Jessica Jauch v. Choctaw County

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-60690

FILED

March 29, 2018

Lyle W. Cayce

JESSICA JAUCH, Clerk

Plaintiff - Appellant

v.

CHOCTAW COUNTY; CLOYD HALFORD, in his Individual Capacity,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

ON PETITION FOR REHEARING EN BANC

(Opinion: October 24, 2017, 874 F.3d 425)

Before REAVLEY, HAYNES, and COSTA, Circuit Judges.

REAVLEY, Circuit Judge:

The court having been polled at the request of one of its members, and a

majority of the judges who are in regular active service and not disqualified

not having voted in favor (Fed. R. App. P. 35 and 5TH Cir. R. 35), the Petition

for Rehearing En Banc is DENIED.

No. 16-60690

In the en banc poll, six judges voted in favor of rehearing (Judges Jones,

Smith, Owen, Southwick, Willett, and Ho) and nine judges voted against

rehearing (Chief Judge Stewart and Judges Dennis, Clement, Prado, Elrod,

Haynes, Graves, Higginson, and Costa).

ENTERED FOR THE COURT:

__________________________________

THOMAS M. REAVLEY

UNITED STATES CIRCUIT JUDGE

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LESLIE H. SOUTHWICK, Circuit Judge, joined by EDITH H. JONES, JERRY

E. SMITH, PRISCILLA R. OWEN, DON R. WILLETT, and JAMES C. HO,

Circuit Judges, dissenting from denial of rehearing en banc:

I respectfully dissent from our failure to rehear this case en banc. The

panel opinion — for the first time in this or any circuit — declared that a sheriff

violated the Constitution when an indicted, pretrial detainee was held until

the next regular term of the local criminal court before being afforded an

opportunity to have bail set. A capias warrant instructed the sheriff to hold

her until the term of court, which was when a judge with authority over that

prisoner would be in the county. The sheriff did so, following a practice

authorized by the state’s Supreme Court. There is no law to the contrary that

is established with the clarity the United States Supreme Court requires under

recent caselaw that was not considered because it postdates the panel opinion.

At its most basic, my concern is that in assessing the liability of the

County and the sheriff, the panel opinion used precedents that are inapplicable

to the process afforded in this case, a process drawn from statutes, court rules,

and perhaps even policies of the local judges. I cannot discern how these

defendants had any effect on when this plaintiff was considered for release.

Thus, as to these parties, I believe the panel was wrong. More relevant to

whether to take a case en banc, what rights prisoners have to be released on

bail or otherwise before trial is a profoundly significant question due to its

implications for individual liberty. The full court should rework the answer.

I start with a summary of the Mississippi statutes and court rules that

led to an allegedly unconstitutional detention. Each of the state’s 82 counties

is placed into one of 22 districts for circuit courts, the courts handling felony

criminal cases. See MISS. CODE ANN. §§ 9-7-1 through 9-7-57. Almost all

circuit court districts contain multiple counties. Id. In multi-county districts,

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there is not a continuous functioning of the circuit court. Instead, each county’s

circuit court is to schedule at least two court terms per year, which are set by

the circuit judges themselves with notice published annually by the Mississippi

Secretary of State. See § 9-7-3. Choctaw County is in the Fifth Circuit Court

District, consisting of seven counties. § 9-7-19. As shown in the Secretary of

State’s publication, Choctaw County’s two circuit court terms are for three

weeks each in February and August. MISSISSIPPI JUDICIARY DIRECTORY AND

COURT CALENDAR 35 (2017). 1

When Jauch was arrested, court rules required an initial appearance

within 48 hours of arrest for considering probable cause for the arrest and bail,

MISS. UNIF. CIR. & CNTY. CT. R. 6.03, and a later preliminary hearing to

examine probable cause and reconsider bail, Rule 6.04. These requirements

become moot if a grand jury indicted the individual before the arrest:

In all cases wherein the defendant shall post bond and is

released from custody, or is allowed release on his/her own

recognizance, or has been indicted by a grand jury, the defendant

shall not be entitled to an initial appearance. A defendant who has

been indicted by a grand jury shall not be entitled to a preliminary

hearing.

Rule 6.05. 2 The plaintiff, Jessica Jauch, had been indicted before she was

arrested. Thus state law directed that neither an initial appearance nor a

1 Though the parties discuss terms of court and their import, any of these details not

identified by the parties may be judicially noticed from official state publications. See R2

Investments LDC v. Phillips, 401 F.3d 638, 639 n.2 (5th Cir. 2005). A Mississippi court used

its equivalent evidentiary rule to the one we used in R2 Investments to take judicial notice of

the same publication. Gray v. State, 819 So. 2d 542, 546 (Miss. Ct. App. 2001).

2 The sections in the Uniform Rules that dealt with criminal procedure were removed

effective July 1, 2017, revised, and placed into a new Mississippi Rules of Criminal Procedure.

MISS. R. CRIM. P. 1.1 (scope). The provisions requiring initial appearances and preliminary

hearings continue to exempt prisoners who have been indicted. See Rule 5.2(a) (initial

appearance) and 6.1(a)(1) (preliminary hearing). Also, a new rule was added which “gives

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preliminary hearing needed to be held. There is Mississippi caselaw that the

sheriff’s office has the responsibility to arrange an initial appearance or

preliminary hearing for one of its prisoners. See Jones v. State, 841 So. 2d 115,

131–32 (Miss. 2003). Because Jauch had been indicted, though, the sheriff’s

state-law obligation did not apply to her.

A statute Jauch relies upon, Section 99-3-17, which provides for prompt

taking of a prisoner before a magistrate, is the statutory analog to the court

rule on initial appearances. The Mississippi Supreme Court has held that the

court rules displace any contrary statutes as a matter of separation of powers.

See State v. Delaney, 52 So. 3d 348, 351 (Miss. 2011). Thus, the statute also is

inapplicable because of Jauch’s indictment.

The January 24, 2012 capias issued after Jauch’s indictment followed

those rules. It instructed the sheriff to take into custody and “keep” Jauch so

she could be taken to the circuit court of Choctaw County one week later on

January 31. It is evident that date was the docket call for the February term

of court in the county, at which time she would have been arraigned and bail

considered. She was not arrested until April, though. As the County and the

sheriff’s brief states, because the capias ordering Jauch’s arrest was not

executed until April 26, she “effectively miss[ed] the February term of court.

The next term of court was August[.]” The County and sheriff cited the

following statute as support for waiting until the August court term:

The process for arrest on an indictment shall be a capias, which

shall be issued immediately on the return of the indictment into

court, and made returnable instanter, unless otherwise ordered by

the court, and if the capias be not returned executed, the clerk

official sanction to common existing practice” of immediate post-arrest release on personal

recognizance or on bond. Rule 5.1 & cmt.

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shall issue an alias, returnable to the next term, without an order

for that purpose.

MISS. CODE ANN. § 99-9-1. Thus insofar as a court order, i.e., the capias issued

by the circuit court clerk on behalf of the court, directed the defendant sheriff

to do anything, that statutorily-revised obligation after Jauch’s April arrest

was to hold her until the next term of court. The sheriff did so.

Defendants are correct that overlaying Jauch’s legal arguments onto the

facts of the case leads to this difficulty:

Appellant’s procedural due process argument is about the

impact of state law rules of criminal procedure on her detention

between execution of the capias and the first day of the next term

of court where she formally waived reading of the indictment

before a Circuit Court Judge.

Following through to the finish on the facts, the capias along with the

cited Section 99-9-1 led to Jauch’s being held until the August term,

approximately 90 days later. According to a notice given to her on July 16, the

circuit court would call the docket on July 31. On August 8, a court order

recited that on July 31 Jauch was served a copy of the indictment, was officially

appointed counsel, entered a not guilty plea, and obtained release on bond and

a trial setting. All charges were dropped soon thereafter.

Caselaw has ratified these procedures. The state court concluded that

the potential “grievous harm” to a detainee due to “varying and sometimes

lengthy intervals between our counties’ terms of court demand that a detainee

be accorded the right to a preliminary hearing.” Esparaza v. State, 595 So. 2d

418, 423 (Miss. 1992). Caselaw also approves that no preliminary hearing is

necessary once a grand jury has returned an indictment. Delaney, 52 So. 3d at

350 (reaffirming Mayfield v. State, 612 So. 2d 1120, 1129 (Miss. 1992)).

Already mentioned, but a reminder and elaboration would be useful, is

that by the court rules in effect at the time of Delaney (and of Jauch’s arrest),

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an initial appearance within 48 hours of arrest was required. UNIF. R. CIR. &

CNTY CT. P. 6.03. “Conditions under which the defendant may obtain release,

if any,” were also to be addressed. Id. There was also a “common existing

practice” to allow the person to be released immediately on personal

recognizance, on an appearance bond, or on any “provision for bail or personal

recognizance . . . made by the judge” in an arrest warrant. MISS. R. CRIM. P.

5.1 & cmt. If none of those common practices applied, the initial appearance

within 48 hours would address bail. Id. By a different court rule in effect when

Jauch was arrested, “[a]t a preliminary hearing the judicial officer shall

determine probable cause and the conditions for release, if any.” UNIF. R. CIR.

& CNTY CT. P. 6.04.

These rules and common practices must have been known to the Delaney

court when it discussed the result of an indictment. Still, that court focused

only on the purpose of determining probable cause, then held that after “a

defendant is indicted by a grand jury, that purpose is fulfilled and the whole

issue of a preliminary hearing and all privileges which attach thereto become

moot.” Delaney, 52 So. 3d at 350 (quoting Mayfield, 612 So. 2d at 1129)

(emphasis added). Though Delaney did not discuss that a preliminary hearing

was also a place for consideration of bail, the decision it principally relied upon,

Mayfield, had overruled a precedent in which the issue of bail was discussed.

See Avery v. State, 555 So. 2d 1039, 1041–42 (Miss. 1990) (overruling noted in

Mayfield, 612 So. 2d at 1128–29). I acknowledge that defendant Delaney, a

police officer, though arrested after indictment, seems to have been

immediately allowed bail and was never jailed. Delaney, 52 So. 3d at 348–49.

Though it is unreasonable to posit that the court in Mayfield was oblivious to

the issue of bail when it discussed Avery, and ungenerous to conclude that the

Delaney court was also oblivious when it analyzed Mayfield, it is also true that

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nothing before the court required it to consider qualifying when these post-

arrest procedures become moot. At least the sheriff in our case was not clearly

informed of the opposite, namely, that he must promptly take Jauch to a

judicial officer despite what Delaney held.

A contextual point for the analysis in the just-cited cases from 1990 and

1992 is that an initial appearance or a preliminary hearing was apparently the

only mandated means for bringing a prisoner with some promptness before a

judge. Mississippi did not provide for a prompt arraignment either by rule or

statute. See Spencer v. State, 592 So. 2d 1382, 1389–90 (Miss. 1991). Not long

after the 1991 Spencer decision, a rule of court was adopted that required an

arraignment within 30 days of a defendant’s being served with an indictment.

UNIF. CIR. & CNTY. CT. R. 8.01 (adopted May 1, 1995). At arraignment, issues

of bail may be considered. Rule 8.02.

Though Jauch relies on the current obligation for timely arraignments

as another basis for her claim against the sheriff and County, the district court

held that the right to an arraignment within 30 days was offset by the court

rules I have discussed providing that after indictment, an accused does not

have the right to a preliminary hearing or an initial appearance. I do not adopt

or reject that reasoning. Regardless of how to read these rules together,

nothing in this record supports that the obligation to schedule an arraignment

falls on the County or the sheriff. I review what does appear in the record.

In the district court, Jauch cited a Mississippi Attorney General opinion

answering the question of “who actually has the responsibility to physically

transport or see to the transportation of the prisoner to a scheduled hearing,”

the sheriff who ran the jail or a different law enforcement agency who made

the arrest? Miss. Op. Att’y Gen. 1992 WL 613847 (April 22, 1992). Rephrased,

the basic question was “who drives?” Though the answer was “the sheriff,” our

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question is hardly the same. The circuit court itself decides whether to hear

matters in vacation, i.e., that time period between terms of court. MISS. CODE

ANN. § 9-7-87. As I will discuss, only a circuit judge could resolve issues

regarding Jauch’s bail after her indictment, so getting such a judge back to

Choctaw County was required. Reasonably, arraignments would be scheduled

either by the court and its staff or the prosecutor, perhaps working together.

Though I do not see an explicit answer as to whose responsibility it is, nothing

supports that it is the sheriff’s.

The clear responsibilities relevant to this case are those of the county’s

circuit court judges. Of course, I have already discussed that in the usual case,

someone arrested may be released on personal recognizance, might have bail

set in the arrest warrant itself, or at least is entitled to a quick initial

appearance. MISS. R. CRIM. P. 5.1, 5.2. If a court is involved, it is likely a

justice (of the peace) court, where the accused would respond to charges

prepared by an arresting officer; bail is set by that court’s judge. See MISS.

CODE ANN. § 99-5-11. The form of the bond requires the individual to appear

at the next term of the circuit court, which is when the next grand jury in the

county will meet and decide whether to indict. § 99-5-1. After indictment,

though, exclusive criminal jurisdiction over the accused is acquired by the

circuit court. Lyons v. State, 196 So. 3d 1131, 1134–35 (Miss. Ct. App. 2016).

Accordingly, release post-indictment is no longer within the authority of any

local judge except for the county’s circuit judges. The availability of one of

those judges in the county is subject to the vagaries described in this opinion.

Until there was, the sheriff had no judge to drive Jauch to see.

In summary, under state law the sheriff had no clear obligation to take

Jauch before a judicial officer for an initial appearance or for a preliminary

hearing because she had been indicted. There was no obligation on the sheriff

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to have Jauch arraigned because that is a duty that falls elsewhere. The

explicit obligation under the court-issued capias was to hold Jauch until the

next circuit court term, which is just what the sheriff did. Those legal points

are clear, to my eyes at least. The controlling question, then, is whether there

was other law that with better clarity established that every reasonable sheriff

would have known Jauch had a federal right that overrode these state

procedures. See Anderson v. Creighton, 483 U.S. 635, 641 (1987).

The only precedent the Jauch panel considered to be directly on point

involved jail procedures in Jackson, Mississippi. Jauch v. Choctaw Cnty., 874

F.3d 425, 429 (5th Cir. 2017) (citing Jones v. City of Jackson, 203 F.3d 875 (5th

Cir. 2000)). That is a decision that set no specific time limit for presenting a

detainee to a magistrate, did not discuss the practice of waiting until the next

term of court, and did not address a sheriff’s responsibility in such matters.

Absolutely critical, Jones had not been jailed after indictment. Thus, in light

of what I have already discussed about indicted detainees, Jones seems all but

irrelevant. Silence in these varied respects is itself enough to say Jones did

not clearly establish the relevant law for the Choctaw County sheriff.

I will look more closely. The plaintiff Jones had been jailed on minor

offenses in June 1994 but quickly determined to be innocent. Jones, 203 F.3d

at 878. Nevertheless, he was detained on a judge’s year-old bench warrant

that had been issued for his failure to appear for sentencing in another matter.

Id. He was given no opportunity to appear in court until March 1995, and at

that time all charges were dismissed. Id. Jones then filed suit under Section

1983 against, among others, the sheriff for the county in which the City of

Jackson is located. Id. This court denied summary judgment, including on the

sheriff’s claim of qualified immunity. Id. at 881.

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In one paragraph, we explained our ruling. First, we held Jones’s

Fourteenth Amendment due process right had been violated because that

amendment protects individuals “from unconstitutional actions by state

actors.” Id. at 880–81. Then this court cited DeShaney v. Winnebago Cnty.,

489 U.S. 189, 196 (1989), a case dealing with a public agency’s responsibility

for child abuse by a private actor. Finally, Jones cited Bd. of Regents v. Roth,

408 U.S. 564, 573 (1972), which analyzed whether a university had violated an

instructor’s First Amendment rights. That’s it for analysis.

Jones fails to put every, and I would say any, reasonable jail official on

notice as to the constitutionally permissible limit of detention following a

capias warrant. There is no indication that, in keeping Jones detained for

months on a bench warrant, jailers were awaiting the next term of court. In

Mississippi’s capital of Jackson, the circuit court has essentially continuous

terms of court. See MISS. JUD. DIR., at 36 (showing existence of 48- or 54-day

terms of court beginning every other month). In Choctaw County, in contrast,

the circuit judges sit periodically and then move on to intervening terms in the

other counties. Jones did not place Choctaw County’s sheriff on notice of a

constitutional duty in these circumstances.

Of course, Jones is the law of this circuit. Nonetheless, its analysis was

perfunctory, drawn from two very general Supreme Court pronouncements in

civil cases. Neither DeShaney nor Roth could possibly constitute clearly

established law about detention of prisoners; they are not criminal-law cases.

As I will explain after discussing how the panel here applied Jones, qualified

immunity law now makes clear that law enforcement officials are not required

to discern how civil cases in much different contexts would apply to their

activities. Even in Jones, a panel dissent contended that the law was not

clearly established. Jones, 203 F.3d at 881–82 (Garza, J., dissenting).

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Besides Jones, the Jauch panel relied on two other due process holdings.

Jauch, 874 F.3d at 431–32 (citing Mathews v. Eldridge, 424 U.S. 319 (1976),

and Medina v. California, 505 U.S. 437, 443 (1992)). They fail to provide

guidance on sufficiently analogous facts to satisfy the qualified immunity

standard. Insofar as Eldridge establishes a due process balancing test, that

should automatically imply a lack of clearly established law until courts have

declared on similar facts how to strike the procedural balance. Medina may

provide even less guidance. The Jauch opinion states that it asks if a rule of

criminal procedure “(i) ‘offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental,’ or (ii)

‘transgresses any recognized principle of “fundamental fairness” in operation.’”

Id. at 432 (citation omitted). Given the dearth of cases saying how long is too

long before an indicted individual must obtain a bail-setting hearing, Medina

cannot have sufficiently informed the Choctaw County sheriff how he could

avoid liability to Jauch.

I mentioned that a recent Supreme Court decision, so recent that the

panel did not have its benefit, clarifies just what law is sufficiently clear to

create a basis for liability. See District of Columbia v. Wesby, 138 S. Ct. 577

(2018). In that opinion, the Supreme Court informs us how closely analogous

the facts in Jones must be to those in the current case in order for Jones to

have clearly established the relevant law. The Wesby Court reversed the denial

of qualified immunity to police officers whose assessment of probable cause had

been challenged. Id. at 593. What is required before a precedent sufficiently

establishes the law is a close congruence between the facts confronting a law

enforcement officer and the precedent:

To be clearly established, a legal principle must have a

sufficiently clear foundation in then-existing precedent. The rule

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must be “settled law,” which means it is dictated by “controlling

authority” or “a robust ‘consensus of cases of persuasive authority

. . . .’” It is not enough that the rule is suggested by then-existing

precedent. The precedent must be clear enough that every

reasonable official would interpret it to establish the particular

rule the plaintiff seeks to apply.

Id. at 589–90 (citations omitted). Particularly clear in showing Jones is not a

good fit, the Court said that its “‘clearly established’ standard also requires

that the legal principle clearly prohibit the officer’s conduct in the particular

circumstances before him.” Id. at 590 (emphasis added).

For all these reasons, the governing law was not clearly established to

justify denying qualified immunity to the sheriff. Under Wesby, Jones is not a

closely analogous case. Whether Jauch was detained unconstitutionally while

awaiting the return of a circuit court judge is not clearly established by Jones,

which did not set a specific time limitation and did not involve a circuit-riding

judge. Eldridge and Medina offer general pronouncements about due process

without remotely similar facts. Finally, this is not a case about indefinite

detention. It is about unfairly delayed consideration for bail, but not a delay

yet clearly announced as unconstitutional.

Of some importance as well, Mississippi’s highest court, presumably

informed of clearly established law, decided in Delaney that there was no need

to take an indicted prisoner before a judicial official prior to the next term of

court. Its decision was handed down a decade after our Jones decision and a

year before the events in this case. Though the court did not consider that

conditions of release could be addressed at a preliminary hearing, it still made

its broad pronouncement that after an indictment, no preliminary hearing (and

apparently no initial appearance either) was needed. This sheriff, in deciding

obligations towards Jauch, had quite clear direction from the state court and

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this court’s opaque Jones opinion. I do not see that every reasonable sheriff

would have known that because of Jones, the state court wrote too broadly.

My able colleagues on the Jauch panel held that based on Jones and

these more general authorities, it was “clearly established” that Mississippi’s

“policy whereby certain arrestees were indefinitely detained without access to

courts” violates an individual’s constitutional due process rights. Jauch, 874

F.3d at 436. No such clarity was established by Jones — it did not even deal

with the relevant post-indictment procedures. The panel also concluded it was

“clearly established” that “the Constitution forbids confining criminal

defendants for a prolonged period” before bringing them before a judge. Id.

True, but what was not clear at all to someone responsible for detention is how

prolonged detention must be to constitute a violation of rights. The caselaw

would not have informed very many officials that the state’s post-indictment

rules violated the federal Constitution. Thus, qualified immunity applies.

Our function in this appeal is to determine whether clearly established

rights of this prisoner were violated. They were not. Also clear, though, is that

a county should not be allowing a prisoner’s pretrial release to be unaddressed

for extended periods. Judges and jailers could cooperate to minimize delays in

consideration. A more robust public defender system would play a significant

part by providing an early advocate to seek relief. Even a sheriff, though not

having the power to schedule a hearing, might rattle the cage on behalf of such

a prisoner so that those who have the authority to do something will hear.

* * *

Had the court agreed to rehear this case en banc, we could have

thoroughly assessed the panel’s due process reasoning for the sake of future

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cases. 3 We should have relieved the sheriff of having to go to trial. Qualified

immunity, after all, is immunity from suit, not simply from liability.

Importantly, we might also have reconsidered the holding that Choctaw

County has any liability for Jauch’s detention. I respectfully dissent.

3 The scope of any constitutional pretrial right to a bail hearing — as opposed to a

preliminary probable cause hearing — is unclear, as the Jauch panel acknowledges. Courts

have split over the applicable due process theory and reasoning. But there is an antecedent

question whether such detention should be evaluated under the Sixth Amendment speedy

trial right, a specific constitutional provision, rather than the amorphous standard of

Fourteenth Amendment due process. In Baker v. McCollan, the Court held that a person

cannot be detained indefinitely, in part because “the Constitution likewise guarantees an

accused the right to a speedy trial, and invocation of the speedy trial right need not await

indictment[.]” 443 U.S. 137, 144, 145–46 (1979). The Court has also repeatedly held that

where a particular amendment textually provides constitutional protection of a right, that

amendment should be the guide rather than the more generalized notion of due process. See

Albright v. Oliver, 510 U.S. 266, 273 (1994).

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