Petition for Writ of Certiorari — Maurice Walker, Individually and on Behalf of All Others Similarly Situated, Petitioner v. City of Calhoun, Georgia

Supreme Court briefDec 20, 2018

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APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-13139

D.C. Docket No. 4:15-cv-00170-HLM

MAURICE WALKER,

on behalf of himself and others similarly situated,

Plaintiff-Appellee,

CITY OF CALHOUN, GA,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Georgia

August 22, 2018

Before MARTIN, JULIE

O’SCANNLAIN,* Circuit Judges.

CARNES,

and

O’SCANNLAIN, Circuit Judge:

We must decide what process the Constitution requires in setting bail for indigent arrestees.

When this lawsuit began, Maurice Walker was a 54year-old unemployed man with a mental health disability, whose income consisted only of $530 in monthly Social Security disability payments. On Thursday, September 3, 2015, Walker was arrested in the City of Calhoun, Georgia by the Calhoun Police Department for

being a pedestrian under the influence of alcohol, in violation of Ga. Code Ann. § 40-6-95. A violation of that

section of Georgia’s code “is a misdemeanor and is punishable upon conviction by a fine not to exceed $500.00.”

The statute does not provide for any possible jail sentence.

Walker alleges that, after he was taken to jail, he

was told by an officer that “he would not be released

unless he paid the standard $160 cash bond” required

for those charged with being a pedestrian under the influence. Walker says that neither he nor his family had

enough money to post the bond. Walker alleges that

while he was jailed, he was not given his necessary

mental disorder medication, and he was confined to a

single-person cell except for one hour each day.

Walker filed this suit five days after his arrest,

while still detained, alleging on behalf of himself and a

Honorable Diarmuid F. O’Scannlain, United States Circuit

Judge for the Ninth Circuit, sitting by designation.

class of similarly situated indigent arrestees that the

City was violating the Fourteenth Amendment of the

United States Constitution by “jailing the poor because

they cannot pay a small amount of money.” On the day

after filing suit Walker was released on a personalrecognizance bond by agreement with the City’s counsel. A bond was subsequently tendered for Walker by

one of his attorneys in this matter, and his criminal case

was closed on October 20, 2015, by entry of a bond forfeiture.

Walker alleges that, at the time of his arrest, the

City followed a policy of using a secured-money bail

schedule with bond amounts based on the fine an arrestee could expect to pay if found guilty, plus applicable fees. Defendants who could afford to deposit the

bail amount were released immediately, whereas those

who could not pay were held until the next court session on the following non-holiday Monday. In Walker’s

case, because the Monday after his arrest was Labor

Day, he would have had to wait eleven days after his

arrest to see a judge for a bail hearing.

Shortly after Walker’s suit was filed, the Municipal

Court of the City of Calhoun altered the prevailing bail

policy by issuing a Standing Bail Order, which adopted

a bail schedule for State offenses within the Municipal

Court’s jurisdiction, with cash bail set at “amount[s]

represent[ing] the expected fine with applicable surcharges … should the accused later enter a plea, or be

found guilty.” As alternatives to cash bail, the Standing Bail Order recognized an arrestee’s ability to use a

driver’s license as collateral or to “make secured bail by

property or surety” at an amount “twice that set forth

in [the] schedule.”

“For those individuals who do not obtain release

pursuant to the secured bail schedule,” the Standing

Bail Order provides that they “shall … be brought before the [Municipal] Court” within 48 hours from their

arrest, shall “be represented by court appointed counsel,” and “will be given the opportunity to object to the

bail amount … , including any claim of indigency.” The

Municipal Court will then “determine whether the accused is unable to post secured bail because he/she is

indigent, making an individualized determination based

upon the evidence provided.” The Standing Bail Order

adopts a standard of indigency as “earning less than 100

percent of the federal poverty guidelines, unless there

is evidence that the person has other resources that

might be reasonably used.” If the court finds that the

defendant is indigent under that standard, “then he/she

shall be subject to release on recognizance without

making a secured bail.” If no hearing is held within 48

hours, “then the accused shall be released on a recognizance bond.” Finally, the Standing Bail Order provides

that those charged with a violation of the City Code (as

opposed to State law) “shall be released on an unsecured bond in the amount established by the … bail

schedule.”

In summary, the Standing Bail Order envisions

three forms of release depending on the type of offense

charged and the financial means of the arrestee. First,

arrestees charged with State offenses within the Municipal Court’s jurisdiction will be released immediately

on a secured bond if they are able and willing to deposit

money bail in the amount set by the bail schedule.

They can post cash bail themselves or use a commercial

surety at twice the amount set by the bail schedule.

Second, arrestees charged with State offenses who do

not post bail immediately must wait for a bail hearing

with court-appointed counsel, to take place within 48

hours from arrest. Those who can prove they are indigent at the hearing will be released on a recognizance

bond—meaning no bail amount is set, either secured or

unsecured. Third, all arrestees charged with violating

City ordinances will be released on unsecured bond,

meaning that they need deposit no collateral immediately but will be assessed the bail schedule amount if

they fail subsequently to appear in court.

Several months after Walker filed suit, and after

the Standing Bail Order had gone into effect, the district court entered a preliminary injunction ordering

the City “to implement post-arrest procedures that

comply with the Constitution.” Walker v. City of Calhoun, Ga. (Walker I), No. 4:15-CV-0170-HLM, 2016 WL

361612, at *14 (N.D. Ga. Jan. 28, 2016). As the legal basis for the injunction, the district court found that

“[a]ny bail or bond scheme that mandates payment of

pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or

other factors, violates the Equal Protection Clause.”

Id. at *10. On the same day it issued the injunction order, the district court certified a class under Federal

Rule of Civil Procedure 23, consisting of “[a]ll arrestees

unable to pay for their release who are or will be in the

custody of the City of Calhoun as a result of an arrest

involving a misdemeanor, traffic offense, or ordinance

violation.”

We vacated such preliminary injunction, holding

that it violated Federal Rule of Civil Procedure 65 because it was insufficiently specific. See Walker v. City

of Calhoun, Ga. (Walker II), 682 F. App’x 721, 724–25

(11th Cir. 2017) (per curiam) (unpublished). We declined at that time to consider “whether, substantively,

[the] district court properly issued a preliminary injunction.” Id. at 724.

On remand, the district court again found the City’s

bail policy under the Standing Bail Order to be unconstitutional and entered a new preliminary injunction.

It reaffirmed its merits rulings from the original preliminary injunction order and found that the Standing

Bail Order “still violates the Constitution insofar as it

permits individuals who have sufficient resources to

post a bond … to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing.” Walker v. City of Calhoun, Ga. (Walker III), No. 4:15-CV-0170-HLM, 2017

WL 2794064, at *2–3 (N.D. Ga. June 16, 2017). The

court enjoined the City “from detaining indigent … arrestees who are otherwise eligible for release but are

unable, because of their poverty, to pay a secured or

money bail.” Id. at *4.

The order granting the new injunction prescribed

an affidavit-based process for making such determination:

If an arrestee indicates that he or she is unable

to pay a secured or money bail, arresting officers, jail personnel, or Municipal Court staff

must, as soon as practicable after booking verify the arrestee’s inability to pay a secured or

money bail by means of an affidavit sworn before an authorized official.

Id. Such affidavit must include information about the

arrestee’s finances and the opportunity for the arrestee

to attest indigency, which the injunction order defines

as “less than 100 percent of the applicable federal poverty guidelines.” Id. An official must evaluate the affidavit “within twenty-four hours after arrest.” Id. at *5.

Those found indigent “shall be subject to release on …

recognizance without making secured bail … or subject

to release on an unsecured bond.” Id.

The City timely appealed the new preliminary injunction order,1 as well as the district court’s orders

certifying the class and denying the City’s motion to

dismiss. The district court stayed further proceedings

pending resolution of this appeal, but the injunction

“remains in full force and effect.”

Before reaching the merits of the constitutional issues underlying the preliminary injunction, we must

address two threshold challenges that the City raises to

the district court’s ability to enjoin the City at all.

First, the City argues that the district court should

have declined to exercise jurisdiction altogether under

the abstention doctrine of Younger v. Harris, 401 U.S.

37, 44 (1971), which “restrain[s] courts of equity from

interfering with criminal prosecutions.” Younger is

“based not on jurisdiction, but on the principles of equity and comity,” and it commands that “‘absent extraordinary circumstances federal courts should not enjoin

pending state criminal prosecutions.’” Hughes v. Att’y

Gen. of Fla., 377 F.3d 1258, 1262–63 (11th Cir. 2004)

We have jurisdiction to review an interlocutory order granting a preliminary injunction under 28 U.S.C. § 1292(a)(1).

(quoting New Orleans Pub. Serv., Inc. v. Council of

City of New Orleans, 491 U.S. 350, 364 (1989)). Abstention, however, has become disfavored in recent Supreme Court decisions. See, e.g., Sprint Commc’ns,

Inc. v. Jacobs, 571 U.S. 69, 77–78 (2013) (“Jurisdiction

existing, this Court has cautioned, a federal court’s obligation to hear and decide a case is virtually unflagging,” and “only exceptional circumstances … justify a

federal court’s refusal to decide a case in deference to

the States.” (internal quotation marks and alterations

omitted)).

Younger does not readily apply here because

Walker is not asking to enjoin any prosecution. Rather,

he merely seeks prompt bail determinations for himself

and his fellow class members. Gerstein v. Pugh, 420

U.S. 103 (1975), is instructive. There, Florida detainees

sought injunctive relief to receive prompt probable

cause determinations, and the State argued that

Younger should have barred the district court from

considering the claim. The Supreme Court disagreed,

holding that Younger abstention did not apply because

“[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not

be raised in defense of the criminal prosecution.” Gerstein, 420 U.S. at 108 n.9. So too here.

The City seeks to avoid the import of Gerstein by

pointing to case law indicating that in some circumstances Younger abstention will apply even if the district court is not being asked to enjoin a prosecution,

where injunctive relief would entail intrusive federal

court interference with State prosecutions generally.

In O’Shea v. Littleton, for instance, the plaintiffs alleged that a county judge engaged in a host of unconstitutional practices in setting bonds, imposing discrimi-

natory sentences, and setting fees for jury trials. 414

U.S. 488, 491–92 (1974). As the Supreme Court characterized it, the plaintiffs sought “an injunction aimed at

controlling or preventing the occurrence of specific

events that might take place in the course of future

state criminal trials,” which amounted to “an ongoing

federal audit of state criminal proceedings.” Id. at 500.

The Court ruled that such an injunction would be inappropriate under the Younger doctrine because federal

courts “should not intervene to establish the basis for

future intervention that would be so intrusive and unworkable.” Id; see also Luckey v. Miller, 976 F.2d 673,

677 (11th Cir. 1992) (applying Younger abstention to a

suit broadly challenging the adequacy of Georgia’s indigent criminal defense system because, “[a]lthough it is

true that Plaintiffs do not seek to … restrain any individual prosecution, it is nonetheless clear that [Plaintiffs] intend to restrain every indigent prosecution and

contest every indigent conviction until the systemic

improvements they seek are in place.”).

But Walker does not ask for the sort of pervasive

federal court supervision of State criminal proceedings

that was at issue in O’Shea. Instead, as in Gerstein,

Walker merely asks for a prompt pretrial determination of a distinct issue, which will not interfere with

subsequent prosecution. At the very least, the district

court could reasonably find that the relief Walker seeks

is not sufficiently intrusive to implicate Younger. Because we review a Younger abstention decision for

abuse of discretion, see Hughes, 377 F.3d at 1262, we

are satisfied that the district court was not required to

abstain.

10a

Next, the City argues that it is not responsible for

its bail policy and hence cannot be liable for any constitutional violations related to bail under 42 U.S.C.

§ 1983. The City claims that bail policy is attributable

only to the Municipal Court, which it says is independent of the City. The district court disagreed, finding

that the Municipal Court acted on behalf of the City

and that the City could itself set bail policy directly

through its control of its police. See Walker I, 2016 WL

361612, at *13; Walker III, 2017 WL 2794064, at *2 (readopting reasoning of Walker I).

A municipality is liable under § 1983 where an “‘official policy’ causes a constitutional violation.” Grech v.

Clayton County, Ga., 335 F.3d 1326, 1329 (11th Cir.

2003) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978)). “A plaintiff … has two methods by

which to establish a [municipality’s] policy: identify either (1) an officially promulgated [] policy or (2) an unofficial custom or practice … shown through the repeated acts of a final policymaker for the [municipality].” Id. at 1329. Liability may be established “by acquiescence in a longstanding practice or custom which

constitutes the ‘standard operating procedure’ of the

local governmental entity.” Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 737 (1989). Because we review the

grant of a preliminary injunction for abuse of discretion, Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.

2002), we can upend the injunction for lack of § 1983 liability only if the district court applied an “incorrect

legal standard” or its “factual findings are clearly erroneous.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d

1244, 1247 (11th Cir. 2016).

11a

Here, Georgia law indicates that the City has the

authority to set bail policy. In Georgia, a municipality’s

authority flows from “the state, manifested in the constitution, state laws, and the municipal charter.” Porter v. City of Atlanta, 384 S.E.2d 631, 632 (Ga. 1989).

By statute, Georgia “grants a city the legislative power

to adopt ordinances ‘relating to its property, affairs,

and local government for which no provision has been

made by general law and which are not inconsistent

with the [Georgia] Constitution.’” City of Atlanta v.

McKinney, 454 S.E.2d 517, 520 (Ga. 1995) (quoting Ga.

Code Ann. § 36-35-3(a)). The City’s municipal charter

grants it “all powers of self-government not specifically

prohibited by the constitution, the general laws of the

State of Georgia, or by this charter, including all powers … necessary or desirable to promote or protect the

safety … security, good order, … and general welfare

of the city and of its inhabitants.” Charter of Calhoun,

Georgia § 1-102(a).

Such broad grant of authority enables the City to

regulate bail. In fact, the City already does so. The

City requires that, for traffic violations, an “officer, upon receiving the written promise of the alleged violator

to answer as specified in the citation, shall release such

person from custody.” Calhoun Mun. Code § 90-39.

Many other municipalities in Georgia act on the same

understanding that Georgia law permits them to regulate bail by city ordinance.2 And Georgia’s Uniform

Municipal Court Rules, as promulgated by the Supreme

Court of Georgia, recognize that “[b]ail in misdemeanor

cases shall be set as provided in [State statutes], and as

See, e.g., Albany Mun. Code § 22-164; Doraville Mun. Code

§ 11-1; Kennesaw Mun. Code § 38-46; Nashville Mun. Code § 17-1;

Smyrna Mun. Code § 34-49(a); Stockbridge Mun. Code § 2.20.080.

12a

provided by applicable municipal charter or ordinance.” Ga. Unif. Mun. Ct. R. 18.1 (emphasis added).

The City contends that those municipalities (and

presumably itself) are acting in contravention of Georgia law, which, by permitting “the judge of any court of

inquiry … [to] establish a schedule of bails,” Ga. Code

Ann. § 17-6-1(f)(1), implicitly strips municipalities of

concurrent authority to set bail policy. But reading the

statute’s permissive grant of authority to courts to establish bail schedules as implicitly preempting all municipal regulation of bail is hardly a plausible interpretation. Like the district court, we are unwilling to conclude that Georgia cities setting bail by ordinance are

flouting State law or that the Supreme Court of Georgia incorrectly interpreted Georgia law when it promulgated Uniform Municipal Court Rule 18.1. The district court did not clearly err, then, in finding that the

City could directly regulate bail if it wished to and so

may be held responsible for acquiescing in an unconstitutional policy and practice by its Municipal Court and

its police.3

Although we need not resolve the validity of a secondary

basis for liability, we note that there was also significant support

for the district court’s finding that the City can set bail policy

through its control of its police department. Georgia law provides

that, in misdemeanor cases, “constables shall accept bail in such

reasonable amount as may be just and fair for any person or persons charged with a misdemeanor.” Ga. Code Ann. § 17-6-2(b); see

also Ga. Code Ann. § 42-4-1(b) (“[C]hiefs of police are the jailers of

the municipal corporations … .”). In this very case, Walker was

asked to post bail by the police department many days before he

was slated to have any interaction with the Municipal Court. Other Georgia cities seem to agree with the district court that they

may empower their police to make bail policy determinations. See,

e.g., Jonesboro Mun. Code § 30-18; LaGrange Mun. Code § 5-20-13;

13a

Based on the plain meaning of Georgia law and the

thin factual record before us at this preliminary stage,

we are unpersuaded that the City is immune from

§ 1983 liability for the bail policy prevailing within its

jurisdiction.4

III

Turning to the merits, the City contends that the

district court erred in finding the Standing Bail Order

to be unconstitutional, a conclusion that led to the district court’s issuance of the injunction now before us.

The City argues that we should vacate this injunction.

As the party seeking a preliminary injunction,

Walker bore the burden of establishing that he has a

substantial likelihood of success on the merits.5 Wreal,

Madison Mun. Code § 34-47; Thomaston Mun. Charter § 25; Warner Robins Mun. Code § 15-8.

Although the materials with which Walker proposes to supplement the record “will not conclusively resolve” the issue of

§ 1983 liability, they are helpful to us “in the aid of making an informed decision,” Young v. City of Augusta, Ga. ex rel. DeVaney,

59 F.3d 1160, 1168 (11th Cir. 1995), so his Motion to Supplement

the Record (Doc. No. 72) is GRANTED.

A party seeking a preliminary injunction must make four

necessary showings:

(1) [he] has a substantial likelihood of success on the

merits; (2) irreparable injury will be suffered unless the

injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the

injunction would not be adverse to the public interest.

Wreal, 840 F.3d at 1247 (quoting Siegel v. LePore, 234 F.3d 1163,

1176 (11th Cir. 2000) (en banc)). Although the parties dispute all

four elements, the principal point of dispute is likelihood of success

on the merits.

14a

840 F.3d at 1247. The validity of the injunction thus

turns on whether Walker did in fact show that he was

likely to succeed in establishing that the City’s bail policy was unconstitutional.

The district court ruled that the City’s bail policy

ran afoul of the Fourteenth Amendment because “[a]ny

bail or bond scheme that mandates payment of prefixed amounts for different offenses to obtain pretrial

release, without any consideration of indigence or other

factors, violates the Equal Protection Clause.” Walker

I, 2016 WL 361612, at *10. Although the district court

considered the Standing Bail Order to be “a step in the

right direction” over the prior policy, it found that

“[t]he Standing Bail Order … still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond (or to have one posted for

them) to be released immediately, while individuals

who do not have those resources must wait forty-eight

hours for a hearing.” Walker III, 2017 WL 2794064, at

*3.

The City argues that the district court applied the

wrong legal standard in two ways: first, by analyzing

this case under the Fourteenth Amendment rather

than the Eighth Amendment; and second, by applying

too exacting a form of scrutiny to the City’s bail policy.

We consider each challenge in turn.

First, the City, and amici supporting it, contend

that we should evaluate this dispute only under the

Eighth Amendment, which provides that “[e]xcessive

bail shall not be required.”6 U.S. Const. amend. VIII.

The Excessive Bail Clause has never expressly been incorporated by the Supreme Court to apply to the States. Because

15a

As they point out, the Supreme Court has held that, in

§ 1983 suits, “[t]he validity of the claim must … be

judged by reference to the specific constitutional

standard which governs that right.” Graham v. Connor, 490 U.S. 386, 394 (1989). They argue that the right

at issue here is the protection against excessive bail, so

the Eighth Amendment standard applies.

If the City is correct that the Eighth Amendment

standard governs, not only did the district court commit legal error by instead applying equal protection and

due process standards, but the City will be on favorable

terrain. In Stack v. Boyle, the Supreme Court explained that “bail set at a figure higher than an amount

reasonably calculated to ensure the defendant’s presence at trial is ‘excessive’ under the Eighth Amendment.” United States v. Salerno, 481 U.S. 739, 752

(1987) (internal quotation marks and alterations omitted) (quoting Stack v. Boyle, 342 U.S. 1, 5 (1951)). But

the Excessive Bail Clause “says nothing about whether

bail shall be available at all,” and it is meant “‘merely to

provide that bail shall not be excessive in those cases

where it is proper to grant bail.’” Id. at 752, 754 (quoting Carlson v. Landon, 342 U.S. 524, 545 (1952)).

In applying that standard, we have implicitly held

that bail is not excessive under the Eighth Amendment

neither party disputes the point, however, we follow the Supreme

Court’s lead in assuming it has been incorporated. See Schilb v.

Kuebel, 404 U.S. 357, 365 (1971) (“[T]he Eighth Amendment’s proscription of excessive bail has been assumed to have application to

the States through the Fourteenth Amendment.”); McDonald v.

City of Chicago, 561 U.S. 742, 764 & n.12 (2010) (explaining that

the Court has “incorporated almost all of the provisions of the Bill

of Rights” and suggesting in a footnote that the “prohibition

against excessive bail” was incorporated by Schilb).

16a

merely because it is unaffordable. In United States v.

James, we considered a case in which the district court

set a $2 million cash or surety bond requirement, which

the defendants did not have the ability to pay. 674 F.2d

886, 888 (11th Cir. 1982). We rejected their Eighth

Amendment challenge to that bail condition, holding

that “[t]he basic test for excessive bail is whether the

amount is higher than reasonably necessary to assure

the accused’s presence at trial,” and that “[a]s long as

the primary reason in setting bond is to produce the

defendant’s presence, the final amount, type, and other

conditions of release are within the sound discretion of

the releasing authority.” Id. at 891. If such standard

applied to this case, Walker would have a difficult time

showing that his $160 bail amount was unconstitutional.

The district court was correct, however, to evaluate this case under due process and equal protection

rubrics rather than the Eighth Amendment. The decisive case is Pugh v. Rainwater, in which the former

Fifth Circuit considered en banc whether, “in the case

of indigents, equal protection standards require a presumption against money bail.” 572 F.2d 1053, 1056 (5th

Cir. 1978) (en banc).7 The court “accept[ed] the principle that imprisonment solely because of indigent status

is invidious discrimination and not constitutionally

permissible.”

Id. at 1056.

It recognized that

“[r]esolution of the problems concerning pretrial bail

requires a delicate balancing of the vital interests of the

state with those of the individual,” as the State “has a

compelling interest in assuring the presence at trial of

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), we adopted as binding precedent all decisions of

the former Fifth Circuit handed down prior to October 1, 1981.

17a

persons charged with crime,” while “individuals remain

clothed with a presumption of innocence and with their

constitutional guarantees intact.” Id.

Weighing those competing interests, the court observed that “[t]he demands of equal protection of the

laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and

security of the jail.” Id. at 1057 (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)). Therefore,

“[t]he incarceration of those who cannot” meet a master

bond schedule’s requirements, “without meaningful

consideration of other possible alternatives, infringes

on both due process and equal protection requirements.” Id.

Walker’s claim, and the district court’s mode of

analysis, therefore fits squarely within the type of hybrid due process and equal protection claim that Rainwater recognized. Walker’s allegation is precisely that

the City is violating the “demands of equal protection of

the laws and of due process” by depriving indigent

“pre-trial detainees of the rights of other citizens to a

greater extent than necessary.” Id. (internal quotation

marks omitted). In fact, the contemporary Fifth Circuit recently applied Rainwater in a case similar to

Walker’s to reject the defendant’s contention that relief

can be accorded only under the Eighth Amendment.

See ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir.

2018).

We are cognizant that the Supreme Court’s Graham decision “requires that if a constitutional claim is

covered by a specific constitutional provision, such as

the … Eighth Amendment, the claim must be analyzed

18a

under the standard appropriate to that specific provision, not under the rubric of substantive due process.”

United States v. Lanier, 520 U.S. 259, 272 n.9 (1997).

But Walker’s claim, like the plaintiffs’ in Rainwater, is

different. It challenges not the amount and conditions

of bail per se, but the process by which those terms are

set, which Walker alleges invidiously discriminates

against the indigent.

Claims of unlawful discrimination against the indigent in criminal proceedings have a long pedigree in

Fourteenth Amendment case law.8 The Supreme

Court synthesized that law in Bearden v. Georgia,

which considered “whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution.” 461 U.S. 660, 661 (1983). The Court explained

that “[d]ue process and equal protection principles converge in the Court’s analysis” of cases where defendants are treated differently by wealth, observing that

“we generally analyze the fairness of relations between

See Griffin v. Illinois, 351 U.S. 12 (1956) (States cannot condition the right to appeal on ability to afford transcript); Williams

v. Illinois, 399 U.S. 235, 244 (1970) (“[T]he Equal Protection

Clause of the Fourteenth Amendment requires that the statutory

ceiling placed on imprisonment for any substantive offense be the

same for all defendants irrespective of their economic status.”);

Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is

indigent and cannot forthwith pay the fine in full.” (internal quotation marks omitted)); Frazier v. Jordan, 457 F.2d 726, 726, 728

(5th Cir. 1972) (municipal court may not “constitutionally impose a

sentence requiring an indigent defendant to pay a fine forthwith

or serve a specified number of days in jail” because “[t]hose with

means avoid imprisonment; the indigent cannot escape imprisonment”).

19a

the criminal defendant and the State under the Due

Process Clause, while we approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of

defendants under the Equal Protection Clause.” Id. at

665. Applying such principles, the Court held that:

[o]nly if alternate measures are not adequate to

meet the State’s interests in punishment and

deterrence may the court imprison a probationer who has made sufficient bona fide efforts

to pay. To do otherwise would deprive the

probationer of his conditional freedom simply

because, through no fault of his own, he cannot

pay the fine.

Id. at 672–73.

The sine qua non of a Bearden- or Rainwater-style

claim, then, is that the State is treating the indigent

and the non-indigent categorically differently. Only

someone who can show that the indigent are being

treated systematically worse “solely because of [their]

lack of financial resources,” id. at 661—and not for some

legitimate State interest—will be able to make out such

a claim. Those who simply find their own bail conditions too onerous must proceed under the Eighth

Amendment’s Excessive Bail Clause unless they can

point to a separate due process violation.

Because Walker’s claim indeed rests on an allegation of categorically worse treatment of the indigent, it

falls within the Bearden and Rainwater framework,

and the district court was correct to apply those cases’

hybrid analysis of equal protection and due process

principles.

20a

The City further contends that the district court

applied the wrong legal standard by imposing too high

a level of scrutiny in its equal protection and due process analysis. The City argues that only rational basis

review should apply because there is no suspect classification involved or fundamental right at stake. Although somewhat ambiguous about what form of scrutiny it was applying, the district court was clear that it

believed some form of heightened scrutiny applied to

this case. See Walker III, 2017 WL 2794064, at *3 n.2.

The district court acknowledged that “generally, an

individual’s indigence does not make that individual a

member of a suspect class,” but it contended that “detention based on wealth is an exception to the general

rule that rational basis review applies to wealth-based

classifications.” Id. (internal quotation marks omitted).

In the district court’s view, because the Standing Bail

Order treated differently those who could afford immediately to pay the bail schedule amount and those who

could not, it was subject to heightened scrutiny. See id.

at *3 & n.2. Walker has fully embraced the district

court’s reasoning, going so far as to argue that that the

use of a bail schedule is analogous to the City’s imposing “pretrial detention only for black, female, or Catholic arrestees.”

But such argument runs headlong into Rainwater.

There, the court approved the “[u]tilization of a master

bond schedule” without applying any heightened form

of scrutiny. Rainwater, 572 F.2d at 1057. It explained

that a bond schedule “provides speedy and convenient

release for those who have no difficulty in meeting its

requirements.” Id. Of course, if the bond schedule

provided “speedy” release to those who could meet its

21a

requirements, it necessarily provided less speedy release to those who could not. Nevertheless, the Rainwater court upheld the scheme because it gave indigent

defendants who could not satisfy the master bond

schedule a constitutionally permissible secondary option: a bail hearing at which the judge could consider

“all relevant factors” when deciding the conditions of

release. See id. at 1058.9

Rainwater’s conclusion is consistent with Supreme

Court case law on how differential treatment by wealth

is analyzed under the Equal Protection Clause. The

definitive explanation comes from San Antonio Independent School District v. Rodriguez, which considered

a wealth-based equal protection challenge to Texas’s

system of apportioning school funds based principally

on local tax bases. 411 U.S. 1 (1973). Analyzing prior

cases, with a focus on Bearden’s antecedents, the Court

concluded that instances where wealth-based distinctions were impermissible “shared two distinguishing

characteristics: because of their impecunity[, the indigent] were completely unable to pay for some desired

The dissent does not grapple meaningfully with Rainwater’s

explicit approval of bail schedules. The most it does is to argue

that the bail system reviewed in Rainwater is different from the

City’s because it “subjected indigent and non-indigent arrestees

alike to a first appearance.” Dissent at 73. The dissent would thus

turn Rainwater on its head. Rainwater endorsed the use of a bail

schedule to provide “speedy and convenient release,” but the dissent would transform that endorsement into a requirement that all

arrestees be held for a hearing even if they can immediately satisfy the release conditions. That is, to say the least, an odd reading

of Rainwater. In any event, the dissent is wrong that Florida’s

scheme required all persons to wait for a bail hearing, as it only

required such a hearing for those who had not “been previously

released in a lawful manner.” In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 81 (Fla. 1972) (Rule 3.130(b)(1)).

22a

benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy

that benefit.” Id. at 20 (emphasis added). Mere diminishment of a benefit was insufficient to make out an

equal protection claim: “[A]t least where wealth is involved, the Equal Protection Clause does not require

absolute equality or precisely equal advantages.” Id. at

24.

Other cases bolster the line drawn in Rodriguez between mere diminishment of some benefit and total

deprivation based solely on wealth. In Ross v. Moffitt,

417 U.S. 600, 616 (U.S. 1974), the Court explained that

in criminal proceedings involving indigents, “[t]he duty

of the State … is not to duplicate the legal arsenal that

may be privately retained by a criminal defendant … ,

but only to assure the indigent defendant an adequate

opportunity to present his claims fairly.” In M.L.B. v.

S.L.J., 519 U.S. 102 (1996), the Court explained the

Bearden line of cases to mean that wealth-based sanctions are impermissible when they are “not merely disproportionate in impact,” but “[r]ather, they are wholly

contingent on one’s ability to pay.” Id. at 127. In

McGinnis v. Royster, the Supreme Court considered an

equal protection challenge to a New York sentencing

scheme that gave good-behavior credit on an equal basis to those who had and had not been bailed before trial, even though those who could not afford pretrial bail

had already spent time incarcerated in jail. 410 U.S.

263 (1973). The Court “inquire[d] only whether the

challenged distinction rationally furthers some legitimate, articulated state purpose.” Id. at 270 (emphasis

added). It upheld the scheme because jails lacked the

rehabilitative programs of prisons, which provided “a

rational justification”—independent of wealth—“for

declining to give good-time credit” for pretrial time

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served in jail. Id. at 273. Ross, M.L.B, and McGinnis,

then, all bolster the principle that differential treatment by wealth is impermissible only where it results

in a total deprivation of a benefit because of poverty.

Under the Standing Bail Order, Walker and other

indigents suffer no “absolute deprivation” of the benefit

they seek, namely pretrial release. Rather, they must

merely wait some appropriate amount of time to receive the same benefit as the more affluent.10 Indeed,

after such delay, they arguably receive preferential

treatment, in at least one respect, by being released on

recognizance without having to provide any security.

Such scheme does not trigger heightened scrutiny under the Supreme Court’s equal protection jurisprudence.

Nor do we see how it could. If Walker were correct

that wealth should be treated like race, sex, or religion,

and that every policy that affects people differently

based on ability to pay must be justified under heightened scrutiny, the courts would be flooded with litigation. Innumerable government programs—heretofore

considered entirely benign—would be in grave constitutional danger. If the Postal Service wanted to continue to deny express service to those unwilling or unable to pay a fee, it would have to justify that decision

under the same standard it would have to meet to justi10

This case is therefore quite factually distinct from ODonnell, in which the government “did not achieve any individualized

assessment in setting bail,” and as a result “some amount of upfront payment [was] required for release in the vast majority of

cases,” thereby “ensuring that [indigent] arrestees would remain

detained.” 892 F.3d at 153–54. The Standing Bail Order lacks

such features that could support a conclusion that there is an “absolute deprivation” of pretrial release.

24a

fy providing express service only to white patrons. The

University of Georgia would be unable to condition matriculation on ability to pay tuition unless it could meet

the same constitutional standard that would allow it to

deny admission to Catholics. In Walker’s preferred

constitutional world, taxes that are independent of income, such as property taxes or sales taxes, would be

the target of perpetual litigation. All that is to say, we

do not believe that Bearden or Rainwater announced

such radical results with so little fanfare, and we therefore reject Walker’s equal protection theory. The district court was wrong to apply heightened scrutiny under the Equal Protection Clause.

As an alternative basis for applying heightened

scrutiny, Walker defends the district court on the

ground that “the City’s bail system infringes the fundamental right to pretrial liberty.” He argues this is so

under the Due Process Clause, pointing to United

States v. Salerno, in which the Supreme Court considered the federal Bail Reform Act’s provision for preventative detention of dangerous defendants. 481 U.S.

at 741. In Salerno, the Court recognized that “[i]n our

society liberty is the norm, and detention prior to trial

or without trial is the carefully limited exception,” id.

at 755; but it also stated that an arrestee may be incarcerated before trial “if he presents a risk of flight or a

danger to witnesses,” id. at 749 (citing Bell v. Wolfish,

441 U.S. 520, 534 (1979)). The Court ultimately permitted preventative detention if the arrestee “pose[s] a

threat to the safety of individuals or to the community

which no condition of release can dispel.” Id. at 755.

Walker contends that this form of analysis is tantamount to heightened scrutiny and that it should be applied to his case.

25a

But the Salerno Court’s analysis was much closer

to a relatively lenient procedural due process analysis

than it was any form of heightened scrutiny. Rather

than asking if preventative detention of dangerous defendants served a compelling or important State interest and then demanding relatively narrow tailoring, the

Court employed a general due process balancing test

between the State’s interest and the detainee’s. See id.

at 746–51. The Court’s analysis borrowed heavily from

a prior decision, Schall v. Martin, in which the Court

upheld preventative detention of likely-to-reoffend juveniles based on an analysis that asked “whether preventative detention … is compatible with the ‘fundamental fairness’ required by due process.” 467 U.S.

253, 263 (1984). Answering that question required

“[t]wo separate inquiries[:] … First, does preventive

detention … serve a legitimate state objective? And,

second, are the procedural safeguards … adequate to

authorize the pretrial detention?” Id. at 263–64 (citations omitted). That analysis is a far cry from strict—

or even intermediate—scrutiny.

Moreover, even if Salerno did embrace a form of

heightened scrutiny, we do not believe it applies to this

case because the City is not seeking to impose any form

of preventative detention. Here, Walker himself was

released, and the Standing Bail Order presently guarantees release within 48 hours of arrest to all indigent

defendants in Walker’s shoes. In a future case that

raises the question whether a municipality may detain

an indigent defendant because no feasible release conditions will assure his appearance in court, perhaps Sa-

26a

lerno’s framework might apply.11 But that is not the

question before us in this limited interlocutory appeal.

The appropriate level of scrutiny is the point of departure for the dissent, and its contrary conclusion on

that issue is the foundation for the rest of its analysis.

The dissent would adopt Walker’s theory that any

marginal increase in the length of detention attributable to inability to pay bail amounts to invidious discrimination warranting heightened scrutiny. As we have

There is some force to the City’s contention that such analysis is inextricably linked to the excessiveness of bail conditions

and so should be evaluated under the Eighth Amendment. Indeed, the Eighth Amendment was borrowed from a provision of

the English Bill of Rights that was itself the culmination of a long

process to prevent royal abuses of bail wrongly to deny pretrial

liberty. See, e.g., William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 63–66 (1977); see also June Carbone, Seeing through the Emperor’s New Clothes: Rediscovery of

Basic Principles in the Administration of Bail, 34 Syracuse L.

Rev. 517, 529–33 (1983) (noting that the early American experience was to adopt and then further to liberalize British legal principles governing bail); id. at 548–49 (“In England, the colonies, and

the early states, bail bonds were set without reference to the financial circumstances of the accused. Lower bonds for the poor

were considered to violate, not vindicate, the principle of equal

justice.”).

Such history may support reinvigorating the Eighth

Amendment as the proper vehicle for evaluating whether a State

has imposed impermissible conditions of pretrial release. Cf.

Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 805–07 (9th Cir. 2014)

(en banc) (O’Scannlain, J., dissenting) (arguing that legislation

governing pretrial detention based on flight risk should be evaluated under the Eighth Amendment). In any event, it will be for a

future court to decide whether Salerno’s framework or an Eighth

Amendment analysis applies when a defendant is eligible for bail

but is detained because he cannot provide adequate assurance of

his future appearance.

27a

explained, accepting that premise effectively abandons

the limitations on wealth-based equal protection claims

drawn in Rodriguez and its successors.

The dissent provides a hypothetical that proves

how far it would go. It asks us to consider two persons

arrested for the same crime under the same circumstances, whose sole difference is the amount of money

each has. The dissent says there is an equal protection

problem because: “The person who has money pays it

and walks away. The indigent can’t pay, so he goes to

jail.” Dissent at 57 (emphasis added). But this hypothetical could apply to any government benefit contingent on ability to pay, including all the examples we

used above. To illustrate, let’s simply switch out, by

substituting the italicized phrases, the dispensation

sought by the hypothetical persons:

“The person who has money pays it and gets express postal service. The indigent can’t pay, so he goes

with snail mail.”

“The person who has money pays it and matriculates at the state university. The indigent can’t pay, so

he stays home.”

“The person who has money pays it and satisfies

his property tax bill. The indigent can’t pay, so he loses

his home to a tax foreclosure.”

Any government benefit or dispensation can be

framed in artificially narrow fashion to transform a diminishment into total deprivation. The dissent takes

the interest identified by Rainwater—the “right to

freedom before conviction,” or the “right to bail before

trial,” 572 F.2d at 1056–56—and narrows it to something like “the right not to be held a moment longer

than a person who can satisfy a bail schedule.” If such

28a

narrowing is permissible, then any wealth-based equal

protection claim becomes valid so long as the plaintiff

frames his interest in a cramped enough style. Under

the dissent’s theory, then, the only reason the Rodriguez plaintiffs’ equal protection claim failed was that

they challenged overall disparities in school budgets

(which was what they actually cared about). If instead

they had focused on something smaller and less important—perhaps claiming that differences in school

district funding completely deprived them of specialized art classes—then, in the dissent’s world, they

would have prevailed. That turns the Equal Protection

Clause into a game of word play, a result inconsistent

with the thrust of Rodriguez and its successors.

Recognizing its tension with Rodriguez, the dissent

suggests that Walker’s claim could fit into a “narrow

exception” to the general rule against applying heightened scrutiny to wealth-based equal protection arguments. Dissent at 66. But the dissent provides no limiting principle to such an exception. Although it suggests “access to judicial processes in [criminal] cases”

as one category of exception, id. (quoting M.L.B., 519

U.S. at 124), it does not explain what judicial proceeding an indigent person cannot access by the terms of

the Standing Bail Order. More critically, as just

demonstrated, the dissent’s analysis is not amenable to

so narrow an exception and would apply to any government action that treats people of different means

differently. Disparate treatment based on wealth, in

the dissent’s constitutional methodology, would be

treated the same as official religious or racial discrimination. The Supreme Court has rejected so radical an

application of the Equal Protection Clause, see Rodriguez, 411 U.S. at 24, and we cannot adopt it on the unprincipled ad hoc basis urged by the dissent.

29a

Perhaps the basis for the dissent’s proposed “narrow exception” could be the importance to indigents of

being released from jail. But that quickly starts to

sound like a claim based on a fundamental liberty interest, and the dissent has disavowed reliance on Walker’s

substantive due process argument. See Dissent at 67

n.8. Perhaps that is so as to elide Salerno and Schall.

Although the dissent formally relies only on the Equal

Protection Clause, however, its tenor reveals that it is

motivated by the importance of Walker’s liberty interest, and it persuasively describes at length the value of

pretrial liberty. See Dissent at 61–62. We do not for a

moment doubt the value of freedom from jail. But the

Supreme Court in Salerno made clear that the government also has important interests at stake when

considering whether to release an accused who may be

a flight risk or public danger. Accordingly, it has instructed us to apply a less demanding level of scrutiny

than the one necessary to support the dissent’s conclusions. The dissent cannot avoid the Supreme Court’s

holding by smuggling a substantive due process claim

into the Equal Protection Clause.

Thus the district court was correct to apply the

Bearden/Rainwater style of analysis for cases in which

“[d]ue process and equal protection principles converge,” Bearden, 461 U.S. at 665, yet it was wrong to

apply heightened scrutiny from traditional equal protection analysis.

The confusion is perhaps unsurprising because neither Bearden nor Rainwater is a model of clarity in setting out the standard of analysis to apply. As Bearden

puts it, the proper analysis “requires a careful inquiry

into such factors as ‘the nature of the individual inter-

30a

est 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.’” 461 U.S. at 666–67 (alteration in original) (quoting Williams v. Illinois, 399

U.S. 235, 260 (1970) (Harlan, J., concurring in the result)); accord Rainwater, 572 F.2d at 1056 (“Resolution

of the problems concerning pretrial bail requires a delicate balancing of the vital interests of the state with

those of the individual.”).

We take Bearden’s quotation of Justice Harlan’s

Williams concurrence as a sign that the Bearden Court

shared his assessment that these kinds of questions

should be evaluated along something akin to a traditional due process rubric. See Williams, 399 U.S. at 260

(Harlan, J., concurring in the result) (“An analysis under due process standards, correctly understood, is …

more conducive to judicial restraint than an approach

couched in slogans and ringing phrases … that blur

analysis by shifting focus away from the nature of the

individual interest affected.”). That makes particular

sense in this case because the relief Walker seeks is essentially procedural: a prompt process by which to

prove his indigency and to gain release.

In such due process analysis, “[t]he fundamental

requirement … is the opportunity to be heard at a

meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal

quotation marks omitted). Due process “is not a technical conception with a fixed content unrelated to time,

place and circumstances,” but rather is “flexible” and

“requires analysis of the governmental and private interests that are affected.” Id. at 334 (internal quotation

marks omitted). The district court should have applied

such analysis in evaluating whether the Standing Bail

31a

Order comported with the Constitution’s equal protection and due process guarantees.

Having established that Bearden and Rainwater

command that courts should apply something akin to a

procedural due process mode of analysis to claims like

Walker’s, it remains to be determined whether the district court acted within its discretion in entering its

preliminary injunction. At this stage of litigation, the

City seeks to overturn the preliminary injunction in order to maintain the Standing Bail Order, so we must

focus our inquiry on the concrete distinctions between

the preliminary injunction and the Standing Bail Order.

Under the Standing Bail Order, arrestees are

guaranteed a hearing within 48 hours of arrest to prove

their indigency (with court-appointed counsel) or they

will be released. See supra Part I.B. In contrast, the

preliminary injunction commands an affidavit-based

process for determining indigency within 24 hours of

arrest. See supra Part I.C.3. Both procedures agree on

the standard for indigency and that those found indigent are to be released on recognizance. There are thus

only two real points of dispute. First, whether the City

must make an indigency determination within 24 hours

or 48 hours. Second, whether the City may use a judicial hearing to determine indigency or must use the affidavit-based system required by the preliminary injunction.

Within what time must the City make an indigency

determination? To answer this question, the City asks

us not to write on a blank slate but to borrow from Supreme Court precedent on the timing required for a

probable cause determination. In County of Riverside

32a

v. McLaughlin, the Supreme Court considered what

“prompt” meant for providing a constitutionally required prompt probable cause hearing for those arrested without a warrant. 500 U.S. 44, 55 (1991). “Taking

into account the competing interests” of the individual

and the government, the Court concluded that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general

matter, comply with the promptness requirement.” Id.

at 56 (emphasis added). The McLaughlin Court expressly rejected a 24-hour bright-line limitation suggested by Justice Scalia in dissent. See id. at 57–58.

Walker argues that we should not import

McLaughlin’s 48-hour presumption into the bail context because that case did not involve differential

treatment based on wealth. He contends that any disparate treatment by wealth in granting bail must satisfy heightened scrutiny, thereby placing a strict burden

on the government to justify its bail policy. That argument fails, however, because, as we explained above,

the use of a bail schedule does not trigger heightened

scrutiny. Instead, we evaluate the 48-hour window for

making bail determinations on its own terms to ensure

that it satisfies the due process mode of analysis in

Bearden and Rainwater.

We are persuaded that it does. Under McLaughlin, the City can presumptively hold a person for 48

hours before even establishing probable cause—that is,

without even proving that it has evidence that he has

committed a crime. It stands to reason that that the

City can take the same 48 hours to set bail for somebody held with probable cause. Indeed, McLaughlin

expressly envisioned that one reason for the 48-hour

window is so that probable cause hearings could be

combined with “bail hearings and arraignments.” 500

33a

U.S. at 58. For those reasons, the Fifth Circuit in

ODonnell recently imported the McLaughlin 48-hour

rule to the bail determination context. 892 F.3d at 160–

61. The ODonnell court was reviewing an injunction

that imposed a 24-hour time limit for a bail determination—identical in that respect to the one we are reviewing—and it rejected such time limit because it

worked a “heavy administrative burden” and was

therefore “too strict.” Id.

We agree with the Fifth Circuit; indigency determinations for purposes of setting bail are presumptively constitutional if made within 48 hours of arrest.12 By

The dissent accuses us of opening a split with the Fifth Circuit’s ODonnell decision. See Dissent at 60 n.5. But it is the dissent’s position that would lead to a split. The ODonnell court expressly adopted the 48-hour requirement of McLaughlin—and,

contrary to the dissent’s equal protection analysis, it did so based

on a due process analysis. See ODonnell, 892 F.3d at 160. ODonnell held a 24-hour rule too burdensome even though the defendant in that case was Harris County, Texas—home to Houston—

which presumably could much more easily provide frequent bail

hearings than can the City’s one-judge municipal court.

It is true that, in a separate part of its opinion, the ODonnell

court applied heightened scrutiny under the Equal Protection

Clause, after concluding that the facts of that case fit into the Rodriguez classification of plaintiffs who suffer an “absolute deprivation of their most basic liberty interests.” Id. at 162. But there,

the court had extensive factual findings from the district court,

resulting from a lengthy evidentiary hearing, that Harris County

did not provide arrestees “any opportunity to submit evidence of

relative ability to post bond at the scheduled amount,” id. at 154

(emphasis added), evidence that permitted the Fifth Circuit to

conclude that the County acted with a “discriminatory purpose”

that “resulted in [indefinite] detainment solely due to a person’s

indigency,” id. at 161. Were the facts of this case the same, Walker would have a much stronger argument that indigents in the

City face an absolute deprivation on account of wealth that would

trigger the Rodriguez exception, but the Standing Bail Order

34a

failing to honor such presumption and insisting instead

on a 24-hour window, the district court committed legal

error and so abused its discretion.13

guarantees release to indigents within 48 hours. It therefore accords entirely with ODonnell’s holding that what the Constitution

requires is “an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.” Id. at 163. The dissent would demand more and so is

inconsistent with ODonnell.

We note, however, that we do not consider whether Walker can show that the facts of his particular case (or other class

members’) fall outside the McLaughlin safe harbor.

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.” McLaughlin, 500 U.S. at 56. “Examples of unreasonable delay” include “delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will

against the arrested individual, or delay for delay’s sake.” Id.

McLaughlin only provides that jurisdictions which comply with

the 48-hour rule “will be immune from systemic challenges.” Id.

(emphasis added). That being said, the McLaughlin Court cautioned that, “[i]n evaluating whether the delay in a particular case

is unreasonable, … courts must allow a substantial degree of flexibility.” Id.

Nor do we decide whether a jurisdiction could adopt a system

that allows a longer period of time than 48 hours to make a bail

determination, because the City does not seek to take longer than

48 hours. As amicus pointed out at oral argument, the federal system permits a court to delay a bail hearing by three days after an

arrestee’s first appearance (plus intervening weekends or holidays) upon the government’s motion. See 18 U.S.C. § 3142(f). And

Georgia law allows 72 hours for an officer making an arrest pursuant to a warrant to bring the arrestee before a judicial officer. See

Ga. Code Ann. § 17-4-26. Whether such lengths of delay are permissible is not a question before us. We are satisfied that

McLaughlin establishes at least a 48-hour presumptive safe harbor for making bail determinations without deciding if that safe

35a

The City also challenges the preliminary injunction’s command to adopt an affidavit-based process for

determining indigency, which overrode the Standing

Bail Order’s system based on judicial bail hearings before the Municipal Court. Walker defends the injunction by arguing that the City never provided a reason

that a judicial hearing was preferable to the affidavitbased process. He also contends that the choice of an

affidavit-based process was a reasonable option within

the district court’s sound discretion for fashioning equitable relief. Notably, neither Walker nor the district

court’s order provides any legal authority for the proposition that the Constitution requires the affidavitbased process in lieu of a judicial hearing.

Indeed, the law cuts the other way and indicates

that federal courts should give States wide latitude to

fashion procedures for setting bail. Directly on point,

the bail rule upheld in Rainwater was based on formal

hearings at which judges would consider the arrestee’s

financial resources, just as the Standing Bail Order

provides. See Rainwater, 572 F.2d at 1055 & n.2 (citing

Fla. R. Crim. P. 3.130(b) (1977)); id. at 1058 & n.8.

harbor extends longer. Because a probable cause determination

establishes whether the government has a basis to detain a person

at all, see Gerstein, 420 U.S. at 125, the onus on the government to

make a probable cause determination promptly must be at least as

great as it is to set the conditions of pretrial release. Whether jurisdictions have greater leeway in making bail determinations

than probable cause determinations is a question for another case

with a more complete factual record. The dispute between the

parties over whether the preliminary injunction led to an increase

in the non-appearance rate in the City may be relevant to such

inquiry, but we need not resolve that dispute to determine that

the Standing Bail Order facially passes constitutional muster.

36a

Even if Rainwater were not dispositive, however,

there is no constitutional basis for the district court’s

imposition of its preferred method of setting bail. In

the context of probable cause determinations, the Supreme Court has “recognized that ‘state systems of

criminal procedure vary widely’ in the nature and number of pretrial procedures they provide,” and it has

“noted that there is no single ‘preferred’ approach.”

McLaughlin, 500 U.S. at 53 (quoting Gerstein, 420 U.S.

at 123). The Court explained that “‘flexibility and experimentation by the States’” is “desirable and that

each State should settle upon an approach ‘to accord

with [the] State’s pretrial procedure viewed as a

whole.’” Id. (alteration in original) (quoting Gerstein,

420 U.S. at 123). Respecting that flexibility gives

“proper deference to the demands of federalism.” Id.

The same logic applies to bail determinations, and the

district court provided no justification for substituting

its preferred policy for the City’s.

Indeed, the City may have had good reasons for

preferring a judicial hearing to a purely paper-based

process for evaluating indigency. It may reasonably

prefer that a judge have the opportunity to probe arrestees’ claims of indigency in open court, where the

importance of honesty may more clearly be impressed

on the arrestee than would be the case in filling out an

affidavit in the jailhouse. In more complex cases, a judicial hearing would allow the court iteratively to examine with the arrestee, his counsel, and the government what conditions of release are reasonable and

within the arrestee’s means, thereby tailoring casespecific conditions of release that balance the individual’s pretrial liberty interest with the government’s interest in assuring his subsequent appearance.

37a

Parallel areas of case law support the reasonableness of the Standing Bail Order’s preference for judicial

hearings. The Supreme Court’s Eighth Amendment

jurisprudence envisions that bail determinations will be

made at judicial hearings. See Stack, 342 U.S. at 6 (“If

bail in an amount greater than that usually fixed … is

required … , that is a matter to which evidence should

be directed in a hearing so that the constitutional

rights of each petitioner may be preserved.” (emphasis

added)). And in the procedural due process context,

“[t]he judicial model of an evidentiary hearing” is

treated as the most extensive form of process that can

be required. Mathews, 424 U.S. at 348; see also Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“[W]ritten submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and

veracity are at issue, … written submissions are a

wholly unsatisfactory basis for decision.”).

Whatever limits may exist on a jurisdiction’s flexibility to craft procedures for setting bail, it is clear that

a judicial hearing with court-appointed counsel is well

within the range of constitutionally permissible options.

The district court’s unjustified contrary conclusion was

legal error and hence an abuse of discretion.

In sum, Walker failed to make the necessary showing that he is likely to succeed on the merits of his claim

that the Standing Bail order is unconstitutional. Neither the 48-hour window for a bail determination nor

the use of an adversarial bail hearing in lieu of an affidavit-based process runs afoul of the Constitution.

Walker therefore failed to satisfy one of the necessary

38a

conditions for a preliminary injunction against the

Standing Bail Order, Wreal, 840 F.3d at 1247, and the

district court erred in granting it.

As a fallback position, Walker further asks us to defer to the “breadth and flexibility” of the district court’s

equitable power to cure constitutional violations that

arose prior to the issuance of the Standing Bail Order.

Brown v. Plata, 563 U.S. 493, 538 (2011) (internal quotation marks omitted). Walker contends that because

the City’s original bail policy, in place at the time the

litigation was initiated, was plainly unconstitutional, it

does not matter that the subsequent Standing Bail Order is entirely constitutional. Instead, Walker argues,

the existence of an initial constitutionally defective policy gave the district court equitable discretion to insert

into a perfectly constitutional subsequent policy additional conditions nowhere required by the Constitution.

The City’s leading counter-argument is that, if the

Standing Bail Order is constitutional, then Walker’s

claim for injunctive relief is entirely moot. The City

contends that because a new policy has been promulgated after this litigation began, which supplanted the

original policy, the claim against the original policy is

now moot, and no relief may follow from it.

Walker responds that the dispute over the constitutionality over the City’s original bail policy is not

moot because, at the conclusion of this litigation, the

City may revert to that policy if there is no injunction

in place. As noted, early in the litigation, the Municipal

Court issued the Standing Bail Order, at which point

the City ceased to defend the constitutionality of the

39a

original policy. Walker alleges that the City adopted

the policy merely to manipulate the district court’s jurisdiction and that the Standing Bail Order may be

easily repealed when an injunction is no longer hanging

over the City. He rejects an inference that the Municipal Court realized the potential constitutional infirmity

of the existing bail policy and acted promptly to rectify

it.

The district court agreed with Walker. It concluded that the City’s adoption of the Standing Bail Order

did not moot Walker’s suit for injunctive relief against

the original bail policy because there was a reasonable

expectation that the City might return to its original

policy after this litigation ended. See Walker I, 2016

WL 361612, at *12. As the district court put it, the request for injunction relief is not moot because “it is not

absolutely clear that the allegedly wrongful behavior

could not be reasonably expected to recur.” Id. (quoting Cook v. Bennett, 792 F.3d 1294, 1300 (11th Cir.

2015) (internal quotation marks omitted)).14

“[V]oluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.”

Flanigan’s Enters., Inc. of Ga. v. City of Sandy

Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc)

Whether or not the conceded unconstitutionality of the

City’s original bail policy could support an injunction on the merits, “we are required to address” the mootness question first because it is jurisdictional: “if a suit is moot, it cannot present an

Article III case or controversy and the federal courts lack subject

matter jurisdiction to entertain it.” Coral Springs St. Sys., Inc. v.

City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004). “We review

the question of mootness de novo.” Id.

40a

(internal quotation marks omitted). A case is therefore

moot “only when [the court] ha[s] no reasonable expectation that the challenged practice will resume after the

lawsuit is dismissed.” Id. at 1255–56 (internal quotation

marks omitted). “[T]he burden of proving mootness

generally falls heavily on the party asserting it.” Id. at

1256.

When a government voluntarily ceases the challenged action, however, there is a presumption that the

government will not later resume the action, so the

plaintiff bears the burden of showing that there is “a

reasonable expectation” that the government “will reverse course and reenact the allegedly offensive” policy. Id. at 1256. “The key inquiry in this mootness analysis therefore is whether the evidence leads [the court]

to a reasonable expectation that the City will reverse

course and reenact the allegedly offensive” bail policy

after this litigation ends. Id.

To determine whether such a reasonable expectation exists, courts look to “three broad factors.” Id. at

1257. First, “whether the change in conduct resulted

from substantial deliberation or is merely an attempt to

manipulate our jurisdiction.” Id. This requires examining “the timing of the repeal, the procedures used in

enacting it, and any explanations independent of this

litigation which may have motivated it.” Id. Second,

“whether the government’s decision to terminate the

challenged conduct was ‘unambiguous’”—i.e., “whether

the actions that have been taken to allegedly moot the

case reflect a rejection of the challenged conduct that is

both permanent and complete.” Id. And, third,

“whether the government has consistently maintained

its commitment to the new policy or legislative

scheme.” Id.

41a

The City’s adoption of the Standing Bail Order is

somewhat analogous to the mootness issue presented in

Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir.

2010). In Harrell, the plaintiff challenged the Florida

Bar’s advertising rules and regulations, including the

Bar’s specific decision to reject one of the plaintiff’s

proposed advertising slogans. Id. at 1249–50. After the

lawsuit began, the Bar reversed its earlier decision and

approved the slogan without issuing a reasoned opinion. Id. at 1252–53. The district court held that the decision approving the slogan mooted the plaintiff’s challenge, but we reversed. Id. at 1253, 1268. For the first

mootness factor, we observed that the Bar “acted in

secrecy, meeting behind closed doors and, notably,

fail[ed] to disclose any basis for its decision.” Id. at

1267. Thus, we had “no idea whether the … decision

was ‘well-reasoned’ and therefore likely to endure.” Id.

And because the Bar had changed its position after litigation had begun, “the circumstances … raise[d] a substantial probability that” the Bar had “changed course

simply to deprive the court of jurisdiction.” Id. (internal quotation marks omitted). We also concluded that

the second factor weighed against the suit’s mootness.

Because the Bar’s decision to approve the slogan was

unexplained and had been made through an irregular

process, we were “unable to say that the [Bar], through

its decision, ‘unambiguously terminated’ the challenged

application” of its rules. Id. at 1267. Thus, the Bar’s

decision was “very much clouded by ambiguity,” and

we held that “the governmental presumption” did not

apply, and the lawsuit was not moot. Id. at 1268 (citing

Troiano v. Supervisor of Elections in Palm Beach Cty.,

382 F.3d 1276 (11th Cir. 2004)).

42a

Applying such analysis here, we conclude that

Walker’s claim for injunctive relief against the City’s

original bail policy is likewise not moot. The first factor—whether the change in conduct resulted from substantial deliberation or is instead an attempt to manipulate jurisdiction—weighs against mootness. While we

may doubt that it was the City’s intent to manipulate

jurisdiction, as opposed to simply correcting a deficient

policy, the fact is that the City has been unnecessarily

secretive. The process for adopting the Standing Bail

Order is unknown because the City has refused to explain that process. In fact, in response to interrogatories, the City asserted that information about “the process of creating” the Standing Bail Order was protected

by “the work-product doctrine and/or attorney-client

privilege,” and it refused to divulge any information except to say that the Order was executed by the Chief

Judge of the Municipal Court.

The second factor also weighs against mootness because the City’s abandonment of its original bail policy

is not unambiguous. The City did not change its bail

policy through a legislative act, which might well have

mooted the original claim. Instead, a single judge issued the Standing Bail Order and, while it is perhaps

unlikely, we cannot say that this judge might not revert

to the original policy, given the lack of transparency

surrounding the issuance of the Standing Bail Order.

Thus, “it can hardly be said that [the City’s] ‘termination’” of its original bail policy is unambiguous. Harrell, 608 F.3d at 1266–67.

Finally, as to the third factor—whether the government has consistently maintained its commitment to

the new policy or legislative scheme—that does not cut

43a

strongly either way because only two months after the

Standing Bail Order was adopted, the district court

stopped its implementation with the first preliminary

injunction.

Altogether, Walker presented sufficient evidence

for the district court to conclude that his challenge to

the original bail policy was not moot. Because the City

does not defend the constitutionality of its original bail

policy on appeal, we may assume that Walker’s arguments against the City’s original bail policy have a substantial likelihood of success on the merits. Just as the

City has not defended its original bail policy on the

merits, it also has not shown that the district court

abused its discretion when it concluded that the other

factors favoring an injunction were met with respect to

that original policy. The district court therefore did not

err in declaring the original bail policy to be unconstitutional, and it accordingly may enjoin the City’s future

use of that policy.

But the conclusion that Walker’s claim for injunctive relief against the City’s original bail policy is not

moot does not mean that the preliminary injunction

against the Standing Bail Order is valid. Even assuming that the City intended to revert to its original policy at the conclusion of this litigation—something that

will not occur given the terms of our ruling and remand

here—such possibility does not salvage the preliminary

injunction. The district court’s rationale for entering

the injunction was not that the City was likely to walk

back the Standing Bail Order, but rather that the

Standing Bail Order was itself unconstitutional “insofar

as it permits individuals who have sufficient resources

to post a bond … to be released immediately, while in-

44a

dividuals who do not have those resources must wait

forty-eight hours for a hearing.” Walker III, 2017 WL

2794064, at *3. As we have explained, that conclusion

was based on legal error by (1) failing to recognize a

presumption that a bail determination made within 48

hours is constitutionally valid and (2) wrongly assuming

that the Equal Protection Clause forbids jurisdictions

from offering comparatively speedier release to those

able to meet a bail schedule.

Walker essentially asks us to hold that a governmental body that ceases to follow an unconstitutional

policy, and that instead promulgates a constitutional

policy, is nonetheless and forever forced to comply with

an even more stringent policy devised by a district

court—with conditions found nowhere in the Constitution—merely because it had once followed an unconstitutional policy. It would be absurd to so hold.

“A district court abuses its discretion … when it

applies the incorrect legal standard.” Wreal, 840 F.3d

at 1247. The district court did so here when it issued its

preliminary injunction. As a result, the preliminary injunction is infirm regardless of the City’s motivation for

the Standing Bail Order.

In sum, because the City did not establish that

Walker’s suit for injunctive relief was moot and because it has effectively conceded that its original bail

policy was unconstitutional, the district court may enjoin a return to that original policy. But the district

court abused its discretion in also enjoining the entirely

constitutional Standing Bail Order, so the preliminary

injunction cannot stand.

45a

For the foregoing reasons, the preliminary injunction entered by the district court is VACATED, and the

case is REMANDED to the district court for further

proceedings consistent with this opinion.15

Because we would vacate the preliminary injunction irrespective of whether the district court was correct to certify Walker’s proposed class or whether it properly denied the City’s motion

to dismiss, such two orders are not “inextricably intertwined” with

the preliminary injunction order, and reviewing them is not “necessary to ensure meaningful review” of the preliminary injunction.

Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (internal quotation marks and alterations omitted). We therefore lack pendant

appellate jurisdiction over such otherwise unappealable interlocutory orders. Accordingly, Walker’s Motion to Dismiss Appeal in

Part (Doc. No. 16) is GRANTED.

46a

MARTIN, Circuit Judge, concurring in part and dissenting in part1:

Maurice Walker was jailed by the City of Calhoun

for six days because he was too poor to pay his bail. He

challenges the City’s practice of jailing people before

trial when they are too poor to make bond, arguing it

violates the constitutional guarantees of due process

and equal protection. The Majority rejects this claim,

characterizing the pretrial jailing as “merely wait[ing]

some appropriate amount of time to receive the same

benefit as the more affluent.” Maj. Op. at 27. In this

way, the Majority renders it unnecessary to review the

City’s practice with heightened scrutiny. I believe the

Majority rewrites this court’s binding precedent in

Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en

banc),2 which held that “[t]he incarceration of those

who cannot [pay for pretrial release], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057. The Majority fails to recognize

I join the Majority in rejecting the City’s arguments that

Younger abstention applied; that the City wasn’t liable for the bail

policy under 42 U.S.C. § 1983; and that the Eighth Amendment,

not the Fourteenth Amendment, applied to this case. See Maj. Op.

Parts II.A, II.B, and III.A.2. I also agree that Mr. Walker’s suit

against the City’s original bail policy is not moot and the District

Court may enjoin the City from reinstating that policy. See id.

Part V.A.3. Last, I join the Majority’s grant of Mr. Walker’s motions to supplement the record and dismiss the appeal in part. See

id. at 15 n.4, 53 n.15.

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

1981) (en banc), we adopted as binding precedent all decisions of

the former Fifth Circuit handed down before October 1, 1981. Id.

at 1209.

47a

this infringement on the rights of indigents, so I dissent.

The Supreme Court has repeatedly recognized that

wealth-based detention is not permitted by our Constitution. See Williams v. Illinois, 399 U.S. 235, 240–41,

90 S. Ct. 2018, 2022 (1970) (holding that Illinois’s practice of extending a prisoner’s sentence beyond maximum authorized by statute of conviction because of a

prisoner’s “involuntary nonpayment of a fine or court

costs” is “an impermissible discrimination that rests on

ability to pay”); Tate v. Short, 401 U.S. 395, 397–98, 91

S. Ct. 668, 670–71 (1971) (extending Williams to prohibit “jailing an indigent for failing to make immediate

payment of any fine”); Bearden v. Georgia, 461 U.S.

660, 672–73, 103 S. Ct. 2064, 2073 (1983) (extending Williams and Tate to hold that a state court can’t revoke

probationary sentence for inability to pay fine or restitution without considering “alternate measures of punishment other than imprisonment”). The Bearden line

of cases involved criminal penalties imposed after a

conviction. In Rainwater, the former Fifth Circuit extended these cases’ “principle that imprisonment solely

because of indigent status is invidious discrimination

and not constitutionally permissible” to “[t]he punitive

and heavily burdensome nature of pretrial confinement.” 572 F.2d at 1056.

The Majority is right when it says Mr. Walker’s

claim “fits squarely” within the Bearden-like cases that

raise both due process and equal protection concerns.

Maj. Op. at 20. But I part ways with the Majority, because I read these cases to support the District Court’s

application of heightened scrutiny under the Equal

Protection Clause to the City’s bail policy. See id. at 28.

48a

The Majority relies on San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278

(1973), in deciding that Mr. Walker cannot make out an

equal protection claim warranting heightened scrutiny.

But I read Rodriguez to say he can. Rodriguez established the test for whether a wealth-based detention

claim is subject to heightened scrutiny under an equal

protection framework. The Rodriguez test first asks

whether the challenged scheme uses indigency as a

classification, examining whether it treats differently a

“class [] composed only of persons who were totally unable to pay.” Id. at 20, 22, 93 S. Ct. at 1290. The second

question is whether the class has suffered an “absolute

deprivation” of a benefit. See id. 20, 93 S. Ct. at 1290.

The Majority never addresses whether the Standing Bail Order discriminates against indigents. See

Maj. Op. at 27. I say the Bail Order clearly uses indigency as a classification, and offer this simple example

in support. Consider two people, one who has money

and the other who does not. They are arrested for the

same crime at the same time under the same circumstances. Under the Standing Bail Order, these two

would have the identical bail amount, as established by

the master bail schedule. The person who has money

pays it and walks away. The indigent can’t pay, so he

goes to jail. This is plainly “imprisonment solely because of indigent status.” Rainwater, 572 F.2d at 1056;

accord ODonnell v. Harris Cty., 892 F.3d 147, 162–63 &

n.6 (5th Cir. 2018).

The Majority Opinion says this hypothetical shows

I would require the government to be involved in all

sorts of wealth-based interactions—including intervening to make pricier express mail options available to all

postal patrons. See Maj. Op. at 30–34. Not so. Instead

I look to the Supreme Court, which has expressly es-

49a

tablished limiting principles for equal protection claims

by indigents. M.L.B. v S.L.J., 519 U.S. 102, 123–24, 117

S.Ct. 555, 567 (1996). In M.L.B., the Court plainly said

“[s]tates are not forced by the Constitution to adjust all

tolls to account for disparity in material circumstances.” Id. (quotation omitted). It explained that lawsuits

seeking “state aid to subsidize [] privately initiated action or to alleviate the consequences of differences in

economic circumstances that existed apart from state

action” are different from those vindicating a person’s

right to participate in political processes or to have access to the courts in criminal cases. Id. at 123–25, 117

S. Ct. at 568.

As to Rodriguez’s second question, the Majority relies on the fact that the Standing Bail Order caps an indigent arrestee’s pretrial detention at 48 hours to conclude that the detention isn’t an “absolute deprivation.”3 In fact, the Majority refers to this person’s time

in jail as just a “diminishment of a benefit.” Maj. Op. at

25–27. But this is word play. First, the Majority renames the interest in “freedom from incarceration” at

issue here, as an interest in “access to pretrial release.”

But see ODonnell, 892 F.3d at 162 (identifying the interest as “freedom from incarceration”). Second, the

Majority’s characterization treats 48 hours in jail as a

mere delay or “diminishment” of the benefit of being

The requirement to have a bond hearing within 48 hours is

properly considered in determining whether the Standing Bail

Order survives scrutiny. However, the Majority relies on the 48hour time period in deciding whether there was a deprivation in

the first place. This approach locks in the Majority’s ultimate

holding—that a bail system in which indigents get a hearing within 48 hours survives all systemic due process challenges. Maj. Op.

at 37–39.

50a

released, instead of the deprivation of liberty it surely

is.4

In my view, an incarcerated person suffers a complete deprivation of liberty within the meaning of Rodriguez, whether their jail time lasts two days or two

years. Certainly the Rodriguez Court had no problem

concluding there was an “absolute deprivation” of liberty in Williams and Tate because the challenged state

laws “subjected indigents to incarceration simply because of their inability to pay a fine.” Rodriguez, 411

U.S. at 20–22, 93 S. Ct. at 1290. Rainwater also described pretrial confinement as a “deprivation of liberty.” 572 F.2d at 1056. Neither Rodriguez nor Rainwater qualified how long the confinement had to last before it became a deprivation of liberty. See Rodriguez,

411 U.S. at 20–22, 93 S. Ct. at 1290; Rainwater, 572

F.2d at 1056. More recently, the Supreme Court 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.” Rosales4

The Majority contends I do not “grapple meaningfully with

Rainwater’s explicit approval of bail schedules.” Maj. Op. at 24

n.9. But Rainwater did not approve of bail schedules being used in

the way Calhoun’s Standing Bail Order works. Rainwater said,

“Utilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on

both due process and equal protection requirements.” 572 F.2d at

1057. The Majority Opinion emphasizes the first sentence but is

blind to what the second sentence plainly says. Calhoun’s Standing Bail Order jails those who cannot pay bail for up to two days

before it provides any alternative. The Majority does not appear

to believe these two days of incarceration qualify as incarceration,

as that term was used by the Court in Rainwater.

51a

Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897,

1907 (2018) (citation and quotation omitted). And since

Rainwater eliminated any distinction between a postconviction and pre-conviction detention, the precedent

that binds us tells us that two days in jail is a deprivation of liberty, whether it happens before or after a

person has been convicted. See ODonnell, 892 F.3d at

162 n.6 (“[T]his court in Rainwater concluded that the

distinction between post-conviction detention targeting

indigents and pretrial detention targeting indigents is

one without a difference.”).

I am not alone in this view. In addressing a challenge to the bail policies of Harris County, Texas, the

Fifth Circuit looked to Rodriguez in holding that “indigent misdemeanor arrestees are unable to pay secured

bail, and, as a result, sustain an absolute deprivation of

their most basic liberty interests—freedom from incarceration.” ODonnell, 892 F.3d at 162. The Fifth Circuit

thus held that “[h]eightened scrutiny of the County’s

[bail] policy is appropriate.”5 Id. The Majority Opinion

says this case is “factually distinct” from ODonnell.

ODonnell interpreted Rainwater as I do—that is, extending

Williams and Tate to the pretrial context and holding that pretrial

detention of indigents solely because of their indigency is a deprivation of liberty and is subject to heightened scrutiny. ODonnell,

892 F.3d at 162 & n.6. The Majority’s contrary interpretation of

Rainwater, Maj. Op. at 24–25, thus draws this Court into a circuit

split with the Fifth Circuit, based on interpretation of a case that

is binding precedent for both courts. Although our Court is not

bound to follow the decisions of the Fifth Circuit, we have observed that its interpretation of former Fifth Circuit precedent is

entitled to “great weight.” See AmBrit, Inc. v. Kraft, Inc., 812

F.2d 1531, 1535 n.13 (11th Cir. 1986) (noting that a post-split Fifth

Circuit decision was “entitled to great weight because it [was]

based on cases of the former Fifth Circuit that are binding precedent in this circuit”).

52a

For support, it looks to the District Court’s findings

about Harris County’s written bail policies as they existed before the injunction was issued. See Maj. Op. at

27 n.10. Texas law required individualized assessments

in determining bail. ODonnell, 892 F.3d at 153. But

the Texas District Judge found Harris County failed to

live up to this law because: “County officials impose[d]

the scheduled bail amounts on a secured basis about 90

percent of the time,” and its officers “were aware that,

by imposing a secured bail on indigent arrestees, they

were ensuring that those arrestees would remain detained.” See id. at 153–54. In Calhoun, Georgia, the

Standing Bail Order sets a secured bail amount for all

arrestees, with no individualized assessment. And by

creating a requirement for a determination of indigency

within 48 hours, it implicitly acknowledges that people

who are unable to pay for release will be detained under this system. Thus, the only difference between

Harris County’s system, as described by the Texas District Judge, and Calhoun’s system, is that the Texas

system allowed indigents to be detained for longer than

48 hours. See id. at 154 (noting arrestees “must wait

days for their hearings”). Under our precedent, I do

not view this factual difference as meaningful.

It seems unremarkable to say that being jailed for

48 hours is more than a mere inconvenience. There are

very real consequences for detained indigents. They

can lose their jobs. They can lose their homes and

transportation. Their family connections can be disrupted. And all this is to say nothing of the emotional

and psychological toll a prison stay can have on an indigent person and her family members. See Nick Pinto,

The Bail Trap, N.Y. Times Mag. (Aug. 13, 2015),

https://www.nytimes.com/2015/08/16/magazine/the-bailtrap.html (“‘Most of our clients are people who have

53a

crawled their way up from poverty or are in the throes

of poverty,’ [Scott] Hechinger says. ‘Our clients work

in service-level positions where if you’re gone for a day,

you lose your job. People in need of caretaking—the

elderly, the young—are left without caretakers. People

who live in shelters, where if they miss their curfews,

they lose their housing. Folks with immigration concerns are quicker to be put on the immigration radar.

So when our clients have bail set, they suffer on the inside, they worry about what’s happening on the outside, and when they get out, they come back to a world

that’s more difficult than the already difficult situation

that they were in before.’”); see also Gerstein v. Pugh,

420 U.S. 103, 114, 95 S. Ct. 854, 863 (1975) (“Pretrial

confinement may imperil the suspect’s job, interrupt

his source of income, and impair his family relationships.”). And these consequences can be just as dire for

a two-day jail stay as for a longer one. See Juleyka

Lantigua-Williams, Why Poor, Low-Level Offenders Often Plead to Worse Crimes, The Atlantic (July 24,

2016), https://www.theatlantic.com/politics/archive/2016/

07/why-pretrial-jail-can-mean-pleading-to-worse-crimes/

491975/ (“[S]ome of the most damaging effects of pretrial detention can happen really quickly within the

first few days or a week. If you lose your job, if you

lose your apartment, if you need to find somebody else

to take care of your kids, at that point the cost of future

incarceration might not be so high … [so] [i]t reduces

incentive to fight against a plea deal that involves another six months of jail.” (interview with Megan Stevenson)); Samuel R. Wiseman, Pretrial Detention and

the Right to be Monitored, 123 Yale L.J. 1344, 1356–57

(2014).

I am puzzled by the Majority’s conclusion that detained indigents are somehow better off than their free

54a

and wealthy counterparts. Maj. Op. at 27. It is true

that a person with money will be out-of-pocket whatever funds they paid as bond. But these wealthier bond

payers have a choice: they can pay the bond or not.

The poor have no choice. I simply reject the idea that

people who have the ability to pay bond decide to keep

it and go to jail to gain some sort of financial advantage.

Neither do I view the Bearden Court’s single quotation from Justice Harlan’s concurrence in Williams

sufficient to support the Majority’s embrace of the due

process framework approved of in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). See Maj. Op.

at 34–36. First, Bearden began with a reminder that

the Supreme Court had “long been sensitive to the

treatment of indigents in our criminal justice system.”

461 U.S. at 664, 103 S. Ct. at 2068. And the Bearden

Court ultimately reversed rulings of Georgia courts

that had resulted in the jailing of a probationer who

failed to pay his court ordered fines. Id. at 674, 103 S.

Ct. at 2074.

Second, while the Court did reference Justice Harlan’s view that a “due process approach more accurately captures the competing concerns” in this type of

analysis, it made clear that cases implicating both due

process and equal protection concerns “cannot be resolved by resort to easy slogans or pigeonhole analysis”

and require a context-specific inquiry. See id. at 666–

67, 103 S. Ct. at 2069. If it appears the Bearden Court

focused on due process principles as opposed to equal

protection, that’s because the particular case before

it—challenging the State’s failure to consider an indigent probationer’s reasons for nonpayment of fines and

restitution at a probation revocation hearing—rested

more naturally on due process concerns than equal protection. Id. at 666 n.8, 103 S. Ct. at 2069 n.8. The Court

55a

reasoned that, “in setting or resetting a sentence,” “a

defendant’s level of financial resources is a point on a

spectrum,” making indigency “a relative term rather

than a classification” in that context. Id. However, the

Court also explained that “whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants [is analyzed] under the Equal Protection Clause.” Id. at 665,

103 S. Ct. at 2069. Under Calhoun’s Standing Bail Order, bail is established by a predetermined schedule

without consideration of the arrestee’s financial resources. Thus, Calhoun does not treat indigency as a

“relative term.” Instead, as set out above, only indigents are detained under the Bail Order, because people with money simply pay the preset amount and go

home. This means, like with the statute in Williams,

the Standing Bail Order “in operative effect exposes

only indigents to the risk of imprisonment” and “visit[s]

different consequences on two categories of persons.”

Williams, 399 U.S. at 242, 90 S. Ct. at 2023. This case,

therefore, like “[m]ost decisions in this area,” is properly analyzed under the equal protection framework. See

Bearden, 461 U.S. at 665, 103 S. Ct. at 2068–69.

In light of Supreme Court precedent, our sister circuit’s agreement that Rainwater requires application of

heightened scrutiny under the Equal Protection Clause

to claims like Mr. Walker’s, and the significant consequences stemming from incarceration, the Justice Harlan quote is simply not enough to support the Majority’s due-process-only approach.6

However, I do not read the Majority Opinion to reject

heightened scrutiny for all cases challenging indigency-based jail

stays. The outcome of the Majority decision relies entirely on the

idea that 48 hours in jail is not an “absolute deprivation” of liberty.

56a

I also reject the Majority’s concern that a flood of

litigation will result from treating wealth “like race,

sex, or religion” as a reason not to apply heightened

scrutiny. Maj. Op. at 27–28. First, there will be no

flood. The Supreme Court has already placed limits on

bringing equal protection challenges to wealth-based

classifications. Beyond the requirements set out in Rodriguez discussed above, the Supreme Court has also

said that “fee requirements ordinarily are examined

only for rationality,” except when they implicate the

“basic right to participate in political processes as voters and candidates” and “access to judicial processes in

cases criminal or quasi criminal in nature.” M.L.B., 519

U.S. at 123–24, 117 S. Ct. at 567 (quotation omitted).7

See Maj. Op. at 27. The Majority Opinion also explains that it believes ODonnell to be a different case from this one, because Harris County’s practices resulted in longer jail stays despite alreadyin-place requirements for individualized assessments in determining bail. See Maj. Op. at 27 n.10 & 39 n.12. Thus, even under the

Majority’s view, challenges to indigency-based jail stays warrant

heightened scrutiny so long as they show that the challenged system, in practice, results in indigents being detained longer than 48

hours. Thus, if Calhoun cannot live up to the procedural safeguards it promises in the Standing Bail Order and detains indigents longer than 48 hours, Mr. Walker will be able to revive his

equal protection challenge under a heightened scrutiny review.

The Majority asks how Mr. Walker’s claim fits into M.L.B.’s

narrow exception for cases concerning access to judicial processes.

Maj. Op. at 32–33. Again, M.L.B. explicitly answers this question.

The Court explained that its “decisions concerning access to judicial processes,” including Bearden and its progeny, “reflect both

equal protection and due process concerns.” M.L.B., 519 U.S. at

120, 117 S. Ct. at 566. “The equal protection concern relates to the

legitimacy of fencing out [individuals] based solely on their inability to pay core costs.” Id. Or said yet another way, “‘[e]qual protection’ emphasizes disparity in treatment by a State between

classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 2443

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Thus, Mr. Walker’s claim falls into quite a narrow exception, and recognizing it as such does not portend

striking down tuition fees or express service at the local post office. This Court and the Fifth Circuit have

survived over the forty years since Rainwater was decided without being flooded with litigation raising

wealth-based discrimination claims. And we are only

called upon here to make explicit what was already implicit in Rainwater—namely that pretrial detention

based solely on indigency is subject to heightened scrutiny. Second, even if our workload increased a bit, “the

constitutional imperatives of the Equal Protection

Clause must have priority over the comfortable convenience of the status quo.” Williams, 399 U.S. at 245, 90

S. Ct. at 2024. I believe the courts are up to the task.

In sum, I read Rodriguez (and Bearden for that

matter) to require that Mr. Walker’s claim of wealthbased discrimination be subject to heightened scrutiny

under a traditional equal protection framework. Thus,

I would have affirmed the District Court’s analysis.8

(1974). I have already explained how the Standing Bail Order discriminates against indigents, and the Majority has not disputed

that. Thus, this case plainly falls into the category of cases concerning access to judicial processes. See M.L.B., 519 U.S. at 120,

117 S. Ct. at 566.

Mr. Walker alternatively challenged the Standing Bail Order under a substantive due process theory, arguing there is a

fundamental right to pretrial liberty. See United States v. Salerno, 481 U.S. 739, 749–50, 107 S. Ct. 2095, 2102–03 (1987) (affirming

the individual’s “strong interest in liberty,” the State’s “sufficiently weighty” interest in preventing crime, and the “‘general rule’ of

substantive due process that the government may not detain a

person prior to a judgment of guilt in a criminal trial” absent “special circumstances”). Because I would affirm the District Court’s

application of heightened scrutiny under the traditional equal pro-

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II.

In applying heightened scrutiny to Mr. Walker’s

claim, I recognize that the Supreme Court has not

made clear whether the level of scrutiny to be applied

in Bearden-like cases is intermediate or strict scrutiny.

See, e.g., M.L.B., 519 U.S. at 120–21, 123–24, 117 S. Ct.

at 566, 567–68 (acknowledging that “[a] precise rationale has not been composed” and rejecting review

“for rationality” in criminal or quasi criminal cases

“concerning access to judicial processes”). Rainwater

is similarly unclear, though its discussion of “vital” and

“compelling” interests and the need to “delicate[ly] balance[e]” them, seems to me to point toward strict scrutiny. See Rainwater, 572 F.2d at 1056. Nevertheless, it

is my view that on this record, the City’s Standing Bail

Order cannot survive even under intermediate scrutiny. The City failed to show that a 48-hour detention of

only those who cannot afford to pay bond is “reasonably

necessary to the accomplishment of legitimate state objectives.” See Bullock v. Carter, 405 U.S. 134, 144, 92 S.

Ct. 849, 856 (1972).9

tection analysis, I do not address the substantive due process theory.

Over the years, the Supreme Court has given us many formulations of “intermediate scrutiny.” For example, “[a] gender

classification fails unless it is substantially related to a sufficiently

important governmental interest.” City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 441, 105 S. Ct. 3249, 3255 (1985). But

classifications based on a person’s legitimacy, which is of course

beyond that person’s control, “will survive equal protection scrutiny to the extent they are substantially related to a legitimate state

interest.” Id. (quotation omitted). In Bullock, the Supreme Court

subjected Texas’s filing-fee requirement for primary candidates to

get on a ballot to “close[] scrutin[y]” and invalidated it as a “denial

of equal protection of the laws.” Bullock, 405 U.S. at 144, 149, 92

S. Ct. at 856, 859. In applying heightened scrutiny to this wealth-

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The City of Calhoun says it has the same interest

that was identified in Rainwater. That is the “compelling interest in assuring the presence at trial of persons

charged with crime.” Rainwater, 572 F.2d at 1056. But

the City never explains why or how a 48-hour detention

period is “reasonably necessary” to accomplish this interest. After the 48 hours, everyone who was arrested,

but could not make bond, is released on personal recognizance bonds (their promises to appear), whether they

get a hearing or not. The obvious question comes to

mind: if every indigent’s promise to appear is enough

to assure his presence at trial after 48 hours passes,

why is 48 hours necessary to determine indigency and

execute a personal recognizance bond? Wouldn’t 47

work just as well? Forty, perhaps?

The City makes no effort to justify its policy of detaining those who cannot pay for 48 hours, because it

says it doesn’t need to. It argues only that capping detentions at 48 hours is “sufficient to immunize the City

from a challenge to its process for a determination of

indigency.” In making this argument, the City relies on

two cases: Gerstein, 420 U.S. 103, 95 S. Ct. 854, and its

sequel, County of Riverside v. McLaughlin, 500 U.S.

44, 111 S. Ct. 1661 (1991). In Gerstein, the Supreme

based discrimination, the Court sought to determine whether the

“filing-fee scheme” was “reasonably necessary to the accomplishment of legitimate state objectives.” Id. at 144, 92 S. Ct. at 856;

see also Rodriguez, 411 U.S. at 22, 93 S. Ct. at 1290–91 (including

Bullock in a list of cases in which the Court invalidated impermissible wealth-based classifications on equal protection grounds).

Because M.L.B. also cited to Bullock in discussing the other exception to the rule that “fee requirements are ordinarily examined

for rationality,” M.L.B., 519 U.S. at 124 n.14, 117 S. Ct. at 568 n.14,

this seems to me to be the most analogous case explicitly setting

out the kind of tailoring required between the competing interests. Thus, I use its standard.

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Court held that “the Fourth Amendment requires a

timely judicial determination of probable cause as a

prerequisite to [pretrial] detention.” 420 U.S. at 126, 95

S. Ct. at 869. The opinion defined “timely” as “before

or promptly after arrest.” Id. at 125, 95 S. Ct. at 869.

Later, in McLaughlin, the Court said “Gerstein struck

a balance between competing interests” by requiring a

“prompt—not immediate” probable cause determination. McLaughlin, 500 U.S. at 54–55, 111 S. Ct. at 1669.

Acknowledging the “everyday problems of processing

suspects through an overly burdened criminal justice

system,” the Supreme Court said that “judicial determinations of probable cause within 48 hours of arrest

will, as a general matter, comply with the promptness

requirement.” Id. at 55–56, 111 S. Ct. at 1669–70.

According to the City, “this case is to Rainwater

what McLaughlin was to Gerstein.” But there are two

problems with this argument. First, McLaughlin said

hearings “delayed unreasonably” can still violate Gerstein, for example, when the “delay [is] for delay’s

sake.” McLaughlin, 500 U.S. at 56, 111 S. Ct. at 1670.

Here, the City has given no reason to justify the 48hour detention period under the Standing Bail Order

(not even an argument citing “everyday problems of

processing suspects,” see id. at 55, 111 S. Ct. at 1669).

As best I can tell, the City is thus asking for 48 hours of

“delay for delay’s sake,” which is precisely what

McLaughlin forbade.

Second, McLaughlin decided when a probable

cause hearing is required by the Fourth Amendment.

500 U.S. at 47, 111 S. Ct. at 1665. Again, this case involves both equal protection and due process concerns.

And while a hearing within 48 hours could satisfy the

due process concerns, it does not necessarily satisfy the

demands of equal protection. For example, consider a

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bail policy that releases all arrestees after booking, except for female, black, or Catholic arrestees. Those arrestees are detained for 48 hours, given a hearing, and

then released. Under the City’s theory, McLaughlin

immunizes this policy from any challenge merely because, after all, the female, black, and Catholic arrestees get a hearing within 48 hours. This is plainly

wrong. Equal protection principles require us to inquire of the City why it needs to treat female, black,

and Catholic arrestees differently from all others and

then to examine whether the given reason is sufficiently tailored to accomplish the City’s legitimate or compelling objective. So the same goes for wealth-based

classifications in the criminal justice system. The City

should have been required to explain why it is “reasonably necessary” to treat poor people differently from all

others by keeping them in jail for 48 hours. Since Calhoun offered no reason during this appeal, let alone a

“legitimate” one, the Standing Bail Order cannot survive constitutional scrutiny. See Bullock, 405 U.S. at

144, 92 S. Ct. at 856.10

Finally, my view of McLaughlin and the interests

at stake is not contrary to ODonnell. While the Fifth

Circuit relied in part on McLaughlin to hold that “the

At oral argument, the City did offer one justification for its

48-hour detention policy: “to get the players to the game”—

meaning to get the City’s only municipal judge to the municipal

court so she can hold a hearing. Nevertheless, this Court’s

longstanding rule is that arguments not briefed to the court and

raised for the first time at oral argument are deemed abandoned.

See Mesa Air Grp., Inc. v. Delta Air Lines, Inc., 573 F.3d 1124,

1130–31 (11th Cir. 2009) (refusing to consider the merits of an argument made only at oral argument but not in briefs). This rule

seems especially appropriate here, in light of the City’s position in

its briefs that it did not need to justify its policy.

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federal due process right entitles detainees to a hearing

within 48 hours,” it did not grant immunity from systemic challenges to Harris County like the immunity

sought by Calhoun here. See ODonnell, 892 F.3d at

160. Instead, the Fifth Circuit determined that, in light

of the evidentiary record, the District Court’s injunction mandating a bail hearing within 24 hours was “too

strict” and so extended the time for the hearing to 48

hours. Id. at 160–61 (noting the “heavy administrative

burden” on the County as shown by the finding that

“20% of detainees do not receive a probable cause hearing within 24 hours despite [a] statutory requirement”).

Because Calhoun here offered no justification for its 48hour period, I would have affirmed the preliminary injunction entered by Judge Murphy in the District

Court, as well the 24-hour release requirement he imposed. On remand, the City would have had the opportunity to develop an evidentiary record and make the

showing necessary to survive heightened scrutiny.

It seems worthy of mention that the Fifth Circuit’s

modified injunction in ODonnell is remarkably similar

to what the District Court ordered in this case. The

modified injunction required, within 24 hours, a determination of indigency based on affidavits, for those who

could not pay the prescheduled bail amounts in a process overseen by “Pretrial Services officers”; release

based on an “unsecured personal bond with nonfinancial

conditions of release” or “on a secured money bond for

which the defendant could pay a commercial surety’s

premium”; and for those who are not so released, “a

hearing within 48 hours of arrest.” Id. at 164–65. This

system provided “meaningful consideration of other

possible alternatives” concurrently with the utilization

of a master bail schedule, as opposed to 48 hours later,

and the County justified its need for 48 hours as op-

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posed to 24. For that reason, I believe the Fifth Circuit’s modified injunction appropriately addresses both

the equal protection and due process concerns. See

Rainwater, 572 F.2d at 1055–56 & n.2, 1058 (mooting a

challenge to Florida Supreme Court’s new rule, which

subjected indigent and non-indigent arrestees alike to a

first appearance hearing where a judge would select

from six different kinds of release, including personal

recognizance bonds, unsecured bonds, and secured

bonds, because the rule did not “suffer such infirmity

that its constitutional application is precluded”); see also Bearden, 461 U.S. at 672, 103 S. Ct. at 2073 (requiring courts to consider a probationer’s reasons for failures to pay a fine or restitution and, for those without

means to pay, consider “alternate measures of punishment other than imprisonment” before imposing jail

time). Nevertheless, the Majority has established that

in this Circuit, only due process interests are at stake;

only a hearing is necessary; and the hearing must be

held within 48 hours.

III.

I believe Mr. Walker has shown a substantial likelihood of success on the merits. See Palmer v. Braun,

287 F.3d 1325, 1329 (11th Cir. 2002). I also believe Mr.

Walker can show the other three requirements for getting a preliminary injunction: Jail time is an “irreparable injury” because “it cannot be undone through monetary remedies.” See Cunningham v. Adams, 808 F.2d

815, 821 (11th Cir. 1987). And because the City gave no

justification for its policy of detaining indigents for 48

hours, the harm to the plaintiff class clearly outweighs

any harm to the City. Last, in light of studies showing

how bail policies like the City’s contribute to systemic

injustices in the criminal justice system and harm poor

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communities, see, e.g., Brief for Am. Bar Ass’n at 6–21

as Amicus Curiae Supporting Appellee, Walker v. City

of Calhoun (No. 17-13139), the public interest clearly

weighs in favor of the injunction. In my view, the District Court did not abuse its considerable discretion in

granting Mr. Walker’s motion for a preliminary injunction. See Palmer, 287 F.3d at 1329.

Finally, to the extent the City challenges the scope

of the District Court’s injunction, I would also find no

abuse of discretion.

See Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S. Ct.

1267, 1276 (1971) (“Once a right and a violation have

been shown, the scope of a district court’s equitable

powers to remedy past wrongs is broad, for breadth

and flexibility are inherent in equitable remedies.”).

CONCLUSION

I read Supreme Court precedent and Rainwater to

require a traditional equal protection analysis of the

City of Calhoun’s Standing Bail Order, applying

heightened scrutiny review. On the record before us, I

would have upheld the District Court’s grant of a preliminary injunction to Mr. Walker. I recognize that the

City has not yet had a chance to develop an evidentiary

record about its need for a 48-hour detention policy for

indigents only. For that reason, I would have allowed

the City an opportunity to develop that record on remand and seek a different result when this case is considered on the merits.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

No. 4:15-cv-00170-HLM

MAURICE WALKER, ON BEHALF OF

HIMSELF AND OTHERS SIMILARLY SITUATED,

Plaintiff,

CITY OF CALHOUN, GEORGIA,

Defendant.

ORDER

This case is before the Court on the Court’s April 7,

2017, Order [56] and on the Court’s own Motion.

Background

A. Factual Background

The Court incorporates the Background portion of

its January 28, 2016, Order relating to Plaintiff’s allegations and Defendant’s materials into this Order as if fully set forth herein. (Order of Jan. 28, 2016 (Docket Entry No. 40) at 2-25.)

Defendant submitted a second affidavit from Matthew Chad Silvers in opposition to Plaintiff’s renewed

request for a preliminary injunction. (Second Aff. of

Matthew Chad Silvers (Docket Entry No. 63).) Mr. Silvers states that, prior to January 28, 2016, the Munici-

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pal Court of Calhoun, Georgia (the “Municipal Court”)

allowed for individuals to be released from pre-trial detention in the Gordon County Jail by posting a secured

pre-trial bond, which could be made via the payment of

currency, the posting of property, or the employment of

a local surety. (Id. ¶ 9.) According to Mr. Silvers, during a period of approximately fifteen months immediately before January 28, 2016, the Municipal Court issued twenty-seven bench warrants for individuals who

posted one of the forms of the secured pre-trial bonds.

(Id. ¶ 10 & Ex. E.) After January 28, 2016, when the

Court issued its first preliminary injunction Order, “the

Municipal Court immediately initiated a policy of having all detained individuals released only on a pre-trial

recognizance bond issued.” (Id. ¶ 11.) Mr. Silvers

states that, during a period of approximately fifteen

months afterward, the Municipal Court issued eightyfive bench warrants for individuals released on recognizance. (Id ¶ 12 & Ex. F.)

Between October 28, 2014, and January 28, 2016,

5,374 cases were docketed in the Municipal Court (Second Silvers Aff. ¶ 13), while 5,559 cases were docketed

in the Municipal Court between January 29, 2016, and

May 8, 2017 (id. ¶ 14). Mr. Silvers notes that the Municipal Court issued thirty-four bench warrants for

failure to appear for the cases filed between October 28,

2014, and January 28, 2016, and that each of those defendants were released after posting some form of secured bail or bond. (Id. ¶ 16.) In contrast, the Municipal Court issued eighty-five bench warrants for failure

to appear for the cases filed between January 29, 2016,

and May 8, 2017, and each of those defendants had been

released on his or her own recognizance after initial arrest. (Id. ¶17.) Mr. Silvers asserts that, after January

28, 2016, “the number of bench warrants issued for in-

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dividuals who failed to appear before the Municipal

Court increased by approximately one hundred and fifty percent (150%) in merely 15 months.” (Id. ¶ 20.)

Mr. Silvers notes that the Honorable Suzanne

Hutchinson Smith serves as the Chief Judge of the Municipal Court, that Judge Smith has served as the Chief

Judge of the Municipal Court since approximately 1995,

and that the position is presently budgeted to pay

$2,000 per month. (Second Silvers Aff. ¶ 21.) Judge

Smith also serves as a Superior Court Judge for the

Cherokee Judicial Circuit, and she has served in that

position since April 2014. (Id. ¶ 22.) Defendant’s

Mayor and City Council have not appointed another individual to preside over the Municipal Court, and they

have never appointed associate judges. (Id. ¶ 23.) On

the rare occasions when Judge Smith is not available to

preside over a regularly-scheduled Municipal Court

session, she has appointed either the Probate Judge of

Gordon County or Gordon County’s County Attorney

to serve as Judge pro tempore for that session of court.

(Id ¶ 24.) According to Mr. Silvers, “[a]t all times,

these individuals abide by all of the policies and procedures established by Judge Smith in her absence.” (Id.)

Mr. Silvers states that, during the seventeen years

that he has worked for the Municipal Court, he has

known Judge Smith to “act with complete independence from the Mayor and City Council,” and he has

“never witnessed any attempt by the governing authority to change the way that the court is administered, or

have any input regarding the issue of bail or bond.”

(Second Silvers Aff. ¶ 25.) According to Mr. Silvers,

during the time that he has served as deputy clerk, “only the court staff or the Solicitor have contacted [Judge

Smith] directly with regard to any issues or questions

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regarding inmates and their release, whether pre-trial

or post conviction.” (Id.)

B. Procedural Background

The Court incorporates the procedural background

portions of its earlier Orders into this Order and adds

only those procedural background facts that are relevant to the instant Order. After the United States

Court of Appeals for the Eleventh Circuit vacated the

Court’s Order granting a preliminary injunction in favor of Plaintiff based on lack of specificity and remanded the case to the Court for further proceedings, the

Court entered an Order directing the Parties to notify

the Court as to how the Parties believed the Court

should proceed with this case. (Order of Apr. 7, 2017

(Docket Entry No. 56).) Plaintiff responded by indicating that the Court should simply enter a more specific

injunction. (See generally Pl.’s Notice (Docket Entry

No. 57).) Defendant filed a response indicating that it

disagreed with Plaintiff’s proposed approach, and requested time to respond to Plaintiff’s Notice. (See generally Def.’s Notice (Docket Entry No. 58).) The Court

then entered an Order establishing a briefing schedule.

(Order of April 24, 2017 (Docket Entry No. 59).) Defendant filed a response arguing against granting a preliminary injunction, and presented exhibits that included affidavits. Defendant’s briefs on appeal, a recording

of the oral argument before the Eleventh Circuit, and a

number of amici curiae briefs filed on appeal. (Notice of

Filing (Docket Entry No. 62) (containing CD of oral arguments); Resp. Pl.’s Renewed Request Prelim. Inj.

(Docket Entry No. 64); Notice of Filing (Docket Entry

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No. 65) (containing amicus curiae briefs).)1 Plaintiff

filed a reply disputing the arguments raised by Defendant, and noting that the Court should simply enter

a more specific injunction. (See generally Reply Supp.

Pl.’s Notice (Docket Entry No. 66).) The Court finds

that the matter is ripe for resolution.

II. Discussion

The Court finds that no hearing is necessary, as

there are no significant factual disputes or credibility

determinations relevant to the request for a preliminary injunction. Cumulus Media, Inc. v. Clear Channel Commcn’s, Inc., 304 F.3d 1167, 1178 (11th Cir. 2002)

(internal quotation marks and citation omitted);

McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1313

(11th Cir. 1998). The Court also agrees with Plaintiff

that the appropriate course of action here is for the

Court to issue a more specific injunction that complies

with Federal Rule of Civil Procedure 65(d). See S.E.C.

v. N. Am. Clearing, Inc., Case No.: 6:08-cv-829-Orl35KRS, 2013 WL 12173711, at *1-3 (M.D. Fla. Apr. 3,

2013) (entering a more specific injunction after a remand from the Eleventh Circuit due to a failure to

comply with Rule 65(d)). The Court reaffirms its previous Order granting Plaintiff’s Motion for Preliminary

Injunction, and incorporates the Discussion portion of

that Order into this Order as if fully set forth herein.

(Order of Jan. 28, 2016, at 47-73.)

This is not an opportunity for Defendant to relitigate the merits of the underlying preliminary injunction Order; however, for Defendant’s benefit, the

Court will briefly address the arguments Defendant

The Court has reviewed all of the materials presented by

Defendant.

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raises in its response. First, the Court again rejects

Defendant’s contention that the Standing Bail Order is

not a policy of Defendant for § 1983 purposes. With all

due respect to Defendant, the new evidence presented

in Mr. Silver’s Second Affidavit simply does not warrant a different conclusion than the Court reached in its

January 28, 2016, Order. The Court therefore rejects

this argument.

Second, the Court rejects Defendant’s contention

that the Standing Bail Order, as it is presently worded,

is constitutional. The Court notes that the Standing

Bail Order is certainly an improvement over the policy

in effect prior to the Standing Bail Order, and, to that

extent, the Standing Bail Order is a step in the right

direction. The Standing Bail Order, however, still violates the Constitution insofar as it permits individuals

who have sufficient resources to post a bond (or to have

one posted for them) to be released immediately, while

individuals who do not have those resources must wait

forty-eight hours for a hearing. The Court rejects Defendant’s contention that the Standing Bail Order’s forty-eight hour waiting period for a bond hearing is constitutional because Gerstein v. Pugh, 420 U.S. 103

(1975), set a presumptively reasonable forty-eight hour

probable cause deadline following arrest. See Odonnell

v. Harris Cty.,Tex., Civil Action No. H-16-1414, - - - F.

Supp. 3d - - -, - - -, 2016 WL 7337549, at *17 (S.D. Tex.

Dec. 16, 2016) (“The 48-hour probable-cause-hearing

standard ... is not a safe harbor for the defendants.”).

The primary issue here is that the Standing Bail Order

establishes a mechanism by which non-indigent arrestees may obtain immediate release, while indigent

arrestees must wait an additional forty-eight hours to

have an opportunity to obtain release, simply because

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of those arrestees’ financial condition. This is impermissible.2

The Court also rejects Defendant’s contention that

abstention under Younger v. Harris, 401 U.S. 37 (1971),

applies here. When determining whether Younger abstention applies, courts ask: (1) whether the case will

interfere with “an ongoing state judicial proceeding”;

(2) whether “the proceedings implicate important state

Defendant also is concerned about what level of scrutiny

applies. Defendant is correct that, generally, an individual’s indigence does not make that individual a member of a suspect class.

However, case law from the Supreme Court and the Eleventh Circuit “make clear that detention based on wealth is an exception to

the general rule that rational basis review applies to wealth-based

classifications.” Odonnell v. Harris Cty., Tex., Civil Action No. H16-1414, - - - F. Supp. 3d - - -, - - -, 2017 WL 1735456, at *64 (S.D.

Tex. Apr. 28, 2017) (collecting cases). Indeed, under Williams v.

Illinois, 399 U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971),

Bearden v. Georgia, 461 U.S. 660 (1983), and Pugh v. Rainwater,

557 F.2d 1189 (5th Cir. 1977), vacated on other grounds, 572 F.2d.

1053 (5th Cir. 1978) (en banc), “an absolute deprivation of liberty

based on wealth creates a suspect classification deserving of

heightened scrutiny.” Odonnell. 2017 WL 1735456, at *64 (footnote omitted). “At a minimum, heightened scrutiny requires a

court to evaluate the government’s legitimate interest in a challenged policy or practice and then inquire whether there is a sufficient ‘fit’ between the government’s means and ends.” Id. at *66.

“At a maximum, [c]lassifications created by state action which disadvantage a suspect class or impinge upon the exercise of a fundamental right are subject to strict scrutiny, and will be upheld

only when they are precisely tailored to serve a compelling state

interest.” Id. (alteration in original) (internal quotation marks and

citation omitted). Admittedly, “[s]tate and local governments have

a compelling interest in assuring the presence at trial of persons

charged with a crime.” Id. (internal quotation marks, citation, and

footnote omitted). Given that Plaintiff bears the “burden to show

a likelihood of success on the merits, the court applies the tailoring

requirement of intermediate scrutiny.” Id at *67.

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interests”; and (3) whether there is “an adequate opportunity in the state proceedings to raise constitutional challenges.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). As an

initial matter, Plaintiff and the other similarly-situated

individuals are not challenging the merits of their prosecutions, but rather, are challenging the legality of

their pretrial detention—an issue that cannot be raised

in the criminal prosecutions. See Gerstein, 420 U.S. at

108 n.9 (concluding that Younger absention did not apply where the request for an “injunction was not directed at the state prosecutions as such, but only at the

legality of pretrial detention without a judicial hearing,

an issue that could not be raised in defense of the criminal prosecution”); Odonnell, 2016 WL 7337549, at *19

(“The plaintiffs challenge the legality of detaining misdemeanor arrestees who are otherwise eligible for release pending trial or guilty plea without timely judicial

consideration of the inability to pay a bail bond. Resolving this issue does not affect the merits of subsequent criminal prosecutions. The inability to pay bail

cannot be raised as a defense in a subsequent criminal

prosecution.”).

Plaintiff and the other similarlysituated individuals would not have an adequate opportunity to raise their constitutional challenges before the

Municipal Court, and Younger abstention consequently

does not apply. See Rodriguez v. Providence Cmty.

Corrs., Inc., 155 F. Supp. 3d 758, 766 (M.D. Tenn. Dec.

17, 2015) (“The harm alleged-that probationers do not

receive inquiries into indigency as required by the

Fourteenth Amendment-has been inflicted before a

probationer could voice any constitutional concerns.

This alleged constitutional infirmity could be remedied

without affecting the underlying state court judgments.

Accordingly, Younger abstention is inappropriate.”).

The Court therefore rejects this argument.

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Finally, the Court concludes that Defendant’s arguments concerning an increase in failures to appear

are immaterial. As an initial matter, the Court’s January 28, 2016, Order did not require Defendant to release all arrestees on their own recognizance. The

Court simply ordered Defendant to “implement postarrest procedures that comply with the Constitution”

or offer indigent arrestees release “on their own recognizance or on an unsecured bond.” (Order of Jan. 28,

2016, at 73.) Although the Court acknowledges that its

lack of specificity may have caused confusion on Defendant’s part, the Court did not intend to require Defendant to release each and every arrestee on his or her

own recognizance. Thus, the increase in arrests for

failure to appear does not, in and of itself, affect the

propriety of injunctive relief. Indeed, other alternatives exist, including unsecured bonds, in which an arrestee need not pay money in advance but may be released with an obligation to pay the amount listed in

the bail schedule if the arrestee fails to appear for his

or her scheduled court date.3 Importantly, nothing in

The Court rejects Defendant’s contention that Georgia law

does not provide for unsecured bonds in misdemeanor cases.

O.C.G.A. § 17-6-1 (i) provides that “the term ‘bail’ shall include the

releasing of a person on such person’s own recognizance.”

O.C.G.A. § 17-6-1 (i). Further, Georgia Uniform Municipal Court

Rule 18.3 provides that “[b]ail may be conditioned upon such other

specified and reasonable conditions as the court may consider just

and proper.” Ga. Unif. Mun. Ct. R. 18.3. Surely, those conditions

could include an unsecured bond. Indeed, Defendant’s Standing

Bail Order already provides that “[a]ll persons charged with violations of the Code of Calhoun, Georgia who have no outstanding

failure to appear arrest warrant from the City of Calhoun, or any

other similar governing authority duly established by the Georgia

General Assembly or the Constitution of the State of Georgia,

shall be released on an unsecured appearance bond in the amount

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the January 28, 2016, Order purported to require release of all arrestees on their own recognizance, as the

Order addressed only indigent arrestees.”4

Nonindigent arrestees may still be required to post bail in

accordance with the bail schedule in the Standing Bail

Order. Finally, as Plaintiffs point out, even if Defendant decided to retain secured bonds, it could distinguish

arrestees who are able to pay from indigent arrestees

without requiring anyone to remain in jail for fortyeight hours prior to a hearing. (Reply Supp. Notice at

11.) During the booking process or shortly after booking, Defendant could require arrestees who claim to be

indigent to complete a sworn affidavit, under threat of

prosecution for perjury or false statements, attesting to

their financial resources and their inability to pay. (Id.)

Defendant could validly detain any individual who refused to sign the affidavit, and it could require any arrestee with the financial means to do so to post a monetary bond in accordance with the Standing Bail Order.

(Id.) Defendant’s argument concerning an increase in

failures to appear after the January 28, 2016, Order

does not warrant reconsidering injunctive relief.

In sum, the Court concludes that none of Defendant’s arguments in its response to Plaintiff’s Notice

warrant denying or reconsidering injunctive relief. The

established by [the Standing Bail Order’s] bail schedule.” (Standing Bail Order (Docket Entry No. 29-5) at 6-7.)

Thus, arguments that the Court’s January 28, 2016, Order

somehow is intended to abolish or undermine the entire system of

monetary bail in this country are clearly misplaced. The Court has

no problem with monetary bail or with the bail bond industry in

general. The Court’s concern in this case is for indigent arrestees

who cannot afford to post bail or pay a surety a percentage of a

bond. Those individuals would not be using the bail bond industry

or system even if the Court declined to enter an injunction.

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Court will enter another, more specific, preliminary injunction.

III. Conclusion

ACCORDINGLY, the Court GRANTS Plaintiff’s

Motion for Preliminary Injunction [4]. The Court ORDERS AS FOLLOWS:

Defendant shall, unless and until otherwise ordered

by this Court, comply with the following:

(1) Defendant is prohibited from detaining indigent

misdemeanor or Calhoun Municipal ordinances arrestees who are otherwise eligible for release but are

unable, because of their poverty, to pay a secured or

money bail in accordance with the Standing Bail Order.

(2) If an arrestee indicates that he or she is unable

to pay a secured or money bail, arresting officers, jail

personnel, or Municipal Court staff must, as soon as

practicable after booking verify the arrestee’s inability

to pay a secured or money bail by means of an affidavit

sworn before an authorized official. The affidavit must

give the arrestee sufficient opportunity to swear to his

or her financial conditions, including the arrestee’s

monthly income and expenses, the value of any assets

that the arrestee has, including money in bank accounts, real estate, or automobiles, and the amount of

any liabilities that the arrestee may have, such as loans,

liens, or other obligations, and to the number of individuals living in the arrestee’s household. The affidavit

also must give the arrestee an opportunity to swear as

to the amount of financial security or funds that the arrestee would be able to post or pay up front, from any

source, including contributions from family and friends,

within twenty-four hours of arrest. Finally, the affidavit shall give the arrestee the opportunity to swear that

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he or she is indigent, meaning that he or she earns less

than 100 percent of the applicable federal poverty

guidelines.

(3) The standard for making an individualized determination of indigency is, as set forth in the Standing

Bail Order, “that established by O.C.G.A. § 36-32-1 (f)

and (g), as defined by O.C.G.A. § 17-[12]-2(6)(A) regarding an ‘indigent person’ charged with a misdemeanor,

violation of probation, or a municipal code offense punishable by imprisonment.” (Standing Bail Order at 5.)

Those provisions “have established an ‘indigent person’

or ‘indigent defendant’ for appointed legal counsel as

one ‘earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person

has other resources that might be reasonably used to

employ a lawyer without undue hardship on the person

or his or her dependents[.]’” (Id. at 5-6 (alteration in

original).) For purposes of this Order, 100 percent of

the federal poverty guidelines shall specifically mean

the guidelines published in the Federal Register, 82

Fed. Reg. 8831-03, 2017 WL 395763 (Jan. 31, 2017), and

as may be further promulgated and adopted for subsequent years in the Federal Register. For 2017, the

poverty guidelines for the forty-eight contiguous States

and the District of Columbia are as follows: (1) for a

one-person household, $12,060; (2) for a two-person

household, $16,240; (3) for a three-person household,

$20,420; (4) for a four-person household, $24,600; (5) for

a five-person household, $28,780; (6) for a six-person

household, $32,960; (7) for a seven-person household,

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$37,140; (8) for an eight-person household, $41,320.5

82 Fed. Reg. 8831-03, 2017 WL 395963 (Jan. 31, 2017).

(4) If it appears, from the affidavit sworn by the arrestee, that the arrestee is indigent, according to the

above standard, the arrestee shall be subject to release

on his or her own recognizance without making a secured bail in accordance with O.C.G.A. § 17-6-1 (i), or

subject to release on an unsecured bond, with an obligation to pay the amount listed in the bail schedule set

forth in the Standing Bail Order if the arrestee fails to

appear for a scheduled court date. Either the arresting

officer or jail personnel, or, if available, the Municipal

Court Clerk or the Judge of the Municipal Court, must

conduct a review of the affidavit as soon as practicable,

or, at the latest, within twenty-four hours after arrest

to determine whether the arrestee meets the indigency

requirement set forth in paragraph (3) and is subject to

release.

(5) An arrestee who is released pursuant to paragraph (4) shall be provided with written notice of the

date for the next proceeding or trial. The arrestee has

the responsibility of notifying the Clerk of the Municipal Court if he or she has a change of residence or mailing address prior to adjudication and sentencing, to ensure notice of any change in the scheduled proceedings.

Arrestees who fail to appear for scheduled court proceedings may, of course, be subject to arrest for failure

to appear.

(6) As provided in the Standing Bail Order, “[a]ll

persons charged with violations of The Code of Cal5

For families or households with more than eight persons,

$4,180 shall be added for each additional person to determine the

poverty guidelines.

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houn, Georgia who have no outstanding failure to appear arrest warrant from the City of Calhoun, or any

other similar governing authority duly established by

the Georgia General Assembly or the Constitution of

The State of Georgia, shall be released on an unsecured

appearance bond in the amount established by the” bail

schedule set forth in the Standing Bail Order. (Standing Bail Order at 6-7.)

(7) Nothing in this Order prohibits Defendant from

detaining an arrestee who is intoxicated, under the influence of drugs, or a danger to himself or herself or

others such that said arrestee would not otherwise be

eligible for release, until such time as that arrestee becomes eligible for release. Defendant also may detain

arrestees who are subject to outstanding active warrants or other holds preventing their release from detention, arrestees who are subject to detention without

bond under state or federal law, and arrestees who refuse to cooperate in determining their indigence. Further, nothing in this Order prohibits Defendant from

applying the bail schedule set forth in the Standard Bail

Order to arrestees who are financially able to post bond

in accordance with that schedule.

IT IS SO ORDERED, this the 16th day of June,

2017.

/s/ Harold L. Murphy

SENIOR UNITED STATES

DISTRICT JUDGE

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APPENDIX C

IN THE MUNICIPAL COURT FOR THE CITY OF CALHOUN

STATE OF GEORGIA

[Defendant’s Exhibit 5, No. 4:15-cv-00170-HLM,

Doc. 29-5 (N.D. Ga.)]

STANDING ORDER REGARDING PRE-TRIAL

APPEARANCE, ESTABLISHMENT OF BONDS IN

ADVANCE OF INITIAL APPEARANCE PURSUANT

TO STATE LAW AND INDIVIDUALIZED

INDIGENCY DETERMINATIONS

Per the authority vested upon the Municipal Court

for the City of Calhoun pursuant to the Charter of the

City of Calhoun, Georgia, as approved by local act of

the Georgia General Assembly on April 8, 1983 (Ga. L.

1983, p. 4710), and as amended by Ord. No. 625A, §2,

12-8-1997 and Ord. No. 754, § 3, 5-26-2003; and in accordance with the jurisdiction granted by the Georgia

General Assembly over certain statutory misdemeanor

and high and aggravated misdemeanor criminal matters by O.C.G.A. §§ 36-32-1, et seq. and §§ 40-13-20, et

seq.; in accordance with local ordinance violations as set

forth in the Code of Calhoun, Georgia; the applicable

Georgia Uniform Superior Court Rules regarding criminal procedure; and all other applicable rules and/or policies adopted by the Council for Municipal Court Judges for the State of Georgia, established by O.C.G.A.

§ 36-32-40, the Court hereby issues the following Order

regarding a pre-established schedule for secured bail,

the initial appearance for persons arrested for both

state statutory criminal charges and local ordinance vi-

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olations; and recognizance bond for indigent persons as

follows:

Rights of bail for persons accused of statutory

criminal offenses or municipal ordinance.

The United States Supreme Court has established

the accused is not entitled to bail as a constitutional

right. See U.S. v. Salerno, 481 US 739, 754, 107 S. Ct.

2095, 95 L. E. 2d 697 (1987) (citing the original source

for Eighth Amendment in English Bill of Rights, majority finds very language of the Amendment “fails to

say all arrests must be bailable” [emphasis added]).

The accused is protected by both Article I, Section I,

Paragraph XVII of the of the Constitution of The State

of Georgia (1983) with regard to excessive bail, and the

Eighth Amendment, as applied to the States by virtue

of the Fourteenth Amendment of the United States

Constitution.

The foremost consideration when fixing bail is the

probability that the accused, if free, will appear at trial,

and the amount assessed is within the sole discretion of

the trial court and will not be overturned absent a clear

abuse of discretion. Myers v. St. Lawrence, 289 Ga. 240,

710 S.E. 2d 557 (2011). The factors considered when

establishing a bail include the defendant’s ability to pay

or provide secured bail, the seriousness of the offense,

and his/her character and reputation. Dunn v. Edwards, 275 Ga 458, 569 S.E. 2d 525 (2002); Pullin v.

Dorsey, 271 Ga. 882, 525 S.E. 2d 87 (2000).

In accordance with O.C.G.A. § 17-6-l(e):

“The trial court may release a person on bail if

the court finds the person:

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(1) Poses no significant risk of fleeing from

the jurisdiction of the Court or failing

to appear in court when required;

(2) Poses no significant threat or danger to

any person, to the community, or to

any property in the community;

(3) Poses no significant rise of committing

any felony pending trial; and

(4) Poses no significant risk of intimidating

witnesses or otherwise obstructing the

administration of justice.” (cited in

Ayala id. at 284).

The Georgia Supreme Court has noted the absence

of any “decision holding that an indigent defendant is

entitled to have bail set which he can meet.” Chafin v.

Jones, 243 Ga. 267, 253 S.E. 2d 389 (1979).1

II. Statutory authority for an established bond

schedule for criminal violations of the Official

Code of Georgia.

Pursuant to O.C.G.A. § 17-6-1(f)(1) the Court for

the City of Calhoun, Georgia, as a court of inquiry with

original jurisdiction acting in the stead of the Superior

Court of Gordon County, Georgia, for certain offenses

hereby re-adopts and re-affirms the written and established bail schedule attached as Exhibit “A.” The provisions of said exhibit are hereby incorporated by reference by this standing order as if fully set forth herein.

The Court takes note that this opinion follows after the

opinion of the 5th Circuit opinion in Pugh v. Rainwater, 572. F 2d.

1053 (5th Cir. 1978) which has yet to be cited on the same issue by

a later or modern opinion of the 11th Circuit Court of Appeals relating to the issue of bail for indigent persons.

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Any party, defendant, accused, or other person required or permitted by law to give or post bail as surety or security in a criminal matter may discharge this

requirement by depositing cash in the amount of said

bail. O.C.G.A. § 17-6-4(a). Additionally, an accused

may provide his/her driver’s license as collateral for

any bail as provided for by O.C.G.A. § 17-6-2.

The purpose is to permit the posting of bail without

a delay associated with the ‘‘First Appearance’’ within

48 hours of being confined to the Gordon County Jail, as

mandated by Georgia Uniform Superior Court Rule

26.1. It is the opinion of the Court that the employ of

such a schedule, as authorized by state law, “provides

speedy and convenient release for those who have no

difficulty in meeting its requirements[.]” Pugh v.

Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978).

The initial amount on said schedule as indicated by

the “highlighted” yellow color represents the amount

necessary for secured bail by payment of same. This

amount represents the expected fine with applicable

surcharges for all offenses charged as mandated by

State Law for disposition should the accused later enter a plea, or be found guilty following a bench trial.

Should the accused person seek to make secured bail by

property or surety, the amount shall then be twice that

as set forth in said schedule to ensure attendance at

trial and prevent avoidance of penalty or sanction.

In particular, this schedule, authorized by the

Georgia General Assembly, shall apply to all custodial

arrests permitted by O.C.G.A. §§ 17-4-20 and 17-4-23,

or other applicable code provisions for the following offenses:

(a) Possession of one ounce or less of marijuana in

Violation of the Georgia Controlled Substances

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Act (O.C.G.A. §§ 16-13-30, 16-13-25(2)(P)(i)&(ii)

and as sentenced by O.C.G.A. § 16-13-2(b)) pursuant to O.C.G.A. §36-32-6(a);

(b) Transactions in Drug Related Objects

(O.C.G.A. § 16-13-32) pursuant to O.C.G.A.

§ 36-32-6.1:

§ 36-32-7;

(d) Operating Motor Vehicle Without Certificate of

Emission Inspection (O.C.G.A. § 12-9-55) pursuant to O.C.G.A. § 36-32-8;

(e) Misdemeanor Theft by Shoplifting (O.C.G.A.

§ 16-8-14(b)(l)) pursuant to O.C.G.A. § 36-32-9;

(f) Criminal Offenses Involving Alcohol and Any

Persons Under 21 Years of Age, Including Possession, Sale, Purchase or Furnishing to Same

(O.C.G.A. § 3-3-23(a)(1) through (5)) pursuant

to O.C.G.A. § 36-32-10;

(g) Criminal Trespass (O.C.G.A. § 16-7-21) pursuant to O.C.G.A. § 36-32-10.1;

(h) All Violations of Title 40: Motor Vehicles and

Traffic of the Official Code of Georgia Annotated pursuant to O.C.G.A. § 40-13-21;

(i) Operating an Unregistered Vehicle on Public

Highway (O.C.G.A. § 40-2-8) pursuant to

O.C.G.A. § 40-13-22; and

(j) All other offenses that might otherwise be

amended or added to be included by the authority envisioned by O.C.G.A. § 36-32-10.2 as the

Georgia General Assembly shall deem applicable.

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III. Scheduling of Georgia Uniform Superior Court

Rule 26.1 “First Appearance” for individuals not

otherwise capable of making bail pursuant to the

schedule established in accordance with O.C.G.A.

§17-6-1(f)(1)

For those individuals who do not obtain release

pursuant to the secured bail schedule as outlined above,

within forty-eight (48) hours from their arrest, they

shall then be brought before the Court for a “first appearance” in accordance with Georgia Uniform Superior Court Rule 26.1. In additional to those obligations

established by the Uniform Rule, the accused shall be

represented by court appointed counsel. At this time

the accused will be given the opportunity to object to

the bail amount set for him or her, including any claim

of indigency and the need for appointed legal counsel to

assist in their release. The Court shall then determine

whether the accused is unable to post a secured bail because he/she is indigent, making an individualized determination based upon the evidence provided.

The standard for making an individualized determination of indigency shall be that established by

O.C.G.A. § 36-32-1(f) and (g), as defined by O.C.G.A.

§ 17-2-2(6)(A) regarding an “indigent person” charged

with a misdemeanor, violation of probation, or a municipal code offense punishable by imprisonment. These

legislative provisions have established an “indigent

person” or “indigent defendant” for appointed legal

counsel as one “earning less than 100 percent of the

federal poverty guidelines, unless there is evidence

that the person has other resources that might be reasonably used to employ a lawyer without undue hardship on the person or his or her dependents[.]” For

purposes of this order, “100 percent of the federal poverty guidelines” shall specifically mean the guidelines

85a

published in the Federal Register of January 22, 2015,

Volume 80, Number 14 on ppgs 3237, 3238 (a copy of

same being attached as Exhibit “B” hereto), and as may

be further promulgated and adopted for subsequent

years in the Federal Register.

Should the Court find, based upon the evidence

then provided that the accused is indigent by said

standard, then he/she shall be subject to release on recognizance without making a secured bail in accordance

with O.C.G.A. § 17-6-1(i). Said individual shall then be

provided written notice of the date for the next proceeding or trial. It shall be the responsibility of the accused to notify the Clerk of Municipal Court should

he/she have a change of residence or mailing address

prior to a adjudication and sentencing to ensure notice

of any change in the scheduled proceedings.

In the unlikely event that no hearing can be held

within the forty-eight (48) hour time frame established

by Georgia Uniform Superior Court Rule 26.1, then the

accused shall be released on a recognizance bond in accordance with O.C.G.A. § 17-6-1(i).

The staff of the Gordon County Jail shall inform the

Municipal Court staff of any such accused in a timely

fashion and shall additionally facilitate his/her appearance via video transmission or teleconference at a time

to be set by the Court.

IV. Ability of any person charged with a violation of

The Code of Calhoun, Georgia (local ordinance

violations) not otherwise a misdemeanor offense

as defined by statutory law to post unsecured

bond.

All persons charged with violations of The Code of

Calhoun, Georgia who have no outstanding failure to

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appear arrest warrant from the City of Calhoun, or any

other similar governing authority duly established by

the Georgia General Assembly or the Constitution of

The State of Georgia, shall be released on an unsecured

appearance bond in the amount established by the

aforementioned bail schedule. The unsecured appearance bond form which shall be used is hereto attached

as Exhibit “C,” and same is incorporated as if fully set

forth herein.

SO ORDERED and DECREED this the 23rd day

of November, 2015.

/s/ Suzanne H. Smith

____

SUZANNE H. SMITH, CHIEF JUDGE

MUNICIPAL COURT

CITY OF CALHOUN, GEORGIA

STATE OF GEORGIA

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.