Lopez-Valenzuela v. Arpaio

• Decision Date: 15 October 2014
• Docket Number: No. 11–16487.,11–16487.
• Citation: 770 F.3d 772
• Parties: Angel LOPEZ–VALENZUELA; Isaac Castro–Armenta, Plaintiffs–Appellants, v. Joseph M. ARPAIO, Maricopa County Sheriff, in his official capacity; County of Maricopa; William Gerard Montgomery, Maricopa County Attorney, in his official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

770 F.3d 772

Angel LOPEZ–VALENZUELA; Isaac Castro–Armenta, Plaintiffs–Appellants,

v.Joseph M. ARPAIO, Maricopa County Sheriff, in his official capacity; County of Maricopa; William Gerard Montgomery, Maricopa County Attorney, in his official capacity, Defendants–Appellees.

No. 11–16487.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted En Banc March 18, 2014.

Filed Oct. 15, 2014.

Held Unconstitutional

A.R.S. Const. Art. 2, § 22(A)(4)

Recognized as Unconstitutional

Code 1975, § 31–13–18(b)Andre I. Segura and Esha Bhandari, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, New York; Cecillia D. Wang (argued) and Kenneth J. Sugarman, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA; Daniel Pochoda, ACLU Foundation of Arizona, Phoenix, AZ, for Plaintiffs–Appellants.

Timothy J. Casey (argued), Schmitt Schneck Smyth Casey & Even, P.C., Phoenix, AZ, for Defendants–Appellees Maricopa County and Joseph M. Arpaio.

Bruce P. White and Anne C. Longo, Deputy County Attorneys, Maricopa County Civil Services Division, Phoenix, AZ, for Defendant–Appellee Maricopa County Attorney William Montgomery.

Anthony O'Rourke, Associate Professor, SUNY Buffalo Law School, for Amici Curiae Constitutional Criminal Law and Immigration Law Professors.

Kathleen E. Brody, Osborn Maledon, P.A., Phoenix, Arizona; Amy Kalman and Mikel Steinfeld, Office of the Maricopa County Public Defender, Phoenix, AZ; David Euchner, Office of the Pima County Public Defender, Tucson, AZ, for Amicus Curiae Arizona Attorneys for Criminal Justice.

Before: ALEX KOZINSKI, Chief Judge, and DIARMUID O'SCANNLAIN, SIDNEY R. THOMAS, M. MARGARET McKEOWN, RAYMOND C. FISHER, MARSHA S. BERZON, RICHARD C. TALLMAN, JAY S. BYBEE, MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge FISHER; Concurrence by Judge NGUYEN; Dissent by Judge TALLMAN; Dissent by Judge O'SCANNLAIN.

OPINION

FISHER, Circuit Judge, with whom KOZINSKI, Chief Judge, and THOMAS, McKEOWN, BERZON, BYBEE, M. SMITH and NGUYEN, Circuit Judges, join in full, and with whom WATFORD, Circuit Judge, joins except as to section III.B.2:

Arizona law categorically forbids granting undocumented immigrants arrested for a wide range of felony offenses any form of bail or pretrial release, even if the particular arrestee is not a flight risk or dangerous. We must decide whether such an absolute denial comports with the substantive component of the Due Process Clause of the Fourteenth Amendment. We hold that it does not.

I.

In 2006, Arizona voters overwhelmingly approved an amendment to their state constitution known as Proposition 100.¹ Proposition 100 mandates that Arizona state courts may not set bail “[f]or serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.” Ariz. Const. art. 2, § 22(A)(4). In a separate enactment, the Arizona legislature defined “serious felony offenses” as any class 1, 2, 3 or 4 felony or aggravated driving-under-the-influence offense. SeeAriz.Rev.Stat. Ann. § 13–3961(A)(5)(b).

The Proposition 100 bail determination is made at an initial appearance, which under Arizona law occurs within 24 hours of arrest. SeeAriz. R.Crim. P. 4.1(a). At the initial appearance, the court must deny bail, irrespective of whether the arrestee poses a flight risk or a danger to the community, “if the court finds (1) that the proof is evident or the presumption great that the person committed a serious offense, and (2) probable cause that the person entered or remained in the United States illegally.” Ariz. R.Crim. P. 7.2(b). An arrestee deemed ineligible for bail at the initial appearance may move for reexamination, and a hearing on such motion “shall be held on the record as soon as practicable but not later than seven days after filing of the motion.” Ariz. R.Crim. P. 7.4(b). At the follow-up proceeding, known as a Simpson/Segura hearing, see Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (Ariz.Ct.App.2004); Segura v. Cunanan, 219 Ariz. 228, 196 P.3d 831 (Ariz.Ct.App.2008), the arrestee can dispute whether there is probable cause that he or she entered or remained in the United States illegally, but may not refute Proposition 100's irrebuttable presumption that he or she poses an unmanageable flight risk. Once the court determines that there is probable cause to believe an arrestee has entered or remained in the United States unlawfully, the court has no discretion to release the arrestee under any circumstances, even if the court would find—and the state would concede—that the particular arrestee does not pose a flight risk or danger to the community.

In 2008, plaintiffs Angel Lopez–Valenzuela and Isaac Castro–Armenta filed a class action complaint against Maricopa County, the Maricopa County Sheriff, the Maricopa County Attorney and the Presiding Judge of the Maricopa County Superior Court, challenging the constitutionality of Proposition 100 and its implementing laws and rules (“the Proposition 100 laws”). At the time the complaint was filed, both plaintiffs were charged with state crimes and held in Maricopa County jails as a result of orders finding that they had entered or remained in the United States illegally. The complaint proposed a plaintiff class consisting of “All persons who have been or will be held ineligible for release on bond by an Arizona state court in Maricopa County pursuant to Section 22(A)(4) of the Arizona Constitution and Ariz.Rev.Stat. § 13–3961(A)(5).”

The plaintiffs alleged that the Proposition 100 laws violate the United States Constitution in a number of ways. As relevant here, they alleged that the Proposition 100 laws violate the substantive due process guarantees of the Fourteenth Amendment on two theories: (1) arrestees have a liberty interest in being eligible for release on bond pending resolution of criminal charges and the Proposition 100 laws are not narrowly tailored to serve a compelling governmental interest; and (2) the laws impermissibly impose punishment before trial. The plaintiffs also alleged violations of the procedural due process guarantees of the Fourteenth Amendment, the Fifth Amendment right against selfincrimination, the Sixth Amendment right to counsel, the Excessive Bail Clause of the Eighth Amendment and the Supremacy Clause, alleging that the Proposition 100 laws are preempted by federal law. They sought an order declaring the Proposition 100 laws unconstitutional, enjoining the enforcement of those laws and affording each of them an individualized bail hearing at which they may be considered for release, taking into account particularized facts about whether release would pose an unacceptable risk of flight or danger to the community.

In a December 2008 order, the district court granted the plaintiffs' motion for class certification, certifying a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The court also granted the defendants' motion to dismiss the plaintiffs' preemption claims under Rule 12(b)(6).

The parties filed cross motions for summary judgment. In a March 2011 order, the district court denied the plaintiffs' motion for summary judgment and granted the defendants' motion for partial summary judgment on the plaintiffs' substantive due process, procedural due process, Eighth Amendment and Sixth Amendment claims. SeeFed.R.Civ.P. 56. The plaintiffs thereafter voluntarily dismissed their Fifth Amendment claim. The district court then entered a final judgment, from which the plaintiffs timely appealed, challenging the Rule 12(b)(6) dismissal of their preemption claims and the adverse summary judgment rulings on their substantive due process, procedural due process, Eighth Amendment and Sixth Amendment claims.

After a divided three judge panel of this court affirmed the judgment of the district court, a majority of nonrecused active judges voted in favor of rehearing en banc. See Lopez–Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054, 1073 (9th Cir.2013), reh'g en banc granted,741 F.3d 1015 (9th Cir.2014). We have jurisdiction under 28 U.S.C. § 1291, and we now reverse. ²

II.

We review de novo a district court's grant or denial of summary judgment. See Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1041 (9th Cir.2011). We also review de novo a district court's grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). We review a challenge to the constitutionality of a statute de novo as well. See United States v. Gonzales, 307 F.3d 906, 909 (9th Cir.2002).

III.

The plaintiffs contend that the Proposition 100 laws violate substantive due process. We agree.

A.

The Supreme Court has long recognized constitutional limits on pretrial detention. The Court has prohibited excessive bail, see Stack v. Boyle, 342 U.S. 1, 4–5, 72 S.Ct. 1, 96 L.Ed. 3 (1951), required a judicial determination of probable cause within 48 hours of arrest, see Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), barred punitive conditions of pretrial confinement, see Bell v. Wolfish, 441 U.S. 520, 535–37, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), prohibited pretrial detention as punishment, see United States v. Salerno, 481 U.S. 739, 746–48, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 269–74, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), and held that restrictions on pretrial release of adult arrestees must be carefully limited to serve a compelling governmental interest, see Salerno, 481 U.S. at 748–51, 107 S.Ct. 2095.

In the first of these cases, Stack v. Boyle, the Court observed that the “traditional right to freedom before conviction permits the unhampered...