   Case: 18-20466   Document: 00514599856   Page: 1   Date Filed: 08/14/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                        United States Court of Appeals
                                                                 Fifth Circuit
                             No. 18-20466                      FILED
                                                         August 14, 2018
                                                            Lyle W. Cayce
                                                                 Clerk
MARANDA LYNN ODONNELL,

                                      Plaintiff−Appellee,

versus

PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING;
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,

versus

HARRIS COUNTY, TEXAS, ET AL.,

                                      Defendant.

PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING;
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.
     Case: 18-20466       Document: 00514599856          Page: 2     Date Filed: 08/14/2018



                                       No. 18-20466


                    Appeal from the United States District Court
                         for the Southern District of Texas




Before SMITH, GRAVES, and DUNCAN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

       This is a motion for stay pending appeal. We grant the stay.

                                               I.
       Plaintiffs brought a class action against Harris County, Texas, and a
number of its officials—including County Judges, 1 Hearing Officers, and the
Sheriff (collectively, the “County”) 2—under 42 U.S.C. § 1983, alleging the
County’s system of setting bail for indigent misdemeanor arrestees violates
Texas statutory and constitutional law and the Equal Protection and Due Pro-
cess Clauses of the Fourteenth Amendment. 3


       1The parties use the term “County Judges” to refer to the judges of the County Crim-
inal Courts of Law of Harris County, so we do likewise. That term does not refer to the
County Judge, who is the head of the County Commissioners’ Court.
       2 Only fourteen of the sixteen County Judges join in the instant appeal. The Sheriff
and two County Judges chose not to join. We use “Fourteen Judges” or “the Judges” when
referring to the defendants.
       3 For a full review of Texas’s bail system and the challenges to it, see ODonnell v.
Harris Cty. (ODonnell I), 892 F.3d 147, 152–55 (5th Cir. 2018) (opinion on petition for re-
hearing). For misdemeanors in 2016 when suit was filed, bail ranged from $500 to $5,000,
depending on the crime and the arrestee’s criminal history. Under the 2017 schedule, how-
ever, arrestees are classified based on their crime and risk score (determined using the Laura
and John Arnold Foundation Public Safety Assessment). The 2017 schedule utilizes twenty
categories. For seven of those, bail ranges from $500 to $2,000. If an arrestee in one of those
seven cannot post bail, he is presumptively eligible for an unsecured bond once he appears
before the magistrate. Alternatively, to facilitate earlier release, some of those arrestees can
be brought before a Hearing Officer for a determination of probable cause. The Hearing
Officer can then grant a personal bond and release the arrestee. The arrestees in the other
                                               2
     Case: 18-20466       Document: 00514599856         Page: 3     Date Filed: 08/14/2018



                                       No. 18-20466
        After a hearing, the district court granted Plaintiffs’ motion for a pre-
liminary injunction, finding that they were likely to succeed on their proce-
dural due process and equal protection claims.                We affirmed in part and
reversed in part. ODonnell I, 892 F.3d at 152–55. 4 We remanded for a revised
injunction “consistent with this opinion.” Id. at 152. That revised injunction
was to be “narrowly tailored to cure the constitutional deficiencies the district
court properly identified.” Id. at 166–67. We provided a model injunction but
left “the details to the district court’s discretion.” Id. at 164.

        On remand, the district court adopted the model injunction but added
four provisions of its own—Sections 7, 8, 9, and 16. Section 7 applies to all
misdemeanor arrestees who (a) are not subject to a formal hold, 5 (b) have
executed an affidavit of financial condition showing inability to pay, and
(c) have not been granted release on unsecured bond. The injunction directs
the County to release them if they would have been released had they posted
bond.       These arrestees must be released within “the same time frame of
release” as an arrestee who posted bond, and “[v]erification of references must
not delay release.” Revised PI § 7, App. 4–5.

        In other words, the County cannot hold indigent arrestees for the
48 hours preceding their bail hearing if the same individual would have been
released had he been able to post bond. The district court explained that that



thirteen categories (arrestees deemed a sufficiently serious risk) do not have bail set at the
time of arrest but, instead, are detained until they are brought before the magistrate, who
then determines the amount of bail.
       On petition for rehearing, an initial opinion, 882 F.3d 528 (5th Cir. 2018), was with-
        4

drawn and replaced by ODonnell I.
        5Formal holds include a federal immigration detainer or an outstanding warrant from
another county or municipal authority, a pending finding of mental illness or intellectual
disability, family-violence detention procedures, and a medical condition that prevents par-
ticipation in the pretrial bail system.
                                              3
    Case: 18-20466      Document: 00514599856     Page: 4   Date Filed: 08/14/2018



                                   No. 18-20466
provision is to prevent those unable to afford bail “from being detained longer
than those able to pay secured money bail before receiving a hearing and indi-
vidual assessment.” Id.

      Except for formal holds, Section 8 requires the County to release, on
unsecured personal bond, all misdemeanor arrestees who have not had a hear-
ing and individual assessment within 48 hours. The County may require their
return for a hearing but cannot hold arrestees “after the 48th hour after their
arrest.” Revised PI § 8, App. 6.

      The district court justified Section 8 as addressing the concern of “arres-
tees being detained until case disposition and pleading guilty to secure faster
release from pretrial detention.” Revised PI Op. at 12, App. 21 (quoting Odon-
nell I, 892 F.3d at 166). Again, such arrestees could be required to return for
an individualized hearing but could not be held beyond 48 hours. Id. at 13,
App. 22.

      Section 9 requires the County to implement procedures to comply with
Section 8. Upon release, the arrestee will be subject to the bail amount pre-
viously set until his new hearing, but that amount will be imposed on an
unsecured basis. In absentia hearings do not satisfy the 48-hour rule.

      Section 16 applies the relief to “misdemeanor arrestees who are re-
arrested on misdemeanor charges only or on warrants for failing to appear
while released before trial on bond (either secured or unsecured).” Revised PI
§ 16, App. 8. The decisionmaker is free to consider these facts at the individual
assessment hearing but must provide repeat offenders the same protections,
in advance of that hearing, as any other first-time arrestee. Revised PI Op.
at 16–17. App. 25–26.

      On July 10, 2018, the Fourteen Judges filed this appeal of the

                                        4
    Case: 18-20466     Document: 00514599856      Page: 5   Date Filed: 08/14/2018



                                  No. 18-20466
preliminary injunction and moved, in the district court, for a stay, pending
appeal, of Sections 7, 8, 9, and 16. The district court denied their motion. On
July 27, 2018, Fourteen County Judges filed an emergency motion with this
court, requesting a stay only of those four sections set to go into effect at 12:01
a.m. on July 30, 2018. We issued an emergency stay to allow time for full con-
sideration of the motion, and we heard oral argument on the motion on
August 7, 2018. We now grant the motion and enter a stay of Sections 7, 8, 9,
and 16 pending plenary resolution of this appeal by a merits panel.

                                        II.
      A stay pending appeal “is not a matter of right.” Nken v. Holder, 556
U.S. 418, 427 (2009) (quotation marks omitted). We consider
      (1) whether the stay applicant has made a strong showing that he
      is likely to succeed on the merits; (2) whether the applicant will be
      irreparably injured absent a stay; (3) whether issuance of a stay
      will substantially injure the other parties interested in the pro-
      ceeding; and (4) where the public interest lies.
Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (per curiam) (quoting Nken,
556 U.S. at 426). The first two factors are the most critical. Barber v. Bryant,
833 F.3d 510, 511 (5th Cir. 2016).

                                        A.
      The Fourteen Judges offer seven reasons why they are likely to succeed
on the merits: (1) The revised injunction violates the mandate rule; (2) the
revised injunction is overbroad such that it exceeds the limits of a federal
court’s power; (3) the revised injunction violates Younger v. Harris, 401 U.S.
37 (1971); (4) the revised injunction violates Preiser v. Rodriguez, 411 U.S. 475
(1973); (5) the revised injunction violates the Eighth Amendment; (6) the Con-
stitution does not require mandatory release of those who cannot afford bail;
and (7) the Constitution does not require mandatory release of those detained

                                        5
     Case: 18-20466       Document: 00514599856          Page: 6     Date Filed: 08/14/2018



                                       No. 18-20466
more than 48 hours without a hearing. Because the Fourteen Judges are likely
to succeed on the merits as to the first two and the last two grounds, we need
not―and do not―reach the Younger, Preiser, or Eighth Amendment theories.

                                              1.
       “[T]he mandate rule compels compliance on remand with the dictates of
a superior court and forecloses relitigation of issues expressly or impliedly
decided by the appellate court.”            Gene & Gene, L.L.C. v. BioPay, L.L.C.,
624 F.3d 698, 702 (5th Cir. 2010). The district court “must implement both the
letter and the spirit of the appellate court’s mandate.” 6 “[D]istrict courts are
guided by the Supreme Court’s instruction that ‘the scope of injunctive relief
is dictated by the extent of the violation established.’” ODonnell I, 892 F.3d at
163 (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). “The district
court must 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).

       The ODonnell I panel clarified that under both the Due Process and
Equal Protection Clauses, the precise “constitutional defect in the process
afforded was the automatic imposition of pretrial detention on indigent mis-
demeanor arrestees.” 7 Thus, individualized hearings after which magistrates



       6 United States v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006) (quotation marks
omitted). The mandate rule is subject to three exceptions—(1) Evidence at a later trial is
substantially different; (2) there is an intervening change of law; (3) the prior decision is
clearly erroneous and works a manifest injustice. See Ball v. LeBlanc, 881 F.3d 346, 351 (5th
Cir. 2018), petition for cert. filed (Aug. 3, 2018) (No. 18-162). Neither side contends that any
of those exceptions applies here.
       7 ODonnell I, 892 F.3d at 160, 163 (“The fundamental source of constitutional defici-
ency 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.”).
                                               6
     Case: 18-20466       Document: 00514599856          Page: 7     Date Filed: 08/14/2018



                                       No. 18-20466
had to “specifically enunciate their individualized, case-specific reasons for
[imposing bail] is a sufficient remedy.” Id. at 160. 8 The procedures required
for such hearings were “notice, an opportunity to be heard and submit evidence
within 48 hours of arrest, and a reasoned decision by an impartial decision-
maker.” Id. at 163. The panel then provided detailed guidance on how a prop-
erly crafted injunction should look, cautioning that it should not “amount[] to
the outright elimination of secured bail for indigent misdemeanor arrestees.” 9

       Despite the district court’s diligent and well-intentioned effort to comply
with ODonnell I, Section 7 easily violates the mandate, which explicitly found
that individualized hearings would remedy the identified procedural viola-
tions. The requirement that such a hearing be held within 48 hours is applied
to those who cannot afford the prescheduled bond. In other words, the panel
saw the 48-hour limit as sufficient to protect indigent arrestees from being
detained for too long pending their hearings. See id. at 165; Revised PI § 6,
App. 4.

       The identified violation was the automatic imposition of bail. Individu-
alized hearings fix that problem, so immediate release is more relief than
required and thus violates the mandate rule and is not required by the
Constitution. Further, though the ODonnell I panel refused to find clear error
in the district court’s ruling that the County Judges had not shown a “link
between financial conditions of release and appearance at trial or law-abiding




       8  Id. at 163 (“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.”).
       9 Id. (“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 . . . no such right is in
view.”).
                                              7
     Case: 18-20466         Document: 00514599856      Page: 8    Date Filed: 08/14/2018



                                        No. 18-20466
behavior before trial,” 10 the panel recognized that the primary purpose of bail
is “to secure the presence of the defendant in court.” 11 Hence, the panel cau-
tioned that an “outright elimination of secured bail for indigent misdemeanor
arrestees” was an inappropriate remedy. ODonnell I, 892 F.3d at 163. Because
the new injunction again orders release of an indigent arrestee with no strings
attached and before an opportunity for the County to provide the strings, the
injunction circumvents the purpose of bail and ultimately eliminates secured
bail, all in violation of ODonnell I.

       Release might be warranted were “one [to] assume[] a fundamental sub-
stantive due process right to be free from any form of wealth-based detention.
But . . . no such right is in view.” Id. Narrowing the applicability of the relief
does not make it any more permissible. Secured bail was not to be eliminated
for any category of indigent arrestees, no matter how narrow.

       But Section 7 does just that. Preserving the magistrates’ discretion post-
hearing does not correct the violation of the explicit mandate not to eliminate
secured bail. Some wealth-based detention is permissible and was contem-
plated by the panel. See id. at 163.

       Additionally, ODonnell I remanded so the district court could “craft a
revised injunction—one that is narrowly tailored to cure the constitutional
deficiencies the district court properly identified.” Id. at 166–67. The problem
that the district court claims to address via Section 7 is not a deficiency that
was originally identified, so it falls outside the confines of our narrow remand.

       The district court frames the problem of what to do with arrestees during


       10   Id. at 162 (quotation marks omitted).
       11Id. at 158 (quotation marks omitted) (“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.”).
                                               8
     Case: 18-20466        Document: 00514599856          Page: 9     Date Filed: 08/14/2018



                                        No. 18-20466
the 48-hour prehearing window as one arising after the panel issued its ruling
that included a sample injunction. Revised PI Op. at 9, App.18. With all due
respect, that is not so. The original injunction contained the requirement that
a hearing be held within 24 hours. Thus, the same issue of what to do with
arrestees during the gap between arrest and hearing—be it 24 or 48 hours—
was always at issue and could have been addressed during the initial
proceedings.

       Remand is not the time to bring new issues that could have been raised
initially. 12 Thus, Section 7 plainly violates the mandate rule, and the Fourteen
Judges are likely to succeed on the merits as to that section.

       Sections 8 and 9 order the immediate release of any indigent detainee
who is not provided an individualized hearing within 48 hours of detainment.
ODonnell I, 892 F.3d at 160, addressed whether a hearing must occur within
24 hours, and it determined that 48 hours was sufficient under the Constitu-
tion. It did not, however, directly announce the remedy if a hearing does not
occur within that timeframe. But in the model injunction, the proposed remedy
for failure to comply with that requirement was for the County to make weekly
reports to the district court identifying any delays and to inform the detainees’
counsel or next of kin about the delays. Id. at 166. And, only “[a] pattern of
delays might warrant further relief.” Id. (emphasis added).

       As explained, ODonnell I did not require the district court to adopt the
model injunction word for word but instead left “the details to the district
court’s discretion.” Id. at 164. Despite that latitude, the mandate that the



       12 McCrimmon, 443 F.3d at 459 (“All other issues not arising out of this court’s ruling
and not raised before the appeals court, which could have been brought in the original appeal,
are not proper for reconsideration by the district court below.”); see also Henderson v. Stalder,
407 F.3d 351, 354 (5th Cir. 2005).
                                               9
    Case: 18-20466        Document: 00514599856          Page: 10     Date Filed: 08/14/2018



                                       No. 18-20466
district court craft a narrowly tailored injunction is binding. The proposed
relief of weekly progress reports and notification of counsel/kin was deemed
sufficient to fix the constitutional deficiency. The district court was to monitor
the situation for a pattern of violations and only then take possible corrective
action.

       Anything broader than that remedy violates any reasonable reading of
the mandate. And at the very least, the injunction provides broader relief than
necessary, as the model injunction illustrates. Sections 8 and 9 are definitively
overbroad and arguably violative of the mandate rule, so the Fourteen Judges
are likely to succeed on the merits as to those sections as well. 13

                                              2.
       The Due Process and Equal Protection Clauses do not require the release
required in Section 7. The relief would be warranted under due process only
were a substantive right to release at issue. But the ODonnell I panel already
found that the substantive right to release on “sufficient sureties” is “not purely
defined by what the detainee can afford” and “does not create an automatic
right to pretrial release.” ODonnell I, 892 F.3d at 158.

       Nor does the Equal Protection Clause require the release imposed by
Section 7. The threshold question is the proper standard of review. The Odon-
nell I panel found the exception in San Antonio Independent School District v.
Rodriguez, 14 to be applicable such that heightened scrutiny applied to the bail



       13Because Section 16 grants the relief ordered in Sections 7, 8, and 9 to a particular
category of arrestees, it rises and falls on the merits with those sections and does not require
independent consideration.
       14 411 U.S. 1, 20 (1973) (concluding that indigents receive heightened scrutiny where
(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 oppor-
tunity to enjoy that benefit”).
                                              10
    Case: 18-20466        Document: 00514599856           Page: 11     Date Filed: 08/14/2018



                                        No. 18-20466
schedule. The release under Section 7, however, presents a narrower concern
that is subject only to rational basis review because it is premised solely on
inability to afford bail, as distinguished from inability to afford bail plus the
absence of meaningful consideration of other possible alternatives. See id.
at 161.

       Caselaw bears out that distinction. An Equal Protection Claim that an
indigent “person spends more time incarcerated than a wealthier person” is
reviewed for a rational basis. 15 The 48-hour detention claim is based solely on
the premise of inability to afford, as the detention itself is part of the remedy
the panel created to afford arrestees more process.

       The parties’ contentions highlight that both the standard of review and
the underlying merits of this issue are a challenge because of the level of
generality. Looking at the detention alone, Plaintiffs assert the same con-
stitutional deficiency the court found in the County’s bail system: Identical
arrestees are invidiously discriminated against on account of wealth. The
Judges, however, frame the issue as one of disparate impact: The remedy to
the automatic detention of the indigent is more process to allow them alter-
natives. Those who cannot afford the set bail are entitled to an individualized
hearing within 48 hours to determine whether lowering that bail would be
release on sufficient sureties.

       The latter view is by far the better one. Plaintiffs artificially isolate a
part of the remedy that, on its own, appears to be the same violation found in


       15 Doyle v. Elsea, 658 F.2d 512, 518 (7th Cir. 1981) (cited favorably by Smith v. U.S.
Parole Comm’n, 752 F.2d 1056, 1059 (5th Cir. 1985) (applying rational basis review and find-
ing that “unconstitutional wealth discrimination simply is not involved by this allegedly dis-
parate treatment that results from Parole Commission policies that serve rationally legiti-
mate, articulated governmental policies in the administration of parole violations [that result
in increased jail time for those unable to afford bail]”)); see also McGinnis v. Royster, 410 U.S.
263, 270 (1973).
                                               11
    Case: 18-20466        Document: 00514599856        Page: 12     Date Filed: 08/14/2018



                                      No. 18-20466
the first instance.     Asking what the proper remedy would be reveals the
weakness of that position. Were we to find the 48-hour detention improper, we
would have to affirm the district court’s elimination of secured bail for the cate-
gory of arrestees addressed in Section 7. That is expressly what ODonnell I
forbids. That panel found that a procedural violation is subject to procedural
relief. That some arrestees would continue to afford and pay bail while others
would avail themselves of the new hearing within 48 hours is an inherent part
of this calculus.

       Now that the requirement of a hearing is in place, the only remaining
contention about the 48-hour window concerns only the inability to afford bail.
And that is an equal protection claim consistently rejected on rational-basis
review. 16    That does not call into question ODonnell I’s application of
intermediate scrutiny or finding of a violation.

       In ODonnell I, the inability to afford bail was coupled with the lack of
meaningful considerations of alternatives. Here, however, the alternative is
the 48-hour detention and hearing. In its original conclusion that the imposi-
tion of automatic bail violated due process, the panel “boiled down” the viola-
tion to this situation:
       [T]ake two misdemeanor arrestees who are identical in every
       way—same charge, same criminal backgrounds, same circum-
       stances, etc.—except that one is wealthy and one is indigent. . . .
       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 he has less


       16See, e.g., McGinnis, 410 U.S. at 270; Smith, 752 F.2d at 1059. For example, a state
scheme allowing good-time credit “resulted in longer incarceration for those unable to afford
bail. Yet the Supreme Court, applying a rational-basis analysis, upheld the scheme.” Doyle,
658 F.2d at 518 (discussing McGinnis).
                                             12
    Case: 18-20466       Document: 00514599856         Page: 13     Date Filed: 08/14/2018



                                      No. 18-20466
       money than his wealthy counterpart. The district court held that
       this state of affairs violates the equal protection clause, and we
       agree.
ODonnell I, 892 F.3d at 163.

       That last piece is critical. Detention of indigent arrestees and release of
wealthier ones is not constitutionally infirm purely because of the length of
detention. Instead, the court considered the consequences of such detention:
the likelihood of pleading guilty, the ultimate sentence given, and the social
cost of a potentially lengthy pretrial incarceration.

       None of these concerns comes to bear on the alleged problem Section 7
aims to cure. The prehearing detention is capped at 48 hours. Measures are
in place to address violations of that procedural safeguard. Misdemeanor
arrestees awaiting their individualized bail hearing do not face the same dire
prospects of “bear[ing] the brunt” of a lengthy pretrial incarceration caused by
an unconstitutional bail system. The individualized hearing imposed by the
district court as modeled on the panel’s suggestions is sufficient to cure the
automatic imposition of bail. It does so in a way that is rationally related to
the state’s interest in securing the appearance of arrestees. See id. at 164–66.

                                             3.
       Sections 8, 9, and 16 are likewise not constitutionally required. The dis-
trict court described those sections as consistent with ODonnell I, concluding
that the production of a report of those awaiting a hearing does not preclude
the remedy of release. Id. That well-meant reasoning does not hold water.
ODonnell I expressly provided only procedural relief. 17 The grant of automatic


       17 ODonnell I, 892 F.3d at 160, 163 (“There is a significant mismatch between the
district court’s procedure-focused legal analysis and the sweeping injunction it imple-
mented. . . . [T]he equitable remedy necessary to cure the constitutional infirmities arising
under both clauses is the same: the County must implement the constitutionally-necessary
                                             13
    Case: 18-20466       Document: 00514599856           Page: 14   Date Filed: 08/14/2018



                                      No. 18-20466
release smuggles in a substantive remedy via a procedural harm. That goes
too far. The due process and equal protection relief found sufficient in Odon-
nell I did not contemplate release, and it follows that such relief is improper.

                                             B.
       The Judges have made an adequate showing to satisfy the remaining
three factors. They and the public are harmed by enjoining the County’s bail
system. And given their likelihood of success on the merits, any harm to
Plaintiffs, standing alone, does not outweigh the other factors. See Planned
Parenthood of Greater Tex. Surgical Health Servs v. Abbott, 734 F.3d 406, 419
(5th Cir. 2013).

                                            III.
       In sum, the expansive injunction entered on remand repeats the mistake
of the original injunction: It “amounts to the outright elimination of secured
bail for indigent misdemeanor arrestees.” ODonnell, 892 F.3d at 163. But
there is “no such . . . fundamental substantive due process right to be free from
any form of wealth-based detention.”               Id.    “The sweeping injunction is
overbroad.” Id.
       The motion for stay, pending appeal, of Sections 7, 8, 9, and 16 is
GRANTED.




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).”).
                                             14
    Case: 18-20466     Document: 00514599856       Page: 15    Date Filed: 08/14/2018



                                       No. 18-20466
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Harris County’s unconstitutional bail practices will continue to deny
equal protection and due process to indigent misdemeanor arrestees unless the
amended preliminary injunction is fully and immediately implemented. “Such
a denial is a misfit in a country dedicated to affording equal justice to all and
special privileges to none in the administration of its criminal law.” Griffin v.
Illinois, 351 U.S. 12, 19 (1956).
      The judges of Harris County Criminal Courts at Law Nos. 1 through 13
and 15 move for a partial stay, pending appeal, of the district court’s amended
order of preliminary injunction. The decision whether to grant a motion for
stay pending appeal is governed by four factors: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S.
418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The
first two factors . . . are the most critical.” Id. As the parties seeking a stay, the
judges bear the burden of satisfying these four factors. Id. at 433–34; Ruiz v.
Estelle, 666 F.2d 854, 856 (5th Cir. 1982). They have satisfied none. I would
therefore deny their motion.
1. The judges are unlikely to succeed on the merits of their appeal.
      “[T]he mandate rule compels compliance on remand with the dictates of
a superior court and forecloses relitigation of issues expressly or impliedly
decided by the appellate court.” United States v. Lee, 358 F.3d 315, 321 (5th
Cir. 2004) (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)). The
judges argue that Sections 7 and 8 of the amended injunction violate this
court’s mandate in ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018)
(ODonnell I), because they require the release, on personal bond, of certain
                                            15
    Case: 18-20466       Document: 00514599856        Page: 16     Date Filed: 08/14/2018



                                         No. 18-20466
misdemeanor arrestees in specified circumstances. 1 ODonnell I does not
contain an “explicit directive[]” against the remedies provided by Sections 7
and 8. See Lee, 358 F.3d at 321 (quoting United States v. Matthews, 312 F.3d
652, 657 (5th Cir. 2002)). Thus, to prevail on their mandate-rule argument, the
judges must demonstrate that such a proscription is a “necessary implication”
of this court’s opinion. See id. at 320 (citing Crowe v. Smith, 261 F.3d 558, 562
(5th Cir. 2001)). When construing an appellate court’s mandate, a district court
must “tak[e] into account the circumstances that [the appellate court’s] opinion
embraces.” Sobley v. S. Nat. Gas Co., 302 F.3d 325, 333 (5th Cir. 2002).
       This court’s opinion in ODonnell I was directed, not to every conceivable
remedy the district court might have entered, but to the district court’s original
preliminary injunction and must therefore be read in light of that order’s
particular provisions. Like Sections 7 and 8 of the amended injunction,
Sections 2 and 3 of the original injunction required misdemeanor defendants
who satisfied certain criteria to be released on unsecured personal bond in
specified circumstances. But unlike Sections 7 and 8 of the amended
injunction—both of which expressly state that the county “may require
misdemeanor arrestees who are released on unsecured personal bonds under
this Section to return for a hearing and individual assessment”—nothing
permitted county officials to require defendants released under the original
injunction to return for a hearing at which secured money bail could be
imposed if necessary to provide “sufficient sureties.” This is a crucial
distinction. By failing to account for the county’s “interest in assurance,”
ODonnell I, 892 F.3d at 158, the original injunction’s open-ended release




       1 The judges also challenge Sections 9 and 16 of the amended injunction, but since
those provisions largely depend on Sections 7 and 8, they do not warrant separate discussion
here.
                                                16
    Case: 18-20466      Document: 00514599856   Page: 17    Date Filed: 08/14/2018



                                     No. 18-20466
provisions “amount[ed] to the outright elimination of secured bail for indigent
misdemeanor arrestees,” id. at 163. Because Sections 7 and 8 of the amended
injunction preserve the county’s ability to impose secured bail on all
misdemeanor arrestees, they do not “create an automatic right to pretrial
release,” id. at 158, and thus fully comport with ODonnell I’s mandate.
      The amended preliminary injunction is also narrowly tailored to the
equal protection and due process violations affirmed by this court in ODonnell
I. See id. at 157–63.
      Section 7 of the amended injunction requires, with various exceptions,
that misdemeanor arrestees who “would otherwise be released after arrest and
before a hearing and individual assessment . . . if not for their inability to pay
the prescheduled or other secured financial conditions of release” must be
released “on the same time frame” as “a misdemeanor arrestee who is able to
pay secured money bail.” By ensuring that misdemeanor arrestees are not
detained before they receive an individualized hearing solely because of their
inability to afford a preset amount of secured money bail, Section 7 aims to
prevent county officials from violating the Equal Protection Clause. It is
narrowly tailored to that purpose. Because it requires release only to the extent
that county officials choose to engage in wealth-based detention through the
use of secured money bail, Section 7 itself does not create any entitlement to
release. Furthermore, Section 7 in no way eliminates secured money bail,
which may still be imposed at an individualized hearing.
      However thorough and fair it may be, an individualized hearing 48 hours
after arrest cannot “fix” the deprivation of liberty and equal protection suffered
by an indigent misdemeanor arrestee who is automatically detained prior to
that hearing “solely because [she is] too poor to pay” a preset amount of secured
money bail. See Bearden v. Georgia, 461 U.S. 660, 664 (1983). The majority
contends that detention before the individualized hearing “is subject only to
                                          17
    Case: 18-20466       Document: 00514599856          Page: 18     Date Filed: 08/14/2018



                                           No. 18-20466
rational basis review because it is premised solely on inability to afford bail, as
distinguished from inability to afford bail plus the absence of meaningful
consideration of other possible alternatives.” In addition to being foreclosed by
ODonnell I’s holding that heightened scrutiny—not rational basis review—
applies here, 892 F.3d at 161–62 & n.6, the majority’s argument squarely
contravenes Supreme Court precedent. Indigent misdemeanor arrestees who
are detained prior to their individualized hearings solely because they cannot
afford secured money bail do not receive any “meaningful consideration of
other possible alternatives” that would enable their pre-hearing release.
Rather, they “share[] two distinguishing characteristics” that trigger
heightened scrutiny: (1) “because of their impecunity they [are] completely
unable to pay for some desired benefit”; and (2) “as a consequence, they
sustain[] an absolute deprivation of a meaningful opportunity to enjoy that
benefit.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973);
accord ODonnell I, 892 F.3d at 161–62. Accordingly, Williams v. Illinois, 399
U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), and Bearden control this
case, and the majority’s suggestion that this is an issue of “disparate impact”
is unavailing. See M.L.B. v. S.L.J., 519 U.S. 102, 127 (1996) (“Sanctions of the
Williams genre . . . are not merely disproportionate in impact. Rather, they are
wholly contingent on one’s ability to pay, and thus ‘visi[t] different
consequences on two categories of persons’; they apply to all indigents and do
not reach anyone outside that class.” (quoting Williams, 399 U.S. at 242)). 2



       2  The sole Supreme Court decision that the majority cites to support its application
of rational basis review is McGinnis v. Royster, 410 U.S. 263 (1973). The equal protection
claim in McGinnis, however, involved a distinction that a state statute drew between time
served in state prisons and time served in county jails. Id. at 268–72. While the Court
indicated that this distinction adversely affected “those state prisoners unable to afford or
otherwise qualify for bail prior to trial,” id. at 268 (emphasis added), it did not analyze the
claim in terms of invidious discrimination against the indigent. The majority also cites Doyle
v. Elsea, 658 F.2d 512 (7th Cir. 1981), and Smith v. United States Parole Commission, 752
                                                 18
    Case: 18-20466       Document: 00514599856        Page: 19     Date Filed: 08/14/2018



                                         No. 18-20466
       Section 8 of the amended injunction is also an appropriate remedy.
Subject to certain exceptions, Section 8 requires the prompt release on
unsecured personal bond of misdemeanor arrestees who “have not appeared at
a hearing and individual assessment within 48 hours of arrest.” Thus, Section
8 requires release only when county officials fail to comply with their duty
under the Fourteenth Amendment to provide misdemeanor arrestees with a
bail hearing within 48 hours of arrest. See ODonnell I, 892 F.3d at 160 (“We
conclude that the federal due process right entitles detainees to a hearing
within 48 hours.”). Even then, the county retains the authority to impose
secured money bail at a later hearing. Section 8 is therefore narrowly tailored
to ensuring that misdemeanor arrestees are not detained without an
individualized hearing for longer than the Due Process Clause permits.
       The judges contend that Section 8 is overbroad because “the Fourteenth
Amendment does not require the automatic release of arrestees who are
detained more than 48 hours before they are afforded an individualized
hearing regardless of the justification for the delay.” They cite the Supreme
Court’s opinion in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), but
McLaughlin says nothing about whether an order of release would be an
appropriate remedy for an unduly delayed probable cause determination (the
proceeding at issue in McLaughlin) or any other type of pretrial hearing.
       The majority relies heavily on the following provision in ODonnell I’s
model injunction:
            To enforce the 48-hour timeline, the County must make a
       weekly report to the district court of misdemeanor defendants


F.2d 1056 (5th Cir. 1985). Because it predated Bearden, Doyle’s basis for applying McGinnis
instead of Williams rested on a faulty distinction. Doyle, 658 F.2d at 518 (finding Williams
inapplicable because the prisoner “will not spend more time incarcerated than the maximum
period set by statute for the offenses of which he was found guilty”). Consequently, Smith,
which adopted Doyle’s reasoning and did not even mention Bearden, has little persuasive
value.
                                                19
    Case: 18-20466    Document: 00514599856       Page: 20   Date Filed: 08/14/2018



                                      No. 18-20466
      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.
ODonnell I, 892 F.3d at 166. The district court, however, was not required to
confine its remedy to this or any other portion of the model injunction. See id.
at 164. Moreover, nothing in the ODonnell I opinion indicates that this court
considered the possibility of a limited release remedy like Section 8, which
accommodates the constitutional rights of arrestees and the interest of county
officials in being able to impose secured bail after a hearing and individualized
assessment.
      The judges recycle various arguments based on Younger v. Harris, 401
U.S. 37 (1971), Preiser v. Rodriguez, 411 U.S. 475 (1973), and the Eighth
Amendment. This court, having previously rejected those arguments,
ODonnell I, 892 F.3d at 156–57 & n.3, is unlikely to find them persuasive in
their repackaged forms.
2. The judges have not shown that they will suffer irreparably injury
   without a stay.
      Citing questionable bond-forfeiture statistics, the judges assert that the
amended injunction will undermine the county’s criminal justice system and
endanger public safety. Assuming that the judges could overcome the myriad
deficiencies in that data identified by the district court and the plaintiffs, their
statistics show, at most, “some ‘possibility of irreparable injury’” and therefore
fall short of satisfying the second stay factor. Nken, 556 U.S. at 434–35 (quoting
Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998)); see also Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). The judges also claim that they will
suffer irreparable harm because the amended injunction enjoins them from

                                           20
   Case: 18-20466      Document: 00514599856       Page: 21   Date Filed: 08/14/2018



                                     No. 18-20466
enforcing state law, but nothing in Texas law requires the unconstitutional
practices that the amended injunction seeks to remedy.
3. A stay will cause the plaintiff class to suffer substantial injury.
      The district court found that “[p]retrial detention of misdemeanor
defendants, for even a few days, increases the chance of conviction and of
nonappearance     or   new   criminal   activity    during    release,”   and   that
“[c]umulative disadvantages mount for already impoverished misdemeanor
defendants who cannot show up to work, maintain their housing
arrangements, or help their families because they are detained.” ODonnell v.
Harris Cty., 251 F. Supp. 3d 1052, 1158 (S.D. Tex. 2017); see also id. at 1121
(noting that “[r]ecent studies of bail systems in the United States have
concluded that even brief pretrial detention because of inability to pay a
financial condition of release increases the likelihood that misdemeanor
defendants will commit future crimes or fail to appear at future court
hearings,” and that one study “found that for misdemeanor defendants, even
two to three days of pretrial detention correlated at statistically significant
levels with recidivism”). Without full and immediate implementation of the
amended preliminary injunction, members of the plaintiff class will continue
to suffer substantial harm as a result of Harris County’s unconstitutional bail
practices.
4. The public interest favors denying the motion for stay.
      “[I]t is always in the public interest to prevent the violation of a party’s
constitutional rights.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448,
458 n.9 (5th Cir. 2014) (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.
2012)); see also Williams, 399 U.S. at 245 (“[T]he constitutional imperatives of
the Equal Protection Clause must have priority over the comfortable
convenience of the status quo.”). If a stay is granted, the “tens of thousands of
constitutional violations” already found by the district court, 251 F. Supp. 3d
                                          21
   Case: 18-20466    Document: 00514599856          Page: 22   Date Filed: 08/14/2018



                                     No. 18-20466
at 1150 n.99, will only increase in number. The public interest strongly favors
denying the motion for stay.
                                 *     *        *
      I would deny the judges’ motion for stay pending appeal. Because the
majority decides otherwise, I respectfully dissent.




                                           22
