                                                                      FILED
                           FOR PUBLICATION
                                                                       FEB 9 2018
                 UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS


                        FOR THE NINTH CIRCUIT


ERICK AREVALO,                               No.   17-17545

           Petitioner-Appellant,             D.C. No. 4:17-cv-06676-HSG

 v.
                                             OPINION
VICKI HENNESSY, Sheriff of San
Francisco,

           Respondent-Appellee.


                Appeal from the United States District Court
                  for the Northern District of California
              Haywood S. Gilliam, Jr., District Judge, Presiding

                   Argued and Submitted February 7, 2018
                         San Francisco, California

BEFORE: THOMAS, Chief Judge, and TASHIMA and CHRISTEN, Circuit
Judges.

                 Opinion by Chief Judge Sidney R. Thomas
THOMAS, Chief Judge:

      We consider in this case whether Younger v. Harris, 401 U.S. 37 (1971),

requires a district court to abstain from hearing a petition for a writ of habeas

corpus challenging the conditions of pretrial detention in state court. We conclude

that, under the circumstances presented by this case, it does not, and we reverse the

judgment of the district court.

                                           I

      This appeal comes to us in a unique posture. The State of California has

laudably conceded that Arevalo is entitled to federal habeas relief on the merits of

his claim. The State agrees that Arevalo did not receive constitutionally adequate

process during the setting of his bail in the California superior court. Therefore,

the State concedes that a federal writ of habeas corpus should issue, although it

suggests a slightly different form of relief than that requested by Arevalo.

However, despite this concession, and despite the fact that the State did not argue

for abstention, the district court held, sua sponte, that it was compelled to abstain

under Younger, and it dismissed the petition.

      But first the facts. Erick Arevalo has been detained since he was arrested on

July 1, 2017 and charged with various California crimes arising from a domestic




                                           2
dispute. On July 6, 2017, the California trial court summarily set Arevalo’s bail at

$1.5 million.

      On August 10, 2017, Arevalo filed a motion for bail hearing or bail

reduction, arguing that the unreasoned excessive bail violated his Eighth and

Fourteenth Amendment rights. He argued that financial release conditions are

unconstitutional absent both specific procedural protections and a finding that non-

financial conditions could not reasonably serve the State’s interest.

      Arevalo also pointed out that he had no prior criminal record. The Public

Safety Assessment Report1 indicated that he had never failed to appear in court.

The Report assigned him the lowest score possible for the risk of non-appearance

and committing further crimes during a period of pretrial release. He indicated to

the court that he would live with church members if released, and desired to be

released so that he could provide support for his six-year-old daughter. He

requested an evidentiary hearing.




      1
       A Public Safety Assessment is a tool developed by the Laura and John
Arnold Foundation to assess the risk that an arrestee, if released pretrial, will fail to
appear or will engage in new criminal activity, and to generate a release
recommendation based on the assessed risk. See Buffin v. City & Cty. of S.F., 2018
WL 424362, at *2 (N.D. Cal. Jan. 16, 2018).


                                            3
      At a hearing the same day, the trial court agreed to lower the bail amount to

$1 million. The court noted that the charges were serious, but did not discuss

Arevalo’s ability to pay or what government interests the bail amount would serve.

      On September 8, 2017, Arevalo filed a petition for writ of habeas corpus

before the California Court of Appeal. He argued that the trial court

violated California law and his federal constitutional rights to equal protection and

due process by requiring money bail without making the findings required for an

order of pretrial detention. The Court of Appeal summarily denied the writ four

days later.

      On September 20, 2017, Arevalo filed a petition making the same arguments

before the California Supreme Court. The State filed an answer declining to

defend the district court’s bail setting and affirmatively arguing that Arevalo was

entitled to a hearing with specific consideration of his ability to pay and

nonmonetary alternatives to bail. The California Supreme Court summarily denied

the writ on November 15, 2017.

      On November 20, 2017, Arevalo filed an emergency petition before the

district court. Again, the State filed an answer agreeing that Arevalo did not

receive constitutionally adequate process. The State agreed that the petition for

habeas corpus should be granted and requested an order staying the petition to


                                           4
allow the state court to conduct a constitutionally adequate detention hearing.

      At oral argument on December 19, 2017, the district court raised Younger

sua sponte. The State noted that it had waived the issue of abstention by failing to

raise it. However, the district court requested supplemental briefing on the issue,

stating that it was within the court’s authority to let the State “go back on waiving

the argument.” After briefing, the district court held that it declined to reach

Arevalo’s constitutional claims because Younger compelled abstention. The court

dismissed the petition and granted a certificate of appealability.

                                           II

                                           A

       “[A] federal court’s ‘obligation’ to hear and decide a case is ‘virtually

unflagging.’” Sprint Communic’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)

(quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817

(1976)). “Younger abstention remains an extraordinary and narrow exception to

the general rule[.]” Cook v. Harding, 879 F.3d 1035, 1038 (9th Cir. 2018)

(quoting Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 727 (9th Cir.

2017) (internal quotation marks omitted)).

      “Younger abstention is a jurisprudential doctrine rooted in overlapping

principles of equity, comity, and federalism.” San Jose Silicon Valley Chamber of


                                           5
Commerce Political Action Committee v. City of San Jose, 546 F.3d 1087, 1091–92

(9th Cir. 2008). Younger cautions against federal interference with ongoing state

criminal, civil, and administrative proceedings. Id. at 1092. Specifically, Younger

abstention is appropriate when: (1) there is “an ongoing state judicial proceeding”;

(2) the proceeding “implicate[s] important state interests”; (3) there is “an adequate

opportunity in the state proceedings to raise constitutional challenges”; and (4) the

requested relief “seek[s] to enjoin” or has “the practical effect of enjoining” the

ongoing state judicial proceeding. ReadyLink Healthcare, Inc. v. State Comp. Ins.

Fund, 754 F.3d 754, 758 (9th Cir. 2014).

      However, even if Younger abstention is appropriate, federal courts do not

invoke it if there is a “showing of bad faith, harassment, or some other

extraordinary circumstance that would make abstention inappropriate.” Middlesex

Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982).

                                           B

      Younger abstention is not appropriate in this case because the issues raised

in the bail appeal are distinct from the underlying criminal prosecution and would

not interfere with it. Regardless of how the bail issue is resolved, the prosecution

will move forward unimpeded. As the Supreme Court explained in Gerstein v.

Pugh, 420 U.S. 103, 107 n.9 (1975):


                                           6
      The District Court correctly held that respondents’ claim for relief was
      not barred by the equitable restrictions on federal intervention in state
      prosecutions, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
      L.Ed.2d 669 (1971). The injunction was not directed at the state
      prosecutions as such, but only at the legality of pretrial detention
      without a judicial hearing, an issue that could not be raised in defense
      of the criminal prosecution. The order to hold preliminary hearings
      could not prejudice the conduct of the trial on the merits.

      The fact that issues concerning pretrial bail proceedings are distinct from the

criminal prosecution was underscored in Stack v. Boyle, where the Supreme Court

addressed a petitioner’s challenge to excessive bail pre-Younger. The concurrence

noted that “an order fixing bail can be reviewed without halting the main trial—its

issues are entirely independent of the issues to be tried.” 342 U.S. 1, 12 (1951)

(Jackson, J., concurring). Cf. Braden v. 30th Judicial Circuit Court of Ky., 410

U.S. 484 (1973) (holding that a habeas petitioner had properly exhausted his

speedy trial claim because it was distinct from the criminal prosecution). The

Sixth Circuit also addressed this issue in Atkins v. Michigan, noting that “[t]he

issue of whether the right to bail has been denied is collateral to and independent of

the merits of the case pending against the detainee.” 644 F.2d 543, 549 (6th Cir.

1981).




                                           7
      Thus, because the question of whether the petitioner is entitled to a

constitutional bail hearing is separate from the state prosecution, and would not

interfere with those proceedings, Younger abstention is not appropriate.2

                                           C

      The Younger abstention doctrine also does not apply because this case fits

squarely within the irreparable harm exception. See World Famous Drinking

Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987) (holding

that an exception to abstention applies “under extraordinary circumstances where

the danger of irreparable loss is both great and immediate”).

      “It is well established that the deprivation of constitutional rights

‘unquestionably constitutes irreparable injury.’” Hernandez v. Sessions, 872 F.3d

976, 994 (9th Cir. 2017) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

Cir. 2012)). Deprivation of physical liberty by detention constitutes irreparable

harm. Id. We have applied the irreparable harm exception when “full vindication



      2
         In urging that Younger abstention should apply, the State relies on O’Shea
v. Littleton, 414 U.S. 488 (1974). However, that case is easily distinguished
because it involved an injunction against state criminal prosecutions, a decision
that squarely impacted state criminal prosecutions. Because “the requested relief
may be achieved without an ongoing intrusion into the state’s administration of
justice,” O’Shea does not require abstention in this case. Courthouse News Serv. v.
Planet, 750 F.3d 776, 790 (9th Cir. 2014).


                                           8
of the right necessarily requires intervention before trial.” Mannes v. Gillespie,

967 F.2d 1310, 1312 (9th Cir. 1992). Here, the petitioner has been incarcerated for

over six months without a constitutionally adequate bail hearing. His case easily

falls within the irreparable harm exception to Younger.3

                                          D

      Arevalo also has properly exhausted his state remedies as to his bail hearing.

He filed two motions with the superior court, a habeas petition with the California

Court of Appeal, and a petition for a writ of habeas corpus with the California

Supreme Court, each of which was denied. The State suggests that a newly

decided California Court of Appeal case, In re Humphrey, __ Cal. App. __, 2018

WL 550512 (Cal. App. Jan. 25, 2018), may provide a new state avenue of relief for


      3
        The State also argues that the “irreparable harm” exception to Younger is
exclusively a Double Jeopardy exception. There is nothing in the text of the
Supreme Court decisions so limiting it, and we have applied it in other contexts.
See, e.g., Krahm v. Graham, 461 F.2d 703, 705–07 (9th Cir. 1972) (applying
Younger exception for irreparable harm where the city imposed over 100 criminal
charges that allegedly sought to impede the plaintiffs’ First Amendment rights).
Citing Juidice v. Vail, 430 U.S. 327, 330 (1977), the State also argues that the
exception does not apply if the state court provided any opportunity to address the
claim. However, Juidice did not involve the exception; it involved the third
Younger factor—adequacy of the state proceedings to address the issue. Id. Nor
does Moore v. Sims, 442 U.S. 415, 433–35 (1979), stand for that proposition, as the
State claims. Far from supporting the State’s articulation of the rule, Moore
provides a fact-specific analysis suggesting that “irreparable harm” could have
applied to the case under different factual circumstances, despite the availability of
a state court forum. Id.
                                          9
petitioner. However, “[t]he critical date for purposes of deciding whether

abstention principles apply is the date the federal action is filed.” Gilbertson v.

Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004) (en banc). Further, Humphrey did

not create a new procedural state remedy; rather, it established substantive

standards for trial court compliance with constitutional and statutory requirements

in setting bail. Humphrey, 2018 WL 550512, at *24.

                                           III

      For all the foregoing reasons, we conclude that Younger abstention does not

apply in this case. The final question is the appropriate remedy. The State has

acted in good faith throughout this litigation with respect to the substantive merits

of Arevalo’s claim. Throughout the state court litigation and before the federal

district court, the State has repeatedly stated that the petitioner did not receive

constitutionally adequate process during the setting of bail. It has agreed, in its

pleadings, that the petition for a writ of habeas corpus should issue. Therefore,

absent Younger abstention, there is nothing left for the district court to decide

because the parties agree on the substantive merits.

      However, the State has requested that an order granting the habeas petition

be stayed for a reasonable period of time to allow the superior court to conduct a

constitutionally adequate bail hearing. The State’s request is reasonable.


                                           10
Accordingly, we reverse the judgment of the district court and remand with

instructions to grant a conditional writ of habeas corpus, providing that the writ

issue unless the California Superior Court conducts a new constitutionally

compliant bail hearing within fourteen (14) days after the issuance of the district

court’s order conditionally granting the petition. Given our resolution of this case,

we need not, and do not, decide any other issue urged by the parties. In light of the

circumstances, we direct that the mandate be issued forthwith.



      REVERSED AND REMANDED WITH INSTRUCTIONS.




                                          11
