Reply Brief — Maurice Walker, Individually and on Behalf of All Others Similarly Situated, Petitioner v. City of Calhoun, Georgia

No. 18-814

IN THE

Supreme Court of the United States

MAURICE WALKER,

on behalf of himself and others similarly situated,

Petitioner,

v.

CITY OF CALHOUN, GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

ALEC KARAKATSANIS

CIVIL RIGHTS CORPS

910 17th St. N.W.

Fifth Floor

Washington, D.C. 20006

SARAH GERAGHTY

RYAN PRIMERANO

SOUTHERN CENTER

FOR HUMAN RIGHTS

83 Poplar St. N.W.

Atlanta, GA 30303

SETH P. WAXMAN

DANIEL S. VOLCHOK

Counsel of Record

ALBINAS J. PRIZGINTAS

ARPIT K. GARG

SAMUEL M. STRONGIN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave. N.W.

Washington, D.C. 20006

(202) 663-6000

daniel.volchok@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

INTRODUCTION .............................................................. 1

ARGUMENT ....................................................................... 3

I.

THE FIRST QUESTION PRESENTED WARRANTS REVIEW ............................................................. 3

A. The Circuits Are Divided .................................... 3

B. Calhoun Offers No Defense Of The

Eleventh Circuit’s Rejection Of

Heightened Scrutiny ............................................ 6

C. Calhoun Does Not Dispute That The

Issue Is Important And Recurring.................... 8

II. THE SECOND QUESTION PRESENTED MERITS REVIEW ................................................................... 9

III. THIS IS A GOOD VEHICLE.......................................... 11

CONCLUSION ................................................................. 13

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Amgen Inc. v. Connecticut Retirement Plans

& Trust Funds, 568 U.S. 455 (2013) ........................ 11

Bearden v. Georgia, 461 U.S. 660 (1983) .......................... 6

Cimino v. Raymark Industries, Inc., 151 F.3d

297 (5th Cir. 1998)......................................................... 4

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

44 (1991) ..................................................................... 6, 9

EEOC v. Neches Butane Products Company,

704 F.2d 144 (5th Cir. 1983) ........................................ 5

F. Hoffman-La Roche Limited v. Empagran

S.A., 542 U.S. 155 (2004) ............................................ 11

Fisher v. University of Texas at Austin, 570 U.S.

297 (2013) ....................................................................... 7

Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) .............. 3

Grutter v. Bollinger, 539 U.S. 306 (2003) ......................... 7

Morgan Stanley Capital Group Inc. v. Public

Utility District Number 1 of Snohomish

County, 554 U.S. 527 (2008) ...................................... 11

Newby v. Enron Corp., 443 F.3d 416 (5th Cir.

2006) ............................................................................... 3

Northshore Development, Inc. v. Lee, 835 F.2d

580 (5th Cir. 1988)..................................................... 3, 4

ODonnell v. Goodhart, 900 F.3d 220 (5th Cir.

2018) ........................................................................... 3, 7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

ODonnell v. Harris County, 892 F.3d 147 (5th

Cir. 2018) ........................................................................ 3

ODonnell v. Salgado, 913 F.3d 479 (5th Cir.

2019) ........................................................................... 3, 4

Pacific Bell Telephone Company v. Linkline

Communications, Inc., 555 U.S. 438 (2009) ........... 11

Rosales-Mireles v. United States, 138 S. Ct.

1897 (2018) ..................................................................... 8

Society of Separationists, Inc. v. Herman, 939

F.2d 1207 (5th Cir. 1991) ......................................... 3, 4

Soldal v. Cook County, 506 U.S. 56 (1992) ...................... 9

Tate v. Short, 401 U.S. 395 (1971) ..................................... 6

Trevino v. Davis, 861 F.3d 545 (5th Cir. 2017) ............ 3, 4

United States v. Virginia, 518 U.S. 515 (1996).............. 10

Whole Woman’s Health v. Cole, 790 F.3d 563

(5th Cir. 2015)................................................................ 5

Whren v. United States, 517 U.S. 806 (1996) ................... 9

Williams v. Illinois, 399 U.S. 235 (1970) ......................... 6

DOCKETED CASES

ODonnell v. Goodhart, No. 18-20466 (5th Cir.) ............... 5

iv

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

QuickFacts: Calhoun County, Georgia; Harris

County, Texas, at https://www.census.gov/

quickfacts/fact/table/calhouncountygeorgia,

harriscountytexas/PST045218 (visited March

12, 2019) ....................................................................... 10

QuickFacts: Louisiana; Texas; Mississippi; Alabama; Florida; Georgia, at https://

www.census.gov/quickfacts/fact/table/la,tx,

ms,al,fl,ga/PST045218 (visited March 12,

2019) ............................................................................. 12

Shapiro, Stephen M., et al., Supreme Court

Practice (10th ed. 2013) ............................................. 11

IN THE

Supreme Court of the United States

No. 18-814

MAURICE WALKER,

on behalf of himself and others similarly situated,

Petitioner,

v.

CITY OF CALHOUN, GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

INTRODUCTION

A divided panel of the Eleventh Circuit held here

that heightened scrutiny is not triggered when the

government keeps arrestees in jail for up to 48 hours

because they are poor, and that the government can

engage in such discriminatory jailing for no reason

whatsoever. Whether those holdings are correct is

enormously important, involving physical freedom

(among the most fundamental of all rights) for many

thousands of people.

Calhoun offers no sound basis to deny review of

these important issues. It does not dispute that the

first question presented is important and recurring.

2

Nor does it contest the petition’s assertion that the

Eleventh Circuit’s holding on that question (that rational-basis scrutiny applies to Calhoun’s policy of

keeping arrestees in jail because they are indigent) is

wrong under this Court’s precedent. Indeed, save for

one fleeting reference, Calhoun completely ignores the

trio of this Court’s cases that the petition explained are

irreconcilable with the decision below. And while Calhoun does deny that the decision below conflicts with

Fifth Circuit precedent, its argument rests entirely on

two motions-panel decisions, which a phalanx of circuit

precedent makes clear are not binding law. A square

circuit conflict on a recurring issue of federal law—and

involving the fundamental right of tens of thousands of

people not to be locked up for no reason—warrants review, particularly when the decision below is starkly

inconsistent with this Court’s precedent.

As to the second question presented, Calhoun ignores the petition’s arguments about why the decision

below is wrong. The Eleventh Circuit held that because the Fourth Amendment generally permits arrestees to be detained for up to 48 hours before a probable-cause hearing, the Fourteenth Amendment permits the government to engage in discriminatory incarceration—again, for no reason—for the same period.

As the petition explained, however, the two amendments protect against different evils, and the government must comply with both. Calhoun offers no response. Given this implicit concession that the decision

below is erroneous, and because this is also an important and recurring question of federal law (here too

Calhoun offers no disagreement), certiorari should be

granted on it as well.

3

ARGUMENT

I.

THE FIRST QUESTION PRESENTED WARRANTS REVIEW

A. The Circuits Are Divided

1. As the petition explained (e.g., at 3), the Eleventh Circuit’s divided holding that heightened scrutiny

is not triggered by wealth-based incarceration (i.e.,

keeping arrestees in jail because they are poor) conflicts with ODonnell v. Harris County, 892 F.3d 147

(5th Cir. 2018) (opinion on rehearing) (“ODonnell I”),

and Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972).

Calhoun’s opposition never cites Frazier, and it agrees

(at 7) that ODonnell I “did apply heightened or intermediate scrutiny.”

Calhoun argues, however—and again this is virtually its only argument against review of this question—

that the Fifth Circuit renounced heightened scrutiny in

ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018)

(“ODonnell II”), and ODonnell v. Salgado, 913 F.3d 479

(5th Cir. 2019) (per curiam) (“ODonnell III”). In fact,

Calhoun upbraids Walker for not mentioning these rulings, stating that in light of them, his claim about Fifth

Circuit law is “startling” (Opp. 8).

It is Calhoun’s presentation that is “startling.”

ODonnell II and III were issued by a motions panel.

And decades of consistent Fifth Circuit cases—not cited by Calhoun—hold that “a motions panel decision is

not binding precedent.” Northshore Development, Inc.

v. Lee, 835 F.2d 580, 583 (5th Cir. 1988) (following two

other cases so holding); accord, e.g., Trevino v. Davis,

861 F.3d 545, 548 n.1 (5th Cir. 2017), cert. denied, 138

S. Ct. 1793 (2018); Newby v. Enron Corp., 443 F.3d 416,

419 (5th Cir. 2006) (following two other cases so holding); Society of Separationists, Inc. v. Herman, 939

4

F.2d 1207, 1211 n.6 (5th Cir. 1991) (subsequent history

omitted). Indeed, the Fifth Circuit called this rule “settled” over twenty years ago. Cimino v. Raymark Industries, Inc., 151 F.3d 297, 311 n.26 (5th Cir. 1998).

And in the Fifth Circuit (as in all others), a panel does

not have the power to overrule a prior panel. E.g., Society of Separationists, 939 F.2d at 1211. The ODonnell

motions panel thus could not abrogate the cases just

cited holding that motions-panel rulings are not circuit

law.

ODonnell III, however, tried to distinguish those

cases on the ground that ODonnell II was the Fifth

Circuit’s “last statement on the matter,” because the

government officials withdrew their appeal in that case,

meaning “there is not, and never will be, a merits panel.” 913 F.3d at 482.

Northshore squarely rejects that distinction. The

appellant there argued that the merits panel was bound

by the reasoning of a motions panel that had dismissed

a prior appeal. See 835 F.2d at 835. That dismissal, of

course, meant that there was no merits panel in that

appeal, i.e., the motions-panel ruling was (in ODonnell

III’s words) the Fifth Circuit’s “last statement on the

matter.” Judge Wisdom’s opinion rebuffed the argument, declaring categorically that “a motions panel decision is not binding precedent,” and giving no weight

to the motions-panel decision that appellants invoked.

Id.1

1

The motions panel rightly did not assert that the rule that

motions-panel decisions are not binding applies only with jurisdictional rulings. See Trevino, 861 F.3d at 548 n.1 (reviewing habeas

petition “unbound by the [motion-panel’s] observations on the

merits” (emphasis added)).

5

The motions-panel decisions in ODonnell are also

not Fifth Circuit law because their conclusion that rational-basis review applies to wealth-based incarceration conflicts with ODonnell I (despite the motions

panel’s efforts at distinguishing that decision). See Appellee Br. 25-31, 34-47, ODonnell v. Goodhart, No. 1820466 (5th Cir. Oct. 24, 2018). And as explained, Fifth

Circuit precedent is clear that when two panel decisions conflict, the prior one controls.

Finally, the fact that the ODonnell motions panel

declared that its two decisions were binding precedent

(see Opp. 10) is irrelevant. As explained, under Fifth

Circuit precedent that the panel had no power to overrule, those decisions are not binding. The majority

could put any words it wanted into its opinions (just as

it could publish them in the Federal Reporter). But it

could not make them binding either by labeling them so

or by publishing them—any more than it could, for example, make them apply nationwide (or make them

take precedence over decisions of this Court) simply by

publishing them or declaring it so.2

2

The foregoing fully answers Calhoun’s argument regarding

ODonnell II and III. Walker notes, however, that the reason motions-panel rulings are not binding—they are typically made on an

expedited basis and with abbreviated briefing, e.g., Whole Woman’s Health v. Cole, 790 F.3d 563, 580 (5th Cir. 2015) (subsequent

history omitted); EEOC v. Neches Butane Products Company,

704 F.2d 144, 147 (5th Cir. 1983)—applies in spades here. In

ODonnell II, which involved an emergency motion for a stay pending appeal, the briefing was both abbreviated and highly expedited, and the (divided) opinion issued just three weeks after argument. And ODonnell III involved no adversarial presentation (or

oral argument), and the decision issued six days after the motion

was submitted. ODonnell I, by contrast, was based on party

briefs that ran over 50,000 words, fifteen amicus briefs, and a full

hour of oral argument (presented by four different attorneys).

6

In short, there is a square conflict between Fifth

Circuit and Eleventh Circuit law on the first question

presented.3

B. Calhoun Offers No Defense Of The Eleventh

Circuit’s Rejection Of Heightened Scrutiny

The petition and Walker’s amici explained that certiorari is also warranted because the Eleventh Circuit’s

refusal to apply heightened scrutiny cannot be reconciled with this Court’s decisions in Williams v. Illinois,

399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971);

or Bearden v. Georgia, 461 U.S. 660 (1983). See Pet. 1521; Law Professors Br. 12-14. Calhoun offers no response to these arguments. In fact, its opposition remarkably never even cites Williams or Tate, and it

cites Bearden only once (Opp. 6), in describing the decision below as part of the Statement. Calhoun’s complete failure to address this Court’s relevant precedent

is revealing.

The closest Calhoun comes to defending the decision below is its endorsement (Opp. 9) of ODonnell II.

There the divided motions panel reasoned that—

contrary to Judge Clement’s unanimous opinion in

The court, moreover, took over four months to issue its (unanimous) opinion.

3

Calhoun also argues (Opp. 6-7, 11-12) that both the Fifth and

Eleventh Circuits agree on three different points: (1) the Fourth

Amendment holding of County of Riverside v. McLaughlin, 500

U.S. 44 (1991), can be imported into the equal-protection context;

(2) a bail policy that provides notice, an opportunity to be heard

within 48 hours of arrest, and a reasoned decision by an impartial

decisionmaker satisfies the Constitution; and (3) an injunction requiring review within 24 hours of arrest must be vacated. But

that attacks a strawman, as the petition did not allege any conflict

on those points.

7

ODonnell I—rational-basis review applies to the incarceration of arrestees because they are indigent, so long

as the government provides a hearing to consider alternatives to monetary bail. 900 F.3d at 226.

That reasoning is fundamentally confused, conflating two distinct concepts: what government conduct

triggers the application of heightened scrutiny and

what circumstances satisfy such scrutiny. As this

Court has explained, to satisfy heightened scrutiny the

government must engage in “good faith consideration

of workable … alternatives that will achieve the [compelling objectives] the [defendant] seeks.” Grutter v.

Bollinger, 539 U.S. 306, 339 (2003). In other words,

what this Court has said is required to satisfy heightened scrutiny is what the motions-panel majority in

ODonnell II said avoids triggering such scrutiny. But

it cannot be that the steps that a jurisdiction takes to

satisfy heightened scrutiny are determinative of

whether such scrutiny applies in the first place. If that

were correct, then courts would apply rational-basis

review to a college’s use of race-conscious admissions

simply because the college considered race-neutral alternatives. That is wrong. See Fisher v. University of

Texas at Austin, 570 U.S. 297, 312 (2013) (“Consideration [of race-based alternatives] … is of course necessary, but it is not sufficient to satisfy strict scrutiny.”

(emphasis added)). Calhoun’s reliance on ODonnell II’s

deeply flawed reasoning does nothing to justify the

Eleventh Circuit’s ruling on the first question presented. Because that ruling departs from this Court’s precedent, review is warranted.

8

C. Calhoun Does Not Dispute That The Issue Is

Important And Recurring

Walker and his amici explained that the question

presented here is recurring. Many thousands of people

are arrested every year, Pet. 26, and a substantial percentage of them will suffer pretrial incarceration solely

because they are poor, see ABA Br. 14-15.

Walker and his amici also explained the importance

of the question presented, namely that, as this Court

has recognized, the consequences of incarceration are

“exceptionally severe,” Rosales-Mireles v. United

States, 138 S. Ct. 1897, 1907 (2018). Those consequences include disrupting arrestees’ lives economically

(through loss of housing, employment, and household

possessions), socially (by disrupting family relationships), physically (by exposing arrestees to disease and

violence), and emotionally. ABA Br. 15-16. The consequences also affect the public at large, via higher costs

on judicial systems and a higher likelihood of arrestees

failing to appear or committing offenses before trial.

Pet. 28-29; Pretrial Services Agencies Br. 16-21. And

still another consequence is the erosion of the Sixth

Amendment right to a jury trial, as arrestees “are effectively coerced into taking pleas, regardless of the

merits of their case.” Cato Institute Br. 19 (emphasis

omitted). Even if an arrestee does not plead guilty,

those subjected to pretrial incarceration are more likely to be convicted and, if convicted, receive longer sentences. ABA Br. 16-18.

Calhoun, yet again, offers no response.

*

*

*

In sum, the first question presented has divided the

circuits and involves a recurring and important issue of

9

federal law that threatens substantial harm to huge

numbers of people—and the Eleventh Circuit’s answer

to the question is (as Calhoun does not dispute) inconsistent with this Court’s precedent. Under those circumstances, review is warranted.

II. THE SECOND QUESTION PRESENTED MERITS REVIEW

Unlike with the first question, Calhoun does defend

the Eleventh Circuit’s holding on the second question,

i.e., the holding that a government can—without any

justification for doing so—detain arrestees for up to 48

hours because they are indigent. Calhoun’s defense

(Opp. 14-15) is that this Court’s Fourth Amendment

holding in County of Riverside v. McLaughlin, 500 U.S.

44 (1991), means there cannot be an equal-protection

violation for up to 48 hours of pretrial incarceration.

As the petition explained, however (at 23-26),

McLaughlin’s holding—that two days of pretrial incarceration before a probable-cause hearing does not violate the Fourth Amendment, 500 U.S. at 56—cannot

immunize a jurisdiction from a Fourteenth Amendment

challenge to a similar amount of discriminatory pretrial incarceration. McLaughlin did not involve the Fourteenth Amendment (or discriminatory incarceration).

And where a plaintiff invokes more than one constitutional provision, a court must “examine each constitutional provision in turn.” Soldal v. Cook County, 506

U.S. 56, 70 (1992). For example, in Whren v. United

States, 517 U.S. 806 (1996), this Court held that an objectively reasonable traffic stop complies with the

Fourth Amendment regardless of purpose but recognized that the Fourteenth Amendment still bars “selective enforcement of the law based on considerations

such as race,” id. at 813. In other words, a discriminatory traffic stop does not violate the Fourth Amend-

10

ment, but it would violate the Fourteenth. The same is

true here: Calhoun’s 48 hours of discriminatory pretrial

incarceration does not violate the Fourth Amendment,

but it does violate the Fourteenth. Calhoun ignores all

of these arguments.

Calhoun instead asserts (Opp. 11) that ODonnell I

agreed with the Eleventh Circuit’s ruling that under

McLaughlin, governments have a virtual free pass to

discriminate in incarcerating arrestees for up to 48

hours. The petition (at 25) already explained why that

is incorrect. Calhoun also quotes (Opp. 12 n.2) the

Eleventh Circuit’s statement that “ODonnell [I] held a

24-hour rule too burdensome even though … Harris

County … presumably could much more easily provide

frequent bail hearings than can [Calhoun’s] one-judge

municipal court.” That “presumption,” however, ignores the fact that Harris County’s population is over

720 times that of Calhoun. See QuickFacts: Calhoun

County, Georgia; Harris County, Texas, at

https://www.census.gov/quickfacts/fact/table/calhoun

countygeorgia,harriscountytexas/PST045218

(visited

March 12, 2019). In any event, if Calhoun is suggesting

that courts should just assume it could satisfy heightened scrutiny, that is meritless. It is a jurisdiction’s

burden to show it has satisfied such scrutiny. See United States v. Virginia, 518 U.S. 515, 533 (1996), quoted in

Pet. 22.

Most striking of all is Calhoun’s silence regarding

the petition’s assertion (at 24-25) that the Eleventh

Circuit’s divided holding would mean jurisdictions

could jail Catholics, blacks, or women for up to 48 hours

without any justification, while simultaneously releasing Protestants, whites, and men immediately (or viceversa). That proposition is untenable, and Calhoun’s

implicit embrace of it cries out for this Court’s review.

11

III. THIS IS A GOOD VEHICLE

Calhoun contends (Opp. 15-17) that this case is a

poor vehicle to address the questions presented. That

is not correct.

First, Calhoun notes (Opp. 15) this appeal’s “interlocutory posture.” But this Court often grants review

in similar circumstances. See Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455

(2013); Pacific Bell Telephone Company v. Linkline

Communications, Inc., 555 U.S. 438 (2009); F. Hoffman-La Roche Limited v. Empagran S.A., 542 U.S. 155

(2004). In fact, it has done so even when the Solicitor

General opposed review on the same ground. See Morgan Stanley Capital Group Inc. v. Public Utility District Number 1 of Snohomish County, 554 U.S. 527, 555

(2008) (Ginsburg, J., concurring in part and concurring

in the judgment). An interlocutory posture does not

preclude review of an “important and clear-cut issue of

law that is fundamental to the further conduct of the

case … —particularly if the lower court’s decision is

patently incorrect.” Shapiro et al., Supreme Court

Practice 283 (10th ed. 2013) (collecting authorities).

That is the situation here, as Calhoun has offered no

factual justification for the challenged policy.

Second, Calhoun argues (Opp. 15) that this case “is

hardly the ideal test case for determining the outer

boundaries of the Constitution.” That argument fails.

To begin with, the argument has nothing to do with the

first question presented; a different factual scenario

would not be any better of a vehicle to decide whether

wealth-based discrimination triggers heightened scrutiny. The argument likewise lacks merit as to the second question. To the extent Calhoun is suggesting that

its policy would be constitutional under any resolution

12

of that question, that is false. If McLaughlin provides

no 48-hour safe harbor (as Walker contends), then Calhoun’s policy is unconstitutional.

Third, Calhoun observes that “many state legislatures have recently taken up bail reform.” Opp. 17.

But that is a reason not to wait for another case.

Should efforts to abolish cash bail accelerate nationally,

fewer cases will raise claims like Walker’s, meaning

that allowing the issue to percolate in the lower courts

may produce little or no benefit, as few if any other

courts of appeals will have the opportunity to weigh in

on the conflict between the Fifth and Eleventh Circuits. Moreover, states that are undertaking bail reform need this Court’s guidance as to what the Constitution requires.

In any event, the real-world extent of the circuit

conflict here is ample basis for the Court’s intervention.

The population of Texas, Florida, and the other states

in the Fifth and Eleventh Circuits is well over 70

million people. See QuickFacts: Louisiana; Texas;

Mississippi; Alabama; Florida; Georgia, at https://

www.census.gov/quickfacts/fact/table/la,tx,ms,al,fl,ga/

PST045218 (visited March 12, 2019). Ensuring uniformity in the equal-protection rights of such a significant portion of the population—and ensuring that many

thousands of arrestees do not lose their liberty because

of unconstitutional discrimination (imposed by a policy

inconsistent with this Court’s longstanding precedent)—warrants this Court’s review.

13

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ALEC KARAKATSANIS

CIVIL RIGHTS CORPS

910 17th St. N.W.

Fifth Floor

Washington, D.C. 20006

SARAH GERAGHTY

RYAN PRIMERANO

SOUTHERN CENTER

FOR HUMAN RIGHTS

83 Poplar St. N.W.

Atlanta, GA 30303

MARCH 2019

SETH P. WAXMAN

DANIEL S. VOLCHOK

Counsel of Record

ALBINAS J. PRIZGINTAS

ARPIT K. GARG

SAMUEL M. STRONGIN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave. N.W.

Washington, D.C. 20006

(202) 663-6000

daniel.volchok@wilmerhale.com