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                                                                              [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-13139
                           ________________________

                       D.C. Docket No. 4:15-cv-00170-HLM



MAURICE WALKER,
on behalf of himself and others similarly situated,

                                                      Plaintiff - Appellee,

versus

CITY OF CALHOUN, GA,

                                                      Defendant - Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (August 22, 2018)
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Before MARTIN, JULIE CARNES, and O’SCANNLAIN, * Circuit Judges.

O’SCANNLAIN, Circuit Judge:

       We must decide what process the Constitution requires in setting bail for

indigent arrestees.

                                               I

                                              A

       When this lawsuit began, Maurice Walker was a 54-year-old unemployed

man with a mental health disability, whose income consisted only of $530 in

monthly Social Security disability payments. On Thursday, September 3, 2015,

Walker was arrested in the City of Calhoun, Georgia by the Calhoun Police

Department for being a pedestrian under the influence of alcohol, in violation of

Ga. Code Ann. § 40-6-95. A violation of that section of Georgia’s code “is a

misdemeanor and is punishable upon conviction by a fine not to exceed $500.00.”

The statute does not provide for any possible jail sentence.

       Walker alleges that, after he was taken to jail, he was told by an officer that

“he would not be released unless he paid the standard $160 cash bond” required for

those charged with being a pedestrian under the influence. Walker says that


   *
      Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit,
sitting by designation.


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neither he nor his family had enough money to post the bond. Walker alleges that

while he was jailed, he was not given his necessary mental disorder medication,

and he was confined to a single-person cell except for one hour each day.

      Walker filed this suit five days after his arrest, while still detained, alleging

on behalf of himself and a class of similarly situated indigent arrestees that the City

was violating the Fourteenth Amendment of the United States Constitution by

“jailing the poor because they cannot pay a small amount of money.” On the day

after filing suit Walker was released on a personal-recognizance bond by

agreement with the City’s counsel. A bond was subsequently tendered for Walker

by one of his attorneys in this matter, and his criminal case was closed on October

20, 2015, by entry of a bond forfeiture.

                                           B

      Walker alleges that, at the time of his arrest, the City followed a policy of

using a secured-money bail schedule with bond amounts based on the fine an

arrestee could expect to pay if found guilty, plus applicable fees. Defendants who

could afford to deposit the bail amount were released immediately, whereas those

who could not pay were held until the next court session on the following non-

holiday Monday. In Walker’s case, because the Monday after his arrest was Labor




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Day, he would have had to wait eleven days after his arrest to see a judge for a bail

hearing.

      Shortly after Walker’s suit was filed, the Municipal Court of the City of

Calhoun altered the prevailing bail policy by issuing a Standing Bail Order, which

adopted a bail schedule for State offenses within the Municipal Court’s

jurisdiction, with cash bail set at “amount[s] represent[ing] the expected fine with

applicable surcharges . . . should the accused later enter a plea, or be found guilty.”

As alternatives to cash bail, the Standing Bail Order recognized an arrestee’s

ability to use a driver’s license as collateral or to “make secured bail by property or

surety” at an amount “twice that set forth in [the] schedule.”

      “For those individuals who do not obtain release pursuant to the secured bail

schedule,” the Standing Bail Order provides that they “shall . . . be brought before

the [Municipal] Court” within 48 hours from their arrest, shall “be represented by

court appointed counsel,” and “will be given the opportunity to object to the bail

amount . . . , including any claim of indigency.” The Municipal Court will then

“determine whether the accused is unable to post secured bail because he/she is

indigent, making an individualized determination based upon the evidence

provided.” The Standing Bail Order adopts a standard of indigency as “earning

less than 100 percent of the federal poverty guidelines, unless there is evidence that


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the person has other resources that might be reasonably used.” If the court finds

that the defendant is indigent under that standard, “then he/she shall be subject to

release on recognizance without making a secured bail.” If no hearing is held

within 48 hours, “then the accused shall be released on a recognizance bond.”

Finally, the Standing Bail Order provides that those charged with a violation of the

City Code (as opposed to State law) “shall be released on an unsecured bond in the

amount established by the . . . bail schedule.”

      In summary, the Standing Bail Order envisions three forms of release

depending on the type of offense charged and the financial means of the arrestee.

First, arrestees charged with State offenses within the Municipal Court’s

jurisdiction will be released immediately on a secured bond if they are able and

willing to deposit money bail in the amount set by the bail schedule. They can post

cash bail themselves or use a commercial surety at twice the amount set by the bail

schedule. Second, arrestees charged with State offenses who do not post bail

immediately must wait for a bail hearing with court-appointed counsel, to take

place within 48 hours from arrest. Those who can prove they are indigent at the

hearing will be released on a recognizance bond—meaning no bail amount is set,

either secured or unsecured. Third, all arrestees charged with violating City

ordinances will be released on unsecured bond, meaning that they need deposit no


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collateral immediately but will be assessed the bail schedule amount if they fail

subsequently to appear in court.

                                           C

                                            1

      Several months after Walker filed suit, and after the Standing Bail Order had

gone into effect, the district court entered a preliminary injunction ordering the

City “to implement post-arrest procedures that comply with the Constitution.”

Walker v. City of Calhoun, Ga. (Walker I), No. 4:15-CV-0170-HLM, 2016 WL

361612, at *14 (N.D. Ga. Jan. 28, 2016). As the legal basis for the injunction, the

district court found that “[a]ny bail or bond scheme that mandates payment of pre-

fixed amounts for different offenses to obtain pretrial release, without any

consideration of indigence or other factors, violates the Equal Protection Clause.”

Id. at *10. On the same day it issued the injunction order, the district court

certified a class under Federal Rule of Civil Procedure 23, consisting of “[a]ll

arrestees unable to pay for their release who are or will be in the custody of the

City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or

ordinance violation.”




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                                           2

       We vacated such preliminary injunction, holding that it violated Federal

Rule of Civil Procedure 65 because it was insufficiently specific. See Walker v.

City of Calhoun, Ga. (Walker II), 682 F. App’x 721, 724–25 (11th Cir. 2017) (per

curiam) (unpublished). We declined at that time to consider “whether,

substantively, [the] district court properly issued a preliminary injunction.” Id. at

724.

                                           3

       On remand, the district court again found the City’s bail policy under the

Standing Bail Order to be unconstitutional and entered a new preliminary

injunction. It reaffirmed its merits rulings from the original preliminary injunction

order and found that the Standing Bail Order “still violates the Constitution insofar

as it permits individuals who have sufficient resources to post a bond . . . to be

released immediately, while individuals who do not have those resources must wait

forty-eight hours for a hearing.” Walker v. City of Calhoun, Ga. (Walker III), No.

4:15-CV-0170-HLM, 2017 WL 2794064, at *2–3 (N.D. Ga. June 16, 2017). The

court enjoined the City “from detaining indigent . . . arrestees who are otherwise

eligible for release but are unable, because of their poverty, to pay a secured or

money bail.” Id. at *4.


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       The order granting the new injunction prescribed an affidavit-based process

for making such determination:

       If an arrestee indicates that he or she is unable to pay a secured or
       money bail, arresting officers, jail personnel, or Municipal Court staff
       must, as soon as practicable after booking verify the arrestee’s
       inability to pay a secured or money bail by means of an affidavit
       sworn before an authorized official.
Id. Such affidavit must include information about the arrestee’s finances and the

opportunity for the arrestee to attest indigency, which the injunction order defines

as “less than 100 percent of the applicable federal poverty guidelines.” Id. An

official must evaluate the affidavit “within twenty-four hours after arrest.” Id. at

*5. Those found indigent “shall be subject to release on . . . recognizance without

making secured bail . . . or subject to release on an unsecured bond.” Id.

                                               4

       The City timely appealed the new preliminary injunction order,1 as well as

the district court’s orders certifying the class and denying the City’s motion to

dismiss. The district court stayed further proceedings pending resolution of this

appeal, but the injunction “remains in full force and effect.”




       1
        We have jurisdiction to review an interlocutory order granting a preliminary injunction
under 28 U.S.C. § 1292(a)(1).

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                                             II

       Before reaching the merits of the constitutional issues underlying the

preliminary injunction, we must address two threshold challenges that the City

raises to the district court’s ability to enjoin the City at all.

                                             A

       First, the City argues that the district court should have declined to exercise

jurisdiction altogether under the abstention doctrine of Younger v. Harris, 401 U.S.

37, 44 (1971), which “restrain[s] courts of equity from interfering with criminal

prosecutions.” Younger is “based not on jurisdiction, but on the principles of

equity and comity,” and it commands that “‘absent extraordinary circumstances

federal courts should not enjoin pending state criminal prosecutions.’” Hughes v.

Att’y Gen. of Fla., 377 F.3d 1258, 1262–63 (11th Cir. 2004) (quoting New Orleans

Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 364 (1989)).

Abstention, however, has become disfavored in recent Supreme Court decisions.

See, e.g., Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–78 (2013)

(“Jurisdiction existing, this Court has cautioned, a federal court’s obligation to hear

and decide a case is virtually unflagging,” and “only exceptional circumstances . . .

justify a federal court’s refusal to decide a case in deference to the States.”

(internal quotation marks and alterations omitted)).


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      Younger does not readily apply here because Walker is not asking to enjoin

any prosecution. Rather, he merely seeks prompt bail determinations for himself

and his fellow class members. Gerstein v. Pugh, 420 U.S. 103 (1975), is

instructive. There, Florida detainees sought injunctive relief to receive prompt

probable cause determinations, and the State argued that Younger should have

barred the district court from considering the claim. The Supreme Court disagreed,

holding that Younger abstention did not apply because “[t]he 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.” Gerstein, 420 U.S. at 108 n.9. So too here.

      The City seeks to avoid the import of Gerstein by pointing to case law

indicating that in some circumstances Younger abstention will apply even if the

district court is not being asked to enjoin a prosecution, where injunctive relief

would entail intrusive federal court interference with State prosecutions generally.

In O’Shea v. Littleton, for instance, the plaintiffs alleged that a county judge

engaged in a host of unconstitutional practices in setting bonds, imposing

discriminatory sentences, and setting fees for jury trials. 414 U.S. 488, 491–92

(1974). As the Supreme Court characterized it, the plaintiffs sought “an injunction

aimed at controlling or preventing the occurrence of specific events that might take


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place in the course of future state criminal trials,” which amounted to “an ongoing

federal audit of state criminal proceedings.” Id. at 500. The Court ruled that such

an injunction would be inappropriate under the Younger doctrine because federal

courts “should not intervene to establish the basis for future intervention that

would be so intrusive and unworkable.” Id; see also Luckey v. Miller, 976 F.2d

673, 677 (11th Cir. 1992) (applying Younger abstention to a suit broadly

challenging the adequacy of Georgia’s indigent criminal defense system because,

“[a]lthough it is true that Plaintiffs do not seek to . . . restrain any individual

prosecution, it is nonetheless clear that [Plaintiffs] intend to restrain every indigent

prosecution and contest every indigent conviction until the systemic improvements

they seek are in place.”).

       But Walker does not ask for the sort of pervasive federal court supervision

of State criminal proceedings that was at issue in O’Shea. Instead, as in Gerstein,

Walker merely asks for a prompt pretrial determination of a distinct issue, which

will not interfere with subsequent prosecution. At the very least, the district court

could reasonably find that the relief Walker seeks is not sufficiently intrusive to

implicate Younger. Because we review a Younger abstention decision for abuse of

discretion, see Hughes, 377 F.3d at 1262, we are satisfied that the district court was

not required to abstain.


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                                          B

      Next, the City argues that it is not responsible for its bail policy and hence

cannot be liable for any constitutional violations related to bail under 42 U.S.C.

§ 1983. The City claims that bail policy is attributable only to the Municipal

Court, which it says is independent of the City. The district court disagreed,

finding that the Municipal Court acted on behalf of the City and that the City could

itself set bail policy directly through its control of its police. See Walker I, 2016

WL 361612, at *13; Walker III, 2017 WL 2794064, at *2 (re-adopting reasoning of

Walker I).

      A municipality is liable under § 1983 where an “‘official policy’ causes a

constitutional violation.” Grech v. Clayton County, Ga., 335 F.3d 1326, 1329

(11th Cir. 2003) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978)). “A plaintiff . . . has two methods by which to establish a [municipality’s]

policy: identify either (1) an officially promulgated [] policy or (2) an unofficial

custom or practice . . . shown through the repeated acts of a final policymaker for

the [municipality].” Id. at 1329. Liability may be established “by acquiescence in

a longstanding practice or custom which constitutes the ‘standard operating

procedure’ of the local governmental entity.” Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989). Because we review the grant of a preliminary injunction for


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abuse of discretion, Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002), we

can upend the injunction for lack of § 1983 liability only if the district court

applied an “incorrect legal standard” or its “factual findings are clearly erroneous.”

Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016).

       Here, Georgia law indicates that the City has the authority to set bail policy.

In Georgia, a municipality’s authority flows from “the state, manifested in the

constitution, state laws, and the municipal charter.” Porter v. City of Atlanta, 384

S.E.2d 631, 632 (Ga. 1989). By statute, Georgia “grants a city the legislative

power to adopt ordinances ‘relating to its property, affairs, and local government

for which no provision has been made by general law and which are not

inconsistent with the [Georgia] Constitution.’” City of Atlanta v. McKinney, 454

S.E.2d 517, 520 (Ga. 1995) (quoting Ga. Code Ann. § 36-35-3(a)). The City’s

municipal charter grants it “all powers of self-government not specifically

prohibited by the constitution, the general laws of the State of Georgia, or by this

charter, including all powers . . . necessary or desirable to promote or protect the

safety . . . security, good order, . . . and general welfare of the city and of its

inhabitants.” Charter of Calhoun, Georgia § 1-102(a).

       Such broad grant of authority enables the City to regulate bail. In fact, the

City already does so. The City requires that, for traffic violations, an “officer,


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upon receiving the written promise of the alleged violator to answer as specified in

the citation, shall release such person from custody.” Calhoun Mun. Code § 90-39.

Many other municipalities in Georgia act on the same understanding that Georgia

law permits them to regulate bail by city ordinance.2 And Georgia’s Uniform

Municipal Court Rules, as promulgated by the Supreme Court of Georgia,

recognize that “[b]ail in misdemeanor cases shall be set as provided in [State

statutes], and as provided by applicable municipal charter or ordinance.” Ga.

Unif. Mun. Ct. R. 18.1 (emphasis added).

      The City contends that those municipalities (and presumably itself) are

acting in contravention of Georgia law, which, by permitting “the judge of any

court of inquiry . . . [to] establish a schedule of bails,” Ga. Code Ann. § 17-6-

1(f)(1), implicitly strips municipalities of concurrent authority to set bail policy.

But reading the statute’s permissive grant of authority to courts to establish bail

schedules as implicitly preempting all municipal regulation of bail is hardly a

plausible interpretation. Like the district court, we are unwilling to conclude that

Georgia cities setting bail by ordinance are flouting State law or that the Supreme

Court of Georgia incorrectly interpreted Georgia law when it promulgated Uniform


      2
        See, e.g., Albany Mun. Code § 22-164; Doraville Mun. Code § 11-1; Kennesaw Mun.
Code § 38-46; Nashville Mun. Code § 17-1; Smyrna Mun. Code § 34-49(a); Stockbridge Mun.
Code § 2.20.080.

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Municipal Court Rule 18.1. The district court did not clearly err, then, in finding

that the City could directly regulate bail if it wished to and so may be held

responsible for acquiescing in an unconstitutional policy and practice by its

Municipal Court and its police. 3

       Based on the plain meaning of Georgia law and the thin factual record

before us at this preliminary stage, we are unpersuaded that the City is immune

from § 1983 liability for the bail policy prevailing within its jurisdiction. 4

                                                III

       Turning to the merits, the City contends that the district court erred in

finding the Standing Bail Order to be unconstitutional, a conclusion that led to the

district court’s issuance of the injunction now before us. The City argues that we

should vacate this injunction.
       3
           Although we need not resolve the validity of a secondary basis for liability, we note that
there was also significant support for the district court’s finding that the City can set bail policy
through its control of its police department. Georgia law provides that, in misdemeanor cases,
“constables shall accept bail in such reasonable amount as may be just and fair for any person or
persons charged with a misdemeanor.” Ga. Code Ann. § 17-6-2(b); see also Ga. Code Ann.
§ 42-4-1(b) (“[C]hiefs of police are the jailers of the municipal corporations . . . .”). In this very
case, Walker was asked to post bail by the police department many days before he was slated to
have any interaction with the Municipal Court. Other Georgia cities seem to agree with the
district court that they may empower their police to make bail policy determinations. See, e.g.,
Jonesboro Mun. Code § 30-18; LaGrange Mun. Code § 5-20-13; Madison Mun. Code § 34-47;
Thomaston Mun. Charter § 25; Warner Robins Mun. Code § 15-8.
         4
           Although the materials with which Walker proposes to supplement the record “will not
conclusively resolve” the issue of § 1983 liability, they are helpful to us “in the aid of making an
informed decision,” Young v. City of Augusta, Ga. ex rel. DeVaney, 59 F.3d 1160, 1168 (11th
Cir. 1995), so his Motion to Supplement the Record (Doc. No. 72) is GRANTED.


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       As the party seeking a preliminary injunction, Walker bore the burden of

establishing that he has a substantial likelihood of success on the merits.5 Wreal,

840 F.3d at 1247. The validity of the injunction thus turns on whether Walker did

in fact show that he was likely to succeed in establishing that the City’s bail policy

was unconstitutional.

       The district court ruled that the City’s bail policy ran afoul of the Fourteenth

Amendment because “[a]ny bail or bond scheme that mandates payment of pre-

fixed amounts for different offenses to obtain pretrial release, without any

consideration of indigence or other factors, violates the Equal Protection Clause.”

Walker I, 2016 WL 361612, at *10. Although the district court considered the

Standing Bail Order to be “a step in the right direction” over the prior policy, it

found that “[t]he Standing Bail Order . . . still violates the Constitution insofar as it

permits individuals who have sufficient resources to post a bond (or to have one

posted for them) to be released immediately, while individuals who do not have

       5
           A party seeking a preliminary injunction must make four necessary showings:

       (1) [he] has a substantial likelihood of success on the merits; (2) irreparable injury
       will be suffered unless the injunction issues; (3) the threatened injury to the
       movant outweighs whatever damage the proposed injunction may cause the
       opposing party; and (4) if issued, the injunction would not be adverse to the
       public interest.

Wreal, 840 F.3d at 1247 (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en
banc)). Although the parties dispute all four elements, the principal point of dispute is likelihood
of success on the merits.

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those resources must wait forty-eight hours for a hearing.” Walker III, 2017 WL

2794064, at *3.

       The City argues that the district court applied the wrong legal standard in

two ways: first, by analyzing this case under the Fourteenth Amendment rather

than the Eighth Amendment; and second, by applying too exacting a form of

scrutiny to the City’s bail policy. We consider each challenge in turn.

                                              A

       First, the City, and amici supporting it, contend that we should evaluate this

dispute only under the Eighth Amendment, which provides that “[e]xcessive bail

shall not be required.” 6 U.S. Const. amend. VIII. As they point out, the Supreme

Court has held that, in § 1983 suits, “[t]he validity of the claim must . . . be judged

by reference to the specific constitutional standard which governs that right.”

Graham v. Connor, 490 U.S. 386, 394 (1989). They argue that the right at issue

here is the protection against excessive bail, so the Eighth Amendment standard

applies.

       6
         The Excessive Bail Clause has never expressly been incorporated by the Supreme Court
to apply to the States. Because neither party disputes the point, however, we follow the Supreme
Court’s lead in assuming it has been incorporated. See Schilb v. Kuebel, 404 U.S. 357, 365
(1971) (“[T]he Eighth Amendment’s proscription of excessive bail has been assumed to have
application to the States through the Fourteenth Amendment.”); McDonald v. City of Chicago,
561 U.S. 742, 764 & n.12 (2010) (explaining that the Court has “incorporated almost all of the
provisions of the Bill of Rights” and suggesting in a footnote that the “prohibition against
excessive bail” was incorporated by Schilb).

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                                           1

      If the City is correct that the Eighth Amendment standard governs, not only

did the district court commit legal error by instead applying equal protection and

due process standards, but the City will be on favorable terrain. In Stack v. Boyle,

the Supreme Court explained that “bail set at a figure higher than an amount

reasonably calculated to ensure the defendant’s presence at trial is ‘excessive’

under the Eighth Amendment.” United States v. Salerno, 481 U.S. 739, 752 (1987)

(internal quotation marks and alterations omitted) (quoting Stack v. Boyle, 342 U.S.

1, 5 (1951)). But the Excessive Bail Clause “says nothing about whether bail shall

be available at all,” and it is meant “‘merely to provide that bail shall not be

excessive in those cases where it is proper to grant bail.’” Id. at 752, 754 (quoting

Carlson v. Landon, 342 U.S. 524, 545 (1952)).

      In applying that standard, we have implicitly held that bail is not excessive

under the Eighth Amendment merely because it is unaffordable. In United States

v. James, we considered a case in which the district court set a $2 million cash or

surety bond requirement, which the defendants did not have the ability to pay. 674

F.2d 886, 888 (11th Cir. 1982). We rejected their Eighth Amendment challenge to

that bail condition, holding that “[t]he basic test for excessive bail is whether the

amount is higher than reasonably necessary to assure the accused’s presence at


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trial,” and that “[a]s long as the primary reason in setting bond is to produce the

defendant’s presence, the final amount, type, and other conditions of release are

within the sound discretion of the releasing authority.” Id. at 891. If such standard

applied to this case, Walker would have a difficult time showing that his $160 bail

amount was unconstitutional.

                                               2

       The district court was correct, however, to evaluate this case under due

process and equal protection rubrics rather than the Eighth Amendment. The

decisive case is Pugh v. Rainwater, in which the former Fifth Circuit considered en

banc whether, “in the case of indigents, equal protection standards require a

presumption against money bail.” 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).7

The court “accept[ed] the principle that imprisonment solely because of indigent

status is invidious discrimination and not constitutionally permissible.” Id. at

1056. It recognized that “[r]esolution of the problems concerning pretrial bail

requires a delicate balancing of the vital interests of the state with those of the

individual,” as the State “has a compelling interest in assuring the presence at trial




       7
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

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of persons charged with crime,” while “individuals remain clothed with a

presumption of innocence and with their constitutional guarantees intact.” Id.

      Weighing those competing interests, the court observed that “[t]he demands

of equal protection of the laws and of due process prohibit depriving pre-trial

detainees of the rights of other citizens to a greater extent than necessary to assure

appearance at trial and security of the jail.” Id. at 1057 (quoting Rhem v. Malcolm,

507 F.2d 333, 336 (2d Cir. 1974)). Therefore, “[t]he incarceration of those who

cannot” meet a master bond schedule’s requirements, “without meaningful

consideration of other possible alternatives, infringes on both due process and

equal protection requirements.” Id.

      Walker’s claim, and the district court’s mode of analysis, therefore fits

squarely within the type of hybrid due process and equal protection claim that

Rainwater recognized. Walker’s allegation is precisely that the City is violating

the “demands of equal protection of the laws and of due process” by depriving

indigent “pre-trial detainees of the rights of other citizens to a greater extent than

necessary.” Id. (internal quotation marks omitted). In fact, the contemporary Fifth

Circuit recently applied Rainwater in a case similar to Walker’s to reject the

defendant’s contention that relief can be accorded only under the Eighth

Amendment. See ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018).


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                                                 3

       We are cognizant that the Supreme Court’s Graham decision “requires that

if a constitutional claim is covered by a specific constitutional provision, such as

the . . . Eighth Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of substantive due

process.” United States v. Lanier, 520 U.S. 259, 272 n.9 (1997). But Walker’s

claim, like the plaintiffs’ in Rainwater, is different. It challenges not the amount

and conditions of bail per se, but the process by which those terms are set, which

Walker alleges invidiously discriminates against the indigent.

       Claims of unlawful discrimination against the indigent in criminal

proceedings have a long pedigree in Fourteenth Amendment case law. 8 The

Supreme Court synthesized that law in Bearden v. Georgia, which considered

“whether the Fourteenth Amendment prohibits a State from revoking an indigent

defendant’s probation for failure to pay a fine and restitution.” 461 U.S. 660, 661

       8
          See Griffin v. Illinois, 351 U.S. 12 (1956) (States cannot condition the right to appeal on
ability to afford transcript); Williams v. Illinois, 399 U.S. 235, 244 (1970) (“[T]he Equal
Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on
imprisonment for any substantive offense be the same for all defendants irrespective of their
economic status.”); Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he Constitution prohibits the
State from imposing a fine as a sentence and then automatically converting it into a jail term
solely because the defendant is indigent and cannot forthwith pay the fine in full.” (internal
quotation marks omitted)); Frazier v. Jordan, 457 F.2d 726, 726, 728 (5th Cir. 1972) (municipal
court may not “constitutionally impose a sentence requiring an indigent defendant to pay a fine
forthwith or serve a specified number of days in jail” because “[t]hose with means avoid
imprisonment; the indigent cannot escape imprisonment”).

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(1983). The Court explained that “[d]ue process and equal protection principles

converge in the Court’s analysis” of cases where defendants are treated differently

by wealth, observing that “we generally analyze the fairness of relations between

the criminal defendant and the State under the Due Process Clause, while we

approach the question whether the State has invidiously denied one class of

defendants a substantial benefit available to another class of defendants under the

Equal Protection Clause.” Id. at 665. Applying such principles, the Court held

that:

        [o]nly if alternate measures are not adequate to meet the State’s
        interests in punishment and deterrence may the court imprison a
        probationer who has made sufficient bona fide efforts to pay. To do
        otherwise would deprive the probationer of his conditional freedom
        simply because, through no fault of his own, he cannot pay the fine.

Id. at 672–73.

        The sine qua non of a Bearden- or Rainwater-style claim, then, is that the

State is treating the indigent and the non-indigent categorically differently. Only

someone who can show that the indigent are being treated systematically worse

“solely because of [their] lack of financial resources,” id. at 661—and not for some

legitimate State interest—will be able to make out such a claim. Those who

simply find their own bail conditions too onerous must proceed under the Eighth

Amendment’s Excessive Bail Clause unless they can point to a separate due

process violation.
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      Because Walker’s claim indeed rests on an allegation of categorically worse

treatment of the indigent, it falls within the Bearden and Rainwater framework,

and the district court was correct to apply those cases’ hybrid analysis of equal

protection and due process principles.

                                         B

      The City further contends that the district court applied the wrong legal

standard by imposing too high a level of scrutiny in its equal protection and due

process analysis. The City argues that only rational basis review should apply

because there is no suspect classification involved or fundamental right at stake.

Although somewhat ambiguous about what form of scrutiny it was applying, the

district court was clear that it believed some form of heightened scrutiny applied to

this case. See Walker III, 2017 WL 2794064, at *3 n.2.

                                          1

      The district court acknowledged that “generally, an individual’s indigence

does not make that individual a member of a suspect class,” but it contended that

“detention based on wealth is an exception to the general rule that rational basis

review applies to wealth-based classifications.” Id. (internal quotation marks

omitted). In the district court’s view, because the Standing Bail Order treated

differently those who could afford immediately to pay the bail schedule amount


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and those who could not, it was subject to heightened scrutiny. See id. at *3 & n.2.

Walker has fully embraced the district court’s reasoning, going so far as to argue

that that the use of a bail schedule is analogous to the City’s imposing “pretrial

detention only for black, female, or Catholic arrestees.”

       But such argument runs headlong into Rainwater. There, the court approved

the “[u]tilization of a master bond schedule” without applying any heightened form

of scrutiny. Rainwater, 572 F.2d at 1057. It explained that a bond schedule

“provides speedy and convenient release for those who have no difficulty in

meeting its requirements.” Id. Of course, if the bond schedule provided “speedy”

release to those who could meet its requirements, it necessarily provided less

speedy release to those who could not. Nevertheless, the Rainwater court upheld

the scheme because it gave indigent defendants who could not satisfy the master

bond schedule a constitutionally permissible secondary option: a bail hearing at

which the judge could consider “all relevant factors” when deciding the conditions

of release. See id. at 1058. 9

       9
          The dissent does not grapple meaningfully with Rainwater’s explicit approval of bail
schedules. The most it does is to argue that the bail system reviewed in Rainwater is different
from the City’s because it “subjected indigent and non-indigent arrestees alike to a first
appearance.” Dissent at 73. The dissent would thus turn Rainwater on its head. Rainwater
endorsed the use of a bail schedule to provide “speedy and convenient release,” but the dissent
would transform that endorsement into a requirement that all arrestees be held for a hearing even
if they can immediately satisfy the release conditions. That is, to say the least, an odd reading of
Rainwater. In any event, the dissent is wrong that Florida’s scheme required all persons to wait
                                                                           (continued on next page)
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       Rainwater’s conclusion is consistent with Supreme Court case law on how

differential treatment by wealth is analyzed under the Equal Protection Clause.

The definitive explanation comes from San Antonio Independent School District v.

Rodriguez, which considered a wealth-based equal protection challenge to Texas’s

system of apportioning school funds based principally on local tax bases. 411 U.S.

1 (1973). Analyzing prior cases, with a focus on Bearden’s antecedents, the Court

concluded that instances where wealth-based distinctions were impermissible

“shared two distinguishing characteristics: because of their impecunity[, the

indigent] were completely unable to pay for some desired benefit, and as a

consequence, they sustained an absolute deprivation of a meaningful opportunity

to enjoy that benefit.” Id. at 20 (emphasis added). Mere diminishment of a benefit

was insufficient to make out an equal protection claim: “[A]t least where wealth is

involved, the Equal Protection Clause does not require absolute equality or

precisely equal advantages.” Id. at 24.

       Other cases bolster the line drawn in Rodriguez between mere diminishment

of some benefit and total deprivation based solely on wealth. In Ross v. Moffitt,




for a bail hearing, as it only required such a hearing for those who had not “been previously
released in a lawful manner.” In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 81 (Fla.
1972) (Rule 3.130(b)(1)).

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417 U.S. 600, 616 (U.S. 1974), the Court explained that in criminal proceedings

involving indigents, “[t]he duty of the State . . . is not to duplicate the legal arsenal

that may be privately retained by a criminal defendant . . ., but only to assure the

indigent defendant an adequate opportunity to present his claims fairly.” In M.L.B.

v. S.L.J., 519 U.S. 102 (1996), the Court explained the Bearden line of cases to

mean that wealth-based sanctions are impermissible when they are “not merely

disproportionate in impact,” but “[r]ather, they are wholly contingent on one’s

ability to pay.” Id. at 127. In McGinnis v. Royster, the Supreme Court considered

an equal protection challenge to a New York sentencing scheme that gave good-

behavior credit on an equal basis to those who had and had not been bailed before

trial, even though those who could not afford pretrial bail had already spent time

incarcerated in jail. 410 U.S. 263 (1973). The Court “inquire[d] only whether the

challenged distinction rationally furthers some legitimate, articulated state

purpose.” Id. at 270 (emphasis added). It upheld the scheme because jails lacked

the rehabilitative programs of prisons, which provided “a rational justification”—

independent of wealth—“for declining to give good-time credit” for pretrial time

served in jail. Id. at 273. Ross, M.L.B, and McGinnis, then, all bolster the

principle that differential treatment by wealth is impermissible only where it results

in a total deprivation of a benefit because of poverty.


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       Under the Standing Bail Order, Walker and other indigents suffer no

“absolute deprivation” of the benefit they seek, namely pretrial release. Rather,

they must merely wait some appropriate amount of time to receive the same benefit

as the more affluent.10 Indeed, after such delay, they arguably receive preferential

treatment, in at least one respect, by being released on recognizance without

having to provide any security. Such scheme does not trigger heightened scrutiny

under the Supreme Court’s equal protection jurisprudence.

       Nor do we see how it could. If Walker were correct that wealth should be

treated like race, sex, or religion, and that every policy that affects people

differently based on ability to pay must be justified under heightened scrutiny, the

courts would be flooded with litigation. Innumerable government programs—

heretofore considered entirely benign—would be in grave constitutional danger. If

the Postal Service wanted to continue to deny express service to those unwilling or

unable to pay a fee, it would have to justify that decision under the same standard it

would have to meet to justify providing express service only to white patrons. The

University of Georgia would be unable to condition matriculation on ability to pay

       10
          This case is therefore quite factually distinct from ODonnell, in which the government
“did not achieve any individualized assessment in setting bail,” and as a result “some amount of
upfront payment [was] required for release in the vast majority of cases,” thereby “ensuring that
[indigent] arrestees would remain detained.” 892 F.3d at 153–54. The Standing Bail Order lacks
such features that could support a conclusion that there is an “absolute deprivation” of pretrial
release.

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tuition unless it could meet the same constitutional standard that would allow it to

deny admission to Catholics. In Walker’s preferred constitutional world, taxes that

are independent of income, such as property taxes or sales taxes, would be the

target of perpetual litigation. All that is to say, we do not believe that Bearden or

Rainwater announced such radical results with so little fanfare, and we therefore

reject Walker’s equal protection theory. The district court was wrong to apply

heightened scrutiny under the Equal Protection Clause.

                                            2

      As an alternative basis for applying heightened scrutiny, Walker defends the

district court on the ground that “the City’s bail system infringes the fundamental

right to pretrial liberty.” He argues this is so under the Due Process Clause,

pointing to United States v. Salerno, in which the Supreme Court considered the

federal Bail Reform Act’s provision for preventative detention of dangerous

defendants. 481 U.S. at 741. In Salerno, the Court recognized that “[i]n our

society liberty is the norm, and detention prior to trial or without trial is the

carefully limited exception,” id. at 755; but it also stated that an arrestee may be

incarcerated before trial “if he presents a risk of flight or a danger to witnesses,” id.

at 749 (citing Bell v. Wolfish, 441 U.S. 520, 534 (1979)). The Court ultimately

permitted preventative detention if the arrestee “pose[s] a threat to the safety of


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individuals or to the community which no condition of release can dispel.” Id. at

755. Walker contends that this form of analysis is tantamount to heightened

scrutiny and that it should be applied to his case.

      But the Salerno Court’s analysis was much closer to a relatively lenient

procedural due process analysis than it was any form of heightened scrutiny.

Rather than asking if preventative detention of dangerous defendants served a

compelling or important State interest and then demanding relatively narrow

tailoring, the Court employed a general due process balancing test between the

State’s interest and the detainee’s. See id. at 746–51. The Court’s analysis

borrowed heavily from a prior decision, Schall v. Martin, in which the Court

upheld preventative detention of likely-to-reoffend juveniles based on an analysis

that asked “whether preventative detention . . . is compatible with the ‘fundamental

fairness’ required by due process.” 467 U.S. 253, 263 (1984). Answering that

question required “[t]wo separate inquiries[:] . . . First, does preventive detention

. . . serve a legitimate state objective? And, second, are the procedural safeguards

. . . adequate to authorize the pretrial detention?” Id. at 263–64 (citations omitted).

That analysis is a far cry from strict—or even intermediate—scrutiny.

      Moreover, even if Salerno did embrace a form of heightened scrutiny, we do

not believe it applies to this case because the City is not seeking to impose any


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form of preventative detention. Here, Walker himself was released, and the

Standing Bail Order presently guarantees release within 48 hours of arrest to all

indigent defendants in Walker’s shoes. In a future case that raises the question

whether a municipality may detain an indigent defendant because no feasible

release conditions will assure his appearance in court, perhaps Salerno’s

framework might apply. 11 But that is not the question before us in this limited

interlocutory appeal.

                                                  3

       The appropriate level of scrutiny is the point of departure for the dissent, and

its contrary conclusion on that issue is the foundation for the rest of its analysis.

       11
            There is some force to the City’s contention that such analysis is inextricably linked to
the excessiveness of bail conditions and so should be evaluated under the Eighth Amendment.
Indeed, the Eighth Amendment was borrowed from a provision of the English Bill of Rights that
was itself the culmination of a long process to prevent royal abuses of bail wrongly to deny
pretrial liberty. See, e.g., William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L.
Rev. 33, 63–66 (1977); see also June Carbone, Seeing through the Emperor’s New Clothes:
Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 529–33
(1983) (noting that the early American experience was to adopt and then further to liberalize
British legal principles governing bail); id. at 548–49 (“In England, the colonies, and the early
states, bail bonds were set without reference to the financial circumstances of the accused.
Lower bonds for the poor were considered to violate, not vindicate, the principle of equal
justice.”).
         Such history may support reinvigorating the Eighth Amendment as the proper vehicle for
evaluating whether a State has imposed impermissible conditions of pretrial release. Cf. Lopez-
Valenzuela v. Arpaio, 770 F.3d 772, 805–07 (9th Cir. 2014) (en banc) (O’Scannlain, J.,
dissenting) (arguing that legislation governing pretrial detention based on flight risk should be
evaluated under the Eighth Amendment). In any event, it will be for a future court to decide
whether Salerno’s framework or an Eighth Amendment analysis applies when a defendant is
eligible for bail but is detained because he cannot provide adequate assurance of his future
appearance.

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The dissent would adopt Walker’s theory that any marginal increase in the length

of detention attributable to inability to pay bail amounts to invidious discrimination

warranting heightened scrutiny. As we have explained, accepting that premise

effectively abandons the limitations on wealth-based equal protection claims drawn

in Rodriguez and its successors.

      The dissent provides a hypothetical that proves how far it would go. It asks

us to consider two persons arrested for the same crime under the same

circumstances, whose sole difference is the amount of money each has. The

dissent says there is an equal protection problem because: “The person who has

money pays it and walks away. The indigent can’t pay, so he goes to jail.”

Dissent at 57 (emphasis added). But this hypothetical could apply to any

government benefit contingent on ability to pay, including all the examples we

used above. To illustrate, let’s simply switch out, by substituting the italicized

phrases, the dispensation sought by the hypothetical persons:

      “The person who has money pays it and gets express postal service. The

indigent can’t pay, so he goes with snail mail.”

      “The person who has money pays it and matriculates at the state university.

The indigent can’t pay, so he stays home.”




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      “The person who has money pays it and satisfies his property tax bill. The

indigent can’t pay, so he loses his home to a tax foreclosure.”

      Any government benefit or dispensation can be framed in artificially narrow

fashion to transform a diminishment into total deprivation. The dissent takes the

interest identified by Rainwater—the “right to freedom before conviction,” or the

“right to bail before trial,” 572 F.2d at 1056–56—and narrows it to something like

“the right not to be held a moment longer than a person who can satisfy a bail

schedule.” If such narrowing is permissible, then any wealth-based equal

protection claim becomes valid so long as the plaintiff frames his interest in a

cramped enough style. Under the dissent’s theory, then, the only reason the

Rodriguez plaintiffs’ equal protection claim failed was that they challenged overall

disparities in school budgets (which was what they actually cared about). If

instead they had focused on something smaller and less important—perhaps

claiming that differences in school district funding completely deprived them of

specialized art classes—then, in the dissent’s world, they would have prevailed.

That turns the Equal Protection Clause into a game of word play, a result

inconsistent with the thrust of Rodriguez and its successors.

      Recognizing its tension with Rodriguez, the dissent suggests that Walker’s

claim could fit into a “narrow exception” to the general rule against applying


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heightened scrutiny to wealth-based equal protection arguments. Dissent at 66.

But the dissent provides no limiting principle to such an exception. Although it

suggests “access to judicial processes in [criminal] cases” as one category of

exception, id. (quoting M.L.B., 519 U.S. at 124), it does not explain what judicial

proceeding an indigent person cannot access by the terms of the Standing Bail

Order. More critically, as just demonstrated, the dissent’s analysis is not amenable

to so narrow an exception and would apply to any government action that treats

people of different means differently. Disparate treatment based on wealth, in the

dissent’s constitutional methodology, would be treated the same as official

religious or racial discrimination. The Supreme Court has rejected so radical an

application of the Equal Protection Clause, see Rodriguez, 411 U.S. at 24, and we

cannot adopt it on the unprincipled ad hoc basis urged by the dissent.

      Perhaps the basis for the dissent’s proposed “narrow exception” could be the

importance to indigents of being released from jail. But that quickly starts to

sound like a claim based on a fundamental liberty interest, and the dissent has

disavowed reliance on Walker’s substantive due process argument. See Dissent at

67 n.8. Perhaps that is so as to elide Salerno and Schall. Although the dissent

formally relies only on the Equal Protection Clause, however, its tenor reveals that

it is motivated by the importance of Walker’s liberty interest, and it persuasively


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describes at length the value of pretrial liberty. See Dissent at 61–62. We do not

for a moment doubt the value of freedom from jail. But the Supreme Court in

Salerno made clear that the government also has important interests at stake when

considering whether to release an accused who may be a flight risk or public

danger. Accordingly, it has instructed us to apply a less demanding level of

scrutiny than the one necessary to support the dissent’s conclusions. The dissent

cannot avoid the Supreme Court’s holding by smuggling a substantive due process

claim into the Equal Protection Clause.

                                           C

      Thus the district court was correct to apply the Bearden/Rainwater style of

analysis for cases in which “[d]ue process and equal protection principles

converge,” Bearden, 461 U.S. at 665, yet it was wrong to apply heightened

scrutiny from traditional equal protection analysis.

      The confusion is perhaps unsurprising because neither Bearden nor

Rainwater is a model of clarity in setting out the standard of analysis to apply. As

Bearden puts it, the proper analysis “requires a careful inquiry into such factors as

‘the nature of the individual interest affected, the extent to which it is affected, the

rationality of the connection between legislative means and purpose, [and] the

existence of alternative means for effectuating the purpose.’” 461 U.S. at 666–67


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(alteration in original) (quoting Williams v. Illinois, 399 U.S. 235, 260 (1970)

(Harlan, J., concurring in the result)); accord Rainwater, 572 F.2d at 1056

(“Resolution of the problems concerning pretrial bail requires a delicate balancing

of the vital interests of the state with those of the individual.”).

      We take Bearden’s quotation of Justice Harlan’s Williams concurrence as a

sign that the Bearden Court shared his assessment that these kinds of questions

should be evaluated along something akin to a traditional due process rubric. See

Williams, 399 U.S. at 260 (Harlan, J., concurring in the result) (“An analysis under

due process standards, correctly understood, is . . . more conducive to judicial

restraint than an approach couched in slogans and ringing phrases . . . that blur

analysis by shifting focus away from the nature of the individual interest

affected.”). That makes particular sense in this case because the relief Walker

seeks is essentially procedural: a prompt process by which to prove his indigency

and to gain release.

      In such due process analysis, “[t]he fundamental requirement . . . is the

opportunity to be heard at a meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted).

Due process “is not a technical conception with a fixed content unrelated to time,

place and circumstances,” but rather is “flexible” and “requires analysis of the


                                            35
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governmental and private interests that are affected.” Id. at 334 (internal quotation

marks omitted). The district court should have applied such analysis in evaluating

whether the Standing Bail Order comported with the Constitution’s equal

protection and due process guarantees.

                                          IV

      Having established that Bearden and Rainwater command that courts should

apply something akin to a procedural due process mode of analysis to claims like

Walker’s, it remains to be determined whether the district court acted within its

discretion in entering its preliminary injunction. At this stage of litigation, the City

seeks to overturn the preliminary injunction in order to maintain the Standing Bail

Order, so we must focus our inquiry on the concrete distinctions between the

preliminary injunction and the Standing Bail Order.

      Under the Standing Bail Order, arrestees are guaranteed a hearing within 48

hours of arrest to prove their indigency (with court-appointed counsel) or they will

be released. See supra Part I.B. In contrast, the preliminary injunction commands

an affidavit-based process for determining indigency within 24 hours of arrest. See

supra Part I.C.3. Both procedures agree on the standard for indigency and that

those found indigent are to be released on recognizance. There are thus only two

real points of dispute. First, whether the City must make an indigency


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determination within 24 hours or 48 hours. Second, whether the City may use a

judicial hearing to determine indigency or must use the affidavit-based system

required by the preliminary injunction.

                                          A

      Within what time must the City make an indigency determination? To

answer this question, the City asks us not to write on a blank slate but to borrow

from Supreme Court precedent on the timing required for a probable cause

determination. In County of Riverside v. McLaughlin, the Supreme Court

considered what “prompt” meant for providing a constitutionally required prompt

probable cause hearing for those arrested without a warrant. 500 U.S. 44, 55

(1991). “Taking into account the competing interests” of the individual and the

government, the Court concluded that “a jurisdiction that provides judicial

determinations of probable cause within 48 hours of arrest will, as a general

matter, comply with the promptness requirement.” Id. at 56 (emphasis added).

The McLaughlin Court expressly rejected a 24-hour bright-line limitation

suggested by Justice Scalia in dissent. See id. at 57–58.

      Walker argues that we should not import McLaughlin’s 48-hour presumption

into the bail context because that case did not involve differential treatment based

on wealth. He contends that any disparate treatment by wealth in granting bail


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must satisfy heightened scrutiny, thereby placing a strict burden on the government

to justify its bail policy. That argument fails, however, because, as we explained

above, the use of a bail schedule does not trigger heightened scrutiny. Instead, we

evaluate the 48-hour window for making bail determinations on its own terms to

ensure that it satisfies the due process mode of analysis in Bearden and Rainwater.

      We are persuaded that it does. Under McLaughlin, the City can

presumptively hold a person for 48 hours before even establishing probable

cause—that is, without even proving that it has evidence that he has committed a

crime. It stands to reason that that the City can take the same 48 hours to set bail

for somebody held with probable cause. Indeed, McLaughlin expressly envisioned

that one reason for the 48-hour window is so that probable cause hearings could be

combined with “bail hearings and arraignments.” 500 U.S. at 58. For those

reasons, the Fifth Circuit in ODonnell recently imported the McLaughlin 48-hour

rule to the bail determination context. 892 F.3d at 160–61. The ODonnell court

was reviewing an injunction that imposed a 24-hour time limit for a bail

determination—identical in that respect to the one we are reviewing—and it

rejected such time limit because it worked a “heavy administrative burden” and

was therefore “too strict.” Id.




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       We agree with the Fifth Circuit; indigency determinations for purposes of

setting bail are presumptively constitutional if made within 48 hours of arrest.12

By failing to honor such presumption and insisting instead on a 24-hour window,

the district court committed legal error and so abused its discretion.13


       12
            The dissent accuses us of opening a split with the Fifth Circuit’s ODonnell decision.
See Dissent at 60 n.5. But it is the dissent’s position that would lead to a split. The ODonnell
court expressly adopted the 48-hour requirement of McLaughlin—and, contrary to the dissent’s
equal protection analysis, it did so based on a due process analysis. See ODonnell, 892 F.3d at
160. ODonnell held a 24-hour rule too burdensome even though the defendant in that case was
Harris County, Texas—home to Houston—which presumably could much more easily provide
frequent bail hearings than can the City’s one-judge municipal court.
         It is true that, in a separate part of its opinion, the ODonnell court applied heightened
scrutiny under the Equal Protection Clause, after concluding that the facts of that case fit into the
Rodriguez classification of plaintiffs who suffer an “absolute deprivation of their most basic
liberty interests.” Id. at 162. But there, the court had extensive factual findings from the district
court, resulting from a lengthy evidentiary hearing, that Harris County did not provide arrestees
“any opportunity to submit evidence of relative ability to post bond at the scheduled amount,” id.
at 154 (emphasis added), evidence that permitted the Fifth Circuit to conclude that the County
acted with a “discriminatory purpose” that “resulted in [indefinite] detainment solely due to a
person’s indigency,” id. at 161. Were the facts of this case the same, Walker would have a much
stronger argument that indigents in the City face an absolute deprivation on account of wealth
that would trigger the Rodriguez exception, but the Standing Bail Order guarantees release to
indigents within 48 hours. It therefore accords entirely with ODonnell’s holding that what the
Constitution requires is “an opportunity to be heard and submit evidence within 48 hours of
arrest, and a reasoned decision by an impartial decisionmaker.” Id. at 163. The dissent would
demand more and so is inconsistent with ODonnell.
         13
            We note, however, that we do not consider whether Walker can show that the facts of
his particular case (or other class members’) fall outside the McLaughlin safe harbor. The
McLaughlin Court made clear that the 48-hour presumption was rebuttable: a probable cause
hearing held within 48 hours may nonetheless be unconstitutional “if the arrested individual can
prove that his or her probable cause determination was delayed unreasonably.” McLaughlin, 500
U.S. at 56. “Examples of unreasonable delay” include “delays for the purpose of gathering
additional evidence to justify the arrest, a delay motivated by ill will against the arrested
individual, or delay for delay’s sake.” Id. McLaughlin only provides that jurisdictions which
comply with the 48-hour rule “will be immune from systemic challenges.” Id. (emphasis added).
That being said, the McLaughlin Court cautioned that, “[i]n evaluating whether the delay in a
particular case is unreasonable, . . . courts must allow a substantial degree of flexibility.” Id.
                                                                              (continued on next page)
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                                               B

       The City also challenges the preliminary injunction’s command to adopt an

affidavit-based process for determining indigency, which overrode the Standing

Bail Order’s system based on judicial bail hearings before the Municipal Court.

Walker defends the injunction by arguing that the City never provided a reason that

a judicial hearing was preferable to the affidavit-based process. He also contends

that the choice of an affidavit-based process was a reasonable option within the

district court’s sound discretion for fashioning equitable relief. Notably, neither

Walker nor the district court’s order provides any legal authority for the




        Nor do we decide whether a jurisdiction could adopt a system that allows a longer period
of time than 48 hours to make a bail determination, because the City does not seek to take longer
than 48 hours. As amicus pointed out at oral argument, the federal system permits a court to
delay a bail hearing by three days after an arrestee’s first appearance (plus intervening weekends
or holidays) upon the government’s motion. See 18 U.S.C. § 3142(f). And Georgia law allows
72 hours for an officer making an arrest pursuant to a warrant to bring the arrestee before a
judicial officer. See Ga. Code Ann. § 17-4-26. Whether such lengths of delay are permissible is
not a question before us. We are satisfied that McLaughlin establishes at least a 48-hour
presumptive safe harbor for making bail determinations without deciding if that safe harbor
extends longer. Because a probable cause determination establishes whether the government has
a basis to detain a person at all, see Gerstein, 420 U.S. at 125, the onus on the government to
make a probable cause determination promptly must be at least as great as it is to set the
conditions of pretrial release. Whether jurisdictions have greater leeway in making bail
determinations than probable cause determinations is a question for another case with a more
complete factual record. The dispute between the parties over whether the preliminary
injunction led to an increase in the non-appearance rate in the City may be relevant to such
inquiry, but we need not resolve that dispute to determine that the Standing Bail Order facially
passes constitutional muster.

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proposition that the Constitution requires the affidavit-based process in lieu of a

judicial hearing.

      Indeed, the law cuts the other way and indicates that federal courts should

give States wide latitude to fashion procedures for setting bail. Directly on point,

the bail rule upheld in Rainwater was based on formal hearings at which judges

would consider the arrestee’s financial resources, just as the Standing Bail Order

provides. See Rainwater, 572 F.2d at 1055 & n.2 (citing Fla. R. Crim. P. 3.130(b)

(1977)); id. at 1058 & n.8.

      Even if Rainwater were not dispositive, however, there is no constitutional

basis for the district court’s imposition of its preferred method of setting bail. In

the context of probable cause determinations, the Supreme Court has “recognized

that ‘state systems of criminal procedure vary widely’ in the nature and number of

pretrial procedures they provide,” and it has “noted that there is no single

‘preferred’ approach.” McLaughlin, 500 U.S. at 53 (quoting Gerstein, 420 U.S. at

123). The Court explained that “‘flexibility and experimentation by the States’” is

“desirable and that each State should settle upon an approach ‘to accord with [the]

State’s pretrial procedure viewed as a whole.’” Id. (alteration in original) (quoting

Gerstein, 420 U.S. at 123). Respecting that flexibility gives “proper deference to

the demands of federalism.” Id. The same logic applies to bail determinations,


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and the district court provided no justification for substituting its preferred policy

for the City’s.

      Indeed, the City may have had good reasons for preferring a judicial hearing

to a purely paper-based process for evaluating indigency. It may reasonably prefer

that a judge have the opportunity to probe arrestees’ claims of indigency in open

court, where the importance of honesty may more clearly be impressed on the

arrestee than would be the case in filling out an affidavit in the jailhouse. In more

complex cases, a judicial hearing would allow the court iteratively to examine with

the arrestee, his counsel, and the government what conditions of release are

reasonable and within the arrestee’s means, thereby tailoring case-specific

conditions of release that balance the individual’s pretrial liberty interest with the

government’s interest in assuring his subsequent appearance.

      Parallel areas of case law support the reasonableness of the Standing Bail

Order’s preference for judicial hearings. The Supreme Court’s Eighth Amendment

jurisprudence envisions that bail determinations will be made at judicial hearings.

See Stack, 342 U.S. at 6 (“If bail in an amount greater than that usually fixed . . . is

required . . ., that is a matter to which evidence should be directed in a hearing so

that the constitutional rights of each petitioner may be preserved.” (emphasis

added)). And in the procedural due process context, “[t]he judicial model of an


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evidentiary hearing” is treated as the most extensive form of process that can be

required. Mathews, 424 U.S. at 348; see also Goldberg v. Kelly, 397 U.S. 254, 269

(1970) (“[W]ritten submissions do not afford the flexibility of oral presentations;

they do not permit the recipient to mold his argument to the issues the decision

maker appears to regard as important. Particularly where credibility and veracity

are at issue, . . . written submissions are a wholly unsatisfactory basis for

decision.”).

       Whatever limits may exist on a jurisdiction’s flexibility to craft procedures

for setting bail, it is clear that a judicial hearing with court-appointed counsel is

well within the range of constitutionally permissible options. The district court’s

unjustified contrary conclusion was legal error and hence an abuse of discretion.

                                           C

       In sum, Walker failed to make the necessary showing that he is likely to

succeed on the merits of his claim that the Standing Bail order is unconstitutional.

Neither the 48-hour window for a bail determination nor the use of an adversarial

bail hearing in lieu of an affidavit-based process runs afoul of the Constitution.

Walker therefore failed to satisfy one of the necessary conditions for a preliminary

injunction against the Standing Bail Order, Wreal, 840 F.3d at 1247, and the

district court erred in granting it.


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                                          V

      As a fallback position, Walker further asks us to defer to the “breadth and

flexibility” of the district court’s equitable power to cure constitutional violations

that arose prior to the issuance of the Standing Bail Order. Brown v. Plata, 563

U.S. 493, 538 (2011) (internal quotation marks omitted). Walker contends that

because the City’s original bail policy, in place at the time the litigation was

initiated, was plainly unconstitutional, it does not matter that the subsequent

Standing Bail Order is entirely constitutional. Instead, Walker argues, the

existence of an initial constitutionally defective policy gave the district court

equitable discretion to insert into a perfectly constitutional subsequent policy

additional conditions nowhere required by the Constitution.

                                          A

                                           1

      The City’s leading counter-argument is that, if the Standing Bail Order is

constitutional, then Walker’s claim for injunctive relief is entirely moot. The City

contends that because a new policy has been promulgated after this litigation

began, which supplanted the original policy, the claim against the original policy is

now moot, and no relief may follow from it.




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      Walker responds that the dispute over the constitutionality over the City’s

original bail policy is not moot because, at the conclusion of this litigation, the City

may revert to that policy if there is no injunction in place. As noted, early in the

litigation, the Municipal Court issued the Standing Bail Order, at which point the

City ceased to defend the constitutionality of the original policy. Walker alleges

that the City adopted the policy merely to manipulate the district court’s

jurisdiction and that the Standing Bail Order may be easily repealed when an

injunction is no longer hanging over the City. He rejects an inference that the

Municipal Court realized the potential constitutional infirmity of the existing bail

policy and acted promptly to rectify it.

      The district court agreed with Walker. It concluded that the City’s adoption

of the Standing Bail Order did not moot Walker’s suit for injunctive relief against

the original bail policy because there was a reasonable expectation that the City

might return to its original policy after this litigation ended. See Walker I, 2016

WL 361612, at *12. As the district court put it, the request for injunction relief is

not moot because “it is not absolutely clear that the allegedly wrongful behavior




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could not be reasonably expected to recur.” Id. (quoting Cook v. Bennett, 792 F.3d

1294, 1300 (11th Cir. 2015) (internal quotation marks omitted)). 14

                                                  2

       “[V]oluntary cessation of allegedly illegal conduct does not deprive the

tribunal of power to hear and determine the case, i.e., does not make the case

moot.” Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248,

1255 (11th Cir. 2017) (en banc) (internal quotation marks omitted). A case is

therefore moot “only when [the court] ha[s] no reasonable expectation that the

challenged practice will resume after the lawsuit is dismissed.” Id. at 1255–56

(internal quotation marks omitted). “[T]he burden of proving mootness generally

falls heavily on the party asserting it.” Id. at 1256.

       When a government voluntarily ceases the challenged action, however, there

is a presumption that the government will not later resume the action, so the

plaintiff bears the burden of showing that there is “a reasonable expectation” that

the government “will reverse course and reenact the allegedly offensive” policy.

Id. at 1256. “The key inquiry in this mootness analysis therefore is whether the

       14
           Whether or not the conceded unconstitutionality of the City’s original bail policy could
support an injunction on the merits, “we are required to address” the mootness question first
because it is jurisdictional: “if a suit is moot, it cannot present an Article III case or controversy
and the federal courts lack subject matter jurisdiction to entertain it.” Coral Springs St. Sys., Inc.
v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004). “We review the question of mootness
de novo.” Id.

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evidence leads [the court] to a reasonable expectation that the City will reverse

course and reenact the allegedly offensive” bail policy after this litigation ends. Id.

      To determine whether such a reasonable expectation exists, courts look to

“three broad factors.” Id. at 1257. First, “whether the change in conduct resulted

from substantial deliberation or is merely an attempt to manipulate our

jurisdiction.” Id. This requires examining “the timing of the repeal, the

procedures used in enacting it, and any explanations independent of this litigation

which may have motivated it.” Id. Second, “whether the government’s decision to

terminate the challenged conduct was ‘unambiguous’”—i.e., “whether the actions

that have been taken to allegedly moot the case reflect a rejection of the challenged

conduct that is both permanent and complete.” Id. And, third, “whether the

government has consistently maintained its commitment to the new policy or

legislative scheme.” Id.

      The City’s adoption of the Standing Bail Order is somewhat analogous to

the mootness issue presented in Harrell v. The Florida Bar, 608 F.3d 1241 (11th

Cir. 2010). In Harrell, the plaintiff challenged the Florida Bar’s advertising rules

and regulations, including the Bar’s specific decision to reject one of the plaintiff’s

proposed advertising slogans. Id. at 1249–50. After the lawsuit began, the Bar

reversed its earlier decision and approved the slogan without issuing a reasoned


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opinion. Id. at 1252–53. The district court held that the decision approving the

slogan mooted the plaintiff’s challenge, but we reversed. Id. at 1253, 1268. For

the first mootness factor, we observed that the Bar “acted in secrecy, meeting

behind closed doors and, notably, fail[ed] to disclose any basis for its decision.”

Id. at 1267. Thus, we had “no idea whether the . . . decision was ‘well-reasoned’

and therefore likely to endure.” Id. And because the Bar had changed its position

after litigation had begun, “the circumstances . . . raise[d] a substantial probability

that” the Bar had “changed course simply to deprive the court of jurisdiction.” Id.

(internal quotation marks omitted). We also concluded that the second factor

weighed against the suit’s mootness. Because the Bar’s decision to approve the

slogan was unexplained and had been made through an irregular process, we were

“unable to say that the [Bar], through its decision, ‘unambiguously terminated’ the

challenged application” of its rules. Id. at 1267. Thus, the Bar’s decision was

“very much clouded by ambiguity,” and we held that “the governmental

presumption” did not apply, and the lawsuit was not moot. Id. at 1268 (citing

Troiano v. Supervisor of Elections in Palm Beach Cty., 382 F.3d 1276 (11th Cir.

2004)).




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                                           3

      Applying such analysis here, we conclude that Walker’s claim for injunctive

relief against the City’s original bail policy is likewise not moot. The first factor—

whether the change in conduct resulted from substantial deliberation or is instead

an attempt to manipulate jurisdiction—weighs against mootness. While we may

doubt that it was the City’s intent to manipulate jurisdiction, as opposed to simply

correcting a deficient policy, the fact is that the City has been unnecessarily

secretive. The process for adopting the Standing Bail Order is unknown because

the City has refused to explain that process. In fact, in response to interrogatories,

the City asserted that information about “the process of creating” the Standing Bail

Order was protected by “the work-product doctrine and/or attorney-client

privilege,” and it refused to divulge any information except to say that the Order

was executed by the Chief Judge of the Municipal Court.

      The second factor also weighs against mootness because the City’s

abandonment of its original bail policy is not unambiguous. The City did not

change its bail policy through a legislative act, which might well have mooted the

original claim. Instead, a single judge issued the Standing Bail Order and, while it

is perhaps unlikely, we cannot say that this judge might not revert to the original

policy, given the lack of transparency surrounding the issuance of the Standing


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Bail Order. Thus, “it can hardly be said that [the City’s] ‘termination’” of its

original bail policy is unambiguous. Harrell, 608 F.3d at 1266–67.

      Finally, as to the third factor—whether the government has consistently

maintained its commitment to the new policy or legislative scheme—that does not

cut strongly either way because only two months after the Standing Bail Order was

adopted, the district court stopped its implementation with the first preliminary

injunction.

      Altogether, Walker presented sufficient evidence for the district court to

conclude that his challenge to the original bail policy was not moot. Because the

City does not defend the constitutionality of its original bail policy on appeal, we

may assume that Walker’s arguments against the City’s original bail policy have a

substantial likelihood of success on the merits. Just as the City has not defended

its original bail policy on the merits, it also has not shown that the district court

abused its discretion when it concluded that the other factors favoring an injunction

were met with respect to that original policy. The district court therefore did not

err in declaring the original bail policy to be unconstitutional, and it accordingly

may enjoin the City’s future use of that policy.




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                                          B

      But the conclusion that Walker’s claim for injunctive relief against the

City’s original bail policy is not moot does not mean that the preliminary

injunction against the Standing Bail Order is valid. Even assuming that the City

intended to revert to its original policy at the conclusion of this litigation—

something that will not occur given the terms of our ruling and remand here—such

possibility does not salvage the preliminary injunction. The district court’s

rationale for entering the injunction was not that the City was likely to walk back

the Standing Bail Order, but rather that the Standing Bail Order was itself

unconstitutional “insofar as it permits individuals who have sufficient resources to

post a bond . . . to be released immediately, while individuals who do not have

those resources must wait forty-eight hours for a hearing.” Walker III, 2017 WL

2794064, at *3. As we have explained, that conclusion was based on legal error by

(1) failing to recognize a presumption that a bail determination made within 48

hours is constitutionally valid and (2) wrongly assuming that the Equal Protection

Clause forbids jurisdictions from offering comparatively speedier release to those

able to meet a bail schedule.

      Walker essentially asks us to hold that a governmental body that ceases to

follow an unconstitutional policy, and that instead promulgates a constitutional


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policy, is nonetheless and forever forced to comply with an even more stringent

policy devised by a district court—with conditions found nowhere in the

Constitution—merely because it had once followed an unconstitutional policy. It

would be absurd to so hold.

      “A district court abuses its discretion . . . when it applies the incorrect legal

standard.” Wreal, 840 F.3d at 1247. The district court did so here when it issued

its preliminary injunction. As a result, the preliminary injunction is infirm

regardless of the City’s motivation for the Standing Bail Order.

                                          C

      In sum, because the City did not establish that Walker’s suit for injunctive

relief was moot and because it has effectively conceded that its original bail policy

was unconstitutional, the district court may enjoin a return to that original policy.

But the district court abused its discretion in also enjoining the entirely

constitutional Standing Bail Order, so the preliminary injunction cannot stand.




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                                              VI

       For the foregoing reasons, the preliminary injunction entered by the district

court is VACATED, and the case is REMANDED to the district court for further

proceedings consistent with this opinion.15




       15
          Because we would vacate the preliminary injunction irrespective of whether the district
court was correct to certify Walker’s proposed class or whether it properly denied the City’s
motion to dismiss, such two orders are not “inextricably intertwined” with the preliminary
injunction order, and reviewing them is not “necessary to ensure meaningful review” of the
preliminary injunction. Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (internal quotation
marks and alterations omitted). We therefore lack pendant appellate jurisdiction over such
otherwise unappealable interlocutory orders. Accordingly, Walker’s Motion to Dismiss Appeal
in Part (Doc. No. 16) is GRANTED.

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MARTIN, Circuit Judge, concurring in part and dissenting in part1:

       Maurice Walker was jailed by the City of Calhoun for six days because he

was too poor to pay his bail. He challenges the City’s practice of jailing people

before trial when they are too poor to make bond, arguing it violates the

constitutional guarantees of due process and equal protection. The Majority rejects

this claim, characterizing the pretrial jailing as “merely wait[ing] some appropriate

amount of time to receive the same benefit as the more affluent.” Maj. Op. at 27.

In this way, the Majority renders it unnecessary to review the City’s practice with

heightened scrutiny. I believe the Majority rewrites this court’s binding precedent

in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc),2 which held that

“[t]he incarceration of those who cannot [pay for pretrial release], without

meaningful consideration of other possible alternatives, infringes on both due

process and equal protection requirements.” Id. at 1057. The Majority fails to

recognize this infringement on the rights of indigents, so I dissent.

       1
          I join the Majority in rejecting the City’s arguments that Younger abstention applied;
that the City wasn’t liable for the bail policy under 42 U.S.C. § 1983; and that the Eighth
Amendment, not the Fourteenth Amendment, applied to this case. See Maj. Op. Parts II.A, II.B,
and III.A.2. I also agree that Mr. Walker’s suit against the City’s original bail policy is not moot
and the District Court may enjoin the City from reinstating that policy. See id. Part V.A.3. Last,
I join the Majority’s grant of Mr. Walker’s motions to supplement the record and dismiss the
appeal in part. See id. at 15 n.4, 53 n.15.
       2
          In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.

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                                              I.

      The Supreme Court has repeatedly recognized that wealth-based detention is

not permitted by our Constitution. See Williams v. Illinois, 399 U.S. 235, 240–41,

90 S. Ct. 2018, 2022 (1970) (holding that Illinois’s practice of extending a

prisoner’s sentence beyond maximum authorized by statute of conviction because

of a prisoner’s “involuntary nonpayment of a fine or court costs” is “an

impermissible discrimination that rests on ability to pay”); Tate v. Short, 401 U.S.

395, 397–98, 91 S. Ct. 668, 670–71 (1971) (extending Williams to prohibit “jailing

an indigent for failing to make immediate payment of any fine”); Bearden v.

Georgia, 461 U.S. 660, 672–73, 103 S. Ct. 2064, 2073 (1983) (extending Williams

and Tate to hold that a state court can’t revoke probationary sentence for inability

to pay fine or restitution without considering “alternate measures of punishment

other than imprisonment”). The Bearden line of cases involved criminal penalties

imposed after a conviction. In Rainwater, the former Fifth Circuit extended these

cases’ “principle that imprisonment solely because of indigent status is invidious

discrimination and not constitutionally permissible” to “[t]he punitive and heavily

burdensome nature of pretrial confinement.” 572 F.2d at 1056.

      The Majority is right when it says Mr. Walker’s claim “fits squarely” within

the Bearden-like cases that raise both due process and equal protection concerns.


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Maj. Op. at 20. But I part ways with the Majority, because I read these cases to

support the District Court’s application of heightened scrutiny under the Equal

Protection Clause to the City’s bail policy. See id. at 28.

      The Majority relies on San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973), in deciding that Mr. Walker cannot

make out an equal protection claim warranting heightened scrutiny. But I read

Rodriguez to say he can. Rodriguez established the test for whether a wealth-

based detention claim is subject to heightened scrutiny under an equal protection

framework. The Rodriguez test first asks whether the challenged scheme uses

indigency as a classification, examining whether it treats differently a “class []

composed only of persons who were totally unable to pay.” Id. at 20, 22, 93 S. Ct.

at 1290. The second question is whether the class has suffered an “absolute

deprivation” of a benefit. See id. 20, 93 S. Ct. at 1290.

        The Majority never addresses whether the Standing Bail Order

discriminates against indigents. See Maj. Op. at 27. I say the Bail Order clearly

uses indigency as a classification, and offer this simple example in support.

Consider two people, one who has money and the other who does not. They are

arrested for the same crime at the same time under the same circumstances. Under

the Standing Bail Order, these two would have the identical bail amount, as


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established by the master bail schedule. The person who has money pays it and

walks away. The indigent can’t pay, so he goes to jail. This is plainly

“imprisonment solely because of indigent status.” Rainwater, 572 F.2d at 1056;

accord ODonnell v. Harris Cty., 892 F.3d 147, 162–63 & n.6 (5th Cir. 2018).

      The Majority Opinion says this hypothetical shows I would require the

government to be involved in all sorts of wealth-based interactions—including

intervening to make pricier express mail options available to all postal patrons.

See Maj. Op. at 30–34. Not so. Instead I look to the Supreme Court, which has

expressly established limiting principles for equal protection claims by indigents.

M.L.B. v S.L.J., 519 U.S. 102, 123–24, 117 S.Ct. 555, 567 (1996). In M.L.B., the

Court plainly said “[s]tates are not forced by the Constitution to adjust all tolls to

account for disparity in material circumstances.” Id. (quotation omitted). It

explained that lawsuits seeking “state aid to subsidize [] privately initiated action

or to alleviate the consequences of differences in economic circumstances that

existed apart from state action” are different from those vindicating a person’s

right to participate in political processes or to have access to the courts in criminal

cases. Id. at 123–25, 117 S. Ct. at 568.

      As to Rodriguez’s second question, the Majority relies on the fact that the

Standing Bail Order caps an indigent arrestee’s pretrial detention at 48 hours to


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conclude that the detention isn’t an “absolute deprivation.”3 In fact, the Majority

refers to this person’s time in jail as just a “diminishment of a benefit.” Maj. Op.

at 25–27. But this is word play. First, the Majority renames the interest in

“freedom from incarceration” at issue here, as an interest in “access to pretrial

release.” But see ODonnell, 892 F.3d at 162 (identifying the interest as “freedom

from incarceration”). Second, the Majority’s characterization treats 48 hours in jail

as a mere delay or “diminishment” of the benefit of being released, instead of the

deprivation of liberty it surely is. 4

       In my view, an incarcerated person suffers a complete deprivation of liberty

within the meaning of Rodriguez, whether their jail time lasts two days or two

years. Certainly the Rodriguez Court had no problem concluding there was an


       3
         The requirement to have a bond hearing within 48 hours is properly considered in
determining whether the Standing Bail Order survives scrutiny. However, the Majority relies on
the 48-hour time period in deciding whether there was a deprivation in the first place. This
approach locks in the Majority’s ultimate holding—that a bail system in which indigents get a
hearing within 48 hours survives all systemic due process challenges. Maj. Op. at 37–39.
       4
          The Majority contends I do not “grapple meaningfully with Rainwater’s explicit
approval of bail schedules.” Maj. Op. at 24 n.9. But Rainwater did not approve of bail
schedules being used in the way Calhoun’s Standing Bail Order works. Rainwater said,
“Utilization of a master bond schedule provides speedy and convenient release for those who
have no difficulty in meeting its requirements. The incarceration of those who cannot, without
meaningful consideration of other possible alternatives, infringes on both due process and equal
protection requirements.” 572 F.2d at 1057. The Majority Opinion emphasizes the first sentence
but is blind to what the second sentence plainly says. Calhoun’s Standing Bail Order jails those
who cannot pay bail for up to two days before it provides any alternative. The Majority does not
appear to believe these two days of incarceration qualify as incarceration, as that term was used
by the Court in Rainwater.

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“absolute deprivation” of liberty in Williams and Tate because the challenged state

laws “subjected indigents to incarceration simply because of their inability to pay a

fine.” Rodriguez, 411 U.S. at 20–22, 93 S. Ct. at 1290. Rainwater also described

pretrial confinement as a “deprivation of liberty.” 572 F.2d at 1056. Neither

Rodriguez nor Rainwater qualified how long the confinement had to last before it

became a deprivation of liberty. See Rodriguez, 411 U.S. at 20–22, 93 S. Ct. at

1290; Rainwater, 572 F.2d at 1056. More recently, the Supreme Court reaffirmed

that “[a]ny amount of actual jail time is significant and has exceptionally severe

consequences for the incarcerated individual and for society which bears the direct

and indirect costs of incarceration.” Rosales-Mireles v. United States, 585 U.S.

___, 138 S. Ct. 1897, 1907 (2018) (citation and quotation omitted). And since

Rainwater eliminated any distinction between a post-conviction and pre-conviction

detention, the precedent that binds us tells us that two days in jail is a deprivation

of liberty, whether it happens before or after a person has been convicted. See

ODonnell, 892 F.3d at 162 n.6 (“[T]his court in Rainwater concluded that the

distinction between post-conviction detention targeting indigents and pretrial

detention targeting indigents is one without a difference.”).

      I am not alone in this view. In addressing a challenge to the bail policies of

Harris County, Texas, the Fifth Circuit looked to Rodriguez in holding that


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“indigent misdemeanor arrestees are unable to pay secured bail, and, as a result,

sustain an absolute deprivation of their most basic liberty interests—freedom from

incarceration.” ODonnell, 892 F.3d at 162. The Fifth Circuit thus held that

“[h]eightened scrutiny of the County’s [bail] policy is appropriate.” 5 Id. The

Majority Opinion says this case is “factually distinct” from ODonnell. For

support, it looks to the District Court’s findings about Harris County’s written bail

policies as they existed before the injunction was issued. See Maj. Op. at 27 n.10.

Texas law required individualized assessments in determining bail. ODonnell, 892

F.3d at 153. But the Texas District Judge found Harris County failed to live up to

this law because: “County officials impose[d] the scheduled bail amounts on a

secured basis about 90 percent of the time,” and its officers “were aware that, by

imposing a secured bail on indigent arrestees, they were ensuring that those

arrestees would remain detained.” See id. at 153–54. In Calhoun, Georgia, the

Standing Bail Order sets a secured bail amount for all arrestees, with no


       5
          ODonnell interpreted Rainwater as I do—that is, extending Williams and Tate to the
pretrial context and holding that pretrial detention of indigents solely because of their indigency
is a deprivation of liberty and is subject to heightened scrutiny. ODonnell, 892 F.3d at 162 &
n.6. The Majority’s contrary interpretation of Rainwater, Maj. Op. at 24–25, thus draws this
Court into a circuit split with the Fifth Circuit, based on interpretation of a case that is binding
precedent for both courts. Although our Court is not bound to follow the decisions of the Fifth
Circuit, we have observed that its interpretation of former Fifth Circuit precedent is entitled to
“great weight.” See AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 n.13 (11th Cir. 1986)
(noting that a post-split Fifth Circuit decision was “entitled to great weight because it [was]
based on cases of the former Fifth Circuit that are binding precedent in this circuit”).

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individualized assessment. And by creating a requirement for a determination of

indigency within 48 hours, it implicitly acknowledges that people who are unable

to pay for release will be detained under this system. Thus, the only difference

between Harris County’s system, as described by the Texas District Judge, and

Calhoun’s system, is that the Texas system allowed indigents to be detained for

longer than 48 hours. See id. at 154 (noting arrestees “must wait days for their

hearings”). Under our precedent, I do not view this factual difference as

meaningful.

      It seems unremarkable to say that being jailed for 48 hours is more than a

mere inconvenience. There are very real consequences for detained indigents.

They can lose their jobs. They can lose their homes and transportation. Their

family connections can be disrupted. And all this is to say nothing of the

emotional and psychological toll a prison stay can have on an indigent person and

her family members. See Nick Pinto, The Bail Trap, N.Y. Times Mag. (Aug. 13,

2015), https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html (“‘Most

of our clients are people who have crawled their way up from poverty or are in the

throes of poverty,’ [Scott] Hechinger says. ‘Our clients work in service-level

positions where if you’re gone for a day, you lose your job. People in need of

caretaking—the elderly, the young—are left without caretakers. People who live


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in shelters, where if they miss their curfews, they lose their housing. Folks with

immigration concerns are quicker to be put on the immigration radar. So when our

clients have bail set, they suffer on the inside, they worry about what’s happening

on the outside, and when they get out, they come back to a world that’s more

difficult than the already difficult situation that they were in before.’”); see also

Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 863 (1975) (“Pretrial

confinement may imperil the suspect’s job, interrupt his source of income, and

impair his family relationships.”). And these consequences can be just as dire for a

two-day jail stay as for a longer one. See Juleyka Lantigua-Williams, Why Poor,

Low-Level Offenders Often Plead to Worse Crimes, The Atlantic (July 24, 2016),

https://www.theatlantic.com/politics/archive/2016/07/why-pretrial-jail-can-mean-

pleading-to-worse-crimes/491975/ (“[S]ome of the most damaging effects of

pretrial detention can happen really quickly within the first few days or a week. If

you lose your job, if you lose your apartment, if you need to find somebody else to

take care of your kids, at that point the cost of future incarceration might not be so

high . . . [so] [i]t reduces incentive to fight against a plea deal that involves another

six months of jail.” (interview with Megan Stevenson)); Samuel R. Wiseman,

Pretrial Detention and the Right to be Monitored, 123 Yale L.J. 1344, 1356–57

(2014).


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        I am puzzled by the Majority’s conclusion that detained indigents are

somehow better off than their free and wealthy counterparts. Maj. Op. at 27. It is

true that a person with money will be out-of-pocket whatever funds they paid as

bond. But these wealthier bond payers have a choice: they can pay the bond or

not. The poor have no choice. I simply reject the idea that people who have the

ability to pay bond decide to keep it and go to jail to gain some sort of financial

advantage.

        Neither do I view the Bearden Court’s single quotation from Justice Harlan’s

concurrence in Williams sufficient to support the Majority’s embrace of the due

process framework approved of in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct.

893 (1976). See Maj. Op. at 34–36. First, Bearden began with a reminder that the

Supreme Court had “long been sensitive to the treatment of indigents in our

criminal justice system.” 461 U.S. at 664, 103 S. Ct. at 2068. And the Bearden

Court ultimately reversed rulings of Georgia courts that had resulted in the jailing

of a probationer who failed to pay his court ordered fines. Id. at 674, 103 S. Ct. at

2074.

        Second, while the Court did reference Justice Harlan’s view that a “due

process approach more accurately captures the competing concerns” in this type of

analysis, it made clear that cases implicating both due process and equal protection


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concerns “cannot be resolved by resort to easy slogans or pigeonhole analysis” and

require a context-specific inquiry. See id. at 666–67, 103 S. Ct. at 2069. If it

appears the Bearden Court focused on due process principles as opposed to equal

protection, that’s because the particular case before it—challenging the State’s

failure to consider an indigent probationer’s reasons for nonpayment of fines and

restitution at a probation revocation hearing—rested more naturally on due process

concerns than equal protection. Id. at 666 n.8, 103 S. Ct. at 2069 n.8. The Court

reasoned that, “in setting or resetting a sentence,” “a defendant’s level of financial

resources is a point on a spectrum,” making indigency “a relative term rather than a

classification” in that context. Id. However, the Court also explained that

“whether the State has invidiously denied one class of defendants a substantial

benefit available to another class of defendants [is analyzed] under the Equal

Protection Clause.” Id. at 665, 103 S. Ct. at 2069. Under Calhoun’s Standing Bail

Order, bail is established by a predetermined schedule without consideration of the

arrestee’s financial resources. Thus, Calhoun does not treat indigency as a

“relative term.” Instead, as set out above, only indigents are detained under the

Bail Order, because people with money simply pay the preset amount and go

home. This means, like with the statute in Williams, the Standing Bail Order “in

operative effect exposes only indigents to the risk of imprisonment” and “visit[s]


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different consequences on two categories of persons.” Williams, 399 U.S. at 242,

90 S. Ct. at 2023. This case, therefore, like “[m]ost decisions in this area,” is

properly analyzed under the equal protection framework. See Bearden, 461 U.S. at

665, 103 S. Ct. at 2068–69.

       In light of Supreme Court precedent, our sister circuit’s agreement that

Rainwater requires application of heightened scrutiny under the Equal Protection

Clause to claims like Mr. Walker’s, and the significant consequences stemming

from incarceration, the Justice Harlan quote is simply not enough to support the

Majority’s due-process-only approach.6

       I also reject the Majority’s concern that a flood of litigation will result from

treating wealth “like race, sex, or religion” as a reason not to apply heightened

scrutiny. Maj. Op. at 27–28. First, there will be no flood. The Supreme Court has

already placed limits on bringing equal protection challenges to wealth-based

classifications. Beyond the requirements set out in Rodriguez discussed above, the

       6
          However, I do not read the Majority Opinion to reject heightened scrutiny for all cases
challenging indigency-based jail stays. The outcome of the Majority decision relies entirely on
the idea that 48 hours in jail is not an “absolute deprivation” of liberty. See Maj. Op. at 27. The
Majority Opinion also explains that it believes ODonnell to be a different case from this one,
because Harris County’s practices resulted in longer jail stays despite already-in-place
requirements for individualized assessments in determining bail. See Maj. Op. at 27 n.10 & 39
n.12. Thus, even under the Majority’s view, challenges to indigency-based jail stays warrant
heightened scrutiny so long as they show that the challenged system, in practice, results in
indigents being detained longer than 48 hours. Thus, if Calhoun cannot live up to the procedural
safeguards it promises in the Standing Bail Order and detains indigents longer than 48 hours, Mr.
Walker will be able to revive his equal protection challenge under a heightened scrutiny review.

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Supreme Court has also said that “fee requirements ordinarily are examined only

for rationality,” except when they implicate the “basic right to participate in

political processes as voters and candidates” and “access to judicial processes in

cases criminal or quasi criminal in nature.” M.L.B., 519 U.S. at 123–24, 117 S. Ct.

at 567 (quotation omitted).7 Thus, Mr. Walker’s claim falls into quite a narrow

exception, and recognizing it as such does not portend striking down tuition fees or

express service at the local post office. This Court and the Fifth Circuit have

survived over the forty years since Rainwater was decided without being flooded

with litigation raising wealth-based discrimination claims. And we are only called

upon here to make explicit what was already implicit in Rainwater—namely that

pretrial detention based solely on indigency is subject to heightened scrutiny.

Second, even if our workload increased a bit, “the constitutional imperatives of the

Equal Protection Clause must have priority over the comfortable convenience of


       7
          The Majority asks how Mr. Walker’s claim fits into M.L.B.’s narrow exception for
cases concerning access to judicial processes. Maj. Op. at 32–33. Again, M.L.B. explicitly
answers this question. The Court explained that its “decisions concerning access to judicial
processes,” including Bearden and its progeny, “reflect both equal protection and due process
concerns.” M.L.B., 519 U.S. at 120, 117 S. Ct. at 566. “The equal protection concern relates to
the legitimacy of fencing out [individuals] based solely on their inability to pay core costs.” Id.
Or said yet another way, “‘[e]qual protection’ emphasizes disparity in treatment by a State
between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt,
417 U.S. 600, 609, 94 S. Ct. 2437, 2443 (1974). I have already explained how the Standing Bail
Order discriminates against indigents, and the Majority has not disputed that. Thus, this case
plainly falls into the category of cases concerning access to judicial processes. See M.L.B., 519
U.S. at 120, 117 S. Ct. at 566.

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the status quo.” Williams, 399 U.S. at 245, 90 S. Ct. at 2024. I believe the courts

are up to the task.

       In sum, I read Rodriguez (and Bearden for that matter) to require that Mr.

Walker’s claim of wealth-based discrimination be subject to heightened scrutiny

under a traditional equal protection framework. Thus, I would have affirmed the

District Court’s analysis. 8

                                                II.

       In applying heightened scrutiny to Mr. Walker’s claim, I recognize that the

Supreme Court has not made clear whether the level of scrutiny to be applied in

Bearden-like cases is intermediate or strict scrutiny. See, e.g., M.L.B., 519 U.S. at

120–21, 123–24, 117 S. Ct. at 566, 567–68 (acknowledging that “[a] precise

rationale has not been composed” and rejecting review “for rationality” in criminal

or quasi criminal cases “concerning access to judicial processes”). Rainwater is

similarly unclear, though its discussion of “vital” and “compelling” interests and

the need to “delicate[ly] balance[e]” them, seems to me to point toward strict

       8
         Mr. Walker alternatively challenged the Standing Bail Order under a substantive due
process theory, arguing there is a fundamental right to pretrial liberty. See United States v.
Salerno, 481 U.S. 739, 749–50, 107 S. Ct. 2095, 2102–03 (1987) (affirming the individual’s
“strong interest in liberty,” the State’s “sufficiently weighty” interest in preventing crime, and
the “‘general rule’ of substantive due process that the government may not detain a person prior
to a judgment of guilt in a criminal trial” absent “special circumstances”). Because I would
affirm the District Court’s application of heightened scrutiny under the traditional equal
protection analysis, I do not address the substantive due process theory.

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scrutiny. See Rainwater, 572 F.2d at 1056. Nevertheless, it is my view that on this

record, the City’s Standing Bail Order cannot survive even under intermediate

scrutiny. The City failed to show that a 48-hour detention of only those who

cannot afford to pay bond is “reasonably necessary to the accomplishment of

legitimate state objectives.” See Bullock v. Carter, 405 U.S. 134, 144, 92 S. Ct.

849, 856 (1972).9

       The City of Calhoun says it has the same interest that was identified in

Rainwater. That is the “compelling interest in assuring the presence at trial of

persons charged with crime.” Rainwater, 572 F.2d at 1056. But the City never

explains why or how a 48-hour detention period is “reasonably necessary” to

accomplish this interest. After the 48 hours, everyone who was arrested, but could


       9
          Over the years, the Supreme Court has given us many formulations of “intermediate
scrutiny.” For example, “[a] gender classification fails unless it is substantially related to a
sufficiently important governmental interest.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 441, 105 S. Ct. 3249, 3255 (1985). But classifications based on a person’s legitimacy,
which is of course beyond that person’s control, “will survive equal protection scrutiny to the
extent they are substantially related to a legitimate state interest.” Id. (quotation omitted). In
Bullock, the Supreme Court subjected Texas’s filing-fee requirement for primary candidates to
get on a ballot to “close[] scrutin[y]” and invalidated it as a “denial of equal protection of the
laws.” Bullock, 405 U.S. at 144, 149, 92 S. Ct. at 856, 859. In applying heightened scrutiny to
this wealth-based discrimination, the Court sought to determine whether the “filing-fee scheme”
was “reasonably necessary to the accomplishment of legitimate state objectives.” Id. at 144, 92
S. Ct. at 856; see also Rodriguez, 411 U.S. at 22, 93 S. Ct. at 1290–91 (including Bullock in a list
of cases in which the Court invalidated impermissible wealth-based classifications on equal
protection grounds). Because M.L.B. also cited to Bullock in discussing the other exception to
the rule that “fee requirements are ordinarily examined for rationality,” M.L.B., 519 U.S. at 124
n.14, 117 S. Ct. at 568 n.14, this seems to me to be the most analogous case explicitly setting out
the kind of tailoring required between the competing interests. Thus, I use its standard.

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not make bond, is released on personal recognizance bonds (their promises to

appear), whether they get a hearing or not. The obvious question comes to mind: if

every indigent’s promise to appear is enough to assure his presence at trial after 48

hours passes, why is 48 hours necessary to determine indigency and execute a

personal recognizance bond? Wouldn’t 47 work just as well? Forty, perhaps?

      The City makes no effort to justify its policy of detaining those who cannot

pay for 48 hours, because it says it doesn’t need to. It argues only that capping

detentions at 48 hours is “sufficient to immunize the City from a challenge to its

process for a determination of indigency.” In making this argument, the City relies

on two cases: Gerstein, 420 U.S. 103, 95 S. Ct. 854, and its sequel, County of

Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661 (1991). In Gerstein, the

Supreme Court held that “the Fourth Amendment requires a timely judicial

determination of probable cause as a prerequisite to [pretrial] detention.” 420 U.S.

at 126, 95 S. Ct. at 869. The opinion defined “timely” as “before or promptly after

arrest.” Id. at 125, 95 S. Ct. at 869. Later, in McLaughlin, the Court said

“Gerstein struck a balance between competing interests” by requiring a “prompt—

not immediate” probable cause determination. McLaughlin, 500 U.S. at 54–55,

111 S. Ct. at 1669. Acknowledging the “everyday problems of processing suspects

through an overly burdened criminal justice system,” the Supreme Court said that


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“judicial determinations of probable cause within 48 hours of arrest will, as a

general matter, comply with the promptness requirement.” Id. at 55–56, 111 S. Ct.

at 1669–70.

      According to the City, “this case is to Rainwater what McLaughlin was to

Gerstein.” But there are two problems with this argument. First, McLaughlin said

hearings “delayed unreasonably” can still violate Gerstein, for example, when the

“delay [is] for delay’s sake.” McLaughlin, 500 U.S. at 56, 111 S. Ct. at 1670.

Here, the City has given no reason to justify the 48-hour detention period under the

Standing Bail Order (not even an argument citing “everyday problems of

processing suspects,” see id. at 55, 111 S. Ct. at 1669). As best I can tell, the City

is thus asking for 48 hours of “delay for delay’s sake,” which is precisely what

McLaughlin forbade.

      Second, McLaughlin decided when a probable cause hearing is required by

the Fourth Amendment. 500 U.S. at 47, 111 S. Ct. at 1665. Again, this case

involves both equal protection and due process concerns. And while a hearing

within 48 hours could satisfy the due process concerns, it does not necessarily

satisfy the demands of equal protection. For example, consider a bail policy that

releases all arrestees after booking, except for female, black, or Catholic arrestees.

Those arrestees are detained for 48 hours, given a hearing, and then released.


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Under the City’s theory, McLaughlin immunizes this policy from any challenge

merely because, after all, the female, black, and Catholic arrestees get a hearing

within 48 hours. This is plainly wrong. Equal protection principles require us to

inquire of the City why it needs to treat female, black, and Catholic arrestees

differently from all others and then to examine whether the given reason is

sufficiently tailored to accomplish the City’s legitimate or compelling objective.

So the same goes for wealth-based classifications in the criminal justice system.

The City should have been required to explain why it is “reasonably necessary” to

treat poor people differently from all others by keeping them in jail for 48 hours.

Since Calhoun offered no reason during this appeal, let alone a “legitimate” one,

the Standing Bail Order cannot survive constitutional scrutiny. See Bullock, 405

U.S. at 144, 92 S. Ct. at 856. 10

       Finally, my view of McLaughlin and the interests at stake is not contrary to

ODonnell. While the Fifth Circuit relied in part on McLaughlin to hold that “the

federal due process right entitles detainees to a hearing within 48 hours,” it did not

       10
           At oral argument, the City did offer one justification for its 48-hour detention policy:
“to get the players to the game”—meaning to get the City’s only municipal judge to the
municipal court so she can hold a hearing. Nevertheless, this Court’s longstanding rule is that
arguments not briefed to the court and raised for the first time at oral argument are deemed
abandoned. See Mesa Air Grp., Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1130–31 (11th Cir.
2009) (refusing to consider the merits of an argument made only at oral argument but not in
briefs). This rule seems especially appropriate here, in light of the City’s position in its briefs
that it did not need to justify its policy.

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grant immunity from systemic challenges to Harris County like the immunity

sought by Calhoun here. See ODonnell, 892 F.3d at 160. Instead, the Fifth Circuit

determined that, in light of the evidentiary record, the District Court’s injunction

mandating a bail hearing within 24 hours was “too strict” and so extended the time

for the hearing to 48 hours. Id. at 160–61 (noting the “heavy administrative

burden” on the County as shown by the finding that “20% of detainees do not

receive a probable cause hearing within 24 hours despite [a] statutory

requirement”). Because Calhoun here offered no justification for its 48-hour

period, I would have affirmed the preliminary injunction entered by Judge Murphy

in the District Court, as well the 24-hour release requirement he imposed. On

remand, the City would have had the opportunity to develop an evidentiary record

and make the showing necessary to survive heightened scrutiny.

      It seems worthy of mention that the Fifth Circuit’s modified injunction in

ODonnell is remarkably similar to what the District Court ordered in this case.

The modified injunction required, within 24 hours, a determination of indigency

based on affidavits, for those who could not pay the prescheduled bail amounts in a

process overseen by “Pretrial Services officers”; release based on an “unsecured

personal bond with nonfinancial conditions of release” or “on a secured money

bond for which the defendant could pay a commercial surety’s premium”; and for


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those who are not so released, “a hearing within 48 hours of arrest.” Id. at 164–65.

This system provided “meaningful consideration of other possible alternatives”

concurrently with the utilization of a master bail schedule, as opposed to 48 hours

later, and the County justified its need for 48 hours as opposed to 24. For that

reason, I believe the Fifth Circuit’s modified injunction appropriately addresses

both the equal protection and due process concerns. See Rainwater, 572 F.2d at

1055–56 & n.2, 1058 (mooting a challenge to Florida Supreme Court’s new rule,

which subjected indigent and non-indigent arrestees alike to a first appearance

hearing where a judge would select from six different kinds of release, including

personal recognizance bonds, unsecured bonds, and secured bonds, because the

rule did not “suffer such infirmity that its constitutional application is precluded”);

see also Bearden, 461 U.S. at 672, 103 S. Ct. at 2073 (requiring courts to consider

a probationer’s reasons for failures to pay a fine or restitution and, for those

without means to pay, consider “alternate measures of punishment other than

imprisonment” before imposing jail time). Nevertheless, the Majority has

established that in this Circuit, only due process interests are at stake; only a

hearing is necessary; and the hearing must be held within 48 hours.




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                                         III.

      I believe Mr. Walker has shown a substantial likelihood of success on the

merits. See Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). I also believe

Mr. Walker can show the other three requirements for getting a preliminary

injunction: Jail time is an “irreparable injury” because “it cannot be undone

through monetary remedies.” See Cunningham v. Adams, 808 F.2d 815, 821 (11th

Cir. 1987). And because the City gave no justification for its policy of detaining

indigents for 48 hours, the harm to the plaintiff class clearly outweighs any harm to

the City. Last, in light of studies showing how bail policies like the City’s

contribute to systemic injustices in the criminal justice system and harm poor

communities, see, e.g., Brief for Am. Bar Ass’n at 6–21 as Amicus Curiae

Supporting Appellee, Walker v. City of Calhoun (No. 17-13139), the public

interest clearly weighs in favor of the injunction. In my view, the District Court

did not abuse its considerable discretion in granting Mr. Walker’s motion for a

preliminary injunction. See Palmer, 287 F.3d at 1329.

      Finally, to the extent the City challenges the scope of the District Court’s

injunction, I would also find no abuse of discretion. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S. Ct. 1267, 1276 (1971) (“Once a

right and a violation have been shown, the scope of a district court’s equitable


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powers to remedy past wrongs is broad, for breadth and flexibility are inherent in

equitable remedies.”).

                                  CONCLUSION

      I read Supreme Court precedent and Rainwater to require a traditional equal

protection analysis of the City of Calhoun’s Standing Bail Order, applying

heightened scrutiny review. On the record before us, I would have upheld the

District Court’s grant of a preliminary injunction to Mr. Walker. I recognize that

the City has not yet had a chance to develop an evidentiary record about its need

for a 48-hour detention policy for indigents only. For that reason, I would have

allowed the City an opportunity to develop that record on remand and seek a

different result when this case is considered on the merits.




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