Maranda ODonnell v. Harris County, Texas, e , 882 F.3d 528 ( 2018 )


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  •       Case: 17-20333          Document: 00514347556        Page: 1   Date Filed: 02/14/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-20333
    Fifth Circuit
    FILED
    February 14, 2018
    MARANDA LYNN ODONNELL,                                                     Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH
    LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ;
    JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C.
    FLEMNG; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY;
    PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN
    SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD
    SMYTH; JEAN HUGHES,
    Defendants - Appellants
    -----------------------------------------------------
    LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,
    Plaintiffs - Appellees
    v.
    HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART
    HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA
    ESTELA VILLAGOMEZ,
    Defendants - Appellants
    Appeals from the United States District Court
    for the Southern District of Texas
    Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
    Case: 17-20333      Document: 00514347556        Page: 2    Date Filed: 02/14/2018
    No. 17-20333
    EDITH BROWN CLEMENT, Circuit Judge:
    Maranda ODonnell and other plaintiffs (collectively, “ODonnell”)
    brought a class action suit against Harris County, Texas, and a number of its
    officials—including County Judges, 1 Hearing Officers, and the Sheriff
    (collectively, the “County”)—under 42 U.S.C. § 1983. ODonnell alleged the
    County’s system of setting bail for indigent misdemeanor arrestees violated
    Texas statutory and constitutional law, as well as the equal protection and due
    process clauses of the Fourteenth Amendment. ODonnell moved for a
    preliminary injunction, and the County moved for summary judgment. After
    eight days of hearings, at which the parties presented numerous fact and
    expert witnesses and voluminous written evidence, the district court denied
    the County’s summary judgment motion and granted ODonnell’s motion for a
    preliminary injunction. The County then applied to this court for a stay of the
    injunction pending appeal, but the motion was denied, and the injunction went
    into effect. Before this court now is the County’s appeal, seeking vacatur of the
    injunction and raising numerous legal challenges.
    For the reasons set forth, we affirm most of the district court’s rulings,
    including its conclusion that ODonnell established a likelihood of success on
    the merits of its claims that the County’s policies violate procedural due
    process and equal protection. We disagree, however, with the district court’s
    analysis in three respects: First, its definition of ODonnell’s liberty interest
    under due process was too broad, and the procedures it required to protect that
    interest were too onerous. Second, it erred by concluding that the County
    Sheriff can be sued under § 1983. Finally, the district court’s injunction was
    overbroad. As a result, we will dismiss the Sheriff from the suit, vacate the
    1  The parties use the term “County Judges” to refer to the judges of the County
    Criminal Courts of Harris County, and we will use that same term. This term does not refer
    to the County Judge who is the head of the County Commissioners’ Court of Harris County.
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    injunction, and order the district court to modify its terms in a manner
    consistent with this opinion.
    I.
    We need not conduct an exhaustive review of the facts. The district
    court’s account is expansive: It comprised over 120 pages of factual findings,
    including not only the specific details of the County’s bail-setting procedures,
    but also the history of bail and recent reform attempts nationwide.
    Bail in Texas is either secured or unsecured. Secured bail requires the
    arrestee to post bond either out of the arrestee’s pocket or from a third-party
    surety (often bail bondsmen, who generally require a 10% non-refundable
    premium in exchange for posting bond). Unsecured bail, by contrast, allows the
    arrestee to be released without posting bond, but if he fails to attend his court
    date and/or comply with any nonfinancial bail conditions, he becomes liable to
    the County for the bail amount. Both secured and unsecured bail may also
    include nonfinancial conditions to assure the detainee’s attendance at future
    hearings.
    The basic procedural framework governing the administration of bail in
    Harris County is set by the Texas Code of Criminal Procedure and local rules
    promulgated by County Judges. See Tex. Gov’t Code § 75.403(f). When a
    misdemeanor defendant is arrested, the prosecutor submits a secured bail
    amount according to a bond schedule established by County Judges. See Harris
    County Criminal Courts at Law Rule 9 (hereinafter, “Local Rule”). Bonds are
    then formally set by Hearing Officers and County Judges. Tex. Code. Crim.
    Pro. art. 2.09, 17.15. Hearing Officers are generally responsible for setting bail
    amounts in the first instance. This often occurs during the arrestee’s initial
    probable cause hearing, which must be held within 24 hours of arrest. Tex.
    Code Crim. Pro. art. 17.033; Local Rule 4.2.1.1. County Judges review the
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    Hearing Officers’ determinations and can adjust bail amounts at a “Next
    Business Day” hearing. Local Rule 4.3.1.
    The Hearing Officers and County Judges are legally proscribed from
    mechanically applying the bail schedule to a given arrestee. Instead, the Texas
    Code requires officials to conduct an individualized review based on five
    enumerated factors, which include the defendant’s ability to pay, the charge,
    and community safety. Tex. Code of Crim. Pro. art. 17.15. The Local Rules
    explicitly state the schedule is not mandatory. They also authorize a similar,
    individualized assessment using factors which partially overlap with those
    listed in the Code. Local Rule 4.2.4. Hearing Officers and County Judges
    sometimes receive assessments by Pretrial Services, which interviews the
    detainees prior to hearings, calculates the detainees flight and safety risk
    based on a point system, and then makes specific recommendations regarding
    bail. 2
    Despite these formal requirements, the district court found that, in
    practice, County procedures were dictated by an unwritten custom and
    practice that was marred by gross inefficiencies, did not achieve any
    individualized assessment in setting bail, and was incompetent to do so. The
    district court noted that the statutorily-mandated probable cause hearing
    (where bail is usually set) frequently does not occur within 24 hours of arrest.
    The hearings often last seconds, and rarely more than a few minutes. Arrestees
    are instructed not to speak, and are not offered any opportunity to submit
    evidence of relative ability to post bond at the scheduled amount.
    Individualized assessment is also assured by a preexisting federal consent decree,
    2
    which requires County officials to make individualized assessments of each misdemeanor
    defendant’s case and adjust the scheduled bail amount accordingly, or else release the
    defendant on unsecured or nonfinancial conditions.
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    The court found that the results of this flawed procedural framework
    demonstrate the lack of individualized assessments when officials set bail.
    County officials “impose the scheduled bail amounts on a secured basis about
    90 percent of the time. When [they] do change the bail amount, it is often to
    conform the amount to what is in the bail schedule.” The court further found
    that, when Pretrial Services recommends release on personal bond, Hearing
    Officers reject the suggestion 66% of the time. Because less than 10% of
    misdemeanor arrestees are assigned an unsecured personal bond, some
    amount of upfront payment is required for release in the vast majority of cases.
    The court also found that the “Next Business Day” hearing before a
    County Judge fails to provide a meaningful review of the Hearing Officer’s bail
    determinations. Arrestees routinely must wait days for their hearings. County
    Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases.
    Furthermore, prosecutors routinely offer time-served plea bargains at the
    hearing, and arrestees are under immense pressure to accept the plea deals or
    else remain incarcerated for days or weeks until they are appointed a lawyer.
    The district court further noted the various ways in which the imposition
    of secured bail specifically targets poor arrestees. For example, under the
    County’s risk-assessment point system used by Pretrial Services, poverty
    indicators (such as not owning a car) receive the same point value as prior
    criminal violations or prior failures to appear in court. Thus, an arrestee’s
    impoverishment increased the likelihood he or she would need to pay to be
    released.
    The court also observed that Hearing Officers imposed secured bails
    upon arrestees after having been made aware of an arrestee’s indigence by the
    risk-assessment reports or by the arrestee’s own statements. And further, after
    extensive review of numerous bail hearings, the court concluded Hearing
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    Officers were aware that, by imposing a secured bail on indigent arrestees,
    they were ensuring that those arrestees would remain detained.
    The court rejected the argument that imposing secured bonds served the
    County’s interest in ensuring the arrestee appeared at the future court date
    and committed no further crime. The court’s review of reams of empirical data
    suggested the opposite: that “release on secured financial conditions does not
    assure better rates of appearance or of law-abiding conduct before trial
    compared to release on unsecured bonds or nonfinancial conditions of
    supervision.” Instead, the County’s true purpose was “to achieve pretrial
    detention of misdemeanor defendants who are too poor to pay, when those
    defendants would promptly be released if they could pay.” In short, “secured
    money bail function[ed] as a pretrial detention order” against the indigent
    misdemeanor arrestees.
    The district court also reviewed voluminous empirical data and academic
    literature to evaluate the impact of pretrial detention on an arrestee. The court
    found that the expected outcomes for an arrestee who cannot afford to post
    bond are significantly worse than for those arrestees who can. In general,
    indigent arrestees who remain incarcerated because they cannot make bail are
    significantly more likely to plead guilty and to be sentenced to imprisonment.
    They also receive sentences that are on average twice as long as their bonded
    counterparts. Furthermore, the district court found that pretrial detention can
    lead to loss of job, family stress, and even an increase in likeliness to commit
    crime.
    The court concluded that ODonnell had established a likelihood of
    success on the merits of their claim that the County violated both the
    procedural due process rights and the equal protection rights of indigent
    misdemeanor detainees. It granted the motion for a preliminary injunction,
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    requiring the implementation of new safeguards and the release of numerous
    detainees subjected to the insufficient procedures.
    II.
    This court reviews a “district court’s grant of a preliminary injunction . . .
    for abuse of discretion.” Women’s Med. Cty. of Nw. Hous. v. Bell, 
    248 F.3d 411
    ,
    418–19 (5th Cir. 2001). “Findings of fact are reviewed only for clear error; legal
    conclusions are subject to de novo review.” 
    Id. at 419.
    “Issuance of an injunction
    rests primarily in the informed discretion of the district court. Yet injunctive
    relief is a drastic remedy, not to be applied as a matter of course.” Marshall v.
    Goodyear Tire & Rubber Co., 
    554 F.2d 730
    , 733 (5th Cir. 1977) (internal
    citations omitted). A district court abuses its discretion if it issues an injunction
    that “is not narrowly tailored to remedy the specific action which gives rise to
    the order as determined by the substantive law at issue.” Scott v. Schedler, 
    826 F.3d 207
    , 211 (5th Cir. 2016) (internal quotation marks and alterations
    omitted).
    III.
    The County raises a number of arguments that do not implicate the
    merits of ODonnell’s constitutional claims. We address these first.
    A. Liability of County Judges and Sheriff under § 1983
    The County appeals the district court’s ruling that the County Judges
    and Sheriff could be sued under 42 U.S.C. § 1983. Liability under § 1983
    attaches to local government officers “whose [unlawful] decisions represent the
    official policy of the local governmental unit.” Jett v. Dall. Indep. Sch. Dist.,
    
    491 U.S. 701
    , 737 (1989). Whether an officer has been given this authority is
    “a question of state law.” Pembaur v. City of Cincinnati, 
    475 U.S. 469
    , 483
    (1986). “Official policy” includes unwritten widespread practices that are “so
    common and well settled as to constitute a custom that fairly represents
    municipal policy.” Johnson v. Moore, 
    958 F.2d 92
    , 94 (5th Cir. 1992) (quoting
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    Bennett v. City of Slidell, 
    735 F.2d 861
    , 862 (5th Cir. 1984) (en banc)). And
    unlawful decisions include “acquiescence in a longstanding practice or custom
    which constitutes the standard operating procedure of the local governmental
    entity.” 
    Jett, 491 U.S. at 737
    (internal quotation marks omitted).
    Though a judge is not liable when “acting in his or her judicial capacity
    to enforce state law,” 
    Moore, 958 F.2d at 94
    , we agree with the district court
    that the County Judges are appropriate parties in this suit. Texas law
    explicitly establishes that the Judges are “county officers,” TEX. CONST. art. V
    § 24, imbued with broad authority to promulgate rules that will dictate post-
    arrest policies consistent with the provisions of state law, Tex. Gov’t Code
    § 75.403(f). Here, ODonnell alleged that, despite having this authority, County
    Judges acquiesced in an unwritten, countywide process for setting bail that
    violated both state law and the Constitution. In other words, they sue the
    County Judges as municipal officers in their capacity as policymakers. Section
    1983 affords them an appropriate basis to do so.
    We agree with the County that its Sheriff is not an appropriate party,
    however. The Sheriff does not have the same policymaking authority as the
    County Judges. To the contrary, the Sheriff is legally obliged to execute all
    lawful process and cannot release prisoners committed to jail by a magistrate’s
    warrant—even if prisoners are committed “for want of bail.” See Tex. Code
    Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov’t Code § 351.041(a) (noting the
    Sheriff’s authority is “subject to an order of the proper court”). State statutes,
    in other words, do not authorize the County Sheriff to avoid executing judicial
    orders imposing secured bail by unilaterally declaring them unconstitutional.
    Accordingly, the County Sheriff cannot be sued under § 1983.
    B. Younger Abstention
    The County next argues that Younger abstention precludes our review of
    ODonnell’s claims. We are not persuaded.
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    The Supreme Court held in Younger v. Harris that, when a party in
    federal court is simultaneously defending a state criminal prosecution, federal
    courts “should not act to restrain [the state] criminal prosecution, when the
    moving party has an adequate remedy at law and will not suffer irreparable
    injury if denied equitable relief.” 
    401 U.S. 37
    , 43–44 (1971). Its conclusion was
    motivated by the “basic doctrine of equity jurisprudence,” “notion[s] of
    ‘comity,’” and “Our Federalism.” 
    Id. Courts apply
    a three-part test when
    deciding whether to abstain under Younger. There must be (1) “an ongoing
    state judicial proceeding” (2) that “implicate[s] important state interests” and
    (3) offers “adequate opportunity” to “raise constitutional challenges.”
    Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 
    457 U.S. 423
    , 432
    (1982).
    The third prong of this test is not met. As the Supreme Court has already
    concluded, the relief sought by ODonnell—i.e., improvement of pretrial
    procedures and practice—is not properly reviewed by criminal proceedings in
    state court. See Gerstein v. Pugh, 
    420 U.S. 103
    , 108 n.9 (1975) (noting that
    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”); see also Pugh v. Rainwater, 
    483 F.2d 778
    , 781–82 (5th Cir. 1973)
    (noting that a federal question whose “resolution . . . would [only] affect state
    procedures for handling criminal cases . . . . is not ‘against any pending or
    future court proceedings as such’” (quoting Fuentes v. Shevin, 
    407 U.S. 67
    , 71
    n.3 (1971))), rev’d on other grounds by Gerstein, 
    420 U.S. 103
    . As the district
    court noted, the adequacy of the state court review of bail-setting procedures
    is essential to ODonnell’s federal cause of action. In short, “[t]o find that the
    plaintiffs have an adequate hearing on their constitutional claim in state court
    would decide [its] merits.”
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    We also note that the policy concerns underlying this doctrine are not
    applicable here. The injunction sought by ODonnell seeks to impose
    “nondiscretionary procedural safeguard[s],” which will not require federal
    intrusion into pre-trial decisions on a case-by-case basis. Tarter v. Hurry, 
    646 F.2d 1010
    , 1013–14 (5th Cir. Unit A June 1981); compare O’Shea v. Littleton,
    
    414 U.S. 488
    , 499–502 (1974) (noting that the enforcement of the improper
    injunction in question required “continuous supervision by the federal court
    over the conduct of the petitioners in the course of future criminal trial
    proceedings involving any of the members of the respondents’ broadly defined
    class”). Such relief does not implicate our concerns for comity and federalism. 3
    C. The County’s Eighth Amendment Argument
    The County contends that ODonnell’s complaint “is an Eighth
    Amendment case wearing a Fourteenth Amendment costume.” The Eighth
    Amendment states in relevant part that “[e]xcessive bail shall not be required.”
    U.S. CONST. amend. VIII. It is certainly true that, when a constitutional
    provision specifically addresses a given claim for relief under 42 U.S.C. § 1983,
    a party should seek to apply that provision directly. See Graham v. Connor,
    
    490 U.S. 386
    , 394 (1989); cf. Manuel v. City of Joliet, 
    137 S. Ct. 911
    , 917 (2017).
    But we have already concluded that “[t]he incarceration of those who cannot
    [pay money bail], without meaningful consideration of other possible
    alternatives, infringes on both due process and equal protection requirements.”
    3 The County also argues that we are precluded from reviewing ODonnell’s claims
    because they should have been raised as a petition for habeas corpus. See Preiser v.
    Rodriguez, 
    411 U.S. 475
    (1973). We agree with the district court that this argument has been
    waived. The County neither mentioned Preiser nor pressed the habeas argument until its
    motion for a stay of the injunction. The closest the County came to preserving this argument
    was one sentence in its response to ODonnell’s motion for preliminary injunction. This
    passing reference is insufficient to preserve the argument, especially given that it is
    dispositive of the case at the threshold stage.
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    Pugh v. Rainwater, 
    572 F.2d 1053
    , 1057 (5th Cir. 1978) (en banc). ODonnell’s
    present claims do not run afoul of Graham.
    IV.
    We now address the merits of ODonnell’s constitutional claims. For the
    reasons set forth below, we affirm the court’s rulings that the County’s bail
    system violates both due process and equal protection, though we modify the
    basis for its conclusion as to due process.
    A. Due Process Claim
    Procedural due process claims are subject to a two-step inquiry: “The
    first question asks whether there exists a liberty or property interest which
    has been interfered with by the State; the second examines whether the
    procedures attendant upon that deprivation were constitutionally sufficient.”
    Meza v. Livingston, 
    607 F.3d 392
    , 399 (5th Cir. 2010) (internal quotation marks
    omitted). Applying this framework, we disagree with the district court’s
    formulation of the liberty interest created by state law, but agree that the
    procedural    protections     of   bail-setting   procedures     are   nevertheless
    constitutionally deficient.
    Liberty interests protected by the due process clause can arise from two
    sources, “the Due Process Clause itself and the laws of the States.” Ky. Dep’t of
    Corr. v. Thompson, 
    490 U.S. 454
    , 460 (1989) (internal citation omitted). Here,
    our focus is the law of Texas, which has acknowledged the two-fold, conflicting
    purpose of bail. This tension defines the protected liberty interest at issue here.
    On the one hand, bail is meant “to secure the presence of the defendant
    in court at his trial.” Ex parte Vance, 
    608 S.W.2d 681
    , 683 (Tex. Crim. App.
    1980). Accordingly, “ability to make bail is a factor to be considered, [but]
    ability alone, even indigency, does not control the amount of bail.” Ex parte
    Charlesworth, 
    600 S.W.2d 316
    , 317 (Tex. Crim. App. 1980). On the other hand,
    Texas courts have repeatedly emphasized the importance of bail as a means of
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    protecting an accused detainee’s constitutional right “in remaining free before
    trial,” which allows for the “unhampered preparation of a defense, and . . .
    prevent[s] the infliction of punishment prior to conviction.” Ex parte Anderer,
    
    61 S.W.3d 398
    , 404–05 (Tex. Crim. App. 2001) (en banc). Accordingly, the
    courts have sought to limit the imposition of “preventive [pretrial] detention”
    as “abhorrent to the American system of justice.” Ex parte Davis, 
    574 S.W.2d 166
    , 169 (Tex. Crim. App. 1978). Notably, state courts have recognized that
    “the power to . . . require bail,” not simply the denial of bail, can be an
    “instrument of [such] oppression.” Taylor v. State, 
    667 S.W.2d 149
    , 151 (Tex.
    Crim. App. 1984) (en banc) (emphasis added).
    These protections are also ensconced in the Texas Constitution.
    Specifically, Article 1 § 11 reads in relevant part, “[a]ll prisoners shall be
    bailable by sufficient sureties.” TEX. CONST. art. 1, § 11. The provision is
    followed by a list of exceptions—i.e., circumstances in which an arrestee may
    be “denied release on bail.” 
    Id. §§ 11b,
    11c. The only exception tied to
    misdemeanor charges pertains to family violence offenses. See 
    id. § 11c.
    The
    scope of these exceptions has been carefully limited by state courts, which
    observe that they “include the seeds of preventive detention.” 
    Davis, 574 S.W.2d at 169
    .
    The district court held that § 11 creates a state-made “liberty interest in
    misdemeanor defendants’ release from custody before trial. Under Texas law,
    judicial officers . . . have no authority or discretion to order pretrial preventive
    detention in misdemeanor cases.” This is too broad a reading of the law. The
    Constitution creates a right to bail on “sufficient sureties,” which includes both
    a concern for the arrestee’s interest in pretrial freedom and the court’s interest
    in assurance. Since bail is not purely defined by what the detainee can afford,
    see 
    Charlesworth, 600 S.W.2d at 317
    , the constitutional provision forbidding
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    denial of release on bail for misdemeanor arrestees does not create an
    automatic right to pretrial release. 4
    Instead, Texas state law creates a right to bail that appropriately weighs
    the detainees’ interest in pretrial release and the court’s interest in securing
    the detainee’s attendance. Yet, as noted, state law forbids the setting of bail as
    an “instrument of oppression.” Thus, magistrates may not impose a secured
    bail solely for the purpose of detaining the accused. And, when the accused is
    indigent, setting a secured bail will, in most cases, have the same effect as a
    detention order. Accordingly, such decisions must reflect a careful weighing of
    the individualized factors set forth by both the state Code of Criminal
    Procedure and Local Rules.
    Having found a state-created interest, we turn now to whether the
    procedures in place adequately protect that interest. As always, we are guided
    by a three-part balancing test that looks to “the private interest . . . affected by
    the official action”; “the risk of an erroneous deprivation of such interest
    through the procedure used, and the probable value, if any, of additional or
    substitute procedural safeguards”; and “the Government’s interest, including
    the function involved and the fiscal and administrative burdens” that new
    procedures would impose. 
    Meza, 607 F.3d at 402
    (quoting Mathews v. Eldridge,
    
    424 U.S. 319
    , 335 (1976)).
    As the district court found, the current procedures are inadequate—even
    when applied to our narrower understanding of the liberty interest at stake.
    The court’s factual findings (which are not clearly erroneous) demonstrate that
    secured bail orders are imposed almost automatically on indigent arrestees.
    4 We also note that Texas courts have never sought to eliminate the use of bail bonds.
    To the contrary, the use of secured bail was affirmed by the Texas Court of Criminal Appeals
    in Anderer, despite the opinion’s strong language in support of an accused’s pretrial freedom.
    
    Anderer, 61 S.W.3d at 403
    .
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    Far from demonstrating sensitivity to the indigent misdemeanor defendants’
    ability to pay, Hearing Officers and County Judges almost always set a bail
    amount that detains the indigent. In other words, the current procedure does
    not sufficiently protect detainees from magistrates imposing bail as an
    “instrument of oppression.”
    The district court laid out specific procedures necessary to satisfy
    constitutional due process when setting bail. Specifically, it found that,
    Due process requires: (1) notice that the financial and other
    resource information Pretrial Services officers collect is for the
    purpose of determining a misdemeanor arrestee’s eligibility for
    release or detention; (2) a hearing at which the arrestee has an
    opportunity to be heard and to present evidence; (3) an impartial
    decisionmaker; (4) a written statement by the factfinder as to the
    evidence relied on to find that a secured financial condition is the
    only reasonable way to assure the arrestee’s appearance at
    hearings and law-abiding behavior before trial; and (5) timely
    proceedings within 24 hours of arrest. 5
    The County challenges these requirements on appeal. We find some of their
    objections persuasive.
    As this court has noted, the quality of procedural protections owed a
    defendant is evaluated on a “spectrum” based on a case-by-case evaluation of
    the liberty interests and governmental burdens at issue. 
    Meza, 607 F.3d at 408
    –09. We note that the liberty interest of the arrestees here are particularly
    important: the right to pretrial liberty of those accused (that is, presumed
    innocent) of misdemeanor crimes upon the court’s receipt of reasonable
    assurance of their return. See 
    id. So too,
    however, is the government’s interest
    5 The district court analyzed new efforts by both the County and State to improve their
    bail-setting procedures. We need not review its discussion here. We note, however, that we
    agree with its conclusions that the County’s proposed remedies, which are beginning to be
    implemented, fail to address the constitutional violations at issue. We also agree that the
    changes proposed by the State would provide a more adequate remedy. Should these
    provisions become law, the need for the court’s intervention must be revisited.
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    in efficiency. After all, the accused also stands to benefit from efficient
    processing because it “allow[s] [for his or her] expeditious release.” United
    States v. Chagra, 
    701 F.2d 354
    , 363 (5th Cir. 1983); cf. Cty. of Riverside v.
    McLaughlin, 
    500 U.S. 44
    , 53 (1991) (noting that defendants might be disserved
    by adding procedural complexity into an already complicated system). The
    sheer number of bail hearings in Harris County each year—according to the
    court, over 50,000 people were arrested on misdemeanor charges in 2015—is a
    significant factor militating against overcorrection.
    With this in mind, we make two modifications to the district court’s
    conclusions regarding the procedural floor. First, we do not require factfinders
    to issue a written statement of their reasons. While we acknowledge “the
    provision for a written record helps to insure that [such officials], faced with
    possible scrutiny by state officials . . . [and] the courts . . . will act fairly,” Wolff
    v. McDonnell, 
    418 U.S. 539
    , 565 (1974), such a drastic increase in the burden
    imposed upon Hearing Officers will do more harm than good. We decline to
    hold that the Constitution requires the County to produce 50,000 written
    opinions per year to satisfy due process. Cf. United States v. McConnell, 
    842 F.2d 105
    , 110 (5th Cir. 1988) (concluding that, under the Bail Reform Act of
    1984, the “court must [merely] explain its reasons for concluding that the
    particular financial requirement is a necessary part of the conditions for
    release” when setting a bond that a detainee cannot pay). Moreover, since the
    constitutional defect in the process afforded was the automatic imposition of
    pretrial detention on indigent misdemeanor arrestees, requiring magistrates
    to specifically enunciate their individualized, case-specific reasons for so doing
    is a sufficient remedy.
    Second, we find that the district court’s 24-hour requirement is too strict
    under federal constitutional standards. The court’s decision to impose a 24-
    hour limit relied not on an analysis of present Harris County procedures and
    15
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    No. 17-20333
    their current capacity; rather, it relied on the fact that a district court imposed
    this requirement thirty years ago (that is, prior to modern advancements in
    computer and communications technology). See Sanders v. City of Hous., 
    543 F. Supp. 694
    (S.D. Tex. 1982). But Sanders’s holding, which was not grounded
    in procedural due process but in the Fourth Amendment, relied on the
    Supreme Court opinion, Gerstein, 
    420 U.S. 103
    . 
    Id. at 699.
    And Gerstein was
    later interpreted as establishing a right to a probable cause hearing within 48
    hours. 
    McLaughlin, 500 U.S. at 56
    –57. Further, McLaughlin explicitly
    included bail hearings within this deadline. 
    Id. at 58.
          We conclude that the federal due process right entitles detainees to a
    hearing within 48 hours. Our review of the due process right at issue here
    counsels against an expansion of the right already afforded detainees under
    the Fourth Amendment by McLaughlin. We note in particular that the heavy
    administrative burden of a 24-hour requirement on the County is evidenced by
    the district court’s own finding: the fact that 20% of detainees do not receive a
    probable cause hearing within 24 hours despite the statutory requirement.
    Imposing the same requirement for bail would only exacerbate such issues.
    The court’s conclusion was also based on its interpretation of state law.
    But while state law may define liberty interests protected under the procedural
    due process clause, it does not define the procedure constitutionally required
    to protect that interest. See Wansley v. Miss. Dep’t of Corr., 
    769 F.3d 309
    , 313
    (5th Cir. 2014) (noting that state law cannot serve as “the source of . . . process
    due”); Giovanni v. Lynn, 
    48 F.3d 908
    , 912 (5th Cir. 1995) (“[W]here a liberty
    . . . interest is infringed, the process which is due under the United States
    Constitution is that measured by the due process clause, not that called for by
    state regulations. Mere failure to accord the procedural protections called for
    by state law or regulation does not of itself amount to a denial of due process.”
    (internal citation omitted)). Accordingly, although the parties contest whether
    16
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    No. 17-20333
    state law imposes a 24- or 48-hour requirement, we need not resolve this issue
    because state law procedural requirements do not impact our federal due
    process analysis.
    The district court’s definition of ODonnell’s liberty interests is too broad,
    and the procedural protections it required are too strict. Nevertheless, even
    under our more forgiving framework, we agree that the County procedures
    violate ODonnell’s due process rights.
    B. Equal Protection
    The district court held that the County’s bail-setting procedures violated
    the equal protection clause of the Fourteenth Amendment because they treat
    otherwise similarly-situated misdemeanor arrestees differently based solely on
    their relative wealth. The County makes three separate arguments against
    this holding. It argues: (1) ODonnell’s disparate impact theory is not cognizable
    under the equal protection clause, see Johnson v. Rodriguez, 
    110 F.3d 299
    , 306
    (5th Cir. 1997); (2) rational basis review applies and is satisfied; (3) even if
    heightened scrutiny applies, it is satisfied. We disagree.
    First, the district court did not conclude that the County policies and
    procedures violated the equal protection clause solely on the basis of their
    disparate impact. Instead, it found the County’s custom and practice
    purposefully “detain[ed] misdemeanor defendants before trial who are
    otherwise eligible for release, but whose indigence makes them unable to pay
    secured financial conditions of release.” The conclusion of a discriminatory
    purpose was evidenced by numerous, sufficiently supported factual findings,
    including direct evidence from bail hearings. This custom and practice resulted
    in detainment solely due to a person’s indigency because the financial
    conditions for release are based on predetermined amounts beyond a person's
    ability to pay and without any “meaningful consideration of other possible
    alternatives.” 
    Rainwater, 572 F.2d at 1057
    . Under this circuit’s binding
    17
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    precedent, the district court was therefore correct to conclude that this
    discriminatory action was unconstitutional. 
    Id. at 1056–57
    (noting that pre-
    trial   “imprisonment     solely   because   of   indigent   status   is   invidious
    discrimination and not constitutionally permissible” under both “due process
    and equal protection requirements”); see also Griffin v. Illinois, 
    351 U.S. 12
    , 18
    (1956) (noting that the indigent are protected by equal protection “at all stages
    of [criminal] proceedings”). Because this conclusion is sufficient to decide this
    case, we need not determine whether the equal protection clause requires a
    categorical bar on secured money bail for indigent misdemeanor arrestees who
    cannot pay it.
    Second, the district court’s application of intermediate scrutiny was not
    in error. It is true that, ordinarily, “[n]either prisoners nor indigents constitute
    a suspect class.” Carson v. Johnson, 
    112 F.3d 818
    , 821–22 (5th Cir. 1997). But
    the Supreme Court has found that heightened scrutiny is required when
    criminal laws detain poor defendants because of their indigence. See, e.g., Tate
    v. Short, 
    401 U.S. 395
    , 397–99 (1971) (invalidating a facially neutral statute
    that authorized imprisonment for failure to pay fines because it violated the
    equal protection rights of indigents); Williams v. Illinois, 
    399 U.S. 235
    , 241–42
    (1970) (invalidating a facially neutral statute that required convicted
    defendants to remain in jail beyond the maximum sentence if they could not
    pay other fines associated with their sentences because it violated the equal
    protection rights of indigents). Reviewing this case law, the Supreme Court
    later noted that indigents receive a heightened scrutiny where two conditions
    are met: (1) “because of their impecunity they were completely unable to pay
    for some desired benefit,” and (2) “as a consequence, they sustained an absolute
    deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio
    Indep. Sch. Dist. v. Rodriguez, 
    411 U.S. 1
    , 20 (1973).
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    We conclude that this case falls into the exception created by the Court.
    Both aspects of the Rodriguez analysis apply here: 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.
    Moreover, this case presents the same basic injustice: poor arrestees in Harris
    County are incarcerated where similarly situated wealthy arrestees are not,
    solely because the indigent cannot afford to pay a secured bond. Heightened
    scrutiny of the County’s policy is appropriate. 6
    Third, we discern no error in the court’s conclusion that the County’s
    policy failed to meet the tailoring requirements of intermediate scrutiny. In
    other words, we will not disturb the court’s finding that, although the County
    had a compelling interest in the assurance of a misdemeanor detainee’s future
    appearance and lawful behavior, its policy was not narrowly tailored to meet
    that interest.
    The court’s thorough review of empirical data and studies found that the
    County had failed to establish any “link between financial conditions of release
    and appearance at trial or law-abiding behavior before trial.” For example,
    both parties’ experts agreed that the County lacked adequate data to
    demonstrate whether secured bail was more effective than personal bonds in
    securing a detainee’s future appearance. Notably, even after analyzing the
    6  We acknowledge that the cited Supreme Court cases applied to indigents who were
    already found guilty. But this court in Rainwater concluded that the distinction between post-
    conviction detention targeting indigents and pretrial detention targeting indigents is one
    without a difference. We found that, regardless of its timing, “imprisonment solely because
    of indigent status is invidious discrimination and not constitutionally permissible.”
    
    Rainwater, 572 F.2d at 1056
    (citing Williams and Tate). Our conclusion was based on the
    “punitive and heavily burdensome nature of pretrial confinement” and the fact that it
    deprives someone who has only been “accused but not convicted of crime” of their basic
    liberty. Id.; see also Anderson v. Nosser, 
    438 F.2d 183
    , 190 (5th Cir. 1971) (noting that the
    pre-trial detainment of “unconvicted misdemeanants” was a “[p]unitive measure[ ] . . . out of
    harmony with the presumption of innocence”). We are bound by this analysis.
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    incomplete data that were available, neither expert discerned more than a
    negligible comparative impact on detainees’ attendance. Additionally, the
    court considered a comprehensive study of the impact of Harris County’s bail
    system on the behavior of misdemeanor detainees between 2008 and 2013. The
    study found that the imposition of secured bail might increase the likelihood of
    unlawful behavior. See Paul Heaton et al., The Downstream Consequences of
    Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 786–87 (2017)
    (estimating that the release on personal bond of the lowest-risk detainees
    would have resulted in 1,600 fewer felonies and 2,400 fewer misdemeanors
    within the following eighteen months). These findings mirrored those of
    various empirical studies from other jurisdictions.
    The County, of course, challenges these assertions with empirical studies
    of its own. But its studies at best cast some doubt on the court’s conclusions.
    They do not establish clear error. We are satisfied that the court had sufficient
    evidence to conclude that Harris County’s use of secured bail violated equal
    protection.
    In sum, the essence of the district court’s equal protection analysis can
    be boiled down to the following: take two misdemeanor arrestees who are
    identical in every way—same charge, same criminal backgrounds, same
    circumstances, etc.—except that one is wealthy and one is indigent. Applying
    the County’s current custom and practice, with their lack of individualized
    assessment and mechanical application of the secured bail schedule, both
    arrestees would almost certainly receive identical secured bail amounts. One
    arrestee is able to post bond, and the other is not. As a result, the wealthy
    arrestee is less likely to plead guilty, more likely to receive a shorter sentence
    or be acquitted, and less likely to bear the social costs of incarceration. The
    poor arrestee, by contrast, must bear the brunt of all of these, simply because
    20
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    he has less money than his wealthy counterpart. The district court held that
    this state of affairs violates the equal protection clause, and we agree.
    V.
    Having largely affirmed the district court’s determinations that
    constitutional violations occurred, we turn to the court’s remedy. When
    crafting an injunction, district courts are guided by the Supreme Court’s
    instruction that “the scope of injunctive relief is dictated by the extent of the
    violation established.” Califano v. Yamasaki, 
    442 U.S. 682
    , 702 (1979). A
    district court abuses its discretion if it does not “narrowly tailor an injunction
    to remedy the specific action which gives rise to the order.” John Doe # 1 v.
    Veneman, 
    380 F.3d 807
    , 818 (5th Cir. 2004). Thus, an injunction must be
    vacated if it “fails to meet these standards” and “is overbroad.” 
    Id. “The broadness
    of an injunction refers to the range of proscribed activity . . . . [and]
    is a matter of substantive law.” U.S. Steel Corp. v. United Mine Workers of Am.,
    
    519 F.2d 1236
    , 1246 n.19 (5th Cir. 1975).
    The County argues that, even if the panel credits every one of the district
    court’s factual findings and conclusions of law, the injunction it ultimately
    crafted is still overbroad. We agree. There is a significant mismatch between
    the district court’s procedure-focused legal analysis and the sweeping
    injunction it implemented.
    The fundamental source of constitutional deficiency in the due process
    and equal protection analyses is the same: the County’s mechanical application
    of the secured bail schedule without regard for the individual arrestee’s
    personal circumstances. Thus, the equitable remedy necessary to cure the
    constitutional infirmities arising under both clauses is the same: the County
    must implement the constitutionally-necessary procedures to engage in a case-
    by-case evaluation of a given arrestee’s circumstances, taking into account the
    various factors required by Texas state law (only one of which is ability to pay).
    21
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    These procedures are: notice, an opportunity to be heard and submit evidence
    within 48 hours of arrest, and a reasoned decision by an impartial decision-
    maker.
    That is not what the preliminary injunction does, however. Rather, it
    amounts to the outright elimination of secured bail for indigent misdemeanor
    arrestees. That remedy makes some sense if one assumes a fundamental
    substantive due process right to be free from any form of wealth-based
    detention. But, as the foregoing analysis establishes, no such right is in view.
    The sweeping injunction is overbroad.
    We therefore conclude that the district court abused its discretion in
    crafting an injunction that was not “narrowly tailor[ed] . . . to remedy the
    specific action which gives rise to the order.” 
    Veneman, 380 F.3d at 818
    . We
    will vacate the injunction and remand to allow the court to craft a remedy more
    finely tuned to address the harm.
    The following represents the sort of modification that would be
    appropriate here, although we leave the details to the district court’s
    discretion:
    With these principles in mind, the court will order the following relief, to
    take effect within 30 days, unless those enjoined move for and show good cause
    for a reasonable, brief extension. Any motions for extension will be set for
    prompt hearing and resolution.
    • Harris County is enjoined from imposing prescheduled bail amounts
    as a condition of release on arrestees who attest that they cannot
    afford such amounts without providing an adequate process for
    ensuring that there is individual consideration for each arrestee of
    whether another amount or condition provides sufficient sureties.
    • Pretrial Services officers, as County employees and subject to its
    policies, must verify an arrestee’s ability to pay a prescheduled
    financial condition of release by an affidavit, and must explain to
    arrestees the nature and significance of the verification process.
    22
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    • The purpose of the explanation is to provide the notice due process
    requires that a misdemeanor defendant’s state constitutional right to
    be bailable by sufficient sureties is at stake in the proceedings.
    Pretrial Services may administer either the form of the affidavit
    currently used to determine eligibility for appointed counsel or the
    adapted form that Dr. VanNostrand testified was prepared for
    Pretrial Services to be administered by July 1, 2017, if they comply
    with the below guidelines. Pretrial Services must deliver completed
    affidavits to the Harris County Sheriff’s Office before a declarant’s
    probable cause hearing.
    • The affidavit must give the misdemeanor arrestee sufficient
    opportunity to declare under penalty of perjury, after the significance
    of the information has been explained, the maximum amount of
    financial security the arrestee would be able to post or pay up front
    within 24 hours of arrest. The affidavit should ask the arrestee to
    provide details about their financial situation sufficient to help the
    County make reliable determinations regarding the amount of bail
    that would provide sufficient sureties, including: 1) arrestee and
    spouse’s income from employment, real property, interest and
    dividends, gifts, alimony, child support, retirement, disability,
    unemployment payments, public-assistance, and other sources; 2)
    arrestee and spouse’s employment history for the prior two years and
    gross monthly pay; 3) arrestee and spouse’s present cash available
    and any financial institutions where cash is held; 4) assets owned,
    e.g., real estate and motor vehicles; 5) money owed to arrestee and
    spouse; 6) dependents of arrestee and spouse, and their ages; 7)
    estimation of itemized monthly expenses; 8) taxes and legal costs; 9)
    expected major changes in income or expenses; 10) additional
    information the arrestee wishes to provide to help explain the
    inability to pay. The question is neither the arrestee’s immediate
    ability to pay with cash on hand, nor what assets the arrestee could
    eventually produce after a period of pretrial detention. The question
    is what amount the arrestee could reasonably pay within 24 hours of
    his or her arrest, from any source, including the contributions of
    family and friends.
    • The purpose of this requirement is to provide a better, easier, and
    faster way to get the information needed to determine a misdemeanor
    defendant’s ability to pay. The Hearing Officers and County Judges
    testified that they presently do not know who has the ability to pay.
    23
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    No. 17-20333
    The affidavit can be completed within 24 hours after arrest; the
    current process of verifying references by phone extends for days after
    arrest.
    • The court does not order relief against the Hearing Officers or against
    the County Judges in their judicial or legislative capacities.
    • Misdemeanor defendants who are not subject to: (1) formal holds
    preventing their release from detention; (2) pending mental-health
    evaluations to determine competency; or (3) pretrial preventive
    detention orders for violating a condition of release for a crime of
    family violence, have a constitutionally protected state-created liberty
    interest in being bailable by sufficient sureties before trial. If a
    misdemeanor defendant has executed an affidavit showing an
    inability to pay prescheduled money bail and has not been released
    either: (1) on an unsecured personal bond with nonfinancial
    conditions of release; or (2) on a secured money bond for which the
    defendant could pay a commercial surety’s premium, as indicated on
    the affidavit, then the defendant is entitled to a hearing within 48
    hours of arrest in which an impartial decision-maker conducts an
    individual assessment of whether another amount of bail or other
    condition provides sufficient sureties. At the hearing, the arrestee
    must have an opportunity to describe evidence in his or her favor, and
    to respond to evidence described or presented by law enforcement. If
    the decision-maker declines to lower bail from the prescheduled
    amount to an amount the arrestee is able to pay, then the decision-
    maker must provide written factual findings or factual findings on the
    record explaining the reason for the decision, and the County must
    provide the arrestee with a formal adversarial bail review hearing
    before a County Judge. The Harris County Sheriff is therefore
    authorized to decline to enforce orders requiring payment of
    prescheduled bail amounts as a condition of release for said
    defendants if the orders are not accompanied by a record showing that
    the required individual assessment was made and an opportunity for
    formal review was provided. All nonfinancial conditions of release
    ordered by the Hearing Officers, including protective orders, drug
    testing, alcohol intake ignition locks, or GPS monitoring, will remain
    in effect.
    • The purpose of this requirement is to provide timely protection for the
    state-created liberty interest in being bailable by sufficient sureties
    24
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    No. 17-20333
    and to prevent the automatic imposition of prescheduled bail amounts
    without an adequate process for ensuring that there is individualized
    consideration of whether another amount or condition provides
    sufficient sureties.
    • To enforce the 48-hour timeline, the County must make a weekly
    report to the district court of misdemeanor defendants identified
    above for whom a timely individual assessment has not been held.
    The County must also notify the defendant’s counsel and/or next of
    kin of the delay. A pattern of delays might warrant further relief from
    the district court. Because the court recognizes that the County might
    need additional time to comply with this requirement, the County
    may propose a reasonable timeline for doing so.
    • The purpose of this requirement is to give timely protection to the
    state-created liberty interest in being bailable by sufficient sureties
    by enforcing federal standards indicating that 48 hours is a
    reasonable timeframe for completing the administrative incidents to
    arrest. The 48-hour requirement is intended to address the endemic
    problem of misdemeanor arrestees being detained until case
    disposition and pleading guilty to secure faster release from pretrial
    detention.
    • For misdemeanor defendants who are subject to formal holds and who
    have executed an affidavit showing an inability to pay the
    prescheduled financial condition of release, the Sheriff must treat the
    limitations period on their holds as beginning to run the earliest of:
    (1) after the probable cause hearing; or (2) 24 hours after arrest. The
    purpose of this requirement is to ensure that misdemeanor
    defendants are not prevented from or delayed in addressing their
    holds because they are indigent and therefore cannot pay a
    prescheduled financial condition of release.
    • Misdemeanor defendants who do not appear competent to execute an
    affidavit may be evaluated under the procedures set out in the Texas
    Code of Criminal Procedure Article 16.22. If competence is found, the
    misdemeanor defendant is covered by the relief the court orders, with
    the exception that the 48-hour period begins to run from the finding
    of competence rather than from the time of arrest. As under Article
    16.22, nothing in this order prevents the misdemeanor arrestee from
    25
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    being released on secured bail or unsecured personal bond pending
    the evaluation.
    VI.
    For the forgoing reasons, we AFFIRM the district court’s findings of fact.
    We AFFIRM its conclusions of law except its conclusion that the County Sheriff
    may be sued under § 1983 and its determination of the specific procedural
    protections owed under procedural due process. On those issues, we REVERSE
    the district court’s conclusions. Accordingly, we DISMISS the Sheriff. We
    VACATE the preliminary injunction as overbroad and REMAND to the district
    court to craft a revised injunction—one that is narrowly tailored to cure the
    constitutional deficiencies the district court properly identified. But we also
    STAY the vacatur pending implementation of the revised injunction, so as to
    maintain a stable status quo.
    26
    

Document Info

Docket Number: 17-20333

Citation Numbers: 882 F.3d 528

Judges: Clement, Prado, Haynes

Filed Date: 2/14/2018

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (33)

Manuel v. City of Joliet , 137 S. Ct. 911 ( 2017 )

San Antonio Independent School District v. Rodriguez , 93 S. Ct. 1278 ( 1973 )

Califano v. Yamasaki , 99 S. Ct. 2545 ( 1979 )

Jett v. Dallas Independent School District , 109 S. Ct. 2702 ( 1989 )

Sanders v. City of Houston , 543 F. Supp. 694 ( 1982 )

Arthur X. Carson v. Gary L. Johnson, Director, Texas ... , 112 F.3d 818 ( 1997 )

Graham v. Connor , 109 S. Ct. 1865 ( 1989 )

Gerstein v. Pugh , 95 S. Ct. 854 ( 1975 )

Younger v. Harris , 91 S. Ct. 746 ( 1971 )

Mathews v. Eldridge , 96 S. Ct. 893 ( 1976 )

Katie Ruth Anderson v. J. J. Nosser, James Bradley v. J. J. ... , 438 F.2d 183 ( 1971 )

Tate v. Short , 91 S. Ct. 668 ( 1971 )

Glenn Johnson v. D. Rook Moore, III , 958 F.2d 92 ( 1992 )

Harold T. Tarter v. James Hury , 646 F.2d 1010 ( 1981 )

United States v. John Richard McConnell , 842 F.2d 105 ( 1988 )

John Doe 1 v. Veneman , 380 F.3d 807 ( 2004 )

Pembaur v. City of Cincinnati , 106 S. Ct. 1292 ( 1986 )

Kentucky Department of Corrections v. Thompson , 109 S. Ct. 1904 ( 1989 )

Middlesex County Ethics Committee v. Garden State Bar Ass'n , 102 S. Ct. 2515 ( 1982 )

daniel-johnson-individually-and-on-behalf-of-all-present-and-future , 110 F.3d 299 ( 1997 )

View All Authorities »