terms set forth herein.

I. FACTUAL BACKGROUND

The Court finds the following facts not subject to reasonable dispute:

A. Factual Overview3

San Francisco police arrested plaintiff Riana Buffin on Monday, October 26, 2015 for "grand theft of personal property" (Cal. Penal Code ("Penal Code") § 487(a)) and "conspiracy to commit a crime" (id. § 182(a)(1)). (Dkt. No. 136-8.)4 According to her "booking card," Ms. Buffin, at the time 19 years old, was booked into jail at 11:33 p.m. (Id.) She was informed that her bail amount was set at $30,000, that is, the combined amount of $15,000 for each booking charge pursuant to the Bail Schedule. (Id.) The Schedule provides, "[f]or all unscheduled felonies, the bail amount is $15,000[,]" and with respect to conspiracy, if the underlying felony is identified, the amount is the "same as [the] underlying" felony or, if not specified, then $15,000. (Bail Schedule at 2 (emphases removed).) Here, Penal Code section 487(a) is not scheduled, hence the $15,000. Under either formulation for the conspiracy charge, an additional $15,000 was properly set in accordance with the Bail Schedule.

Ms. Buffin did not post bail because she could not afford it, testifying:

The District Attorney's office ultimately decided not to file formal charges against Ms. Buffin, and she was released. Despite having been detained on a Monday night, Ms. Buffin was never taken to court on Tuesday or Wednesday for an initial appearance. Notably, by the time of her release on Wednesday night, she had spent approximately 46 hours in custody, and normal court operations had long since ceased. As a consequence of her detention, Ms. Buffin lost her job at the Oakland Airport. (See Buffin Depo Tr. at 52:3-53:2.)

San Francisco police arrested plaintiff Crystal Patterson on Tuesday, October 27, 2015 at 3:49 p.m. and, according to her booking card, she was detained for "assault with force likely to cause great bodily injury," Penal Code section "245(a)(1) [sic]." (Dkt. No. 283-12 at ECF p. 4.)6 Ms. Patterson, at the time 29 years old, was booked into jail, where she was informed that her bail amount was set at $150,000. Again, this represented the combined amount of $75,000 each for two separate counts of assault under Penal Code section "245(a)(1) [sic]." (Id.) Ms. Patterson, too, could not afford the $150,000 for immediate release, nor was she taken to court:

After approximately 29 hours of incarceration, and prior to her initial appearance, Ms. Patterson was released after her uncle paid an "initial down payment" of $1,500 on a $15,000 non-refundable premium to secure a bond from a surety bail agent.8 The surety bail contract provided:

Following Ms. Patterson's release, the District Attorney decided not to file formal charges against her and discharged the case.10

The evidence gathered in this case reveals that, like Ms. Patterson, over 99% of arrestees who are released on bail in San Francisco obtain surety bonds through contracts with bail agents. In San Francisco, in 2016, the largest number of bonds issued ranged in amounts between $10,000 and $50,000, with the average bail amount posted at $56,000 and the median bail posted at $43,000.11 Bail agents are legally allowed to charge a non-refundable premium of up to 10% of the total bail amount for their services.12 Often, third-party family members, friends, or employers of the arrestee will co-sign with a detainee to obtain a surety bond.13 In fact, bail companies rely on these co-signors to help ensure that the detainee returns to court.14 Moreover, recent studies corroborate plaintiffs' own experiences, estimating in 2017 that "30% of custodial arrests . . . will be declined for prosecution each year. . . ."15

Relevant here, California law requires 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." Penal Code § 1269b(c). In so doing, judges are required to consider the seriousness of the offense charged. Id. § 1269b(e). In this case, the San Francisco superior court established the referenced Bail Schedule, which is comprised principally of a three-columned table that identifies an "Offense," or Penal Code section, a short "Description" thereof, and a fixed "Bail" amount. (See generally Bail Schedule.) The Sheriff consults the Bail Schedule to determine an arrestee's bail amount. Specifically, the Sheriff locates each "booking charge," tabulates the amounts designated per charge, and releases the detainee upon payment of that sum. The Sheriff applies the process mechanically, making no individualized assessment regarding public safety, flight risk, ability to pay, or strength of the evidence.

The record is devoid of any evidence upon which the amounts in the Bail Schedule are determined or justified. For sake of comparison, CBAA's 30(b)(6) witness testified:

(Clayton Depo Tr. at 50:1-22.) Rather, the evidence reveals that San Francisco's Bail Schedule is among the highest in the state. (Dkt. No. 283-10 at 37:22-24.) No reason or process is provided for the basis upon which the amounts were determined. Meanwhile, those arrestees who either can afford the amount of bail identified in the Bail Schedule or can post a surety bond for the same are simply released.

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 Penal Code § 1269c. This application may be made without a hearing. Id. Ironically, individuals charged with certain offenses are ineligible to apply pre-arraignment for either OR release or a reduction in bail, but, if they pay the applicable amount under the Bail Schedule, the Sheriff may release them absent some other legal impediment to their release.16 Id.

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 detainee should be released on his or her OR. 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 court with the same information 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 make an individualized assessment regarding 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. Release recommendations (not decisions) are a function of (1) the score generated by the PSA Tool and (2) a decision-making framework ("DMF") prepared by a working group that includes representatives from the San Francisco Superior Court, Sheriff's Department, District Attorney, Public Defender, and Conflict Counsel.

Since the PSA Tool has been in use, it has changed the OR Project staff's various procedures. Previously, the OR Project staff prepared a report called an "OR Workup" after interviewing the arrestee. The OR Workup 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.17 Otherwise, the court considered it at arraignment.

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, and a cover sheet, supplemented with a release recommendation generated by the PSA Tool and the DMF. Presentation to the duty judge or at arraignment remain the same. There is no guaranteed timeline for when the OR Workup will be completed.18

In terms of timing, the evidence unequivocally demonstrates that arrestees who post the full amount of bail listed on the Bail Schedule can secure release more quickly than any other category of arrestees.19 This is true even when an arrestee who posts the full bail amount has been charged with a more serious offense than the indigent arrestee.20 By way of example only, the Sheriff released on bail within several hours of arrest a person who had been charged in what appeared to be a serious assault case involving an axe and requiring SWAT team management, while an indigent, disabled individual who was also arrested for assault (her "deadly weapon" was a cane) was held in custody for five days because she could not afford the felony bail. (Klement Decl. ¶ 8.) There, the assault charge was ultimately reduced to a misdemeanor, and the individual was released on her own recognizance. (Id.) Consistent with this example, research indicates that individuals charged with serious or violent offenses who are able to secure release usually do so by posting bail.21 Moreover, with respect to some offenses, current law elevates bail over OR release. That is, under the law, arrestees for certain offenses are ineligible for OR release before a bail hearing or arraignment but bail is nevertheless an option for those very same offenses.22 This effectively means that a wealthy arrestee who is charged with a violent offense can be released from custody within a matter of hours, while an indigent arrestee can remain incarcerated for as many as five days before seeing a judicial officer or the case is discharged for "lack of evidence." (Klement Decl. ¶ 17.)

Evidence further reveals that San Francisco arrestees who are released after posting secured money bail are released, on average, 12.8 hours faster than arrestees who obtain release through the OR Project. (PRSS Fact 6.) Nonetheless, "some people currently in California jails who are safe to be released are held in custody solely because they lack the financial resources for a commercial bond, and other people who may pose a threat to public safety have been able to secure their release from jail simply because they could afford to post a commercial bond." (Workgroup Report at 25.) Consistent with plaintiffs' experiences, and the Sheriff's Department's 2017 internal memorandum, evidence shows that one quarter of the arrests are dismissed or not rebooked prior to arraignment. Thus, from 2016 to 2018, the number of felony charges filed totaled 42,672. Of those, 10,923 were dropped or not rebooked, and an additional 441 were reduced to misdemeanors, reflecting a combined total of 26%. (See Exh. B. to Klement Decl. at 1, Dkt. No. 284-2.) Finally, the record corroborates plaintiffs' own experiences while held in pre-arraignment detention. One to five days in jail can take a mental and physical toll on arrestees, impact custody of their children, and, as happened here, lead to loss of employment. (See Klement Decl. ¶ 2.)

B. Case-Related Background

1. Permissive Intervention

On March 6, 2017, the Court granted CBAA's motion for permissive intervention under Federal Rule of Civil Procedure 24(b). (Dkt. No. 119.) It did so under specific conditions and for a very narrow purpose, namely to serve as a "zealous advocate" given, at that juncture, "the absence of any defendant willing to defend the constitutionality of section 1269b[.]" (Id. at 6-7.) The Court concurrently denied CBAA's motion to intervene as of right under Rule 24(a)(2), reasoning, inter alia, that "CBAA's interest in continuing to profit from the provision of bail bonds" was "too remote from the core issues involved in the litigation." (Id. at 4 (internal quotation marks omitted).) While CBAA's motives are not lost on the Court, in allowing CBAA to intervene permissively the Court sought to ensure "two sets of well-crafted legal arguments and a fully-vetted factual record." (Id. at 7.) To that end, the parties engaged in substantial discovery. That said, the Court contained the scope of CBAA's intervention, by prohibiting it from expanding the scope of the action or raising new issues, to simply defending the constitutionality of Penal Code section 1269b.

2. Penal Code section 1269b

The text of Penal Code section 1269b is restated in pertinent part below. The statute commences with the duties of the Sheriff:

With respect to the "schedule of bail" at issue here, subsections (b) through (d) require:

Penal Code §§ 1296b(a)-(d). Among the little guidance in section 1269b regarding the creation of the schedule is that, under subsection (e), the judges are to "consider the seriousness of the offense charged." The schedule is required to contain "a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate" plus a "general" catchall clause for any offense not otherwise specifically listed. Id. § 1269b(f). Then, "[u]pon posting bail, the defendant or arrested person shall be discharged from custody as to the offense on which the bail is posted." Id. § 1296b(g).

3. Previous Summary Judgment Order

In its previous 20-page summary judgment order, the Court detailed the reasons for concluding that strict scrutiny review applies to plaintiffs' Due Process and Equal Protection claims. In so explicating, the Court cabined the relevant inquiry as follows: "(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." (MSJ Order at 17.)

The Court concluded that the factual record remained in dispute, especially given the Sheriff's own objection to plaintiffs' interpretation of the Sheriff's data on the length of detention for individuals who could not afford bail as compared to those who could. (Id. at 17-18.) Moreover, given the disputes and sparse factual record, the Court determined that plaintiffs had "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." (Id. at 18.)23 The Court explained:

(Id. (footnotes omitted).)

The Court repeats herein, only as necessary, its analysis with respect to the finding that strict scrutiny applies. The instant cross-motions for summary judgment address the parties' respective showings under that standard of review.

4. Class Certification

After denying the prior cross-motions for summary judgment, the Court certified the following class:

(Dkt. No. 214 at 3.)24

5. Legislative Developments

On August 28, 2018, Governor Jerry Brown signed the California Money Bail Reform Act ("S.B. 10") into law,25 which was initially set to go into effect on October 1, 2019. (CRSS Issue 2 Fact 13.) However, earlier this year, a referendum to overturn S.B. 10 qualified for the November 3, 2020 statewide ballot.26 Approval by a majority of voters will be required before S.B. 10 can take effect.27

As for the impetus behind S.B. 10, its authors recognized that "[o]n any given day, approximately 60% of people in jail in California are either awaiting trial or sentencing" and that "[m]any of those in California's jails are there for no reason other than the fact that they are unable to afford money bail."28 Moreover:

(Senate Report at 9.) CBAA provides no evidence to the contrary. S.B. 10's statutory history reveals the Legislature's decision to "remedy" California's pretrial system by "reducing reliance on money bail, supporting pretrial defendants with pretrial services, focusing detention resources on those who pose a risk of danger, reducing racial disparities, and ensuring that people are not left in jail simply because they cannot afford to pay for their release." (Id.)

In relevant part, S.B. 10 prohibits monetary conditions of release in California, authorizing Pretrial Assessment Services to release, without court approval and prior to arraignment, low-risk and medium-risk arrestees with "the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person's return to court." S.B. 10 §§ 1320.10(b), (c). More specifically, S.B. 10 requires the following, inter alia:

S.B. 10 also requires counties to report to the state pretrial release and detention information biannually, which includes information about the percentage of individuals released pretrial, the percentage of those who fail to appear at a required court appearance, those who commit new crimes while on pretrial release, and the rate of judicial concurrence with recommended conditions of release. Id. § 1320.24(b). None of these provisions exist in Penal Code section 1296b.

6. September 2018 Pretrial Conference

In anticipation of trial, post a period of additional discovery, the Court held a pretrial conference. (See Dkt. Nos. 219, 278.) Thereat, plaintiffs, the Sheriff, and CBAA agreed that, in light of the passage of S.B. 10, a bench trial was unnecessary and opted instead for another round of cross-motions for summary judgment, and plaintiffs' filing of a motion to revoke CBAA's intervenor status. (Dkt. No. 280 at 51:21-57:16.) The Court considers the latter motion first.

II. MOTION TO REVOKE CBAA'S INTERVENOR STATUS

Plaintiffs submit that the Court should strip CBAA of its intervenor status on the grounds that CBAA no longer has standing and cannot "stand in the shoes" of the Sheriff in light of the passage of S.B. 10. (Motion to Revoke at 7.) Plaintiffs' arguments fail to persuade.29

The Court granted intervenor status under Federal Rule of Civil Procedure 24(b). Admittedly, "intervention does not carry with it an absolute entitlement to continue as a party until termination of the suit." Tasby v. Wright, 109 F.R.D. 296, 298 (N.D. Tex. 1985) (citing Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984)). Courts have authority to determine whether intervenor status "continues to be viable" when faced with a motion to revoke that party's intervenor status. Mishewal Wappo Tribe of Alexander Valley v. Salazar, No. 5:09-cv-02502 EJD, 2012 WL 4717814, at *1 (N.D. Cal. Sept. 28, 2012), aff'd, 534 F. App'x 665 (9th Cir. 2013). This authority stems from courts' "inherent power to control the proceedings" before them. Id. A court can therefore terminate intervention should the result of the inquiry weigh in favor of such an order. Id.

The Court finds that plaintiffs' arguments are premature as they are premised on the notion that Penal Code section 1269b has been repealed, in fact. (See Motion to Revoke at 6.) The text of S.B. 10 itself indicates: "This bill would, as of October 1, 2019, repeal existing laws regarding bail and require that any remaining references to bail refer to the procedures specified in the bill." (S.B. 10 at ECF p. 1 (emphasis supplied).)30 Next, the Court finds plaintiffs' claim that CBAA must meet Article III standing requirements misplaced. CBAA did not initiate the instant action, seek review on appeal, or perform any "other function that invoke[d] the power of the federal courts." Vivid Entm't LLC v. Fielding, 774 F.3d 566, 573 (9th Cir. 2014) (emphasis in original). Thus, CBAA need not satisfy standing separately. The Court's prior rationale for granting intervenor status remains valid.31 Plaintiffs' motion to revoke CBAA's intervenor status is DENIED.

III. CROSS-MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

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 will have 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. 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). If the opposing party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 325. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In making this determination, the court must "view[] the evidence in the light most favorable to the nonmoving party[.]" Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). It is not the court's task to "scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotation marks omitted). Moreover, "[d]isputes 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).

"[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its own merits." Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (alteration and internal quotation marks omitted). Thus, "[t]he court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Id. (quoting Wright, et al., Federal Practice and Procedure § 2720, at 335-36 (3d ed. 1998)). If, however, the cross-motions are before the court at the same time, the court must consider the evidence proffered by both sets of motions before ruling on either one. Riverside Two, 249 F.3d at 1135-36.

B. Short Overview of the History of Bail

By way of background, a synopsis of the history of bail is warranted.

Bail originated in medieval England as "a device to free untried prisoners."32 The penalty for most crimes was a "fine paid as compensation to the victim." (Workgroup Report at 9.) When capital and corporal punishment replaced fines, "abuses in the delay between arrest and trial began to emerge." (Id.) In response, the common law right to bail was codified into English law, and the principles that "an accused is presumed innocent and entitled to personal liberty pending trial" were incorporated into the Magna Carta. (Id.) Criteria set for determining whether a person should be released on bail included the strength of the evidence against the accused and the accused's criminal history. (Id.)

In America, the development and use of bail followed a different course. The United States Constitution does not specifically grant a right to bail, and the Eighth Amendment states only that "[e]xcessive bail shall not be required[.]" U.S. Const. amend. VIII. However, the presumption of innocence and right to freedom pending trial "became the foundation of our current system of bail." (Workgroup Report at 9.) Initially, the system did not contemplate a profit industry or indemnification in the posting of the bond. By the nineteenth century, our bail system had shifted to a surety system "in which secured bonds were typically administered through commercial sureties and their agents, and the deposit of money or the pledge of assets became a principal condition of release." (Id. at 10.)

In 1912, when the United States Supreme Court considered the goals and interests of bail, it observed that the "interest to produce the body of the principal in court [was] impersonal and wholly pecuniary." Leary v. United States, 224 U.S. 567, 575 (1912). In 1951, the Supreme Court indicated that "[u]nless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4 (1951). Further, since the "function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant." Id. at 5 (emphasis supplied).

Both federal and state rules outlined more specific criteria for consideration. For example, a prior version of Federal Rule of Criminal Procedure 46(c) provided that "the amount [of bail] . . . will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail, and the character of the defendant." Fed. R. Crim. P. 46(c) (amended in 1985). State appellate courts laid down similar criteria, for instance:

People ex rel. Lobell v. McDonnell, 296 N.Y. 109, 111 (1947) (internal quotation marks omitted).

Despite the early origins and broad recognition of the right to bail in this country, studies of administration of bail in the twentieth century raised a number of concerns about its widespread misuse.33 The studies concluded that the system of money bail in the United States discriminates against indigent detainees who lack the financial resources to post bail.34 Challenges to requiring bail from an impoverished detainee were raised in the courts as early as 1960, questioning whether freedom and liberty could be rightfully denied merely on the basis of indigence. See Bandy v. United States, 81 S.Ct. 197, 197-98 (1960); see also Bandy v. United States, 82 S.Ct. 11 (1961).

Driven by concerns about problems and inequities in bail practices, Congress enacted the Bail Reform Act of 1966, the stated purpose of which was "to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearances to answer charges. . . when detention serves neither the ends of justice nor the public interest."35 By emphasizing nonmonetary terms of bail, Congress attempted to remediate the negative impacts experienced by defendants who were unable to pay for their pretrial release, including the adverse effect on defendants' ability to consult with counsel and prepare a defense, the financial impacts on their families, a statistically less-favorable outcome at trial and sentencing, and the fiscal burden that pretrial incarceration poses on a society at large.36

Congress again revised federal bail procedures with the Bail Reform Act of 1984.37 The legislative history of the 1984 Act explains that Congress wanted to "address the alarming problem of crimes committed by persons on release" and to "give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released."38 The 1984 Act, as amended, retains many of the key provisions of the 1966 Act but "allows a federal court to detain an arrestee pending trial if the Government demonstrates 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.'" United States v. Salerno, 481 U.S. 739, 741 (1987) (alteration in original) (quoting Bail Reform Act of 1984) (upholding the preventive detention provisions in the 1984 Act); see also 18 U.S.C. § 3142(a) (providing generally the current federal procedure for ordering either release or detention of a defendant pending trial).

Notwithstanding twentieth-century advances in pretrial justice, there is a growing nationwide "consensus on concerns regarding the administration of bail in the criminal justice system." (Workgroup Report at 13.)

C. Standard of Review: One's Liberty is a Fundamental Right Necessitating Strict Scrutiny Review

The Court previously found that whether the Sheriff's use of the Bail Schedule violates the Due Process and Equal Protection clauses of the United States Constitution is an issue subject to strict scrutiny analysis. (See supra at 11-12.) As the Court explained, heightened scrutiny is required by the United States Supreme Court's Bearden-Tate-Williams line of cases,39 particularly "where fundamental deprivations are at issue and arrestees are presumed innocent." (MSJ Order at 16.) Because the Sheriff's use of the Bail Schedule implicates plaintiffs' fundamental right to liberty, "any infringement on such right requires a strict scrutiny analysis." (Id. at 10-11.)

In its cross-motion for summary judgment, CBAA requests that the Court reconsider the standard of review. CBAA's request is procedurally and substantively unwarranted.40 Civil Local Rule 7-9, which governs motions for reconsideration, applies. While CBAA argues that a material difference in law from that previously presented to the Court justifies reconsideration, the law must be controlling. See Civ. L.R. 7-9(b)(2); see also Mason & Dixon Intermodal, Inc. v. Lapmaster Int'l, LLC, No. C 08-1232 VRW, 2009 WL 10681000, at *1 (N.D. Cal. Sept. 23, 2009) (noting that "[d]espite the imprecise language of [Civ. L.R. 7-9], only a change in controlling law warrants reconsideration") (emphasis in original); see also Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) ("Reconsideration is appropriate if . . . there is an intervening change in controlling law.") (emphasis supplied). No such change exists here.

As a preliminary matter, the Court previously considered and rejected CBAA's contention that a 48-hour safe harbor exists under Gerstein v. Pugh, 420 U.S. 103 (1975) and County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (addressing the window in which the government must make a probable cause determination after a warrantless arrest). (See MSJ Order at 11-12.) In summary, the Court found that CBAA read the cited cases too narrowly:

(MSJ Order at 11.) The Supreme Court noted a presumption, not a safe harbor. The constitutional question is whether an "arrested individual can prove that his or her probable cause determination was delayed unreasonably." (Id. (quoting McLaughlin, 500 U.S. at 56).) None of the CBAA's proffered authority compels a different result. See Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018); ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018) ("ODonnell II"). Neither case is binding, and both are distinguishable.

ODonnell II is a non-binding split decision of the Fifth Circuit, which involved a non-dispositive interlocutory decision in the context of granting a stay of an injunction. See ODonnell II, 900 F.3d at 223 ("We now grant the motion and enter a stay . . . pending plenary resolution of this appeal by a merits panel.") There, fourteen state trial court judges themselves sought the stay. The injunction arose from procedural due process claims with respect to use of the bail schedule at issue. That court's analysis focused on specific aspects of the injunction's language not at issue here. Id. at 222-23. Moreover, the instant case involves substantive due process and equal protection claims. Further, ODonnell II's passing reference to the appropriateness of "rational basis review" ignores its own decision in ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) ("ODonnell I") calling for "heightened scrutiny." See ODonnell I, 892 F.3d at 161-62 & n.6.

Quoting ODonnell II, CBAA argues that, in light of In re Humphrey, 19 Cal. App. 5th 1006 (2018), rational basis review controls because procedural safeguards exist and this case is premised "solely on inability to afford bail, as distinguished from inability to afford bail plus the absence of meaningful consideration of other possible alternatives."41 This argument contravenes Supreme Court precedent. Indigent arrestees who are detained prior to their individualized hearings solely because they cannot afford secured money bail do not receive any "meaningful consideration of other possible alternatives" that would enable their pre-hearing release. Rather, they "share[] two distinguishing characteristics" which trigger heightened scrutiny: (1) "because of their impecunity they [are] completely unable to pay for some desired benefit"; and (2) "as a consequence, they sustain[] an absolute deprivation of a meaningful opportunity to enjoy that benefit." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973).

Walker, too, is non-binding and does not necessitate reconsideration. There, again, a split Eleventh Circuit vacated a preliminary injunction based on procedural due process arguments after the City of Calhoun, Georgia itself filed an interlocutory appeal. Walker, 901 F.3d at 1253. In short, indigent arrestees brought a putative class action against the city, alleging constitutional violations by conditioning immediate release from jail on an arrestee's ability to pay a preset amount of cash without providing meaningful alternatives to indigent arrestees. The city itself identified concerns with the specifics of the injunction. In relevant part, the Walker court determined that indigency determinations for purposes of setting bail are presumptively constitutional if made within 48 hours of arrest, id. at 1266, noting that indigent detainees "must merely wait some appropriate amount of time to receive the same benefit as the more affluent" and that an appropriate period of delay, without more, does not offend the Constitution. Id. at 1261. Accordingly, the court rendered it unnecessary to review the City's practice with heightened scrutiny. Id. at 1260-62.

As with ODonnell II, the Walker court's reasoning regarding procedural due process does not bear on the analysis of plaintiffs' equal protection and substantive due process claims here. See id. at 1259 ("Walker's claim . . . challenges not the amount and conditions of bail per se, but the process by which those terms are set. . . .") (emphasis supplied); id. at 1265 ("[T]he relief Walker seeks is essentially procedural: a prompt process by which to prove his indigency and to gain release."). That said, Walker also reaffirms the notion that only a presumption exists. See id. at 1266 ("[I]ndigency determinations for purposes of setting bail are presumptively constitutional if made within 48 hours of arrest.") (emphasis supplied); id. at 1267 n.13 ("The McLaughlin Court made clear that the 48-hour presumption was rebuttable: a probable cause hearing held within 48 hours may nonetheless be unconstitutional `if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.'") (quoting McLaughlin, 500 U.S. at 56). In fact, the 48-hour presumption itself was contested as too lengthy in McLaughlin. Justice Scalia lambasted the majority for its arbitrary articulation of "48 hours," harkening back to reams of legal authority rooted as far back as 1825, citing Wright v. Court, 107 Eng. Rep. 1182 (K.B. 1825) ("[I]t is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can."). McLaughlin, 500 U.S. at 61-62 (Scalia, J., dissenting). Justice Scalia argued that given the data available, law enforcement needed only "24 hours" to obtain probable cause review (perhaps excepting Sunday). Id. at 68-69. At that time, twenty-nine states required "presentment or arraignment `without unnecessary delay' or `forthwith'; eight [s]tates explicitly require[d] presentment or arraignment within 24 hours; and only seven [s]tates [had] statutes explicitly permitting a period longer than 24 hours." Id. at 69.

Ultimately, this Court does not share the same view on the principle of liberty as the Walker court. All courts agree that the Bearden Court summarized the rule of Williams and Tate as follows:42 "[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." Bearden, 399 U.S. at 667-68. Rather, the Constitution requires the government to use the least restrictive alternative. In so holding, the Bearden 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. Answers to constitutional questions in that context "cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather require[] 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. . . .'" Id. at 666-67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)) (alterations in original). Those means are not hard and fast but must be tested, especially given that we live in a technology-driven age where information is readily available, and some courts are even open seven days a week.43 The question is under what standard.

On that basis, this Court found the instant challenge to be properly reviewed under strict scrutiny and is aligned with the dissenting opinions in both ODonnell II and Walker. The deprivation of one's liberty cannot, and should not, be easily trampled. Nor should one's liberty be so easily discarded upon strained hypotheticals such as the Walker court's comparison of the inability to afford bail with the inability to pay for express mail. See Walker, 901 F.3d at 1264. As dissenting Circuit Judge Martin observed in Walker, the United States Supreme Court recently reaffirmed that "[a]ny amount of actual jail time is significant and has exceptionally severe consequences for the incarcerated individual and for society which bears the direct and indirect costs of incarceration." Id. at 1275 (quoting Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018)) (citation and internal quotation marks omitted). Here, the bonds of history remind us that the "presumption of innocence, secured only after centuries of struggle,"44 should not vanish under the guise of the universal benefits of a bail option. While "indigency," by definition, indicates a lack of wealth, the constitutional principle is what controls. That principle here is grounded in liberty. We need not be concerned with hysteric claims of floodgates to wealth-based claims opening. Cf. Walker, 901 F.3d at 1262, 1277-78.

In sum, CBAA's efforts to establish rational basis as the applicable standard of review in this case, again, are unavailing. The Court proceeds with its analysis based on a strict scrutiny standard of review.45

D. Analysis

1. Step 1: Does the Sheriff's use of the Bail Schedule significantly deprive plaintiffs of their fundamental right to liberty by sole season of their indigence?

In summary, strict scrutiny applies because the fundamental right to liberty is implicated by plaintiffs' claims. The question then is whether a significant deprivation has occurred. Contrary to CBAA's position, the existence of a significant deprivation is not a threshold requirement which triggers strict scrutiny,46 but rather the first inquiry in a strict scrutiny analysis.47 Here, plaintiffs have established a significant deprivation, beginning with longer detention by sole reason of their indigence.48

As a threshold matter, the Court disagrees with plaintiffs' contention that the passage of S.B. 10 "unequivocally establish[es] that . . . the Sheriff's use of the Bail Schedule significantly deprives the class of its fundamental right to liberty[.]" (Plaintiffs' MSJ at 2.) Simply because a state chooses to change its laws does not mean that the previous law was unequivocally unconstitutional.

With respect to whether longer periods of pre-arraignment detention actually exist simply because indigent detainees cannot afford bail, the evidence firmly establishes this component. Admissions from CBAA and the Sheriff, as well as statistical and summary evidence, demonstrate that the use of the Bail Schedule results in longer statutory detention of the plaintiff class. The proposition is not credibly challenged. Its truth is grounded in logic.

The Sheriff, whose day-to-day activities include managing this process, concedes:

CBAA's response to these longer detention periods merely reinforces their existence. For instance, CBAA suggests that a detainee would prefer detention because a public defender may have advised the detainee to wait for rebooking. Other justifications proffered by CBAA are that the OR Project may be slow at processing arrestees, or that a duty judge may have been unavailable to consider a section 1269c application or OR application immediately following its submission, or may have decided the arrestee should be detained.49 None of these arguments persuade.50

As to the first, CBAA misconstrues the testimony. The San Francisco Public Defender's Office's 30(b)(6) witness testified that a public defender may advise a detainee to wait for rebooking in light of the arrestee's indigent status and ability to pay the 10% bail bond premium. Namely, a public defender "basically . . . explain[s] the consequences of bailing out" to an individual who may be able to "scrape up the 10 percent fee," that is "that the 10 percent will not be returned even if the case is discharged."51 Ms. Patterson's surety bail contract corroborates this view.

As to the other possible causes, CBAA offers no evidence in support thereof. Nonetheless, CBAA's assertions regarding the same do not surprise. The purported "causes" of longer detention are, in fact, merely collateral consequences of the sole cause, that being, indigence. Given that all parties agree that cash and the posting of a surety bond are the fastest ways to be released, the longer detention stems from the generic use of San Francisco's Bail Schedule, which mandates detention unless the scheduled amount is paid. Said differently, arrestees who can afford to bail themselves out are never in the position of having to deal with such collateral consequences.52

As for the issue of whether plaintiffs' deprivation is "significant," it is undisputed that San Francisco arrestees who are released after posting secured money bail are detained, on average, 12.8 hours less than arrestees who obtain release through the OR Project and who spend an average of 25.4 hours in jail. (See PRSS Fact 6.) Thus, those who obtain release through the OR Project spend, on average, more than twice as much time behind bars than those who are able to post bail. The time detained can be even greater for others, such as Ms. Buffin, who was incarcerated for 46 hours.

Here, the time differential is but one component of the analysis. "Significance" is measured by more than just a difference in hours.53 Plaintiff Buffin's experience evidences the real-world consequences of such a deprivation; she lost her job. She is not alone. The evidence reveals that individuals can also lose their housing, public benefits, and child custody, and be burdened by significant long-term debt due to a short period of detention.54 Moreover, many detainees "plead guilty (or no contest) at an early stage in the proceedings to secure their release from custody." (Workgroup Report at 14.)55

Further, the 48-hour presumption must be viewed in context. Nothing stopped the government from taking Ms. Buffin to court on Tuesday morning, ten hours after she was booked, or even on Wednesday. Had it done so, Ms. Buffin would have seen a judge who could have made a determination as to her continued detention prior to arraignment. Holding her four and one-half times longer and well after the court had closed on Wednesday suggests that the government is unjustifiably taking advantage of the 48-hour window.56 Such "delay for delay's sake" has been condemned by the Supreme Court. See McLaughlin, 500 U.S. at 56.

Given the consequences which flow from an extended duration of pre-arraignment detention, the Court finds the deprivation significant. Accordingly, plaintiffs have shown that the Sheriff, through use of the Bail Schedule, has significantly deprived plaintiffs of their fundamental right to liberty by sole reason of their indigence.

2. Step 2: Have plaintiffs established a prima facie case under the strict scrutiny standard?

Plaintiffs bear the burden of identifying a plausible alternative that is less restrictive and at least as effective at serving the government's compelling interests, here identified as protecting public safety and assuring future court appearances.57 The burden is not high, and it need not rise to the level of scientific precision. See, e.g., Ashcroft, 542 U.S. at 666-68 (upholding injunction enjoining Child Online Protection Act ("COPA"), which imposed criminal liability for commercially disseminating online material harmful to minors, in light of existing non-legal alternatives, namely online blocking and filtering software equally effective and less restrictive than COPA); Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950, 965 (9th Cir. 2009) (relying on hypothetical alternative to affirm a permanent injunction of newly enacted California statute imposing labeling requirements on the sale of violent video games to minors). Plaintiffs are correct that in the context of strict scrutiny, when a court asks whether a proposed alternative is "less restrictive," it is making an inquiry into whether the challenged law is necessary as a means to accomplishing the end. See Constitutional Law Principles and Policies at 567 ("[T]he law must be shown to be `necessary' as a means to accomplishing the end. This requires proof that the law is the least restrictive or least discriminatory alternative.") (footnote omitted).58

Here, plaintiffs' proposed alternative is to "rely solely on a computerized risk assessment process (such as the current San Francisco Public Safety Assessment (`PSA')[,]"59 with S.B. 10 having "essentially implemented" this alternative, serving as a "more detailed version" of the same.60 The Court previously outlined the relevant portions of S.B. 10, on which plaintiffs now rely. (See supra at 14-15.) Importantly, the government itself concurs that the alternative is plausible; that is, the state has now enacted what it believes to be a less restrictive yet at least as effective alternative, with the express goal of reasonably assuring public safety and individuals' return to court.61

Unlike the current reliance on a bail schedule, S.B. 10 requires all jurisdictions to generate prior to arraignment for each arrestee "[t]he results of a risk assessment using a validated risk assessment instrument, including the risk score or risk level." S.B. 10 § 1320.9(a)(1); see also supra at 14-15. Amongst its provisions, individuals who are assessed as low- or medium-risk to public safety and of failure to appear in court shall be released on their own recognizance, prior to arraignment and without review by the court, "with the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person's return to court." Id. §§ 1320.10(b), (c). This will allow for release when court is not in session. Further, individuals arrested for misdemeanors, with some exceptions, will be released within 12 hours (id. § 1320.8), i.e., roughly the average length of those posting bail for release under the current system.

CBAA disputes the plausibility of the proposed alternative. First, CBAA argues that, to the extent plaintiffs' alternative would eliminate use of the Bail Schedule for all arrestees, "it is not plausible because it would deprive individuals of their right to be released on bail by sufficient sureties, as memorialized in California's Constitution (Art. 1, § 12)." (CBAA's Cross-MSJ at 23.) In so doing, CBAA effectively attempts to challenge the constitutionality of S.B. 10 by proxy. This Court is not faced with an affirmative challenge to the constitutionality of S.B. 10 itself. It has repeatedly cautioned that this action is narrow in scope. Principles of federalism limit the Court's review and counsel in favor of narrow relief to the extent required. See U.S. v. Ron Pair Enters., Inc., 489 U.S. 235, 245 (1989) ("[A] basic principle of our federalism [is] that `the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.") (quoting Kelly v. Robinson, 479 U.S. 36, 49 (1986)). The Court is not considering the wholesale elimination of bail as it is outside the scope of this action.

Next, CBAA argues that the proposed alternative is not plausible because it would pose "insurmountable administrative problems" for the Sheriff in determining which arrestees "cannot afford" bail. (CBAA's Cross-MSJ at 5.) However, CBAA has proffered no evidence in support thereof aside from the bald conclusion of its expert. Nor has the Sheriff conceded such "insurmountable" problems.62

Plaintiffs' burden is not high, nor is scientific precision required. Against that backdrop, the Court notes that S.B. 10 was passed after a year of study by the California Chief Justice's Pretrial Detention Reform Workgroup, which included the then-presiding judge of the San Francisco superior court. (See Workgroup Report at ECF p. 3.) The Workgroup found that as many as 60 pretrial risk assessment instruments exist in the United States, which, after study, revealed various common factors as "good predictors of court appearance and/or danger to the community." (Id. at 47.) Such indicators include current charges, outstanding warrants, pending charges, and active community supervision at the time of arrest, and criminal history, history of violence, residential stability over time, employment stability, community ties, and history of substance abuse. (Id.) San Francisco has already deployed a risk assessment unit, the results of which are constantly being used to enhance its effectiveness. (See Do the Math at 1.) The Workgroup found similar urban areas which have successfully used such a model, including neighboring Santa Clara County and Washington, D.C. (Id. at 40-41, 90-93.)63 Collectively, the evidence demonstrates that a plausible alternative to the current system exists.

In order to analyze whether plaintiffs' proposed alternative is less restrictive and at least as effective than the Bail Schedule in serving the government's compelling interests, the Court must also consider how the Bail Schedule itself enhances public safety and ensures future court appearance. Importantly, the record is devoid of any evidence showing that the Bail Schedule considers either of the articulated goals.64 CBAA's own Rule 30(b)(6) witness testified that he do[esn't] know why the judges did th[e] schedule the way they did[,]" noting that "there's no requirement for any input, data collection, deviation reports, [or] comparative data . . . in putting together the schedule."65 Further, CBAA's own expert admitted that there are no peer-reviewed studies that have empirically addressed questions specifically regarding the effectiveness of bail schedules, and that such schedules are simply used for "operational efficiency."66

Absent any evidence justifying the Bail Schedule as a means for accomplishing the government's compelling interests, the Court finds that "operational efficiency" does not trump a significant deprivation of liberty.67 Merely assigning a random dollar amount to a Penal Code section does not address an actual person's ability or willingness to appear in court or the public safety risk that person poses. At most, all that can be discerned is that the amounts are so high as to keep all arrestees detained except for those who can afford to be released. This practice, then, replaces the presumption of innocence with the presumption of detention. Accordingly, the Bail Schedule, which merely associates an amount of money with a specific crime, without any connection to public safety or future court appearance, cannot be deemed necessary.68

CBAA's primary evidentiary showing posits that release on bail produces lower failure to appear ("FTA") rates, namely "Release on Bail" at 20.6% versus "Project O.R." at 27.3%, a delta of 6.7 percentage points.69 (See Morris Report at 5.)70 The Court understands that data on the topics raised is limited. Nonetheless, CBAA's expert has analyzed the little data that does exist in a manner ignoring the narrow scope of this case, presumably to support CBAA's view.71 Given the data provided, the Court finds CBAA's statistical analysis flawed and unconvincing. First, this case is focused on pre-arraignment release. Thus, the relevant comparison of FTA rates is those who, pre-arraignment, were released on bail versus those released under the OR Project, and who failed to appear at arraignment. These parameters are particularly important given the large percentage of detainees who are never charged, i.e., 25 to 33 percent. Professor Morris' analysis based on historical FTA rates relates to "`any' failure to appear associated with an individual booking[,]" including those rendered after judicial review at arraignment. (Morris Report at 5 (emphasis supplied).)

Second, the data used to generate comparisons of historical FTA rates spans beyond the period of use of the PSA Tool, which forms the basis of plaintiffs' plausible alternative. The Court finds the combined effect of Professor Morris' data choices less reliable and persuasive than other data presented. His approach raises concerns that he is exaggerating the supposed differences between bail release and OR release.

Next, Professor Morris' Propensity Score Matching ("PSM") analysis—which, unlike his analysis based on historical FTA rates, addresses "questions specific to whether an individual defendant would be more or less likely to FTA if he/she were released via one method over another (e.g., O.R. versus Surety)[,]" (Morris Report at 7)—found that surety FTA rates were 14.0 percentage points lower than OR FTA rates. (Id. at 7-8.) However, his analysis, again, does not distinguish between arrestees released on bail or the OR Project who failed to appear at arraignment versus those who failed to appear at a later proceeding. (See id. at 7.) Moreover, the analysis appears to include Court OR (as opposed to only Project OR) to reach his conclusions regarding FTA rates.72

By contrast, San Francisco Deputy Public Defender Tal Klement, who has served in that capacity since 2003, focused his FTA review on data pertaining only to the relevant pre-arraignment period. Out of a total 1,697 individuals who failed to appear at arraignment between 2016 and 2018, 215 of those individuals had been released on bail, and 145 had been released through Project OR. (See Klement Decl. ¶ 28.)73 Thus, a more appropriate FTA comparison reveals better FTA results through the OR Project over bail.

In sum, plaintiffs' proposed alternative—which entails an individualized inquiry into the risk an arrestee has to public safety and of failure to appear—is consistent with the government's goals of enhancing public safety and ensuring court appearance and does not perpetuate the deprivation of one's liberty.74 Accordingly, plaintiffs have made a prima facie showing that it is less restrictive and at least as effective at serving the state's compelling interests than the Sheriff's use of the Bail Schedule.

3. Step 3: Has CBAA shown that plaintiffs' proposed alternative would be less effective at serving the government's compelling interests or more restrictive?

Once a plaintiff makes a prima facie showing under a strict scrutiny analysis, the burden shifts to the government to show that the proposed alternative would be less effective or more restrictive. Most of the CBAA's arguments in this regard overlap with its arguments in response to plaintiffs' initial burden. As for those not previously addressed, they are unavailing given that plaintiffs' proposed alternative entails an individualized inquiry into the risk an arrestee has as to either public safety or a failure to appear and thus does not result in the deprivation of one's liberty solely due to one's indigence.75 The Bail Schedule, by contrast, is arbitrary in that it sets amounts without regard to any objective measurement and thus bears no relation to the government's interests in enhancing public safety and ensuring court appearance. It merely provides a "Get Out of Jail" card for anyone with sufficient means to afford it. In light thereof, CBAA cannot show that plaintiffs' proposed alternative would be less effective at serving the government's compelling interest or more restrictive and has thus failed to meet its burden under the strict scrutiny standard.

Accordingly, and within the confines of the issues defined herein, plaintiffs' motion for summary judgment is GRANTED, and CBAA's cross-motion is DENIED.76

IV. CONCLUSION

Plaintiffs' motion to revoke CBAA's intervenor status is DENIED as it is based on the premature argument that Penal Code section 1269b has been repealed.

Plaintiffs' motion for summary judgment is GRANTED, and CBAA's cross-motion for summary judgment is DENIED. The evidence demonstrates that the Sheriff's use of the Bail Schedule significantly deprives plaintiffs of their fundamental right to liberty, and a plausible alternative exists which is at least as effective and less restrictive for achieving the government's compelling interests in protecting public safety and assuring future court appearances. Operational efficiency based upon a bail schedule which arbitrarily assigns bail amounts to a list of offenses without regard to any risk factors or the governmental goal of ensuring future court appearances is insufficient to justify a significant deprivation of liberty.

In terms of injunctive relief, the parties have not briefed the topic. In general, relief must be narrowly tailored to address the extent of the constitutional violations found. See Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977) ("Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.") (internal quotation marks omitted); Missouri v. Jenkins, 515 U.S. 70, 88 (1995) ("[T]he nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation.") (internal quotation marks omitted). Accordingly, the Court will issue an injunction enjoining the Sheriff from using the Bail Schedule as a means of releasing a detainee who cannot afford the amount but will delay issuing the injunction pending briefing. A separate scheduling order shall issue.

This Order terminates Docket Numbers 282, 287, and 300.

IT IS SO ORDERED.