                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANGEL LOPEZ-VALENZUELA; ISAAC              No. 11-16487
CASTRO-ARMENTA,
             Plaintiffs-Appellants,         D.C. No.
                                         2:08-cv-00660-
                  v.                          SRB

COUNTY OF MARICOPA; JOSEPH M.
ARPAIO, Maricopa County Sheriff,            OPINION
in his official capacity; WILLIAM G.
MONTGOMERY, Maricopa County
Attorney, in his official capacity,
                 Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Arizona
       Susan R. Bolton, District Judge, Presiding

                Argued and Submitted
      October 19, 2012—San Francisco, California

                   Filed June 18, 2013

    Before: Raymond C. Fisher, Richard C. Tallman,
      and Consuelo M. Callahan, Circuit Judges.

               Opinion by Judge Tallman;
                Dissent by Judge Fisher
2      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

                           SUMMARY*


                            Civil Rights

    The panel affirmed the district court’s summary judgment
and partial Fed. R. Civ. P. 12(b)(6) dismissal of a class action
challenging Proposition 100, a ballot measure passed by
Arizona voters that amended the state constitution to preclude
bail for certain serious felony offenses if the person charged
has entered or remained in the United States illegally and if
the proof is evident or the presumption great as to the charge.

    The panel held that the Arizona Legislature and Arizona
voters passed Proposition 100 and its implementing statute
and rules to further the state’s legitimate and compelling
interest in seeing that those accused of serious state-law
crimes are brought to trial. The panel concluded that
Plaintiffs-Appellants had not succeeded in raising triable
issues of fact as to whether Proposition 100 and its
implementing procedures violate the substantive and
procedural due process guarantees of the United States
Constitution’s Fourteenth Amendment, the Excessive Bail
Clause of the Eighth Amendment, and the Sixth Amendment
right to counsel, nor whether the Proposition 100 laws are
preempted by federal immigration law.

    Dissenting, Judge Fisher stated that Proposition 100’s
legislative history and scope revealed that Arizona is plainly
using the denial of bail as a method to punish “illegal”
immigrants, rather than simply as a tool to help manage

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                 3

arrestees’ flight risk. He stated that this bail-denial scheme
contravenes the Constitution’s fundamental prohibition on
punishment before a determination of guilt in a criminal trial.


                         COUNSEL

Cecillia D. Wang (argued) and Kenneth J. Sugarman,
American Civil Liberties Union Foundation Immigrants’
Rights Project, San Francisco, California; Andre I. Segura
and Esha Bhandari, American Civil Liberties Union
Foundation Immigrants’ Rights Project, New York, New
York; Daniel Pochoda, American Civil Liberties Foundation
of Arizona, Phoenix, Arizona, for Plaintiffs-Appellants.

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

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


                         OPINION

TALLMAN, Circuit Judge:

     In 2006, Arizona voters overwhelmingly approved an
amendment to their state constitution known as “Proposition
100.” It commands that Arizona state courts may not set bail
“[f]or serious felony offenses as prescribed by the legislature
if the person charged has entered or remained in the United
4     LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

States illegally and if the proof is evident or the presumption
great as to the present charge.” Ariz. Const. art. II,
§ 22(A)(4) (as amended). Felony arrestee plaintiffs Angel
Lopez-Valenzuela and Isaac Castro-Armenta filed a class
action in the United States District Court for Arizona seeking
declaratory, injunctive, and habeas relief challenging the
constitutionality of Proposition 100 and its implementing
statute and rules. They argue that the new criminal
procedures violate the substantive and procedural due process
guarantees of the Fourteenth Amendment, the Excessive Bail
Clause of the Eighth Amendment, and the Sixth Amendment
right to counsel. They further claim that the Arizona law is
preempted by federal immigration law. The district court
granted summary judgment and partial dismissal in favor of
the Arizona state officials named in the suit. We affirm.

                              I

     Voters approved the November 2, 2006, ballot measure
by a margin of 78 percent to 22 percent. Prior to passage of
Proposition 100, Article II, Section 22 set forth several
exceptions to the general presumption that persons charged
with crimes are entitled to bail. These exceptions were for
particularly serious offenses such as murder or sexual abuse
of children or other indicia of dangerousness. To ensure the
defendant’s presence throughout his criminal prosecution,
amended Article II, Section 22 now provides that no bail may
be set “[f]or serious felony offenses as prescribed by the
legislature if the person charged has entered or remained in
the United States illegally and if the proof is evident or the
presumption great as to the present charge.” Ariz. Const. art.
II, § 22(A)(4). Proposition 100 does not contain a definition
of “serious felony offense.” To make that determination we
must look to the general laws of Arizona. Prior to
        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                               5

Proposition 100’s passage, the Arizona Legislature passed
House Bill 2580, defining “serious felony offense,” should
Proposition 100 be adopted by the electorate, as any Class 1,
2, 3, or 4 felony or aggravated driving-under-the-influence
offense. Ariz. Rev. Stat. Ann. § 13-3961(A)(5)(b).

    In the early days after Proposition 100’s enactment there
was confusion over the standard of proof that should apply to
the determination of immigration status for bail purposes
during an initial appearance (“IA”).1 Some IA commissioners
were applying a “proof evident/presumption great” standard
to both the criminal charge and the immigration status
determination. To resolve the uncertainty, on April 3, 2007,
the Chief Justice of the Arizona Supreme Court issued
Administrative Order 2007-30. Admin. Order No. 2007-30,
available at http://www.azcourts.gov/portals/22/admorder/
orders07/2007-30.pdf (last visited June 10, 2013). The Order
set the standard of proof for IA immigration status
determinations as probable cause. Id. But the Order also
directed that if a commissioner found probable cause to
believe that a defendant had entered or remained in the
United States illegally, a follow-up evidentiary hearing on
whether bail should be denied was to be held within
twenty-four hours. Id. At that hearing, known as a


  1
    A person arrested for a felony crime in Arizona must be taken before
a judicial officer for an initial review to ascertain probable cause to justify
the arrest (if made by a peace officer without an arrest warrant) and to
make a preliminary determination as to whether the person will be
detained or released on various conditions. Ariz. R. Crim. P. 4.1, 4.2.
The task in Maricopa County is routinely handled by court commissioners.
See Superior Court Criminal Department, THE JUDICIAL BRANCH OF
ARIZONA, MARICOPA COUNTY, http://www.superiorcourt.maricopa.gov/
SuperiorCourt/CriminalDepartment/innovation.asp#a (last visited June 10,
2013).
6     LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

Simpson/Segura hearing,2 defendants would be “entitled to
representation by counsel, and to present evidence, testimony,
and witnesses, by proffer or otherwise, to provide evidence
on the defendant’s behalf.” Id. The standard of proof for
immigration status at the Simpson/Segura hearing was to be
the “proof evident/presumption great” standard. Id.

    Before Administrative Order 2007-30 could be
implemented, however, the Arizona Legislature passed
Senate Bill 1265, codifying the probable cause standard for
the immigration status determination. Ariz. R. Crim. P.
7.2(b). In the wake of the Bill’s passage, the Chief Justice
rescinded Administrative Order 2007-30 and adopted
amendments to the Arizona Rules of Criminal Procedure
recognizing the probable cause standard for immigration
status determinations. See Segura, 196 P.3d at 840 (detailing
the history of Proposition 100, Administrative Order 2007-30,
and Senate Bill 1265). The current Rules now provide that
the bail determination must be made at the initial appearance,
that “any party” may move for a reexamination of release
conditions imposed at the initial appearance, and that a
hearing on such motion “shall be held on the record as soon
as practicable but not later than seven days after filing of the
motion.” Ariz. R. Crim. P. 7.4(b).

    Plaintiff-Appellant Angel Lopez-Valenzuela was arrested
and charged with the crime of dangerous drug transportation
and/or offer to sell, a Class 2 felony under Arizona criminal
law. Ariz. Rev. Stat. Ann. § 13-3407(A)(7). Because the IA
commissioner found probable cause to believe him to be in
the United States illegally, he was denied bail pursuant to the

  2
    Simpson v. Owens, 85 P.3d 478 (Ariz. Ct. App. 2004); Segura v.
Cunanan, 196 P.3d 831 (Ariz. Ct. App. 2008).
         LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                    7

Proposition 100 laws. Plaintiff-Appellant Isaac Castro-
Armenta was arrested and charged with Class 2, 3, and 4
felonies including aggravated assault with a deadly weapon,
kidnaping, and assisting a criminal syndicate. Probable cause
was also found to believe that Castro-Armenta was in the
United States illegally and he too was denied bail under
Proposition 100.

    The two arrestees then filed a combined class action
complaint and habeas corpus petition seeking declaratory and
injunctive relief to strike down the Proposition 100 laws and
to restrain the state’s bail enforcement policies and practices.
The district court granted Plaintiffs’ motion to certify their
lawsuit as a class action pursuant to Federal Rule of Civil
Procedure 23(b)(2), and by the same order granted
Defendants’ Rule 12(b)(6) motion to dismiss their claim that
Proposition 100 was preempted by federal immigration laws.
Lopez-Valenzuela v. Maricopa County, No. 08-00660 (D.
Ariz. Dec. 9, 2008) (order certifying class and granting partial
dismissal).3 The parties filed cross-motions for summary
judgment on the remaining claims and the district court
entered final judgment granting Defendants’ motion as to five
of the remaining six counts in their Complaint. The court
subsequently dismissed without prejudice (per Plaintiffs’
request) the final count addressing the Fifth Amendment right
against self-incrimination.4 Lopez-Valenzuela v. Maricopa



     3
     The class was defined as “[a]ll persons who have been or will be
ineligible for release on bond by an Arizona state court in Maricopa
County pursuant to Section 22(A)(4) of the Arizona Constitution and
A.R.S. § 13-3961(A)(5).”
 4
     The Fifth Amendment claim is not before us on appeal.
8     LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

County, No. 08-00660 (D. Ariz. Mar. 19, 2011) (order
granting summary judgment and dismissal).

                               II

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

                               A

     We must first determine whether Proposition 100 bail
laws create an impermissible scheme of punishment in
violation of the federal Constitution’s Due Process Clause.
We evaluate substantive due process challenges to bail
statutes under the framework articulated in United States v.
Salerno, 481 U.S. 739 (1987). The Supreme Court there
instructed us that “[t]o determine whether a restriction on
liberty constitutes impermissible punishment or permissible
regulation, we first look to legislative intent.” Id. at 747.
Absent an express intent on the part of the legislature to
punish, “the punitive/regulatory distinction turns 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.”
Id. (internal citations and quotation marks omitted). In other
words, under this two-pronged approach, even where a
legislature does not express a clear punitive intent a bail
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                  9

regulation may still be unconstitutional if it is excessive in
relation to its legitimate alternative purpose.

    The Arizona Legislature made no formal findings on the
purpose of Proposition 100. Absent such findings, courts can
look to the legislative record as well as to statements made in
election materials circulated to the voters who approved it to
determine legislative intent. See City of Cuyahoga Falls v.
Buckeye Cmty. Hope Found., 538 U.S. 188, 196–97 (2003).
Having reviewed all of the evidence, we are convinced, as
was the district court, that the record as a whole does not
show that Proposition 100 was motivated by an improper
punitive purpose.

     It is undisputed that during committee hearings on the
Proposition 100 laws, several legislators made statements
about controlling illegal immigration. For example, then-
Representative Russell Pearce, the sponsor of the Proposition
100 bill, speaking in a March 2005 Arizona Senate Judiciary
Committee hearing, stated: “[B]ad enough you’re illegal but
you commit a serious crime you ought not to be bondable
unless you’re released after prosecution, after you do your
time to ICE and then to be deported. In fact, all illegal aliens
in this country ought to be detained, debriefed and deported.”
Senate Judiciary Committee Meeting on H.B. 2389, Mar. 28,
2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). Senator Jack
Harper, speaking at the same hearing, declared: “[W]hat part
of illegal don’t we understand? Illegal aliens shouldn’t be
able to get bond for anything let alone a Class 1, 2, or 3
felony.” Id. However, in this March 28 committee meeting
alone, Pearce mentioned flight risk and public safety as the
primary reasons behind the Proposition 100 laws three
different times. For example:
10      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

         The aim of the bill is to keep those folks who
         are a threat to our society, again there’s
         several criteria for release on bail as you know
         currently. . . . This simply adds to that criteria
         because one of the risks, one of the factors
         involv[ed] in setting bond currently is flight
         risk. If you are not in this country legally and
         have no roots . . . their flight risk is a much
         greater risk.

Id.

    Representative Pearce again discussed flight risk during
a House Floor Meeting. House Floor Meeting on H.B. 2580,
Mar. 7, 2006, 47th Leg., 2nd Regular Sess. (Ariz. 2006). He
mentioned flight risk and public safety five times during the
June 7, 2007, House Floor Meeting on the companion Senate
Bill. House Floor Meeting on S.B. 1265, June 7, 2007, 48th
Leg., 1st Regular Sess. (Ariz. 2007). Other Representatives
mentioned flight risk and public safety as motiving factors
three more times in the same legislative meeting. Thus, while
it is clear from the record that Arizona lawmakers were
concerned with the effects of illegal immigration when they
were debating the Proposition 100 laws, a fair reading of the
record does not support Plaintiffs-Appellants’ argument that
Proposition 100’s primary purpose is to punish and deter
immigration offenses.5

  5
    The dissent suggests that Plaintiffs-Appellants need not “prove that
punishment was the sole or even the predominant purpose of the
legislation” in order for us to hold that it is impermissibly punitive.
Dissent at 42, n.2. Not only are the cases cited for this proposition not on
point, but the dissent fails to acknowledge the presumption of
constitutionality which we are required to apply. See Flemming v. Nestor,
363 U.S. 603, 617 (1960) (“We observe initially that only the clearest
        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                             11

    Nor do the materials provided to voters demonstrate a
clear punitive purpose. The official voter information guide
contained four statements in favor and one against
Proposition 100. Publicity Pamphlet Issued by Janice K.
Brewer, then Arizona Secretary of State, Ballot Propositions
& Judicial Performance Review, General Election, November
7, 2006, 13–14, available at http://www.azsos.gov/election/
2006/info/PubPamphlet/english/Prop100.htm. A statement
by Don Goldwater, a candidate for Arizona Governor reads
in part: “This Ballot Measure addresses one area that needs to
be resolved in this fight to secure our borders and reduce the
level of crime in our neighborhoods.” Id. at 14. But a
statement by Representative Pearce reads: “With few real ties
to the community and often completely undocumented by
state agencies, any illegal aliens can easily escape prosecution
for law breaking simply because they are so difficult to
locate.” Id. at 13. The Maricopa County Attorney wrote:
“Far too many illegal immigrants accused of serious crimes
have jumped bail and slipped across the border in order to
avoid justice in an Arizona courtroom.” Id. at 13–14. The
other supporting statements also invoked “flight risk.” See id.
On balance, we agree with the district court that the ballot



proof could suffice to establish the unconstitutionality of a statute on [the
ground that it is motivated by a punitive purpose]. . . . [T]he presumption
of constitutionality with which this enactment, like any other, comes to us
forbids us lightly to choose that reading of the statute’s setting which will
invalidate it over that which will save it. It is not on slight implication and
vague conjecture that the legislature is to be pronounced to have
transcended its powers, and its acts to be considered as void.”) (citation,
alteration marks, and internal quotation marks omitted); Alaska Packers
Ass’n v. Indus. Accident Comm’n, 294 U.S. 532, 543 (1935) (applying
“the presumption of constitutionality which attaches to every state
statute”).
12    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

materials to which voters were exposed are, at best, arguably
neutral on the question of punitive intent.

    Likewise, the media coverage of Proposition 100 leading
up to the November 2006 election cited in the record does not
establish a punitive purpose. Although one Arizona
newspaper piece described Proposition 100 as one of “a
foursome of ballot measures aimed at curbing illegal
immigration,” Brady McCombs, Four Propositions on
Entrants Out in Front, ARIZ. DAILY STAR, Oct. 29, 2006, at
B2, another editorial stated that “An illegal immigrant is,
without a doubt, a high [flight] risk because of the ability to
come and go out of the country when they please.” Moses
Sanchez, Research Immigration Issues Before Voting, ARIZ.
REPUBLIC, Oct. 11, 2006, at 19. And in the same video where
a CNN correspondent discussed “four ballot measures that
will further crack down on illegal aliens in the state,” the
Maricopa County Attorney said: “Well, Arizona has a
tremendous problem with illegal immigrants coming into the
state, committing serious crimes, and then absconding, and
not facing trial for their crimes, either because they jump bail
after they are let out, or because, when they are let out on
bail, the federal government deports them.” Lou Dobbs
Tonight (CNN television broadcast Oct. 13, 2006).
Reviewing the record, neither the legislative history nor the
voter materials and media coverage would support the
argument that Proposition 100 was motivated by a punitive
rather than a regulatory purpose. Proposition 100 survives
the first prong of the Salerno substantive due process test.

                               B

    The second prong of the Salerno substantive due process
test asks that we examine whether Proposition 100 is
       LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                          13

excessive in relation to its legitimate alternative purpose.
481 U.S. at 747. Proposition 100’s legitimate—indeed its
compelling—purpose is ensuring that defendants remain in
the United States to stand trial for alleged felony violations of
Arizona’s criminal laws. Thus, the correct inquiry under
Salerno is whether Proposition 100 is “reasonably related to
[the] legitimate governmental objective” of controlling the
flight risk of defendants accused of certain state-law felonies.
Bell v. Wolfish, 441 U.S. 520, 539 (1979). We hold that it is.

    Plaintiffs-Appellants argue that Proposition 100 is
excessive in relation to its goal because it precludes any
individualized determinations of flight risk and covers a
broad range of offenses, including some that might result in
non-custodial sentences.        In essence, they argue, a
Proposition 100 status determination serves as a proxy for an
individualized finding of flight risk because while a defendant
held nonbondable under Proposition 100 can seek an
individualized Simpson/Segura hearing, the judicial officer
will determine only that there is proof evident or presumption
great that the defendant committed a Class 1 through 4 felony
and probable cause to believe that the defendant entered or
remained in the country illegally. See Segura, 196 P.3d at
843 (explaining that “Simpson identified what is necessary to
fully litigate a no-bail determination”); Simpson v. Owens,
85 P.3d 478, 494 (Ariz. Ct. App. 2004) (“Arizona law does
not require that a risk of flight or a risk of recidivism be
considered before bail is denied.”).6


 6
    The dissent compares the denial of bail in this context to the removal
by the state of an unwed father’s children after the death of their mother.
We think it worth noting that an irrebuttable presumption that all unwed
fathers are unsuitable parents is hardly in the same category as Arizona’s
studied decision to withhold bail from those the government has shown by
14      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

    Denial of bail without individualized consideration of
flight risk or dangerousness is not unusual. After all, the vast
majority of states categorically deny the right to bail to
persons charged with capital crimes, and at least eight states
categorically deny bail to those charged with crimes
punishable by life imprisonment.7 Missouri has a bail


a proof evident/presumption great standard have committed Class 1
through 4 state-law felonies.
  7
    See Ala. Const. art. I, § 16; Alaska Const. art. I, § 11; Ark. Const. art.
2, § 8; Cal. Const. art. I, § 12; Colo. Const. art. II, § 19; Conn. Const. art.
I, § 8; Del. Const. art. I, § 12; Fla. Const. art. I, § 14 (categorical denial of
bail to those charged “with a capital offense or an offense punishable by
life imprisonment”); Idaho Const. art. I, § 6; Ill. Const. art. I, § 9
(categorical denial of bail to those charged with a capital offense or
offense punishable by life imprisonment); Ind. Const. art. 1, § 17
(categorical denial of bail to those charged with “murder or treason”);
Kan. Const. Bill of Rights § 9; Ky. Const. § 16; La. Const. art. I, § 18; Me.
Const. art. I, § 10 (categorical denial of bail for “any of the crimes which
now are, or have been denominated capital offenses since the adoption of
the Constitution . . . whatever the punishment of the crimes may be”);
Mass. Gen. Laws ch. 276, § 20D (categorical denial of bail to those
charged with a capital offense or offense punishable by life
imprisonment); Mich. Const. art. I, § 15 (categorical denial of bail for
charges of murder, treason, repeat violent felonies, and felonies committed
while out on bail, probation, or parole for a prior violent felony); Minn.
Const. art. I, § 7; Miss. Const. art. 3, § 29; Mo. Const. art I, § 20; Neb.
Const. art. I, § 9 (categorical denial of bail for murder, treason, and rape);
Nev. Const. art. 1, § 7 (categorical denial of bail to those charged with a
capital offense or offense punishable by life imprisonment); N.H. Rev.
Stat. § 597:1-c (categorical denial of bail for any offense “punishable by
up to life in prison”); N.J. Const. art. I, § 11; N.M. Const. art. II, § 13;
N.D. Const. art. I, § 11; Ohio Const. art. I, § 9; Okla. Const. art. 2, § 8; Or.
Const. art. I, § 14 (murder and treason); Pa. Const. art. I, § 14 (capital
offenses or offenses punishable by life imprisonment); R.I. Const. art. I,
§ 9 (offenses punishable by life imprisonment, offenses involving
dangerous weapons by defendants previously convicted of other offenses,
and certain controlled substance offenses); S.C. Const. art. I, §15 (capital
          LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                         15

provision similar to Arizona’s Proposition 100 laws whereby
judges are to presume that no set of bail conditions can
reasonably assure a defendant’s appearance if the judge
reasonably believes that the defendant “is an alien unlawfully
present in the United States.” Mo. Rev. Stat. § 544.470(2).
Defendants held without bail under Missouri’s statute are
given the opportunity to prove their lawful presence in the
United States but if unable to do so are held without bail,
irrespective of any individualized considerations of flight
risk. Id. Arizona’s Proposition 100 laws, therefore, are
neither unprecedented nor unique.

    Many states deny bail for those accused of a wide range
of offenses (including certain drug offenses, sexual assault
offenses, crimes of violence, and repeat felonies) after an
individualized showing of flight risk or dangerousness,8 yet


offenses, offenses punishable by life imprisonment, and certain violent
offenses); Tenn. Const. art. I, § 15; Utah Const. art. I, § 8 (capital
offenses, felony offenses committed while out on bail, probation, or parole
for prior felony offense); Wash. Const. art. I, § 20; Wyo. Const. art. 1,
§ 14.
  8
      California’s constitution is illustrative:

            A person shall be released on bail by sufficient sureties,
            except for:

            . . . (b) Felony offenses involving acts of violence on
            another person, or felony sexual assault offenses on
            another person, when the facts are evident or the
            presumption great and the court finds based upon clear
            and convincing evidence that there is a substantial
            likelihood the person’s release would result in great
            bodily harm to others.”

Cal. Const. art. I, § 12.
16        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

not all states require such individualized determinations.
Notably, Arizona is one of the states that categorically denies
bail to persons charged with certain particularly serious
crimes without requiring individualized determinations of
flight risk or dangerousness. See Ariz. Const. art. II, § 22
(“All persons charged with crime shall be bailable by
sufficient sureties, except: 1. For capital offenses, sexual
assault, sexual conduct with a minor under fifteen years of
age or molestation of a child under fifteen years of age when
the proof is evident or the presumption great.”); Simpson,
85 P.3d at 494 (“Arizona law does not require that a risk of
flight or a risk of recidivism be considered before bail is
denied.”).9 Thus, Proposition 100 is nothing more than an
extension of Arizona’s existing pretrial detention scheme to
include defendants the state believes present a significant
flight risk, thus “narrowly focus[ing] on a particularly acute
problem in which the Government interests are
overwhelming.” Salerno, 481 U.S. at 750.10


 9
    Citing Simpson, the New Hampshire Supreme Court upheld a similar
categorical pretrial detention scheme in State v. Furgal, 13 A.3d 272
(N.H. 2010). The court rejected the defendant’s assertion that Salerno
requires a court to consider the specific circumstances of each defendant’s
risk of flight before denying bail. Id. at 279 (“Given this long history of
bail permitting courts in a narrow category of cases to focus exclusively
upon the evidence of the defendant’s guilt, the individualized inquiry for
which the defendant argues cannot be said to be ‘implicit in the concept
of ordered liberty.’”).
     10
       The dissent complains that Arizona has failed to put forward
“findings, studies, statistics or other evidence” demonstrating that illegal
immigrants pose a heightened flight risk. Dissent at 43. There is no
requirement that a legislature support an intuitive proposition borne out by
anecdotal evidence with statistical studies. Otherwise, any state law or
local ordinance with an arguably punitive impact would require scientific
studies to withstand a due process challenge. Moreover, the Supreme
         LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                       17

    The Court of Appeals of Arizona embraced this
justification when it upheld Proposition 100 against a
constitutional challenge in Hernandez v. Lynch, 167 P.3d
1264 (Ariz. Ct. App. 2007). Quoting Salerno, the Arizona
court explained that “our electorate and Legislature
‘perceived pretrial detention as a potential solution to a
pressing societal problem.’” Id. at 1274. Addressing the
argument that Proposition 100 encompasses a broad range of
crimes, including those often resulting in non-custodial
sentences, the court pointed out that “the types of offenses . . .
are no less serious than those encompassed by the [federal
detention statute upheld in Demore].” Id. at 1275.11


Court has previously acknowledged that there is support for the
proposition that criminal aliens pose a greater flight risk. See Demore v.
Kim, 538 U.S. 510, 519 (2003) (noting that the record showed that “more
than 20% of deportable criminal aliens failed to appear for their removal
hearings”); cf. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41,
51–52 (1986) (finding that city was entitled to rely on the experiences of
other cities and was not required to conduct new studies or gather
independent evidence when enacting a zoning ordinance challenged on
First Amendment grounds).

     The record in this case includes committee hearing discussions on the
“numerous examples of serious and violent criminals that [the] Maricopa
County Attorney’s Office has prosecuted in the past that have escaped
justice because they have either slipped back across the border after
they’ve been released on bail or they’ve been deported by the federal
government after they were released on bail . . . .” If the dissent is not
satisfied by the anecdotal evidence presented in the Arizona Legislature
on this subject, it is unclear why it is comfortable with the anecdotal
evidence in the record of “examples of undocumented immigrants who
were arrested before Proposition 100, granted bail and appeared at their
court dates and trials.” Dissent at 46.
    11
       Demore upheld detention without bail of aliens subject to
deportation—an administrative proceeding without the more substantial
risks inherent when facing a serious felony criminal prosecution.
18     LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

“Proposition 100 denies bail to illegal aliens charged with
Class 1, 2, 3 and 4 felonies, the least of which is punishable
by a minimum of one year in prison.” Id.

    Arizona’s substantial interest in ensuring that those
charged with serious state-law crimes are available to answer
for them is undeniable. To strike down Proposition 100 on
the grounds that it violates substantive due process would
require us to find that Proposition 100 “is not reasonably
related to a legitimate goal” and is “arbitrary and
purposeless” such that we “may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted.” Bell, 441 U.S. at 539.
Although Salerno requires an individualized determination of
dangerousness for nonbondability decisions under the federal
Bail Reform Act of 1984, our analysis of Arizona’s
Proposition 100 need not parallel Salerno’s analysis of the
federal Act. This is so because Proposition 100 seeks to
target flight risk rather than dangerousness.

    In pursuit of this undeniably legitimate goal, Proposition
100 reaches a larger number of crimes than the Bail Reform
Act and allows for denial of bail on a showing of unlawful
presence. However, simply because the decision to deny bail
pursuant to Proposition 100 is arrived at differently than it
would be under federal law does not mean that Proposition
100 necessarily violates substantive due process. Balancing


Furthermore, Demore upheld these detentions pursuant to 8 U.S.C.
§ 1226(c) without requiring individualized determinations of flight risk or
dangerousness. 538 U.S. at 515–16. If the federal government can detain
aliens subject to deportation for months while their administrative
proceedings are pending, Arizona is within constitutional bounds if it
chooses to incarcerate pre-trial those illegal aliens it has arrested on
probable cause for committing serious felony offenses.
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                19

the individual’s right to liberty with Arizona’s compelling
interest in assuring appearance at trial, “we cannot
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.’” Salerno,
481 U.S. at 751 (citing Snyder v. Massachusetts, 291 U.S. 97,
105 (1934)). Because Proposition 100 is reasonably related
to the legitimate goal of controlling flight risk, we hold that
it is not excessive in violation of substantive due process
under the Constitution of the United States.

                             III

    “When government action depriving a person of life,
liberty, or property survives substantive due process scrutiny,
it must still be implemented in a fair manner. . . . This
requirement has traditionally been referred to as ‘procedural’
due process.” Salerno, 481 U.S. at 746 (citing Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)). The felony arrestees
assert that the Proposition 100 laws violate procedural due
process by failing to provide a meaningful opportunity for
accused persons to contest their status determinations.
Specifically, Plaintiffs-Appellants argue that the probable
cause standard applied to immigration status determinations
at both the initial appearance and any subsequent
Simpson/Segura hearing is constitutionally inadequate. They
also challenge Defendants-Appellees’ implementing policies
and practices as procedurally deficient and error-prone. We
believe Proposition 100 survives both of these challenges.

                              A

    “[A] judicial determination of probable cause is a
prerequisite to any extended restraint on the liberty of an
20    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

adult accused of crime.” Schall v. Martin, 467 U.S. 253,
274–75 (1984) (citing Gerstein v. Pugh, 420 U.S. 103, 114
(1975)). Plaintiffs-Appellants ask us to hold that immigration
status inquiries in Proposition 100 cases are fundamentally
incompatible with a probable cause standard of proof because
immigration status is a technical legal question requiring
application of the federal Immigration and Nationality Act
rather than a probabilistic inquiry. They request the use of a
heightened standard “that takes into account the complexity
of the question and the exceptionally strong liberty interest at
stake.” Corrected Brief of Appellants at 46, No. 11-16487
(Nov. 2, 2011). The argument asks too much at the initial
appearance and ignores the procedural protections should a
request be made for a review hearing seven days later.

     Where the United States seeks to hold a dangerous
defendant without bail, the federal Bail Reform Act places the
burden of proof on the government to show by clear and
convincing evidence that the defendant poses a danger such
that “no condition or combination of conditions will
reasonably assure the safety of any other person and the
community . . . .” 18 U.S.C. § 3142(f)(2). The Act is silent
about the standard of proof required when the government
seeks pretrial detention due to flight risk, but we have held
that under the Act flight risk must only be shown by the lower
“clear preponderance of the evidence” standard. See United
States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). In
practice, temporary detention is frequently ordered by federal
magistrate judges at the initial appearance subject to review
at a subsequent detention hearing where the parties are better
prepared to litigate the issue.

   The district court here found that the difference between
Arizona’s probable cause standard for Proposition 100 status
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA               21

determinations and the federal “clear preponderance”
standard for flight risk determinations does not amount to a
procedural due process violation, and we agree. States are
entitled to determine the laws that govern their criminal
justice systems, and the Arizona Legislature spoke clearly
when it passed Senate Bill 1265 codifying the probable cause
standard. This is especially true in light of the prior
confusion that had surrounded the standard of proof for
Proposition 100 status determinations. Taking account of this
confusion, as well as the complexity of status determinations
and the strong liberty interests at stake, the Arizona
Legislature nevertheless felt that the probable cause standard
was constitutionally adequate. The fact that Congress chose
to set a higher standard of proof for dangerousness
determinations under federal bail law does not render any less
legitimate Arizona’s choice regarding the standard of proof
that best achieves its goal of preventing flight before trial.
Arizona’s probable cause standard for Proposition 100 status
determinations does not violate the United States
Constitution.

                              B

    In Simpson v. Owens, the Court of Appeals of Arizona
established that due process requires an accused “be provided
a [bail] hearing, . . . during which he [or she] must be given
an opportunity to be heard at a meaningful time and in a
meaningful manner,” 85 P.3d at 487 (internal citations and
quotation marks omitted). Drawing from the procedures
outlined in Salerno, the Simpson court explained that in an
Arizona bail hearing the accused is entitled to counsel, has
the right to examine and cross-examine witnesses, to review
in advance witnesses’ prior written statements, and that the
22    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

court must make a determination on the record. Id. at
492–93.

     Plaintiffs-Appellants nevertheless claim that procedures
employed both at initial appearances and bail hearings in
Arizona violate procedural due process guarantees and lead
to incorrect status determinations. Specifically, they note that
in Maricopa County sheriff’s deputies question arrestees,
check various databases including federal immigration
databases, and then list on Post-It notes the docket numbers
of those they deem nonbondable, delivering those notes to the
prosecution and the court who generally give the notes
conclusive effect at initial appearances. Proposition 100
defendants are not permitted to see the evidence the deputies
submit in support of a finding of nonbondability under
Proposition 100, either at the initial appearance or at the
Simpson/Segura hearing (if one is requested), and arrestees
are not informed during the initial appearance of their right to
an evidentiary hearing on bondability.

    The concern with the procedures employed by sheriff’s
deputies at initial appearances is best addressed by looking to
the remedial procedures already in place in Arizona via
Simpson/Segura hearings. The Court of Appeals of Arizona
struck a balance between the state’s interest in detaining
certain arrestees and the arrestees’ fundamental liberty
interests when it declared that “[i]nitial appearances serve the
limited function of providing some check on the ability of the
state to hold a defendant, but they continue to be ill-suited to
support conclusive findings affecting a defendant’s liberty.”
Segura, 196 P.3d at 841. Simpson/Segura hearings are
available in Arizona precisely because
       LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                         23

         [i]t would be a rare occasion when an
         adequate bail hearing could be conducted at
         the initial appearance for a [Proposition 100]
         offense. . . . [I]t is not feasible for the bail
         hearing to take place at the time of the initial
         hearing if for no other reason than that the
         accused must be given adequate notice to
         prepare for the hearing.

Simpson, 85 P.3d at 495. Thus, any deficiencies in the
probable cause determination made at an initial
appearance—due to deputies’ Post-It notes or otherwise—can
be cured at a Simpson/Segura hearing. Indeed, that is exactly
what such hearings are for.

    Plaintiffs-Appellants contend that Proposition 100
defendants are not permitted to see the evidence submitted in
support of a finding of nonbondability under Proposition 100.
A review of the record reveals that Maricopa County’s
Section 287(g)-certified deputies12 must refuse to provide
documents to defendants or their attorneys regarding
immigration status because those documents are federal
immigration documents and under federal law are not
discoverable until immigration proceedings are commenced


  12
     The Section 287(g) program allows state and local law enforcement
entities to enter into partnerships with U.S. Immigration and Customs
Enforcement (“ICE”) in order to receive delegated authority to assist in
immigration enforcement within their respective jurisdictions. Under the
program, local officers are trained to enforce immigration law as
authorized through Section 287(g) of the Immigration and Nationality Act.
See Fact Sheet: Delegation of Immigration Authority Section 287(g)
Immigration and Nationality Act, U.S. Department of Homeland Security,
http://www.ice.gov/news/library/factsheets/287g.htm (last visited June 10,
2013).
24    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

against the alien by the U.S. Department of Homeland
Security. There is no indication from the record that the
sheriff deliberately withholds information from Proposition
100 defendants or otherwise deprives them of a fair
opportunity to litigate their status determinations at
Simpson/Segura hearings; therefore, we hold that procedural
due process guarantees are not violated.

    Plaintiffs-Appellants also claim that arrestees are not
informed during the initial appearance of their right to an
evidentiary hearing on bondability. That may well be true.
It does not appear that the IA commissioners regularly inform
the arrestees of their right to such hearings. Although
translations are provided at the hearings, some arrestees do
not speak English. Many are unrepresented at their initial
appearances, and if indigent they may not meet with
appointed counsel for some time after their Proposition 100
status determinations. During this period they will be
detained pursuant to Proposition 100 while they wait to meet
with their appointed attorneys, and may not know that they
can request a Simpson/Segura hearing to challenge their
status determinations until they speak with their lawyers.

    Nevertheless, whether or not they are immediately aware
of it, Arizona Rule of Criminal Procedure 7.4(b) provides
detainees a right to request a prompt bond hearing, and the
hearing must take place within seven days of the request.
Arizona’s Rules of Criminal Procedure give criminal trials
priority over civil trials, so even a detainee who fails to
request a Simpson/Segura hearing is entitled to be tried within
150 days of arraignment. Hernandez, 167 P.3d at 1275. The
Supreme Court in Demore approved detention of illegal
aliens for periods longer than that. 538 U.S. at 529–31. In
light of Arizona’s legitimate and compelling interest in
        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                            25

controlling flight risk, the pretrial detention of arrestees who,
it bears repeating, the government must demonstrate by a
proof evident/presumption great standard committed Class 1
through 4 state-law felonies, does not violate procedural due
process simply because arrestees are not informed at their
initial appearances of the existence of Rule 7.4(b).13 While
Arizona’s initial appearance procedures may not be ideal,
they are not fundamentally unfair so as to violate the
Constitution.

                                     IV

    We turn next to Plaintiffs-Appellants’ argument that
Proposition 100’s categorical bail prohibition is arbitrary and
unreasonable in violation of the Eighth Amendment. The
Excessive Bail Clause of the Eighth Amendment provides
that, “[e]xcessive bail shall not be required,” U.S. Const.
amend. VIII, cl. 1, but as the Supreme Court observed in
Salerno, “[t]his Clause, of course, says nothing about whether
bail shall be available at all.” 481 U.S. at 752. “The Eighth
Amendment has not prevented Congress from defining the
classes of cases in which bail shall be allowed in this
country.” Carlson v. Landon, 342 U.S. 524, 545 (1952). To
determine whether a particular legislative denial of bail
violates the Excessive Bail Clause, we “look to the valid state
interests bail is intended to serve for a particular individual
and judge whether bail conditions are excessive for the

 13
    We note that this issue could be resolved if the commissioners would
inform the arrestees of their right to a Simpson/Segura hearing at the initial
appearance. Although perhaps advisable, we nonetheless conclude that
the failure of the commissioners to do so as a standard practice does not
amount to a due process violation. Once counsel appear to represent
arrestees, these lawyers will presumably know and request a hearing when
they believe it appropriate to do so.
26    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

purpose of achieving those interests.” Galen v. Cnty. of L.A.,
477 F.3d 652, 660 (9th Cir. 2007). Because we have
determined that Proposition 100 is not excessive in relation
to Arizona’s interest in ensuring that illegal alien criminal
defendants appear for trial, it follows that Proposition 100
does not violate the Excessive Bail Clause.

    Plaintiffs-Appellants point to pre-Salerno authority as
support for their position that Proposition 100 categorically
denies bail arbitrarily and unreasonably. Hunt v. Roth,
648 F.2d 1148, 1162 (8th Cir. 1981), vacated as moot sub
nom. Murphy v. Hunt, 455 U.S. 478, 481 (1982), held that the
Nebraska constitution’s categorical denial of bail to those
charged with certain sex offenses violated the Eighth
Amendment because it did not allow for individualized
determinations of suitability for pretrial release. But Hunt,
just as Salerno, dealt with a case in which the government’s
interest was “protecting society from [persons accused of
offenses],” id. at 1163, and “[t]he state [did] not contend that
an absolute denial of bail to all persons charged with forcible
rape is rationally related or necessary to assuring their
appearance at trial.” Id. at 1162. Thus, unlike Proposition
100, the Nebraska law was focused on dangerousness rather
than flight risk. Plaintiffs-Appellants point to no cases
holding that a legislature’s decision to categorically deny bail
in the interest of assuring presence at trial is arbitrary or
unreasonable in violation of the Eighth Amendment. Because
Proposition 100 bail conditions are not excessive in light of
Arizona’s legitimate interests and bail is not denied arbitrarily
or unreasonably, the Proposition 100 laws do not violate the
Eighth Amendment Excessive Bail Clause.
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                27

                              V

    Plaintiffs-Appellants contend that Proposition 100 has
complicated initial appearances in Arizona to such a degree
that they have become an adversarial and critical stage of
proceedings triggering the Sixth Amendment right to counsel.
The Maricopa County Attorney’s Office staffs IA
proceedings, although prosecutors are only called in to the IA
courtroom if needed. Maricopa County sheriff’s deputies
occasionally testify at IAs to address questions from the court
regarding an arrestee’s Proposition 100 status. After the
passage of Proposition 100, the indigent defense agency in
Maricopa County began sending attorneys to IAs, but the
practice was halted after Maricopa County decided not to
fund county-paid counsel for that purpose

     Initial appearances in Arizona must take place within 24
hours of an arrest. Ariz. R. Crim. P. 4.1(a). The proceedings
are brief and no plea is entered. During the proceedings the
IA commissioner must: ascertain the defendant’s name and
address; inform the defendant of the charges, the right to
counsel, and the right to remain silent; determine whether
probable cause exists to believe that a crime was committed
(if the arrest was made without a warrant); appoint counsel if
the defendant is eligible; and determine release conditions,
including a Proposition 100 status determination if
appropriate. Ariz. R. Crim. P. 4.2(a).

    Both we and the Supreme Court of Arizona have held that
there is no constitutional right to an attorney at initial
appearances. See United States v. Perez, 776 F.2d 797, 800
(9th Cir. 1985), overruled on other grounds by United States
v. Cabaccang, 332 F.3d 622, 634–35 (9th Cir. 2003) (en
banc); State v. Cook, 724 P.2d 556, 561 (Ariz. 1986).
28    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

Plaintiffs-Appellants argue that in light of the immigration
status determinations that now may take place at IAs, these
pre-Proposition 100 precedents no longer apply.

    We employ a three-factor test to determine whether an
event constitutes a critical stage of a prosecution. If (1)
“failure to pursue strategies or remedies results in a loss of
significant rights,” (2) “skilled counsel would be useful in
helping the accused understand the legal confrontation,” or
(3) “the proceeding tests the merits of the accused’s case,”
then the proceeding is a critical stage triggering the right to
counsel. United States v. Bohn, 890 F.2d 1079, 1080–81 (9th
Cir. 1989) (citing Menefield v. Borg, 881 F.2d 696, 698–99
(9th Cir. 1989)). Applying this test, IAs in Arizona—even
those that include Proposition 100 status determinations—do
not trigger the right to counsel.

     Given the administrative nature of Arizona’s IA
proceedings, it is unlikely that a defendant unrepresented by
counsel would fail to pursue a strategy or remedy during the
initial appearance and thereby lose significant rights. The
only strategies or remedies available to a defendant who
seeks to avoid pretrial detention are to deny either the
crime(s) alleged or that the defendant has entered or remained
in the United States illegally. But, as no plea is entered at an
IA and the “initial appearance provides no opportunity for a
defendant to present evidence or make any argument
regarding the law or evidence,” Segura, 196 P.3d at 841,
these are not remedies available at the initial appearance.
Rather, these are remedies available after the initial
appearance at a Simpson/Segura hearing, by which point
counsel will have been appointed. Thus, Proposition 100
initial appearances do not run afoul of the first factor of the
Bohn test.
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                  29

    Likewise, due to the administrative nature of IAs in
Arizona, skilled counsel would not be useful in helping the
accused understand the legal confrontation.          Record
transcripts of Maricopa County IAs demonstrate that IA
commissioners are doing what Rule 4.2(a) requires. Skilled
counsel is unnecessary to help an accused understand the
purely administrative matters covered during an IA—in fact
the appointment of counsel is one of the tasks performed at
the first appearance. “To require that counsel be appointed
before the judge asks routine questions such as the
defendant’s name and financial ability would be self-
defeating.” Perez, 776 F.2d at 800. Proposition 100
procedures therefore survive the second factor of Bohn’s
“critical stage” test.

    Finally, Proposition 100 status determinations at IAs do
not test the merits of the accused’s case such that Bohn’s third
factor is implicated. No plea is entered, and any discussion
of immigration status is undertaken for the sole purpose of
determining whether a defendant is nonbondable under
Proposition 100. The IA transcripts cited to by Plaintiffs-
Appellants support this reading. For example, when one
defendant’s interpreter said that “[defendant] has spoken to
his solicitor and she is getting the case ready for asylum,” the
commissioner responded, “You can certainly discuss that
matter with your solicitor and until your asylum petition is
approved . . . there is probable cause to believe that you’re in
the country illegally at this time. . . . [A]t this time, because
of your immigration status, you’re not entitled to bond . . . .”
Plaintiffs-Appellants have not put forward any evidence
demonstrating that a defendant’s statements about
immigration status at an IA are being used in subsequent
federal criminal prosecutions for illegal entry or re-entry, or
in subsequent state criminal prosecutions where unlawful
30    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

immigration status is an element of the offense. Accordingly,
they have failed to show that Proposition 100 determinations
at initial appearances are critical stages that trigger the Sixth
Amendment right to counsel.

                               VI

    Proposition 100 laws are neither expressly nor impliedly
preempted by federal immigration law. While it is true that
many state laws addressing immigration are preempted by
federal law, the Supreme Court has said that not “every state
enactment which in any way deals with aliens is a regulation
of immigration and thus per se preempted” by the federal
government’s broad and exclusive constitutional power to
regulate immigration. De Canas v. Bica, 424 U.S. 354, 355
(1976). Plaintiffs-Appellants argue that Proposition 100 is
preempted because it attempts to regulate immigration,
intrudes into fields exclusively occupied by federal
congressional action, and conflicts with the federal
Immigration and Nationality Act. Each of these arguments is
unavailing.

                               A

    It is “[a] fundamental principle of the Constitution . . .
that Congress has the power to preempt state law.” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). And
it is beyond doubt that “[t]he authority to control
immigration—to admit or exclude aliens—is vested solely in
the Federal government.” Takahashi v. Fish & Game
Comm’n, 334 U.S. 410, 416 (1948) (citing Fong Yue Ting v.
United States, 149 U.S. 698, 713 (1893)); see U.S. CONST.
art. I, § 8, cl. 4 (Congress has authority to “establish an
uniform Rule of Naturalization”). Were the Proposition 100
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                 31

laws actual regulations of immigration—that is, were they to
actually function as a determination of who should or should
not be admitted or allowed to remain in the United
States—they would be preempted. See De Canas, 424 U.S.
at 355. But, “standing alone, the fact that aliens are the
subject of a state statute does not render it a regulation of
immigration . . . .” Id. The Proposition 100 laws neither
determine who should be admitted to the United States nor
prescribe conditions under which legal entrants may remain.
Rather, those who are subject to detention under the
Proposition 100 laws are being detained because of the crime
they are accused of committing. Arizona state officials are
not directly facilitating immigration removals and their
immigration status decisions for the purposes of Proposition
100 are not binding in subsequent proceedings within the
federal immigration system.

    Plaintiffs-Appellants argue that Proposition 100 is
nevertheless preempted because it creates a state-law
category of persons who have “entered or remained in the
United States illegally.” Ariz. Const. art. II, § 22(A)(4).
Arizona’s implementing statute directs courts making
Proposition 100 status determinations to consider, among
other things, “[a]ny . . . relevant information that is obtained
by the court or that is presented to the court by a party or any
other person.” Ariz. Rev. Stat. Ann. § 13-3961(A)(5)(a)(vi).
Plaintiffs-Appellants claim that Proposition 100 status
determinations amount to state-law determinations of
immigration status without regard to federal immigration law
and federal status determinations. Undeniably, “[t]he States
enjoy no power with respect to the classification of aliens.”
Plyler v. Doe, 457 U.S. 202, 225 (1982) (citing Hines v.
Davidowitz, 312 U.S. 52 (1941)). On this basis, Plaintiffs-
Appellants point to several federal district court cases in
32    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

which state law immigration classifications were deemed
preempted. Each of these cases, however, is distinguishable.

      In Equal Access Education v. Merten, 305 F. Supp. 2d
585, 603 (E.D. Va. 2004), the court held that a Virginia
higher education admissions policy denying admission to
illegal aliens would violate the Supremacy Clause only if the
institutions implementing the policy were relying on state
rather than federal immigration standards. In League of
United Latin American Citizens v. Wilson, 908 F. Supp. 755,
772 (C.D. Cal. 1995), the court deemed parts of a California
voter-approved initiative preempted, reasoning that portions
of the initiative were an impermissible regulation of
immigration because “the [immigration status] classification
. . . is not in any way tied to federal standards.” Likewise, in
Hispanic Interest Coalition of Alabama v. Bentley, No. 5:11-
cv-02484-SLB, 2011 WL 5516953, at *23 (N.D. Ala. Sept.
28, 2011), vacated as moot in part by 691 F.3d 1236, 1242
(11th Cir. 2012), the court preliminarily enjoined some
provisions of Alabama’s House Bill 56 because their
implementation would impermissibly create state
classifications of aliens.

    Although it is true that Arizona’s implementing statute
directs courts making Proposition 100 status determinations
to consider “any . . . relevant information,” it also commands
consideration of “[w]hether a hold has been placed on the
arrested person by the United States immigration or customs
enforcement.” Ariz. Rev. Stat. Ann. § 13-3961(A)(5)(a)(i).
Thus, contrary to Plaintiffs-Appellants’ assertions, Arizona
state courts are not authorized to make state-law
determinations of immigration status without regard to
federal status determinations. Unlike in Wilson, the state-law
determination here is tied to federal standards. Furthermore,
        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                           33

evidence in the record shows that Maricopa County Sheriff’s
Office Section 287(g)-certified deputies cross-reference ICE
databases when making Proposition 100 recommendations at
initial appearances. Finally, the screening questionnaire
administered by the deputies to determine whether an arrestee
is subject to Proposition 100 includes questions such as, “Do
you have any applications or petitions pending with US
CIS?”14 and, “Have you been removed, deported, excluded or
VR’d15 before from the U.S.?”

    This evidence demonstrates that Arizona state officials
are not attempting to create a new state-law classification for
those who have “entered or remained in the United States
illegally,” but rather are seeking to determine whether
arrestees are in violation of federal immigration law. As the
Supreme Court recently held in Arizona v. United States,
132 S. Ct. 2492, 2508 (2012), Congress has “encouraged the
sharing of information about possible immigration
violations,” and federal law permits “a policy requiring state


   14
       United States Citizenship and Immigration Services processes
applications to adjust the immigration status of aliens present in the United
States, including adjustments through the issuance of Green Cards
granting Lawful Permanent Resident Status. See generally U.S.
Immigration Online, U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
http://www.immigrationdirect.com/ (last visited June 10, 2013).
   15
      “VR” here refers to Voluntary Departure (or Removal), a benefit
extended to illegal aliens who are permitted to waive deportation
proceedings by agreeing to immediately leave the United States upon
apprehension by Immigration and Customs Enforcement officers such as
the United States Border Patrol. See Glossary, U.S. CITIZENSHIP AND
I MMIGRATION SERVICES , http://www.uscis.gov/portal/site/uscis/
menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9e258fa2
9935f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d
3e88d010VgnVCM10000048f3d6a1RCRD (last visited June 10, 2013).
34    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

officials to contact ICE as a routine matter.” Because
Proposition 100 neither regulates immigration nor
impermissibly creates state-law immigration classifications,
we hold that Proposition 100 is not constitutionally
preempted.

                              B

    Plaintiffs-Appellants next argue that Proposition 100
intrudes on a field exclusively occupied by federal law
because it imposes mandatory detention under state law of
persons suspected of committing federal immigration law
offenses. In support of this claim, Plaintiffs-Appellants cite
to myriad federal Immigration and Naturalization Act
provisions related to federal immigration detention and
removal. De Canas v. Bica, 424 U.S. 354 (1976), provides
the framework for the resolution of this argument. De Canas
teaches, “we will not presume that Congress, in enacting the
INA, intended to oust state authority to regulate . . . in a
manner consistent with pertinent federal laws.” 424 U.S. at
357. Instead, “[o]nly a demonstration that complete ouster of
state power including state power to promulgate laws not in
conflict with federal laws was the clear and manifest purpose
of Congress would justify that conclusion.” Id. (internal
citations and quotation marks omitted).

   The INA provisions cited by Plaintiffs-Appellants
regulate detention for immigration violations, while
Proposition 100 regulates pretrial detention for those arrested
for committing Class 1 through 4 state felonies and
aggravated driving-under-the-influence offenses. Plaintiffs-
Appellants have not shown that Congress intended to effect
a “complete ouster of state power” with respect to bail
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                 35

determinations for state-law crimes. Accordingly, we hold
that Proposition 100 is not field preempted.

                               C

    Finally, Plaintiffs-Appellants argue that even if
Proposition 100 is not field preempted, it nevertheless “stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” De Canas, 424 U.S.
at 363 (internal citations and quotation marks omitted).
Following the Supreme Court’s directive that “[i]mplied
preemption analysis does not justify a freewheeling judicial
inquiry into whether a state statute is in tension with federal
objectives” and that “a high threshold must be met if a state
law is to be preempted for conflicting with the purposes of a
federal Act,” Chamber of Commerce of U.S. v. Whiting,
131 S. Ct. 1968, 1985 (2011), we hold that Proposition 100
does not conflict with federal law.

    Plaintiffs-Appellants claim that the Proposition 100 laws
impose incarceration for unlawful presence in the United
States in opposition to Congress’s judgment as to when aliens
should or should not be detained for immigration violations.
But Proposition 100 regulates only the bail determinations for
state-law crimes and does not impose incarceration for
federal immigration law violations. While it is true that in
certain instances Proposition 100 may mandate the pretrial
detention of a person who would be deemed bondable by a
federal immigration judge, such detention is not meant to
punish an alleged immigration violation but rather to ensure
presence in Arizona to stand trial for alleged state-law crimes.

   Plaintiffs-Appellants cite to Arizona v. United States as
support for their argument that state officers cannot deprive
36    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

noncitizens of their liberty based upon purported immigration
violations without running afoul of conflict preemption
principles. Admittedly, the Arizona court wrote that “it
would disrupt the federal framework to put state officers in
the position of holding aliens in custody for possible unlawful
presence without federal direction and supervision.”
132 S. Ct. at 2509. But Proposition 100 does not permit state
officials to hold aliens because of their unlawful presence.
Rather, it permits them to hold those arrested based on
probable cause for committing serious state-law felonies to
ensure they will remain here to answer the charges.
Plaintiffs-Appellants’ declaration that “[b]ut for their
purported immigration violations, individuals subjected to
Proposition 100 would be eligible for bail like any other
defendant under Arizona law,” Corrected Brief of Appellants
at 62, No. 11-16487 (Nov. 2, 2011), could just as easily be
expressed as “but for their commission of state-law felonies,
those unlawfully present in the United States would not be
detained under Proposition 100.” Proposition 100 is not
conflict preempted.

                             VII

    The Arizona Legislature and Arizona voters passed the
Proposition 100 laws to further the state’s legitimate and
compelling interest in seeing that those accused of serious
state-law crimes are brought to trial. At oral argument,
counsel for both sides urged us to rule on the constitutional
issues presented by passage and implementation of Arizona’s
constitutional amendment based on the record presented to
the district court. After reviewing the record, we are satisfied
that Plaintiffs-Appellants have not succeeded in raising
triable issues of fact as to whether Proposition 100 and its
implementing procedures violate the substantive and
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                 37

procedural due process guarantees of the United States
Constitution’s Fourteenth Amendment, the Excessive Bail
Clause of the Eighth Amendment, and the Sixth Amendment
right to counsel, nor whether the Proposition 100 laws are
preempted by federal immigration law.

  Accordingly, the judgment of the district court is
AFFIRMED.



FISHER, Circuit Judge, dissenting:

    Due process guarantees that individuals arrested for a
crime are entitled to bail pending determination of their guilt
or innocence, with some limited exceptions. Arizona,
however, has decided to deny pretrial bail to all persons
arrested for a range of felony crimes who are in the United
States without authorization, theorizing they are likely to flee
the country solely because of their immigration status.
Without any evidence that unauthorized immigrants released
on bail have been or are less likely to appear for trial
compared to arrestees who are lawful residents, the majority
accepts Arizona’s unsupported assertion that all unauthorized
immigrants necessarily pose an unmanageable flight risk,
such that a blanket denial of bail is not an “excessive” tool to
combat flight risk. As revealed by Proposition 100’s
legislative history and scope, however, Arizona is plainly
using the denial of bail as a method to punish “illegal”
immigrants, rather than simply as a tool to help manage
arrestees’ flight risk. “It is axiomatic that ‘due process
requires that a pretrial detainee not be punished.’” Schall v.
Martin, 467 U.S. 253, 269 (1984) (alteration omitted)
(quoting Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)).
38    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

Because this bail-denial scheme contravenes the
Constitution’s fundamental prohibition on punishment before
determination of guilt in a criminal trial, I dissent.

           I. SUBSTANTIVE DUE PROCESS

    Proposition 100 categorically denies bail and thus
requires pretrial detention for every undocumented immigrant
charged with any of a broad range of felonies, regardless of
the seriousness of the offense or the individual circumstances
of the defendant, including the defendant’s strong ties to and
deep roots in the community. The state maintains – and the
majority holds – that this unique, sweeping pretrial detention
statute, directed solely at undocumented immigrants,
comports with substantive due process because it has a
permissible purpose and is reasonably related to the state’s
interest in preventing pretrial flight. I respectfully disagree.

    Under United States v. Salerno, 481 U.S. 739 (1987), a
restriction on bail violates substantive due process if it either
(1) has a punitive purpose or (2) imposes an excessive
restriction on liberty in relation to a permissible regulatory
purpose.

        To determine whether a restriction on liberty
        constitutes impermissible punishment or
        permissible regulation, we first look to
        legislative intent. Unless [the legislature]
        expressly intended to impose punitive
        restrictions, the punitive/regulatory distinction
        turns on whether an alternative purpose to
        which the restriction may rationally be
        connected is assignable for it, and whether it
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA               39

       appears excessive in relation to the alternative
       purpose assigned to it.

Id. at 747 (citation, alterations and internal quotation marks
omitted). Although preventing flight risk is a permissible
regulatory purpose, see id. at 749; Bell, 441 U.S. at 536,
Arizona’s indiscriminate pretrial detention law is
unconstitutionally punitive under both prongs of Salerno. I
address each in turn.

                  A. Legislative Purpose

    First, the record plainly shows that lawmakers designed
Proposition 100 – at least in large part – to punish
undocumented immigrants for being in the United States
unlawfully:

    • State Representative Russell Pearce, the bill’s sponsor,
stated that Proposition 100

       just simply bridges the gap, a loophole in the
       law that would allow people who are not in
       this country []legally who have no business to
       be released if they commit any crime, they
       have no business being released if they
       commit no crime, no additional crime
       [be]cause they’re already in this country
       illegally.

Senate Judiciary Committee Meeting on H.B. 2389, Mar. 28,
2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). Notably, and
contrary to Pearce’s suggestion, being “in this country
illegally” is not a crime. See Arizona v. United States,
132 S. Ct. 2492, 2505 (2011).
40       LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

    • Rep. Pearce promoted the bill on the ground that “all
illegal aliens in this country ought to be detained, debriefed
and deported.” Id. He reiterated: “If you’re in this country
illegally you ought to be detained [and] deported[.] [E]nd of
story,” and defended the bill as a “reasonable approach” to
border security.1 Id.

    • State Representative Ray Barnes expressly promoted
the bill on the (again, erroneous) assumption that “the mere
fact that they’re here undocumented [means] that the crime
has already been committed.” House Judiciary Committee
Meeting on H.B. 2389, Jan. 27, 2005, 47th Leg., 1st Regular
Sess. (Ariz. 2005).




     1
      To Rep. Pearce, Proposition 100 would punish undocumented
immigrants for two wrongs: being present in the United States unlawfully
and committing (more accurately, being arrested for) a felony. See Senate
Judiciary Committee Meeting on H.B. 2389, Mar. 28, 2005, 47th Leg., 1st
Regular Sess. (Ariz. 2005) (“[B]ad enough you’re illegal but you commit
a serious crime you ought not to be bondable.”); id. (“[T]his bill targets
very simply those who commit serious, serious [criminal] acts in our
community. A very responsible bill to protect our citizens from those who
would enter our country illegally and commit serious crimes against us.”).
Both of Pearce’s reasons are impermissibly punitive. Bail cannot be
denied to punish immigrants for being in the country illegally. Nor can it
be denied to punish them for charged, but unproven, crimes. See Bell,
441 U.S. at 535 (“[U]nder the Due Process Clause, a [defendant] may not
be punished prior to an adjudication of guilt in accordance with due
process of law.”); Salerno, 481 U.S. at 746 (citing Bell for the proposition
that pretrial detention violates substantive due process when it constitutes
“impermissible punishment before trial”). As the Supreme Court has
recognized, “Arizona may have understandable frustrations with the
problems caused by illegal immigration,” Arizona v. United States,
132 S. Ct. at 2510, but punishing undocumented immigrants by denying
them bail is not a permissible expression of that frustration.
       LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                   41

   • State Senator Jack Harper said, “what part of illegal
don’t we understand? Illegal aliens shouldn’t be able to get
bond for anything.” Senate Judiciary Committee Meeting on
H.B. 2389, Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz.
2005).

     • In a hearing on a bill to implement Proposition 100
after its passage, State Representative John Kavanagh said:
“I’m amazed that we provide bail to anybody who’s arrested
for a crime that’s an illegal alien. . . . I therefore support this
bill as a first step to what we should be really doing and that’s
deporting anybody here illegally.” House Floor Meeting on
S.B. 1265, June 13, 2007, 48th Leg., 1st Regular Sess. (Ariz.
2007).

    The majority correctly observes that some statements in
the legislative record refer to flight risk rather than
punishment. Fairly viewed, however, the legislative record
as a whole clearly shows that legislators were motivated at
least in large part by an overriding desire to punish
undocumented immigrants for being in the country
unlawfully – i.e., that lawmakers “intended to impose
punitive restrictions” on undocumented immigrants. Salerno,
42      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

481 U.S. at 747.2 The plaintiffs therefore have established a
due process violation under Salerno’s first prong.3

                          B. Excessiveness

   Even if Proposition 100 were enacted for the regulatory
purpose of managing flight risk, it would still violate
substantive due process under Salerno’s second prong,
because it restricts substantially more liberty than necessary
to achieve the state’s legitimate interest. See Salerno,
481 U.S. at 747. The state’s premise that immigration status
and flight risk are closely linked is unsubstantiated.
Furthermore, even if there is some link, the state’s blanket


 2
   Salerno does not require the plaintiffs to prove that punishment was the
sole or even the predominant purpose of the legislation. Even if that were
a requirement, however, the plaintiffs have satisfied it here. Cf. McCreary
Cnty. v. ACLU of Ky., 545 U.S. 844, 860 (2005) (“When the government
acts with the ostensible and predominant purpose of advancing religion,
it violates that central Establishment Clause value of official religious
neutrality, there being no neutrality when the government’s ostensible
object is to take sides.”); City of Indianapolis v. Edmond, 531 U.S. 32,
46–47 (2000) (holding that a checkpoint program with an impermissible
primary purpose violated the Fourth Amendment even though the program
served lawful secondary purposes); Bush v. Vera, 517 U.S. 952, 959
(1996) (plurality opinion) (concluding that in a “mixed motive” case
challenging race-conscious redistricting on equal protection grounds, strict
scrutiny would apply only if race was the “predominant factor” in drawing
the districts).
  3
    This, of course, is not the first time Arizona’s concerns about illegal
immigration have resulted in impermissible legislation. See, e.g., Arizona
v. United States, 132 S. Ct. at 2503, 2505, 2507 (striking down alien-
registration and criminal provisions targeting undocumented immigrants
as preempted by federal law); Valle Del Sol, Inc. v. Whiting, 709 F.3d 808
(9th Cir. 2013) (enjoining day laborer provisions targeting undocumented
immigrants as a violation of the First Amendment).
        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                            43

denial of bail is an excessive and overbroad tool to prevent
flight risk.

    To conduct a meaningful excessiveness analysis, we must
compare the magnitude of the societal problem being
addressed against the severity of the chosen remedy. The
societal ill Proposition 100 targets is not flight risk generally,
but rather the increased flight risk supposedly posed by
undocumented immigrants, the only individuals the
proposition covers.4 The defendants have failed to establish
that this societal problem exists, much less demonstrate its
magnitude.

    Unlike the defendants in Salerno and Demore v. Kim,
538 U.S. 510 (2003) – who presented data to back up their
claims that the bail schemes under review addressed “a
particularly acute problem,” Salerno, 481 U.S. at 750; see
also Demore, 538 U.S. at 518–20 – the defendants here have
failed to present any findings, studies, statistics or other
evidence showing that undocumented immigrants actually
posed a significantly greater flight risk than lawful residents
before implementation of Proposition 100.5 Despite the lack

 4
    Before Proposition 100 passed, Arizona had an extensive bail scheme
designed to help ensure that arrestees appear for trial. See Ariz. Const. art.
II, § 22 (West Nov. 27, 2006 version); Ariz. Rev. Stat. § 13-3967(B).
These procedures already required judges to consider the arrestee’s
immigration status when making bail determinations. See Ariz. Rev. Stat.
§ 13-3967(B)(11)–(12). The defendants have not shown that this set of
regulations, addressing flight risk on a case-by-case basis, was inadequate
to protect the state’s legitimate interest in ensuring arrestees’ appearance
at trial.
 5
   Neither Demore’s holding nor the statistics cited therein helps establish
the constitutionality of pretrial detention in criminal cases. Demore
approved the brief detention of an alien pending removal proceedings
44     LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

of any supporting data, Arizona, the district court and the
majority have all assumed that undocumented immigrants
pose a greater flight risk than other arrestees. When the
chosen remedy is so draconian as to categorically deny bail
to anyone who is probably an undocumented immigrant, the
justification should be demonstrated factually, rather than
supported by only unsubstantiated assumptions and
anecdotes.       If undocumented immigrants actually
demonstrated a substantially greater flight risk before
Proposition 100, defendants had five years to gather and
present data to back up such a claim. They have presented
nothing of the sort to support their assertion that Proposition
100 addresses “a pressing societal problem.” Salerno,
481 U.S. at 747.

   On the other side of the scale from the state’s interest in
ensuring appearance at trial is a profound infringement on


when the alien had already been convicted of an enumerated crime. See
Demore, 538 U.S. at 513. The periods of detention at issue in Demore
were short – an average of 47 days if the alien did not appeal the decision
of the Immigration Judge, or four months if the alien appealed. See id. at
529. The time between an arrest and a criminal trial can last far longer.
Before passing the law at issue in Demore, Congress reviewed several
studies concerning recidivism rates of criminal aliens and their rates of
failure to appear for subsequent removal hearings. See id. at 518–20.
These studies, however related to convicted immigrants appearing for their
removal proceedings; they do not provide support for Proposition 100,
which ostensibly rests on arrested immigrants appearing for their criminal
proceedings. Congress also had specific reason to conclude that, under the
circumstances at issue in Demore, case-by-case determinations of
suitability for release would be ineffectual. See id. at 528. Importantly,
the Supreme Court approved the brief detention of criminal aliens in
Demore in recognition of Congress’ “broad power over naturalization and
immigration,” which allows Congress to “regularly make[] rules that
would be unacceptable if applied to citizens.” Id. at 521. The states do
not have plenary power over naturalization and immigration.
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                  45

liberty interests: automatic detention in jail without the
possibility of bail, simply based on an arrestee’s presumed
status as an undocumented immigrant. Such a denial of bail
implicates “a basic and significant liberty interest in not being
confined pending trial.” United States v. Motamedi, 767 F.2d
1403, 1414 (9th Cir. 1985) (Boochever, J., concurring in part
and dissenting in part). “The consequences of prolonged
[pretrial] detention may be more serious than the interference
occasioned by arrest. Pretrial confinement may imperil the
suspect’s job, interrupt his source of income, and impair his
family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114
(1975). “Pretrial detention may hamper the preparation of a
defense by limiting the defendant’s access to his attorney and
to potential witnesses for the defense.” Motamedi, 767 F.2d
at 1414 (Boochever, J., concurring in part and dissenting in
part) (citing Stack v. Boyle, 342 U.S. 1, 4 (1951)).

    Even if the defendants could show that undocumented
immigrants pose a greater flight risk on average than lawful
residents, Proposition 100 is fatally flawed because it uses the
disfavored mechanism of an irrebuttable presumption, rather
than an individualized hearing, to determine whether an
arrestee is an unmanageable flight risk. In Salerno, the
regulatory scheme was limited to arrestees who actually
posed a danger to the community. First, it was limited to
“individuals who have been arrested for a specific category
of extremely serious offenses” – who Congress found were
“far more likely to be responsible for dangerous acts in the
community after arrest.” Salerno, 481 U.S. at 750. Second,
even for arrestees falling within that specific category, the
scheme provided case-by-case determinations of the need for
pretrial detention. Each arrestee was entitled to a “full-blown
adversary hearing,” at which the government was required to
prove by “clear and convincing evidence” that the individual
46      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

presented “a demonstrable danger to the community” and that
“no conditions of release c[ould] reasonably assure the safety
of the community.” Id. It was only “[u]nder these narrow
circumstances” that the Court held that society’s interest was
sufficient to outweigh the “individual’s strong interest in
[pretrial] liberty.” Id.

    In contrast, Proposition 100 is not narrowly focused on
those arrestees who actually pose the greatest flight risk.
Plainly, some undocumented immigrants do not pose
unmanageable flight risks. The record includes examples of
undocumented immigrants who were arrested before
Proposition 100, granted bail and appeared at their court dates
and trials. Yet even these individuals were needlessly
remanded into state custody following Proposition 100’s
passage.6 Proposition 100 eliminates the opportunity for
comparable arrestees to show that, notwithstanding their
immigration status, they do not pose a flight risk.7


  6
    The majority finds it odd that I am “comfortable” with this anecdotal
evidence but not comfortable with Arizona’s anecdotal evidence of
undocumented immigrants evading justice by leaving the United States.
Maj. Op. at 16–17 n.10. But I do not suggest that anecdotal evidence
cannot inform legislation; rather, I believe anecdotal evidence, standing
alone, cannot support an irrebuttable presumption affecting substantial
rights. I mention the anecdotal evidence of some undocumented
immigrants posting bail and continuing to appear for their court dates and
trial not to suggest a per se rule that undocumented immigrants should
receive bail. On the contrary, I cite this evidence to illustrate the need for
an individualized inquiry regarding the flight risks posed by particular
undocumented immigrants, whose behavior in the face of criminal charges
is not as homogeneous as Arizona assumes it to be.
  7
   Unlike the Bail Reform Act provision Salerno upheld, which applies
only to a narrow category of extremely serious offenses, see Salerno,
481 U.S. at 750-51, Proposition 100 applies to anyone arrested for a Class
        LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                          47

    The Arizona legislature surmised that undocumented
immigrants pose a greater flight risk than lawful residents
because they supposedly lack strong ties to the community
and have a “home” in another country to which they can flee,
but this ignores those undocumented immigrants who have
strong ties to their community and no home abroad. Many
undocumented immigrants, for example, have “children born
in the United States” and “long ties to the community.”
Arizona v. United States, 132 S. Ct. at 2499.8 Moreover,
although the defendants consistently refer to undocumented
immigrant arrestees as “flight risks,” the pertinent inquiry is
whether the arrestee is an unmanageable flight risk. There
are a variety of methods to manage flight risk, such as bond
requirements, monitoring and reporting requirements. See,
e.g., Ariz. Rev. Stat. § 13-3967(D). Proposition 100 ignores



1, 2, 3 or 4 felony or aggravated driving under the influence. This broad
list of crimes includes nonviolent offenses such as unlawful copying or
sale of sound recordings, see Ariz. Rev. Stat. § 13-3705, altering a lottery
ticket with intent to defraud, see id. § 5-566, and tampering with a
computer with the intent to defraud, see id, § 13-2316. Non-custodial
sentences are possible for several of these crimes.
 8
    A recent study of undocumented immigrants in California, conducted
by the Center for the Study of Immigrant Integration at the University of
Southern California, found that, “contrary to popular misconceptions,”
undocumented immigrants “are a fairly settled population.”
Undocumented Californians, Immigration Reform, and Our Future
Together (May 2013), available at http://csii.usc.edu/documents/
whats_at_stake_for_the_state.pdf. The researchers found that 50 percent
of undocumented immigrants have been in the United States for more than
10 years; 17 percent of those who are household heads are homeowners;
and millions more have U.S.-born children. See id. at 9, 15. These data
about Arizona’s neighboring state cast grave doubt on Arizona’s
irrebuttable presumption that undocumented immigrants lack strong ties
to the community.
48      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

these tools for managing flight risk, instead mandating
incarceration in every case.

     The Constitution disfavors irrebuttable presumptions like
Proposition 100’s categorical denial of bail. See Cleveland
Bd. of Educ. v. LaFleur, 414 U.S. 632, 645–46 (1974);
Vlandis v. Kline, 412 U.S. 441, 446 (1973). In Stanley v.
Illinois, 405 U.S. 645 (1972), an unwed father’s children
were removed by the state after the children’s mother died,
based on the state’s use of a conclusive presumption that
unwed fathers were unsuitable, neglectful parents. See id. at
646–47. The Court acknowledged that “[i]t may be, as the
State insists, that most unmarried fathers are unsuitable and
neglectful parents,” but it noted that even if true on average,
there were exceptions: “all unmarried fathers are not in this
category; some are wholly suited to have custody of their
children.” Id. at 654. So too here. Even assuming
undocumented immigrants pose a greater flight risk on
average (not established, as discussed above), some by
definition do not. Proposition 100 therefore results in far
more arrestees being denied bail than necessary, making it
plainly excessive in relation to its stated purpose.

    Contrary to the majority’s assertion, categorical denials of
bail for non-capital crimes are rare.9 The majority identifies


    9
       Assuming categorical denials of bail for capital offenses are
constitutional (although no federal appellate court has yet so decided),
such a result would likely be based on the Anglo-American legal tradition,
which has a unique history of denying bail in capital cases. See Hunt v.
Roth, 648 F.2d 1148, 1159–60 (8th Cir. 1981) (discussing the historical
basis for the denial of bail for capital crimes), vacated as moot sub nom.
Murphy v. Hunt, 455 U.S. 478 (1982). Similar historical underpinnings
do not support categorical denial of bail for other crimes or, as here, on the
basis of immigration status.
       LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                         49

only eight states that categorically deny bail for crimes
punishable by life in prison. Maj. Op. at 14. Whether even
these laws are constitutional is hardly a settled question,
having never been declared such by the Supreme Court or a
federal appellate court. But even these eight states do not go
as far as Arizona. The majority identifies only one other state
that categorically denies bail to undocumented immigrant
arrestees.10

     Even before Proposition 100, Arizona went further than
most states in restricting bail, categorically denying bail not
only to those arrested for capital crimes or crimes subject to
life in prison, but also to those arrested for certain sexual
crimes not subject to life imprisonment. Maj. Op. at 16
(citing Ariz. Const. art. II, § 22). The majority takes comfort
in Arizona’s expansive use of categorical denial of bail,
saying “Proposition 100 is nothing more than an extension of
Arizona’s existing pretrial detention scheme.” Maj. Op. at
16. The more appropriate reaction would be that Proposition
100, which is a major expansion of categorical bail denial,
reflects a serious devaluation of the presumption of innocence
and the constitutional principle that arrestees may not be
punished before judgment of guilt.

    In sum, Proposition 100 is excessive in relation to its
stated legitimate purpose for two independent reasons. First,

  10
      Of course, even if Arizona’s bail scheme were better represented
among the states, a challenged law does not become constitutional simply
because it has company. See, e.g., Lawrence v. Texas, 539 U.S. 558, 570
(2003) (striking down a Texas law criminalizing homosexual intercourse,
even though similar laws existed in nine states); Loving v. Virginia,
388 U.S. 1, 6 (1967) (striking down a Virginia statute prohibiting
interracial marriages, although Virginia was one of 16 states to have such
a prohibition).
50    LOPEZ-VALENZUELA V. COUNTY OF MARICOPA

it purports to deal with a societal ill that has not been shown
to exist at all. Second, even if we assume that undocumented
immigrants pose a greater flight risk on average than lawful
residents, Proposition 100 is fatally flawed because it uses the
disfavored mechanism of an irrebuttable presumption, rather
than an individualized hearing, to determine whether an
arrestee is an unmanageable flight risk. This mechanism
necessarily results in the deprivation of far more liberty than
necessary to ensure appearance at trial, because even
undocumented immigrants who do not pose a flight risk or
who pose a manageable one will be categorically denied bail
based on their status alone. Proposition 100 fails Salerno’s
second prong and facially violates substantive due process.

                II. REMAINING CLAIMS

    Because I conclude that Proposition 100 on its face
violates substantive due process, I do not address the
plaintiffs’ procedural due process, Eighth Amendment,
Supremacy Clause and as-applied claims, though some of
them appear meritorious.

                    III. CONCLUSION

    “Procedure by presumption is always cheaper and easier
than individualized determination. But when, as here, the
procedure forecloses the determinative issues . . . , when it
explicitly disdains present realities in deference to past
formalities, it needlessly risks running roughshod over the
important interests” of the person whose rights are at stake.
Stanley, 405 U.S. at 656–57. By employing a no-bail scheme
that conclusively equates unlawful immigration status with
unmanageable flight risk, Arizona is needlessly locking up
undocumented immigrant arrestees awaiting trial under the
      LOPEZ-VALENZUELA V. COUNTY OF MARICOPA                 51

guise of ensuring their appearance at trial, even though many
of these individuals would voluntarily appear for trial if
released on bail and could demonstrate such willingness if
provided the opportunity, or other methods exist to assure
their appearances. The excessiveness and overbreadth of this
scheme, particularly in light of its legislative history, reveal
that the real purpose of Proposition 100 was to use the
categorical denial of bail to punish arrestees – for their
assumed undocumented status and for their suspected but
unproven crimes.

    I would hold that Proposition 100 violates substantive due
process because it fails both prongs of the Salerno test, either
one of which is sufficient to find Arizona’s categorical denial
of bail here unconstitutional. I therefore respectfully dissent.
