Woods v. City of Michigan City

WILL, Senior District Judge,

concurring.

I join the majority’s opinion and write separately only to differ on one point— whether Woods has made out a claim for deprivation of liberty without due process of law. The opinion states that he has. See supra at 278-79 (“Because Woods was detained ... he was deprived of his constitutionally protected liberty interest.”). I believe that he was not so deprived. Consequently, whereas the majority affirms Judge Miller’s grant of summary judgment on grounds that there are no defendants here subject to suit, I would affirm even if there were available defendants — on the ground that Woods has no cause of action under 42 U.S.C. § 1983 .

I agree with the conclusion that there can be no municipal liability on these facts. Under Indiana law Judge Keppen is not a municipal official. But cf. City of St. Louis v. Praprotnik, 485 U.S. 112, 143 , 108 S.Ct. 915, 934 , 99 L.Ed.2d 107 (1988) (Brennan, J., concurring) (noting that “in some cases statutory law will ... fail to disclose where ... authority ultimately rests” and also that “real and apparent authority may diverge”). Judge Keppen is not an official over whom either LaPorte County or Michigan City exercise any control. He is not an official for whose actions the county or city may reasonably be held responsible.

I also agree with the majority’s conclusion that the officers who arrested Woods and held him over night are immune from suit. They acted on a court-issued bond schedule which they had a right to rely on. Cf. Michigan v. DeFillippo, 443 U.S. 31 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979) (“Society would be ill-served if its police officers took it upon themselves to determine which laws are and which laws are not constitutionally entitled to enforcement.”); Anela v. Wildwood, 790 F.2d 1063 , 1071 (3d Cir.1986) (Becker, J., dissenting). We should not encourage police officers to second guess judges — though that principle has its limits. An officer’s reliance will not always be justified and, in particular, won’t be justified where a judge or magistrate has acted simply as a rubber stamp for an officer who clearly should have been second guessed or was acting in bad faith. See United States v. Leon, 468 U.S. 897, 914 , 104 S.Ct. 3405, 3416 , 82 L.Ed.2d 677 (1984).

I differ with the majority on only one point — in my belief that, even if there were a defendant Woods could sue, he would still not have a § 1983 cause of action. Holding Woods in jail overnight was a clear violation of state law, for which he may find a remedy under state law in an action for unlawful imprisonment. But Woods has no claim under the federal constitution. As Michigan City points out, Woods has not been deprived of a protected “liberty interest” without due process of law. See brief at 8-9 (“[A] failure to comply with Indiana’s ‘sign and go’ statute fails to implicate any conceivable procedural due process right under the Fourteenth Amendment. The procedural due process components of notice and an opportunity to be heard do not apply to the defendants’ failure to let Mr. Woods sign his ticket_ [T]he failure to comply with the statute does not invoke such procedural protections ... [There also was not] the requisite level of culpability to deprive [Woods] of substantive due process.”).

The due process clause of the fourteenth amendment gives substantive protection for some rights. That is “substantive due process.” See for instance Turner v. Saf- *283 ley, 482 U.S. 78 , 107 S.Ct. 2254, 2265 , 96 L.Ed.2d 64 (1987); Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965). But it offers no substantive protection against being temporarily placed in custody after a lawful arrest with probable cause (and Woods does not dispute that there was probable cause) — not even for traffic offenses and other petty misdemeanors. See Robbins v. California, 453 U.S. 420 , 450 & n. 11, 101 S.Ct. 2841 , 2858 & n. 11, 69 L.Ed.2d 744 (1980) (Stevens, J., dissenting); Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133 , 1339 n. 6 (4th Cir.1982).

The eighth amendment also offers protections. Punishment may not precede conviction; the eighth amendment creates a strong presumption in favor of bail over detention, though not an irrebuttable one, see United States v. Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253 , 104 S.Ct. 2403 , 81 L.Ed.2d 207 (1984) (juveniles); Faheem-El v. Klincar, 841 F.2d 712 (7th Cir.1988) (parolees); and we may assume that the fourteenth amendment incorporates the bail clause of the eighth amendment making it applicable to the states and therefore to the defendants in this case. 6See Baker v. McCollan, 443 U.S. 137 , 144 n. 3, 99 S.Ct. 2689 , 2694 n. 3, 61 L.Ed.2d 433 (1979); Schilb v. Kuebel, 404 U.S. 357, 365 , 92 S.Ct. 479, 484 , 30 L.Ed.2d 502 (1971); Faheem-El, supra, 841 F.2d at 718 n. 8. Nothing in the eighth amendment, however, guarantees instant release for misdemeanors or any other offense. Consequently, when Woods was arrested and jailed overnight until his mother arrived to post bail the next morning, he was not denied any substantive rights guaranteed by the federal constitution.

Of course, the several states are free to offer protections to their citizens which the federal constitution does not. But when a state promises substantive protections not guaranteed by the federal constitution and backs up that promise in writing — by passing a statute, the way Indiana has, promising that traffic offenders will be released without bail rather than jailed — the promise is its own. And if the state welshes on its promise, by requiring bail when it said it wouldn’t, substantive rights may have been denied under state law. But no substantive rights have been denied as a matter of federal law. See Regents of University of Michigan v. Ewing, 474 U.S. 214, 229 , 106 S.Ct. 507, 515 , 88 L.Ed.2d 523 (1985) (Powell, J., concurring).

This brings me to the question of procedural rights. Did the federal constitution, through the due process clause, guarantee Woods a hearing before being detained for bail? Here the answer is somewhat more complicated but still is “No.”

The Supreme Court has held that, for purposes of the due process clause, “property” and “liberty” may be derivable from sundry sources of state law, independent of any common law or constitutional claim of right. 1 One such source is a state statute or rule with “explicitly mandatory language.” Kentucky Department of Corrections v. Thompson, 490 U.S. 454 , 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989).

In Indiana, misdemeanor traffic violators “shall be released from custody ... upon signing a written promise to appear in the proper court” at the proper time. That is explicitly mandatory language; it does not provide for discretion; there are no weasel words. Indiana’s statute vests Indiana res *284 idents with a right to release without bail in misdemeanor traffic cases, contingent only on their first signing a citation. On that much Woods and the defendants are in agreement.

So far so good. But Woods infers next that, having given him a substantive right to sign and go, a “liberty interest,” Indiana also owed him at least “rudimentary notice and a hearing,” Brief at 11, before depriving him of the right it conferred; and he says the summary deprivation he suffered, being jailed without having been offered a chance to “sign and go” or a prior hearing, constituted a deprivation of a federally protected liberty without procedural safeguards — without due process.

Substance and procedure, however, are (as a doctrinal matter anyway) distinct and separate. State law may define substantive rights, but federal law defines the procedures that must accompany them, the process which states must provide. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985); Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976).

Consider three examples.

1. Welfare benefits are a matter of statutory entitlement for people eligible to receive them. They are “property.” Accordingly, the procedures a state must provide to protect that entitlement are a matter of due process. And due process requires a prior hearing before benefits are cut off. Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970). See also Bell v. Burson, 402 U.S. 535 , 91 S.Ct. 1586 , 29 L.Ed.2d 90 (1971) (driver’s licenses).

2. A state civil service statute which provides for employment “during good behavior and efficient service,” and discharge only for cause, creates a property right in continued employment. And, in a state with such a statute, the due process clause guarantees civil servants a right to a hearing before being dismissed. Loudermill, supra, 470 U.S. 532 , 105 S.Ct. 1487 .

3. A state which offers prisoners time off for good behavior, and provides by statute that “good-time” credits are to be forfeited only for “serious misconduct,” makes good-time credits “liberty.” And the due process clause makes them deniable only after written notice and a hearing. Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974). See also Goss v. Lopez, 419 U.S. 565 , 95 S.Ct. 729 , 42 L.Ed.2d 725 (1975) (a state which makes education a right or an entitlement may not suspend students from school without providing a hearing either before the suspension or “as soon as practicable”).

In each of the foregoing examples, procedures guaranteed by federal law give a person with an entitlement (or right or interest) created by state law a chance to give his or her side of the story — in a situation where the facts matter (because different facts might produce a different result) and the State might be acting on incorrect information. Thus, federal law guarantees that welfare recipients will have a hearing before their benefits are terminated so that they can challenge the State’s determination that they are ineligible and no longer qualify for assistance; “for cause” civil servants are guaranteed a hearing before a discharge so that they can contest whether there is “cause” in fact to fire them; and prisoners with good-time credits forfeitable only for misbehavior are guaranteed a hearing prior to having credits taken away in order to contest whether they have misbehaved. The important point is that in each of these cases state action depends on certain facts having been established and a hearing provides a chance to ascertain or confirm those facts.

But not all state action depends on factual predicates. And where state action does not depend on predicate facts, or there are no disputed facts (and no disputes about the application of rules or policies to particular facts), generally no hearing is required. The due process clause does not mandate procedure for its own sake. Due process of law means an opportunity to be heard, sometimes in person, sometimes on paper, sometimes before the fact, Goldberg v. Kelly, supra, (welfare benefits), sometimes after Mathews v. Eldridge, supra, (social security benefits), in cases where there is something to be heard about.

In Codd v. Velger, 429 U.S. 624 , 97 S.Ct. 882 , 51 L.Ed.2d 92 (1977), the Supreme *285 Court rejected a police officer’s claim that he should have been given a hearing when stigmatizing material was put in his personnel file, material which he alleged was the cause both of his dismissal from his nontenured position on the force and his inability to find similar employment. The Court held that because the officer had made no claim that the information in his file was false and the purpose of a hearing would have been solely to provide him with “an opportunity to clear his name” there was no need for a hearing. No hearing was necessary, for instance, to determine whether the information, if true, warranted his discharge. 429 U.S. at 633 , 97 S.Ct. at 887 (Stevens, J., dissenting).

In Board of Curators v. Horowitz, 435 U.S. 78 , 98 S.Ct. 948 , 55 L.Ed.2d 124 (1978), the Court held that the decision to dismiss a student from a state medical school for academic deficiencies, being “more subjective and evaluative” than a disciplinary decision, does not require any form of a hearing, even “[ajssuming, the existence of a liberty or property interest.” 435 U.S. at 84-85 , 98 S.Ct. at 952-953 . The existence of a substantive right does not necessarily imply a right to a hearing.

Thus, Woods had a right, guaranteed by Indiana law, to release without bail. He did not, however, have a federal constitutionally protected right to a hearing before being deprived of that right. Application of Indiana’s sign and go statute does not depend on facts. A predeprivation hearing would not have served any useful eviden-tiary purpose. Compare Fed.R.Civ.P. 56. If there had been a prior hearing, perhaps Woods or his lawyer might have alerted the judge or magistrate (even Judge Keppen) to a legal point, the invalidity of Judge Keppen’s bail schedule in light of Indiana’s sign and go statute. But Woods was not entitled to a hearing for that purpose. If the rule were otherwise, a prior hearing would routinely be required before any anticipated deprivation of property or liberty, so as to give the person about to be deprived a chance to question whether the correct legal rule was being followed. And that clearly is not the law. Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 .

Due process does not guarantee “right” substantive outcomes or correct conclusions of law. It guarantees advance notice of charges and a fair chance to refute them. Woods had notice that he was going to be held until he posted bail, there was no evidence to rebut and, in Laporte County anyway, the application of the law to the facts was clear — reckless driving was a bondable offense as established by a bond schedule entered by a statutorily competent judicial officer.

This is but another way of saying that a predeprivation hearing would not have been much of a hedge against Woods’ being detained overnight and that, being of dubious probable value, it was not constitutionally required. See Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 .

There is one more possibility that due process may have been denied. An argument could be made that setting bail from a master bail bond schedule without a prior hearing is a denial of due process in itself. Ackies v. Purdy, 322 F.Supp. 38, 41 (S.D.Fla.1970) so held. But Ackies goes too far. It is conceivable that due process requires individualized bail hearings in some circumstances. If Woods were arguing that he was entitled to a hearing to fix bail because the $250 listed on Judge Keppen’s bond schedule was more than was necessary to assure his appearance in court, then he would have a stronger argument, and possibly a winning one, that he was entitled to a bail hearing. Woods, however, has not objected to the amount of bail, so we are not presented with that question, and he was not entitled to an immediate bail hearing simply as a matter of constitutional principle. Setting bail from a master bond schedule is not unconstitutional per se. Constitutionality would depend on whether the bail amount listed on the schedule is excessive for a particular defendant accused of having committed a particular crime.

It is disturbing that Woods was handcuffed, taken to jail, held overnight and made to post bond for squealing his tires and a sloppy lane change. It is still more disturbing that all of this occurred notwithstanding the clear Indiana statute. Never *286 theless, detaining Woods overnight and setting his bail without a prior hearing was not a deprivation of liberty without due process of law. He has no claim under 42 U.S.C. § 1983 .

. See, for instance, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979) (mere existence of a parole system does not establish a liberty interest for inmates seeking parole, but "unique structure and language” of state Nebraska parole statute created one) and Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972) (although state law did not explicitly authorize the granting of tenure to junior college professors, there might be "an unwritten ‘common law,’ ” in the form of "mutually explicit understandings,” which would give rise to "implied" tenure and justify a "legitimate claim of entitlement to continued employment absent ‘sufficient cause.' ”). But cf. Bishop v. Wood, 426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 (1976) (showing a reluctance to find rights and entitlements in anything other than explicit provisions of positive law); Jago v. Van Curen, 454 U.S. 14, 17-21 , 102 S.Ct. 31, 34-36 , 70 L.Ed.2d 13 (1981) ("mutually explicit understandings” may in some circumstances supply the basis for a property interest, but never for a liberty interest).