The opinion
Case: 20-30159 Document: 00516794460 Page: 1 Date Filed: 06/21/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 21, 2023
No. 20-30159 Lyle W. Cayce
Clerk
Edward Little, on behalf of himself and all others similarly situated,
Plaintiff—Appellant,
Shelia Ann Murphy,
Intervenor Plaintiff—Appellant,
versus
Andre’ Doguet; Laurie Hulin; Mark Garber,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:17-CV-724
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Leslie H. Southwick, Circuit Judge:
This litigation challenges the bail practices of one Louisiana parish.
The claim is that money bail is required for pretrial detainees without
consideration of alternatives, violating the rights of indigents to substantive
due process and equal protection. The district court denied all relief.
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While the appeal was pending, this court en banc held that district
courts must abstain from suits contesting a local jurisdiction’s bail practices
when there is an opportunity in state court to present constitutional
challenges to bail. See Daves v. Dallas Cnty., 64 F.4th 616, 631 (5th Cir. 2023)
(en banc). The parties agree there exists an opportunity here. Therefore, we
VACATE and REMAND for the district court to dismiss the case.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, Edward Little was arrested on a felony-theft charge. Bail was
set at $3,000, which Little could not pay. After spending several days in jail,
Little had his first appearance before a judicial officer. There was no inquiry
as to whether Little could afford the prior amount, and it was not reduced.
No finding was made that pretrial detention was necessary. Little, who had
no counsel, had no opportunity to present or contest evidence.
Little filed this action while in jail awaiting his first appearance. 1 The
Defendants, who were sued in their official capacities only, were the Sheriff,
Mark Garber; the then-Parish Commissioner, Thomas Frederick; 2 and the
former Chief Judge of the 15th Judicial District Court, Kristian Earles. 3 Little
filed the suit as a class action, and the district court granted Little’s motion
to certify the class. Alleging substantive and procedural constitutional viola-
tions, Little sought equitable relief to prevent the Defendants from using
1
Sheila Murphy intervened as a plaintiff, but she died in June 2020 while this
appeal was pending. In that situation, “the decedent’s personal representative may be
substituted as a party.” FED. R. APP. PROC. 43(a)(1). No such motion has been filed. In
light of our decision in the case, we see no reason to require a substitution.
2
The current Parish Commissioner is Andre’ Doguet.
3
The current Chief Judge of the 15th Judicial District Court is Laurie Hulin. That
judicial district covers three governmental parishes: Lafayette, Vermilion, and Acadia. As
we understand the complaint, this suit concerns the practices only in Lafayette Parish,
where defendant Garber is the sheriff.
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secured-money-bail to detain anyone unless a court provides various proce-
dural protections.
The Defendants argued the district court should abstain under
Younger v. Harris, 401 U.S. 37 (1971). In March 2018, the district court ac-
cepted the Magistrate Judge’s recommendation that the court reject absten-
tion. Only the sheriff was dismissed before trial. The parties stipulated to
most of the facts, including that the commissioner generally sets bond
amounts during daily calls to the jail and never reduces those amounts at first-
appearance hearings. The commissioner also testified in a deposition that he
routinely set secured-money-bail (of at least $500) without considering indi-
viduals’ ability to pay.
The district court held a one-day bench trial in August 2019. The De-
fendants introduced into evidence the form labeled “Release Order in Lieu
of/as Modification to Money Bond.” That form allows the commissioner to
order release on personal surety, to reduce the secured-money bail required
for a person’s release, or to have people evaluated for a work-release program
in lieu of paying bail.
After trial, the district court entered judgment for the Defendants.
Relying on the modification form, the court found that the commissioner was
taking a detainee’s ability to pay into account in some circumstances. That
change, the court concluded, rendered moot the Plaintiffs’ claims regarding
the Defendants’ pre-litigation bail practices. The court also concluded that
the Defendants’ current practices, such as considering ability to pay and al-
ternatives to detention, satisfy equal protection and due process require-
ments.
The Plaintiffs timely appealed. In April 2020, we granted the Plain-
tiffs’ unopposed motion to stay the appeal pending resolution of a case with
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similar issues. It would be three years before that similar case was concluded.
We will explain those rulings in due course.
DISCUSSION
We start by providing more detail about the relevant bail procedures.
Arrestees are brought to the Lafayette Parish Correctional Center. Each day,
the commissioner for the 15th Judicial District in Louisiana calls the correc-
tional center to set secured-bail amounts for recent arrestees based on the
charges and, in some circumstances, criminal-history information. The com-
missioner does not hear from arrestees before setting bail and has historically
asked for no other information, including about individuals’ ability to pay
cash bail.
Before the Plaintiffs filed this lawsuit, the commissioner set cash-bail
amounts for many misdemeanor offenses according to a schedule set by the
15th Judicial District Court. After this case was filed, the court rescinded the
schedule and replaced it with “an order requiring the Sheriff to automatically
release with a summons all persons arrested on certain misdemeanor charges
— unless it was their third arrest within six months — while requiring all
other misdemeanor arrestees to have bonds set in the same manner as felony
arrestees.” For those individuals who do not qualify for automatic release,
the commissioner sets secured bond at the amount specified on the warrant
or, where no warrant exists, determines an amount.
Those under arrest who cannot pay the amount imposed during the
commissioner’s calls to the jail (that occur without arrestees’ presence or
participation) are detained until their first appearance, which typically occurs
within 72 hours of arrest. First-appearance hearings, which are conducted by
video, provide no opportunity to provide or contest evidence, dispute the
amount of secured-money bail imposed, or argue for alternative conditions.
Rather, the commissioner reads the charges, informs people of the bail
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previously set, and refers them to the public defender’s office if they cannot
afford an attorney. Arrestees are not provided counsel, and the commis-
sioner “makes no written or oral findings on the record of any kind” during
the hearings, and no transcript or other recording of them is kept. The com-
missioner also does not explain his determination of bail amounts or why al-
ternatives to secured-money bail could not serve the government’s interests.
The commissioner also never modifies the bail amounts previously set.
Starting in May 2019, if the commissioner discovered during an initial
appearance that an individual could not pay the bond previously set, he re-
ferred to a form entitled “Release Order in Lieu of/as Modification to Money
Bond.” Although the form provides alternatives to money bail that the com-
missioner may consider, the district court found that in practice he either re-
tains the established bond amount or refers the arrestee to possible alterna-
tives. The commissioner’s secretary — who processes personal-bond appli-
cations using unknown criteria — does not notify the commissioner when she
denies applications, nor can her denials be appealed.
The Lafayette Parish sheriff enforces pretrial detention orders. He
also operates the Sheriff’s Tracking Offenders Program (“STOP”), a local
program that allows certain people to apply for release without having to pay
upfront cash bail. The sheriff charges a $25 application fee plus a daily $7
participation fee. Although the commissioner must approve STOP orders,
in practice he accepts the decisions made by the sheriff. For people unable
to pay secured bail, therefore, the sheriff decides whether they remain in jail
(by denying a STOP application) or are released (by granting it).
After this lawsuit was filed, the sheriff created a Pretrial Indigency De-
termination Affidavit (“PIDA”). PIDAs allow the commissioner to consider
people’s ability to pay when he calls the jail to set secured-bail amounts with-
out the participation of those detained. Detainees must complete and submit
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PIDAs between the time of arrest and when the commissioner calls to have it
considered. The record does not show whether arrestees are informed of the
PIDA or the timeline.
The Plaintiffs have argued on appeal that (1) the Defendants’ bail
practices violate equal protection, substantive due process, procedural due
process, and the Sixth Amendment; and (2) the district court erred in
dismissing the Plaintiffs’ claims against the Lafayette Parish sheriff.
As mentioned earlier, the district court rejected the Defendants’
argument that the court should abstain under Younger v. Harris. After a
bench trial, the court entered judgment for the Defendants on the merits. On
appeal, and before any briefs were filed, we stayed further proceedings until
a decision was reached in the appeal of a case challenging bail practices in
Dallas County, Texas.
The first of three opinions in that related case was by a panel of this
court in December 2020. See Daves v. Dallas Cnty., 984 F.3d 381 (5th Cir.
2020), vacated upon grant reh’g en banc, 988 F.3d 834 (5th Cir. 2021). The
appeal was reheard en banc. The full court’s initial opinion in January 2022
resolved several issues but remanded on the issues of mootness and
abstention. See Daves v. Dallas Cnty., 22 F.4th 522 (5th Cir. 2022) (en banc).
After the district court issued its new rulings and the case returned to this
court, we held in March 2023 that the case was moot and that abstention
applied to bail challenges if there were remedies available under state law to
address bail. See Daves v. Dallas Cnty., 64 F.4th 616 (5th Cir. 2023) (en banc).
At our request, the parties in this case provided supplemental briefing
on the effect of that final en banc opinion. The Plaintiffs concede, and the
Defendants insist, that it is necessary for the court to abstain and dismiss the
suit. Of course, we must determine if we agree.
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The abstention doctrine applied in Daves requires that federal courts
decline to exercise jurisdiction over a state criminal defendant’s claims when
three conditions are met: “(1) the federal proceeding would interfere with an
‘ongoing state judicial proceeding’; (2) the state has an important interest in
regulating the subject matter of the claim; and (3) the plaintiff has ‘an ade-
quate opportunity in the state proceedings to raise constitutional chal-
lenges.’” Id. at 625 (quoting Bice v. La. Pub. Def. Bd., 677 F.3d 712, 716 (5th
Cir. 2012)). Those conditions were taken from Middlesex County Ethics Com-
mission v. Garden State Bar Association, 457 U.S. 423, 432 (1982). The Mid-
dlesex Court set out that list when explaining how to apply the abstention doc-
trine identified in Younger v. Harris.
In this case, the only analysis of abstention in the district court record
is by the Magistrate Judge. In December 2017, he issued a Report and Rec-
ommendation on Sheriff Garber’s Rule 12(b)(1) motion to dismiss for rea-
sons that included abstention. One of the conclusions was that abstention
was inapplicable because the challenge “was not directed at the state prose-
cutions as such, but only at the legality of pretrial detention without a judicial
hearing, an issue that could not be raised in defense of their criminal prose-
cutions,” quoting Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975). Categori-
cally, the Magistrate Judge seemed to conclude, Younger does not apply to a
challenge to pretrial detention. Further, “the plaintiff does not have an ade-
quate opportunity to raise his constitutional challenges in state court.” The
district judge accepted the recommendation to deny the Sheriff’s Rule
12(b)(1) motion to dismiss.
Our factual review has already summarized changes in Lafayette Par-
ish procedures regarding bail since this lawsuit was filed. We discover no
analysis by the district court of whether the new procedures provide an “ad-
equate opportunity” to present constitutional challenges. We agree with the
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implication in the post-Daves v. Dallas filings by the parties that we can make
the needed determination here.
We now review the three conditions for applying Younger abstention.
I. Condition 1: interference with ongoing state proceedings
Our Daves en banc court held that federal adjudication of the claims
there regarding bail for pretrial detainees would unduly interfere with state
proceedings. Daves, 64 F.4th at 631. We determined the requested injunc-
tion “would permit a pre-trial detainee who claimed that the order was not
complied with to proceed to the federal court.” Id. (quotation marks and
citation omitted). “Such extensive federal oversight constitutes ‘an ongoing
federal audit of state criminal proceedings . . . indirectly accomplish[ing] the
kind of interference that Younger v. Harris . . . and related cases sought to
prevent.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 500 (1974)) (alter-
nations in original).
The Plaintiffs here acknowledge that the claims in Daves “are substan-
tively identical to the claims here.” Specifically, the Plaintiffs here seek
“[a]n order and judgment preliminarily and permanently enjoining the De-
fendants from using money bail” without specific procedural and substantive
safeguards. Additionally, the Plaintiffs seek, among other things, a substan-
tive guarantee that arrestees will not be detained absent “a finding that de-
tention is necessary to serve a compelling government interest.” The Daves
plaintiffs made virtually identical requests. See Daves v. Dallas Cnty., 341 F.
Supp. 3d 688, 697 (N.D. Tex. 2018).
Our en banc holding that the Daves plaintiffs’ requested relief would
interfere with ongoing state criminal proceedings controls here. The relief
requested by the Plaintiffs in this case is identical to the relief requested by
the Daves plaintiffs. The first Younger condition is satisfied.
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II. Condition 2: important state interest
Daves held, “states have a vital interest in regulating their pretrial
criminal procedures including assessment of bail bonds.” Daves, 64 F.4th at
627 n.21. As in Daves, the second Younger condition is satisfied in this case.
III. Condition 3: adequate opportunity to raise constitutional challenges
in state proceedings
This final condition requires that there be a state proceeding available
to a pretrial detainee to present constitutional challenges about his detention.
Daves, 64 F.4th at 625. The Magistrate Judge held in December 2017 that
the procedures available were not adequate because they were too slow:
The defendants contend that the plaintiff has an adequate state
court remedy because he can file a motion to reduce bail. How-
ever, the plaintiff does not allege that he is unable to file a mo-
tion to reduce his bail amount. Rather, he asserts that the time
period it takes for the defendants to consider his ability to pay
a certain monetary bail amount is a violation of his constitu-
tional rights because he remains detained solely due to his ina-
bility to pay the bail amount. Even though the plaintiff can file
a motion to reduce bail to challenge the bail set by the defend-
ants, a ruling on the motion to reduce bail would not address
the constitutional challenges that the plaintiff asserts in this
lawsuit. Accordingly, Younger abstention does not apply to this
case.
The district court accepted the recommendation not to dismiss on the
basis of abstention or on any other jurisdictional argument.
According to the Plaintiffs, by the time the suit was tried in August
2019, the procedures available for challenging bail were as follows:
Louisiana law [] provides that bail must be fixed based on mul-
tiple factors, including “[t]he ability of the defendant to give
bail.” La. Code Crim. Proc. Ann. art. 316. And after bail is set,
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a Louisiana trial court can then (either on a motion for bail
modification or sua sponte) “reduce the amount of bail, or re-
quire new or additional security” for good cause. Id. art. 319.
Finally, Louisiana law formally allows constitutional claims to
a pretrial-detention regime to be brought in a separate habeas
proceeding, see id. art. 362(7), though . . . such a proceeding
could provide a ruling on such claims only long after the alleg-
edly unconstitutional detention and the irreparable harm it in-
flicts have begun.
Those procedures are adequate if they provide “an opportunity to
raise federal claims in the course of state proceedings.” Daves, 64 F.4th at
629. What having “an opportunity” means is explained in part by what we
held in Daves was not required.
First, the en banc court rejected the plaintiffs’ argument that an op-
portunity to litigate constitutional claims is inadequate unless it is provided
“in” the state proceedings — as opposed to a separate proceeding like ha-
beas. Id. at n.27. “This is refuted by O’Shea, which specifically referenced
the availability of state postconviction collateral review as constituting an ad-
equate opportunity.” Id.
Second, we rejected “that timeliness of state remedies is required to
prevent Younger abstention.” Id. at 632 (emphasis in original). The Daves
plaintiffs relied on “the incorrect assumption that each moment in erroneous
pretrial detention is a constitutional violation.” Id. at 633. We reasoned that
“arguments about delay and timeliness pertain not to the adequacy of a state
proceeding, but rather to ‘conventional claims of bad faith.’” Id. (quoting
Moore v. Sims, 442 U.S. 415, 432 (1979)). We held that injury to a pretrial
detainee resulting from delay in assessing a constitutional challenge to bail
was analogous to “the cost, anxiety, and inconvenience of having to defend
against a single criminal prosecution,” which are not irreparable injuries. Id.
at 632 (quoting Younger, 401 U.S. at 46).
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The “gist of Younger’s test for availability” is whether “errors can be
rectified according to state law, not that they must be rectified virtually im-
mediately.” Id. at 633. Further, “state remedies are inadequate only where
‘state law clearly bars the interposition of the constitutional claims.’” Id. at
632 (quoting Sims, 442 U.S. at 425–26) (emphasis in original).
In Daves, the plaintiffs had the requisite opportunity to raise their fed-
eral constitutional claims in state court because “Texas state court proce-
dures do not clearly bar the raising of” federal constitutional challenges to a
state system. Id. at 633. After listing certain procedural protections, we
stated “there appears to be no procedural bar to filing a motion for reconsid-
eration of any of these rulings.” Id. at 629. Further, “[a] petition for habeas
corpus is also available.” Id. (referencing TEX. CODE CRIM. P. art. 11.24)).
We summarized: “Texas courts are neither unable nor unwilling to
reconsider bail determinations under the proper circumstances, thus provid-
ing state court detainees the chance to raise federal claims without the need
to come to federal court.” Id. at 631. Similarly, the Plaintiffs here have failed
to show that Louisiana is unable or unwilling to reconsider bail determina-
tions. How quickly those can be reconsidered is irrelevant because “argu-
ments about delay and timeliness pertain not to the adequacy of a state pro-
ceeding, but rather to ‘conventional claims of bad faith.’” Id. at 633 (quoting
Sims, 442 U.S. at 432).
We close with what the Plaintiffs concede:
Given the analogous remedies technically available in Louisi-
ana and Texas and the breadth of Daves’s Younger reasoning
(including the irrelevance under Daves of the actual availability
in practice of state-law remedies), Daves requires a remand of
this case for dismissal.
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All three Younger conditions are satisfied. Abstention is mandated.
We VACATE and REMAND in order that the district court may
DISMISS the suit.
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