                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 9, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
KENNETH JEROME DAWSON,

      Plaintiff - Appellant,

v.                                                          No. 17-1118
                                                  (D.C. No. 1:16-CV-01281-MEH)
BOARD OF COUNTY                                              (D. Colo.)
COMMISSIONERS OF JEFFERSON
COUNTY, COLORADO; JEFFERSON
COUNTY, COLORADO, DEPARTMENT
OF HUMAN SERVICES; JEFFERSON
COUNTY, COLORADO, DIVISION OF
JUSTICE SERVICES; JEFFERSON
COUNTY, COLORADO, SHERIFF'S
OFFICE; JEFF SHRADER,

      Defendants - Appellees,

and

HEATHER BECKER; KURT
PIERPOINT; LESLIE HOLMES;
MATTHEW WRIGHT; RYAN
KINSELLA; RYAN L. ROPERS; SARAH
MCHUGH; STEPHANIE LAHUE,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.
                 _________________________________

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Kenneth Jerome Dawson appeals the dismissal of his action brought pursuant

to 42 U.S.C. § 1983 in which he asserts a violation of his Fourteenth Amendment

substantive due process rights. Dawson challenges the official policies of the

Jefferson County Jail. Due to the timing of Dawson’s detention, the timing of his

posting of bond, and the court-ordered release condition that Dawson be fitted with a

GPS monitor, the policies Dawson challenges resulted in a three-night and a three-

day delay in his pretrial release after he posted bond. Dawson sued the Board of

County Commissioners of Jefferson County; Jefferson County Department of Human

Services; Jefferson County Division of Justice Services; the individual employees of

the County, Department, Division, and/or the Pretrial Services Program in their

individual and official capacities; Jeff Shrader in his official capacity as Sheriff of

Jefferson County; and the Jefferson County Sheriff’s Office.

      Dawson’s appeal concerns only the dismissal of his § 1983 claims asserted

against defendants-appellees1 for their policies which delayed his release from

custody. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                            I

A. Facts

      The following undisputed facts are taken from Dawson’s amended complaint

and the exhibits attached thereto. On Thursday, May 29, 2014, around 5:30 p.m.,

      1
        Defendants-appellees are: (i) the Board of County Commissioners of
Jefferson County, (ii) Jefferson County Department of Human Services, (iii)
Jefferson County Division of Justice Services, (iv) the Jefferson County Sheriff’s
Office, and (v) Jeff Shrader in his official capacity as Sheriff of Jefferson County
(hereinafter, “defendants-appellees”).
                                            2
police officers in Lakewood, Colorado, arrested Dawson at his home for allegedly

violating a state court restraining order that prohibited him from contacting his wife.

App., at 13–14, ¶¶ 10–11. The Lakewood Police brought Dawson to the Jefferson

County Jail where he was placed in the custody of the Sheriff’s Office. Id. at 14,

¶ 12.

        The next morning, on Friday, May 30, 2014, the Jefferson County District

Court set Dawson’s bond at $1,500. Id. ¶ 13. As another condition of Dawson’s

release, the court also ordered GPS monitoring. Id. On Friday, at 10:33 a.m., the

Jefferson County Pretrial Services Department transmitted to the Sheriff’s Office a

“hold” of Dawson regarding electronic monitoring. Id. ¶ 14. The “hold” stated,

“[t]his defendant is to remain in custody until such time that a Pretrial Services

Representative has forwarded written notice to release this hold.” Id. (quoting Ex.

A).

        Two written policies of the Jefferson County Division of Justice Services

authorized the “hold” of Dawson: (i) Policy No. 3.1.43, “Pretrial Holds & Releases”

(the “Holding Policy”); and (ii) Policy No. 3.1.68, “Electronic Monitoring” (the

“Monitoring Policy”). Id. ¶ 15 (citing Exs. B, C). Dawson alleges the Holding and

Monitoring Policies “authorize and require Pretrial Services staff to: (a) place a hold

on a defendant to prevent the Sheriff’s Office from releasing the defendant pending

the fitment of [a] court-ordered GPS monitoring device; (b) arrange for the fitment of

the GPS device upon the defendant; and (c) then release the hold upon the defendant,



                                           3
thereby enabling the Sheriff’s Office to release the defendant, subject to any other

holds or court-ordered conditions of release.” Id. ¶ 16.

      On Friday evening, Dawson posted a cash bond of $1,500. Id. at 15, ¶ 17. At

7:40 p.m., the Sheriff’s Office sent an email to Pretrial Services stating, Dawson “has

bonded and is being held on your hold.” Id. ¶ 18 (quoting Ex. D). Dawson claims

the email from the Sheriff’s Office “informed the Pretrial Services staff that the only

unsatisfied condition remaining for [Dawson’s] release was to fit him with the GPS

monitor.” Id.

      The Monitoring Policy contains a “Release Schedule,” which states as follows:

      a)     Defendants [who] post bond before 1 PM Monday-Friday[ ] will be
             outfitted with the monitoring equipment by our vendor at 4 PM that
             same day[;]
      b)     Defendants [who] post bond after 1 PM Monday-Thursday[ ] will be
             outfitted the following day at 4 PM[;]
      c)     Defendants who post bond after 1 PM on Friday and before 1 PM on
             Monday will be outfitted on Monday at 4 PM[.]

Id. at 25–26, ¶ 3. The Monitoring Policy also states:

      All referral paperwork must be provided to the vendor no later than 2
      PM in order to have the defendant outfitted with the equipment by 4 PM
      that same day. The vendor will arrive at the jail at 4 PM to place the
      electronic monitoring unit on the defendant and provide them with a
      charger and instructions upon their release from custody.

Id. at 26, ¶ 5 (emphasis in original). Based on the Monitoring Policy, because

Dawson posted bond after 1:00 p.m. on Friday, he had to remain in jail until Monday

at 4:00 p.m. before he could be “outfitted.” Id. at 15, ¶ 19. Thus, from Friday

evening, on May 30, 2014, until Monday afternoon, on June 2, 2014, Dawson was not



                                           4
fitted with a GPS device which would have satisfied all court-ordered conditions for

his release from custody.2 Id.

B. Case History

      On May 27, 2016, Dawson filed this complaint in the United States District

Court for the District of Colorado against multiple Jefferson County entities and

several individual defendants in their individual and official capacities. Id. at 4.

After Dawson amended his complaint, id. at 21, all defendants moved to dismiss

under Federal Rule of Civil Procedure 12(b)(6), id. at 37–56. As regards Dawson’s

policy-based claims, the district court dismissed with prejudice Dawson’s amended

complaint against all defendants-appellees who are free-standing entities or

individuals sued in their official capacities. The district court did not dismiss

Dawson’s negligence claims filed against individual defendants in their individual

capacities only.3 Dawson voluntarily dismissed those claims without prejudice and

then filed this appeal. Following our issuance of a show cause order questioning the

finality of the district court’s order, Dawson filed a motion with the district court




      2
         Dawson was not fitted with a GPS monitor or released until Wednesday, June
4, 2014—five days and five nights after he posted bond. Dawson does not challenge
in this appeal the two-day delay in his release from Monday to Wednesday, which
was allegedly due to jail employees’ negligence. Dawson only challenges the
constitutionality of his three-day delay in release over the weekend, which was due to
the Holding and Monitoring policies.
      3
          The individual defendants are not parties to this appeal.
                                             5
seeking a Federal Rule of Civil Procedure 54(b) certification of finality. The district

court granted Dawson’s motion4 and entered its judgment on May 10, 2017. Id. at 9.

                                            II

       We are tasked with determining whether Dawson’s claims against defendants-

appellees—challenging the policies resulting in a three-day delay in his pretrial

release from custody after he posted bond—were properly dismissed under Rule

12(b)(6). We conclude the district court did not err in dismissing those claims.

A. Standard of Review

       “We review the district court’s grant of a Rule 12(b)(6) motion to dismiss de

novo.” Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015). “To

survive a motion to dismiss, a complaint must ‘state a claim to relief that is plausible

on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“[A] plaintiff cannot rely on ‘labels and conclusions, and a formulaic recitation of the

elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at 555). “We


       4
          The district court’s Rule 54(b) certification satisfies the requirements of
Stockman’s Water Co. v. Vaca Partners, L.P., 425 F.3d 1263 (10th Cir. 2005).
“First, the district court . . . determine[d] that its judgment is final.” Id. at 1265; see
App., at 185 (“[B]ecause the Court’s January 3, 2017 order dismissed [Dawson’s]
entity liability claims with prejudice, the order is final as to those claims.”).
“Second, the district court . . . determine[d] that no just reason for delay of entry of
its judgment exists.” Stockman’s, 425 F.3d at 1265; see App., at 185–86 (“[T]he
remaining claims involve distinct parties and a separate period of detention, and thus,
likely involve different state interests.”) (allowing Dawson to immediately appeal the
court’s dismissal of his entity claims “may be the most efficient manner to resolve
this litigation,” as “denying a Rule 54(b) certification might preclude [Dawson] from
appealing the entity liability claims[ ] because ‘the Individual Claims arguably do not
justify the cost and effort of this litigation’” (quoting Dawson’s motion for Rule
54(b) certification)).
                                             6
accordingly ‘disregard conclusory statements and look only to whether the

remaining, factual allegations plausibly suggest the defendant is liable.’” Id.

(quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)).

B. Section 1983 Liability

      The Supreme Court in Monell v. Department of Social Services of New York

concluded that a plaintiff may sue “municipalities and other local government units”

under § 1983. 436 U.S. 658, 690 (1978). Thus, as we have in similar cases, we

analyze Dawson’s claims, which challenge policies enacted by Jefferson County and

enforced by its employees, under the same rubric applied in policy-based § 1983

actions brought against municipalities. See Dodds v. Richardson, 614 F.3d 1185,

1201–02 (10th Cir. 2010). The “Court has described the correct standard for

subjecting a municipality to liability under § 1983: ‘a local government may not be

sued under § 1983 for an injury inflicted solely by its employees or agents. Instead it

is when execution of a government’s policy or custom . . . inflicts the injury that the

government as an entity is responsible under § 1983.’” Darr v. Town of Telluride,

Colo., 495 F.3d 1243, 1256 (10th Cir. 2007) (quoting Monell, 436 U.S. at 694).

      There are three requirements for municipal liability under 42 U.S.C. § 1983:

(1) the existence of an official policy or custom; (2) a direct causal link between the

policy or custom and the constitutional injury; and (3) that the defendant established

the policy with deliberate indifference to an almost inevitable constitutional injury.5


      5
        Without citing case law, Dawson contends that he need not allege deliberate
indifference because deliberate indifference “applies to a specific subset of cases
                                           7
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767–69 (10th Cir.

2013).

1. Official Policy

         Dawson alleges the first requirement for municipal liability—the existence of

official policies. According to Dawson’s amended complaint, “[t]he Hold was

authorized by two written Policies adopted by the County and the Division: Policy

No. 3.1.43, titled ‘Pretrial Holds & Releases’ . . . and Policy No. 3.1.68, titled

‘Electronic Monitoring.’” See App., at 14, ¶ 15.

2. Causal Link between Official Policy and Alleged Constitutional Injury

         Dawson also pleads the second requirement for municipal liability—a direct

causal link between the policies and his alleged unconstitutional over detention.

Dawson’s amended complaint states, “[i]n accordance with this official Policy, none

of the Defendants made any effort to fit Plaintiff with a GPS device or otherwise to

facilitate his release from Friday evening, May 30, 2014, until Monday afternoon,

June 2, 2014.” Id. at 15, ¶ 20.

3. Deliberate Indifference to an Almost Inevitable Constitutional Injury

         However, we agree with the district court that Dawson fails to satisfy the third

prong, and therefore cannot state a claim against defendants-appellees. To allege the

wherein the plaintiff alleges a policy of inaction,” such as “when a plaintiff seeks to
hold a municipal defendant liable for failure to train.” See Aplt. Reply, at 23–24.
But the Supreme Court has noted that deliberate indifference is the proper standard
“when actual deliberation is practical,” such as “in the custodial situation of a
prison,” which fits squarely to the facts before us. See Cty. of Sacramento v. Lewis,
523 U.S. 833, 851 (1998). We, therefore, apply the deliberate indifference standard
in this case.
                                             8
third requirement for municipal liability—deliberate indifference—Dawson must

plead facts that plausibly suggest “the municipality ha[d] actual or constructive

notice that its [policies were] substantially certain to result in a constitutional

violation, and it consciously or deliberately [chose] to disregard the risk of harm.”

Schneider, 717 F.3d at 771 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th

Cir. 1998)). The district court concluded the policies are constitutional; thus,

“because [Dawson] has not sufficiently alleged that the Holding and Monitoring

Policies’ weekend detention requirement caused a violation of his substantive due

process right to be free from unreasonably prolonged pretrial detention, [Dawson]

has not met the requirements for municipal entity liability.” App., at 151.

C. Substantive Due Process

       Dawson argues that a substantive due process analysis consists of three

strands. Aplt. Opening Br., at 9. These strands, Dawson contends, comprise:

(i) “infringement of a fundamental right where the infringement is not narrowly

tailored to serve a compelling governmental interest;” (ii) “infringement of a non-

fundamental right where the infringement is not reasonably related to a legitimate

governmental interest;” and (iii) “infringement of any constitutionally protected right

in a manner that ‘shocks the conscience.’” Id. at 9–10. Dawson claims that if a non-

fundamental right is implicated and an official policy exists, “the ‘reasonably related’

standard applies,” and the “shocks the conscience” standard does not apply. Aplt.

Reply, at 11–12. Dawson argues the Supreme Court has applied the “shocks the

conscience” standard in certain cases because official policies did not exist in those

                                             9
cases. Thus, because official policies exist in this case, Dawson contends that only

strands (i) and (ii) are potentially applicable. Aplt. Opening Br., at 5.

       Dawson reaches the proper conclusion but for the wrong reason. The Supreme

Court has carefully delineated fundamental rights and applies strict scrutiny to those

rights. Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015) (“The fundamental

liberties protected by th[e] [Due Process] Clause include most of the rights

enumerated in the Bill of Rights . . . . [and] certain personal choices central to

individual dignity and autonomy.”). In stark contrast, the Court applies rational basis

review to non-fundamental rights, precisely because they are non-fundamental—not

because a defendant acted pursuant to an official policy. Thus, the Supreme Court

begins the substantive due process inquiry by first defining the “type” of right at

stake. Washington v. Glucksberg, 521 U.S. 702, 703 (1997). Once that baseline is

established, the Court applies the level of review that corresponds to the right

identified.

       In Seegmiller v. LaVerkin City, we described this analysis: “First, we must

‘careful[ly] descri[be] . . . the asserted fundamental liberty interest.’” 528 F.3d 762,

769 (10th Cir. 2008) (quoting Glucksberg, 521 U.S. at 721). “Second, we must

decide whether the asserted liberty interest, once described, is ‘objectively, deeply

rooted in this Nation’s history and tradition, and implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if they were sacrificed,’”

which would render the liberty interest a fundamental right. Id. (quoting Glucksberg,

521 U.S. at 721). The plaintiff has the “burden of proving the liberty interest” at

                                            10
issue is fundamental and therefore “must be protected through a heightened scrutiny

analysis.” Id. at 770. And, “[a]bsent a fundamental right, the state may regulate an

interest pursuant to a validly enacted state law or regulation rationally related to a

legitimate state interest.”6 Id. at 771.

1. Description of the Asserted Interest

       We begin by “carefully describ[ing] the right [at stake] and its scope.” Id. at

769; see also Dias v. City and Cty. of Denver, 567 F.3d 1169, 1181 (10th Cir. 2009).

Dawson alleges an infringement on his right to be free from pretrial detention after he

fulfilled the court ordered release conditions within his control; that is, he paid the

required bond.




       6
         However, Seegmiller also deviates from the proper framework in one regard.
Seegmiller states the “shocks the conscience” and the rational relation substantive
due process inquiries are one and the same: “The Supreme Court has described two
strands of the substantive due process doctrine. One strand protects an individual’s
fundamental liberty interests, while the other protects against the exercise of
governmental power that shocks the conscience.” 528 F.3d at 767.
       Yet, the Supreme Court has noted that the “shocks the conscience” standard
pertains to the requisite state of mind for Section 1983 liability and applies in limited
situations (not relevant here)—such as when defendants act during emergencies. See
Lewis, 523 U.S. at 836 (“The issue in this case is whether a police officer violates the
Fourteenth Amendment’s guarantee of substantive due process by causing death
through deliberate indifference or reckless indifference to life in a high-speed
automobile chase aimed at apprehending a suspected offender. We answer no, and
hold that in such circumstances only a purpose to cause harm unrelated to the
legitimate object of arrest will satisfy the element of arbitrary conduct shocking to
the conscience, necessary for a due process violation.”); see also id. at 839
(discussing also how “a much higher standard of fault than deliberate indifference
has to be shown for officer liability in a prison riot”).
                                            11
2. Is the Asserted Interest Fundamental or Non-Fundamental?

       We next ask whether the interest Dawson asserts “is ‘deeply rooted in this

Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they were sacrificed.’” Dias, 567 F.3d at

1181 (quoting Glucksberg, 521 U.S. at 720–21). We are guided by Bell v. Wolfish,

441 U.S. 520 (1979); United States v. Salerno, 481 U.S. 739 (1987); Gaylor v. Does,

105 F.3d 572 (10th Cir. 1997); and Dodds, 614 F.3d 1185, and conclude that

Dawson’s interest to be free from pretrial detention, having fulfilled the court ordered

release conditions within his control and awaiting the fulfillment of court ordered

release conditions outside of his control, is a non-fundamental right.

       The Supreme Court in Wolfish addressed conditions of confinement—an issue

distinct from the one before us. However, Wolfish provides guidance for our

constitutional inquiry. In Wolfish, the Second Circuit concluded, “the Due Process

Clause requires that pretrial detainees ‘be subjected to only those restrictions and

provisions which . . . are justified by compelling necessities of jail administration,’”

because “an individual is to be treated as innocent until proven guilty.” 441 U.S. at

531 (some quotations omitted) (quoting Wolfish v. Levi, 573 F.2d 118, 124 (2d Cir.

1978)). Thus, the Second Circuit held, “deprivations of the rights of detainees cannot

be justified by the cries of fiscal necessity . . . [or] administrative convenience.” Id.

(quotations omitted). The Supreme Court disagreed. Id. at 532.

       The Court’s directive pertaining to the constitutional analysis of confinement

conditions applies with equal force here:

                                            12
      In evaluating the constitutionality of conditions or restrictions of pretrial
      detention that implicate only the protection against deprivation of
      liberty without due process of law, we think the proper inquiry is
      whether those conditions amount to punishment of the detainee. For
      under the Due Process Clause, a detainee may not be punished prior to
      an adjudication of guilt in accordance with due process of law. . . .
      [T]he Government concededly may detain him to ensure his presence at
      trial and may subject him to the restrictions and conditions of the
      detention facility so long as those conditions and restrictions do not
      amount to punishment, or otherwise violate the Constitution.

Id. at 536–37 (footnote omitted). The Court continued:

      A court must decide whether the disability [imposed by the government]
      is imposed for the purpose of punishment or whether it is but an
      incident of some other legitimate governmental purpose. Absent a
      showing of an expressed intent to punish on the part of detention facility
      officials, that determination generally will turn on “whether an
      alternative purpose to which [the restriction] may rationally be
      connected is assignable for it, and whether it appears excessive in
      relation to the alternative purpose assigned [to it].” Thus, if a particular
      condition or restriction of pretrial detention is reasonably related to a
      legitimate governmental objective, it does not, without more, amount to
      “punishment.”       Conversely, if a restriction or condition is not
      reasonably related to a legitimate goal—if it is arbitrary or
      purposeless—a court permissibly may infer that the purpose of the
      governmental action is punishment that may not constitutionally be
      inflicted upon detainees qua detainees.

Id. at 538 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963))

(footnotes and citations omitted).

      The Court also stated that the government’s legitimate interests are not limited

to assuring a detainee’s presence at trial. Id. at 540. “The Government also has

legitimate interests that stem from its need to manage the facility in which the

individual is detained”—that is, “legitimate operational concerns.” Id. The Court

instructed:


                                           13
       [T]he problems that arise in the day-to-day operation of a corrections
       facility are not susceptible of easy solutions. Prison administrators
       therefore should be accorded wide-ranging deference in the adoption
       and execution of policies and practices that in their judgment are needed
       to preserve internal order and discipline and to maintain institutional
       security.

Id. at 547.

       Eight years later, the Supreme Court in Salerno examined the right to be free

from pretrial detention based on a challenge to the Bail Reform Act of 1984. The

Court analyzed the Act under rational basis review and concluded “[t]he

government’s interest in preventing crime by arrestees is both legitimate and

compelling.” 481 U.S. at 749. The Court stated, “the mere fact that a person is

detained does not inexorably lead to the conclusion that the government has imposed

punishment.” Id. at 746. The Court reiterated its previous holdings “that the

Government’s regulatory interest in community safety can, in appropriate

circumstances, outweigh an individual’s liberty interest,” id. at 748, “prior to or even

without criminal trial and conviction,” id. at 749. Importantly, in so reiterating, the

Court refused to “categorically state that pretrial detention ‘offends some principle of

justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental.’” Id. at 751 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105

(1934)).

       Wolfish and Salerno laid the foundation for this court’s rulings which

followed. In Gaylor, the plaintiff remained incarcerated for five days without a

hearing before a magistrate judge and without information about his bail status


                                           14
(despite the fact that a magistrate had set plaintiff’s bail the day following his arrest).

105 F.3d at 574. In analyzing plaintiff’s asserted interest to be free from pretrial

detention, “we consider[ed] whether the policy in question ‘punished’ [plaintiff] by

infringing his liberty interest unreasonably and in a way unrelated to a legitimate

goal, such as insuring his appearance for trial or protecting others from him.” Id. at

576–77. Defendants failed to assert a legitimate goal “for a policy of informing a

detainee of his bond status only ‘if he asks for same,’” id., and we concluded that

because “no legitimate goal [wa]s suggested[,] . . . . [t]he restriction or condition was

not ‘reasonably related to a legitimate goal’ . . . and it appear[ed] ‘arbitrary or

purposeless’ under” Wolfish, id. at 578. The policy was therefore “punishment.” Id.

       Finally, in Dodds, the plaintiff-arrestee alleged that a former county sheriff

“violated [plaintiff’s] Fourteenth Amendment due process rights by depriving him of

his protected liberty interest in posting bail” where a county policy prevented

plaintiff from posting bail after working hours and from posting bail until he had

appeared before a judge and had been arraigned. 614 F.3d at 1189–90. We analyzed

the arrestee’s interest in pre-conviction liberty under rational basis review:

       To avoid depriving an arrestee of due process, the government may
       only interfere with [his] protected liberty interest, for instance by
       refusing to accept lawfully set bail from the arrestee and detaining him
       until some later time, if its actions reasonably relate ‘to a legitimate
       goal.’ Otherwise, the detention of such an arrestee would constitute
       punishment prior to trial, in violation of due process.

Id. at 1192–93 (citation omitted); see also Meechaicum v. Fountain, 696 F.2d 790,

792 (10th Cir. 1983) (“[B]ail may not be denied ‘without the application of a


                                            15
reasonably clear legal standard and the statement of a rational basis for the denial.’”

(citation omitted)). Similar to Gaylor, we concluded in Dodds that plaintiff plausibly

pled a violation of his constitutional rights because defendant had not “proffer[ed]

any reason, let alone a ‘legitimate goal,’ for refusing to allow [p]laintiff to post bail

and detaining [p]laintiff for three days.” Id. at 1193.

       With this legal backdrop, we conclude that Dawson’s asserted right to be free

from pretrial detention having paid court-ordered bond, but awaiting the fulfillment

of another court ordered release condition, is not a fundamental right. Rather,

Dawson asserts a non-fundamental liberty interest. Thus, so long as the policies

which caused his continued detention are not “imposed for the purpose of

punishment,” Wolfish, 441 U.S. at 538, but instead reasonably relate to a legitimate

governmental objective, id., the policies are constitutional and Dawson’s claims fail.

3. Rational Basis Review

       Having determined that Dawson’s stated interest is a non-fundamental right,

we ask whether its infringement is reasonably related to a legitimate governmental

interest.

       In contrast with Gaylor and Dodds, defendants-appellees have listed numerous

interests which they contend are legitimate governmental interests: (i) conserving

money and effort, Aplt. Opening Br., at 20; (ii) coordinating electronic monitoring

services and/or mental health competency evaluations, Aple. Br., at 32;

(iii) monitoring defendants for victim and/or public safety, id.; (iv) obtaining

administrative convenience and efficiency, App., at 148; (v) honoring court orders

                                            16
and following state laws, Aple. Br., at 32; (vi) assuring a defendant’s appearance for

trial, (vii) efficiently coordinating between different governmental entities, and

(viii) obtaining prison security, Aplt. Reply, at 18–19 (citing Aple. Br., at 30–33).

       Dawson concedes these are legitimate governmental purposes and interests,

and that GPS monitoring policies generally serve these purposes and interests. Aplt.

Reply, at 18–19. But Dawson argues none of defendants-appellees interests are

“reasonably served by the specific aspect of the Policies that requires a detainee who

posts his bond after 1:00 p.m. on a Friday to wait in jail for three days for a GPS

fitment procedure that—according to the Policies—routinely takes only a few hours.”

Id. at 19 (emphasis omitted). But, contrary to Dawson’s views, we recognize that the

policies do further the legitimate governmental interest of obtaining administrative

convenience by eliminating the need for county staff to coordinate with an outside

vendor over the weekend to achieve the fitment. The goal of obtaining

administrative convenience goes hand-in-hand with the additional legitimate

governmental objective of effectively coordinating between different governmental

offices.

       More than twenty steps are needed to provide an arrestee with a GPS monitor.

       These steps include coordination between the Pretrial Services Unit of
       Justice Services and the Sheriff’s Office; notification to victims and
       witnesses of a detainee’s release prior to release, which itself may
       include contact with the District Attorney’s Office and/or victim/witness
       services; setting of GPS exclusion zones for each location from the
       detainee is restrained based on information from victims or without
       victim assistance if Pretrial Services Unit is unable to make contact with
       alleged victim(s); notification to the detainee of the details of the
       program and the exclusion zones to which he or she is subject;

                                           17
      verification of the detainee’s contact information, which the detainee
      must supply for independent verification by Pretrial Services;
      completion of GPS vendor-related paperwork; documentation of all
      steps taken under the Policies.

Aple. Br., at 32–33.

      It is true that Monday through Thursday two to three hours are sufficient to

complete these enumerated steps. Thus, the record and the policies themselves

indicate the GPS fitting process, while multi-step, is not extremely time consuming,

and that defendants-appellees do not need an entire weekend to fit arrestees with GPS

devices. However, under rational basis review, it is more convenient for the Jail to

refrain from engaging in a multi-step GPS fitting process and from coordinating with

an outside GPS vendor—regardless of how little time the process demands—over the

weekend when relevant staff are not available. Thus, the policies rationally relate to

at least one legitimate governmental goal. Because the policies are rationally related

to defendants-appellees’ legitimate interest of obtaining administrative convenience,

the policies are not arbitrary or purposeless, nor do they amount to punishment.

Thus, as Dawson has no support for his due process claim, he also cannot meet the

requirements for § 1983 liability.

                                               III

      We therefore AFFIRM the district court.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge

                                          18
17-1118 Dawson v. Jefferson County

TYMKOVICH, C.J., concurring.

      I join Judge Briscoe’s opinion. I write separately only to discuss Tenth

Circuit jurisprudence for evaluating substantive due process claims.

      I. Substantive Due Process

      The Fourteenth Amendment commands that “[n]o state shall . . . deprive

any person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Courts have interpreted this to mean states cannot deprive a

person of life, liberty, or property without providing fair procedures. See, e.g.,

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

      Yet the Supreme Court has held this interpretation does not adequately

address the full spectrum of interactions arising between citizens and their

government. Accordingly, the due process guaranteed by the Fourteenth

Amendment covers “more than fair process.” Washington v. Glucksberg, 521

U.S. 702, 719 (1997). There is a “substantive” aspect too, through which the

Clause “protect[s] against arbitrary and oppressive government action.”

Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) (citing County of

Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998)).

      There are two ways a state’s action might be arbitrary enough to violate

substantive due process. First, when a state law infringes a right without

sufficient justification. Second, when state officials deprive a person of life,

liberty, or property in a way so arbitrary that it “shocks the conscience.” See
United States v. Salerno, 481 U.S. 739, 746 (1987) (“[S]ubstantive due process

prevents the government from engaging in conduct that shocks the conscience or

interferes with rights implicit in the concept of ordered liberty.” (internal

quotation marks and citations omitted; emphasis added)).

      The Supreme Court has developed two strands of jurisprudence to address

these two challenges to state action. Under the ‘rights’ line of substantive due

process cases, a state must have a constitutionally sufficient reason before its

legislation can interfere with rights to life, liberty, or property. How good a

reason a state needs depends on how important the right is. When the right

asserted is not “fundamental,” a state need only have a legitimate interest

reasonably related to the legislation that interferes with those rights. Glucksberg,

521 U.S. at 722. But if the right is “fundamental,” the state’s interference must

be “narrowly tailored” to serve a compelling interest. Id. at 721.

      The second strand of substantive due process law addresses arbitrary

conduct by a state official or entity. Because every kind of tort imaginable could

become a due process violation if perpetrated by a state actor, “only the most

egregious official conduct” can give rise to this kind of substantive due process

violation. Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The Supreme

Court has therefore held that a government official’s conduct depriving a person

of life, liberty, or property violates substantive due process only if it “shocks the

conscience.” Id.

                                          2
      II. Challenging Government Action

      The parties in this case disagree about how courts apply the ‘rights’

approach and the ‘shocks the conscience’ approach. They are not the only ones.

The Supreme Court itself has vacillated to and fro. And the circuits have adopted

varying approaches. 1 Our Circuit has settled on the following solution: if the case

involves a legislative act, only the ‘rights’ strand applies. Dias v. City & County

of Denver, 567 F.3d 1169, 1182 (10th Cir. 2009). On the other hand, when the

case involves executive action by a government official or entity, we apply the

‘shocks the conscience’ test. Browder v. City of Albuquerque, 787 F.3d 1076,

1079 & n.1 (10th Cir. 2015) (negligence context).

      Although the distinction between the two tests was not always clear, the

Supreme Court attempted to draw a bright line in County of Sacramento v. Lewis,

523 U.S. at 846–49. The “criteria to identify what is fatally arbitrary differ

depending on whether it is legislation or a specific act of a governmental officer



      1
         Compare Hancock v. Cty. of Rensselaer, 882 F.3d 58 (2d Cir. 2018)
(explaining the court applies the ‘rights’ approach to legislation and the ‘shocks
the conscience’ test to executive action), Handy-Clay v. City of Memphis, Tenn.,
695 F.3d 531, 547 (6th Cir. 2012) (explaining the two strands of substantive due
process and noting that for executive action to violate substantive due process, it
must shock the conscience), with Slusarchuk v. Hoff, 346 F.3d 1178, 1181–82 (8th
Cir. 2003) (explaining that plaintiff challenging executive action must satisfy
both the ‘rights’ test and the ‘shocks the conscience’ test to prevail), Hawkins v.
Freeman, 195 F.3d 732, 738 (4th Cir. 1999) (same), and Waldman v. Conway,
871 F.3d 1283, 1292 (11th Cir. 2017) (suggesting both tests could apply as
alternatives in any given case).

                                         3
that is at issue,” the Court explained. Id. at 846. When a claim involves the

specific act of a government officer, courts must first determine whether the

officer’s conduct was egregious enough to shock the conscience. Id. at 847 n.8.

See Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of

Powers, 121 Yale L.J. 1672, 1788 (2012) (explaining Lewis’s holding “that

substantive due process claims against the executive—usually law enforcement

officers—are governed by a ‘shocks the conscience’ test”). Conduct “shocks the

conscience” when it demonstrates such “a degree of outrageousness and a

magnitude of potential or actual harm” that it “‘shocks the conscience of federal

judges.’” Uhlrig v. Harder, 64 F.3d 567, 573–74 (10th Cir. 1995) (quoting

Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992)).

      But Lewis left some questions unanswered. The Court did not make clear

whether the ‘rights’ approach could still be applied in a case involving executive

conduct that shocked the conscience. Then, in Chavez v. Martinez, 538 U.S. 760

(2003), a three-justice plurality applied both the ‘shocks the conscience’ approach

and the ‘rights’ approach in a case involving a coerced confession. Id. at 774–76.

It thus appeared at least a few members of the Supreme Court thought both tests

could be used to evaluate executive action.

      In Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008), a post-

Chavez case, we took this approach. Relying on Chavez, we reasoned that

“[a]lthough some precedential support exists for the executive versus legislative

                                         4
distinction,” the Supreme Court had not followed “an overly rigid demarcation

between the two lines of cases.” Id. at 767. We also relied on an earlier Tenth

Circuit case explaining that “[w]hile the shocks the conscience standard applies to

tortious conduct challenged under the Fourteenth Amendment,” it does not

“eliminate more categorical protection for fundamental rights as defined by the

tradition and experience of the nation.” Id. at 769 (quoting Dubbs v. Head Start,

Inc., 336 F.3d 1194, 1203 (10th Cir. 2003)). Our court thus concluded the tests

were “not mutually exclusive” and “[b]oth approaches” could “be applied in any

given case.” Id.

       A subsequent case, Dias v. City and County of Denver, 567 F.3d 1169 (10th

Cir. 2009), clarified that Seegmiller’s ‘both tests work’ rationale only applied to

cases challenging government official conduct, not legislation. The court

explained: “[w]e held in Seegmiller that application of a ‘shocks the conscience’

standard in cases involving executive action is not to the exclusion of the

foregoing [‘rights’] framework.” Id. at 1182 (emphasis in original). But the

court “clarif[ied] . . . that when legislative action is at issue,” only the ‘rights’

approach “is applicable.” Id.

       Finally, in Browder v. City of Albuquerque, 787 F.3d 1076 (10th Cir. 2015),

we explained that Seegmiller’s ‘both tests work’ interpretation of Chavez was

dicta. Id. at 1079 n.1. While we acknowledged that “some question lingers about

all this,” we reasoned that “Chavez did not expressly overrule Lewis’s holding

                                            5
that the ‘arbitrary or conscience shocking’ test is the appropriate one for

executive action.” Id. Consequently, when a case involves government official

conduct, the ‘shocks the conscience’ test is the only test we apply. 2

      This makes sense. Though the ‘shocks the conscience’ test helps limit the

number and types of torts by government actors from becoming substantive due

process claims, it is too vague to be useful for evaluating the propriety of

legislation. Conversely, the ‘rights’ approach provides a helpful framework for

evaluating statutes, but it cannot well distinguish between innocent and egregious

government official conduct. Were we to apply the ‘rights’ approach to every

case of negligence resulting in death, we would come close to converting a broad

spectrum of merely negligent government conduct into substantive due process

violations.

      In sum, then, though our circuit has sometimes repeated Seegmiller’s ‘both

tests work’ dicta, 3 we do not follow it. Instead, we follow a simple binary

      2
        This is consistent with the approach of several other circuits. See, e.g.,
Hancock v. Cty. of Rensselaer, 882 F.3d 58 (2d Cir. 2018); Reyes v. N. Texas
Tollway Auth., (NTTA), 861 F.3d 558, 562 (5th Cir. 2017); Steele v. Cicchi, 855
F.3d 494, 502 (3d Cir. 2017); Handy-Clay v. City of Memphis, Tenn., 695 F.3d
531, 547 (6th Cir. 2012); DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st Cir.
2005).
      3
        See, e.g., Leatherwood v. Allbaugh, 861 F.3d 1034, 1046 n.11 (10th Cir.
2017) (explaining both tests could be used in case about revocation of a
defendant’s suspended sentence); Koessel v. Sublette Cty. Sheriff’s Dep’t, 717
F.3d 736, 749–50 (10th Cir. 2013) (explaining both tests could be used to
evaluate a claim of wrongful termination); Pettigrew v. Zavaras, 574 F. App’x
801, 815 (10th Cir. 2014) (unpublished) (applying both tests to parole board’s

                                           6
approach. If a claim challenges executive action, we apply only the ‘shocks the

conscience’ test; if a claim challenges a legislative act, we apply only the ‘rights’

approach.

      III. The Claims Here

      Having explained how the two strands of substantive due process doctrine

work and when our court applies them, I turn to their application in this case.

      The facts are simple. As Judge Briscoe recounts, police arrested Kenneth

Jerome Dawson for violating a restraining order and kept him in custody at the

Jefferson County Jail. Because of County policy, the Jail did not fit Dawson with

a GPS tracker over the weekend, and he remained in jail. Dawson argues

application of this policy to his circumstances violated his substantive due

process right to freedom from bodily restraint.

      To state a claim for municipal liability against the County, Dawson must

allege the existence of (1) an official policy or custom; (2) a direct causal link

between the policy or custom and the constitutional injury alleged; and (3)

deliberate indifference on the part of the municipality. Schneider v. City of

Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir.2013). “[A] formal

regulation or policy statement” qualifies as an official policy or custom. Bryson



denial of relief); see also Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (10th
Cir. 2003) (explaining an intrusive physical examination could be both a tort that
shocks the conscience and a violation of a fundamental right, but concluding the
Fourth Amendment provided a more specific source for the right).

                                          7
v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010). And no one disagrees

there is a direct link between the policy and Dawson’s injury. Thus, since “fault

and causation [are] obvious” when a decision “duly promulgated” by the city is

unconstitutional, Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 406 (1997), the

entire question in this case boils down to whether Jefferson County’s enacted

policy violated Dawson’s substantive due process rights.

      Since the Board of County Commissioners adopted the challenged policy

by resolution, the policy is legislative. We therefore apply the ‘rights’ approach

under Dias. See 567 F.3d at 1182.

      Under the ‘rights’ approach, if a government action “burdens a fundamental

right, the infringement must be narrowly tailored to serve a compelling

government interest,” but if it “burdens some lesser right, the infringement is

merely required to bear a rational relation to a legitimate government interest.”

Id. at 1181 (citing Glucksberg, 521 U.S. at 721, 728). Dawson argues the

County’s policies violated his right to freedom from bodily restraint by causing

him to stay in jail over the weekend. He claims that Supreme Court cases

establish this right is a fundamental one, and that the administrative convenience

the County obtains from its policy is not a sufficiently compelling interest.

      Dawson attempts to do here what the Supreme Court cautioned courts to

watch out for—he attempts to convert his injury into a violation of a ‘fundamental

right’ by articulating the right at too high a level of generality. It was precisely to

                                          8
prevent this strategy that Glucksberg instructs us to look for a “‘careful

description’ of the asserted fundamental liberty interest.” 521 U.S. at 721

(quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). The right Dawson claims the

County violated is not a right to freedom from bodily restraint, writ large, but a

right to speedy release from pretrial detention when the only remaining

unfulfilled condition for release is within the jail’s control.

         The Supreme Court has evaluated pretrial confinement schemes under

substantive due process doctrine in several cases. See, e.g., United States v.

Salerno, 481 U.S. 739 (1987); Schall v. Martin, 467 U.S. 253 (1984). In those

cases, instead of applying strict scrutiny, the Court applied the substantive due

process test from Bell v. Wolfish, 441 U.S. 520 (1979), which only asks whether

the government had a rational basis for its policy or instead meant its policy as

punishment, id. at 535, 538–39. See Salerno, 481 U.S. at 746–47; Schall, 467

U.S. at 269. By choosing not to apply strict scrutiny, the Court implied that

pretrial confinement not intended as punishment does not infringe a fundamental

right.

         Indeed, the Court’s language in Bell strongly indicates strict scrutiny

analysis would be wrong in the pretrial detention context. “In evaluating the

constitutionality of conditions or restrictions of pretrial detention that implicate

only the protection against deprivation of liberty without due process of law,” the

Court said, “we think that the proper inquiry is whether those conditions amount

                                            9
to punishment of the detainee.” Id. at 535 (emphasis added).

      It must be acknowledged, though, the Supreme Court’s analysis in Salerno

was certainly not as clear as it could be. 4 We are therefore not surprised the

Ninth Circuit came to the opposite conclusion recently—holding there is a

fundamental right to freedom from pretrial detention. See Lopez-Valenzuela v.

Arpaio, 770 F.3d 772, 781 (9th Cir. 2014). Dawson points to that case for

support.

      I think our analysis is the correct one, however, both for the reasons

already stated and for two additional reasons. First, this case more helpfully

places the Bell, Schall, and Salerno line of cases squarely within the overarching

substantive due process ‘rights’ approach the Supreme Court announced in

Glucksberg. See 521 U.S. at 721, 728. The Ninth Circuit’s conclusion, by

contrast, creates an additional, sui generis due process framework. See

Lopez-Valenzuela, 770 F.3d at 780 (“We first consider whether the . . . laws

satisfy general substantive due process principles . . . [w]e then consider in the

alternative whether the . . . laws violate due process, under Bell, Schall and

Salerno, by imposing punishment before trial.”). Second, our decision keeps



      4
        Compare United States v. Deters, 143 F.3d 577, 583 (10th Cir. 1998)
(concluding Salerno did not clearly find a fundamental right), with Hoang v.
Comfort, 282 F.3d 1247, 1257 (10th Cir. 2002), judgment vacated sub nom.
Weber v. Phu Chan Hoang, 538 U.S. 1010 (2003) (concluding in dicta Salerno
delineated a fundamental right).

                                         10
federal courts from supervising all pretrial detention policies. Were we to find a

right as broad as the Ninth Circuit suggests, all jail procedures relating to bail

could become subject to strict scrutiny.

      In sum, the right Dawson alleges is best characterized as a non-fundamental

right to be free from pretrial punishment. We thus need only apply rational basis

scrutiny as directed by Bell. And as the majority explains, the County’s policy

meets that standard. Cf. Baker v. McCollan, 443 U.S. 137, 145 (1979) (“we are

quite certain that a detention of three days over a New Year’s weekend does not

and could not amount to deprivation [of due process]”).

      A weekend in jail is no small burden. The County can likely do better. But

its policy does not violate the Constitution.




                                           11
