                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


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

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

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

           Argued and Submitted En Banc
      March 18, 2014—San Francisco, California

                 Filed October 15, 2014

   Before: Alex Kozinski, Chief Judge, and Diarmuid
O’Scannlain, Sidney R. Thomas, M. Margaret McKeown,
   Raymond C. Fisher, Marsha S. Berzon, Richard C.
Tallman, Jay S. Bybee, Milan D. Smith, Jr., Jacqueline H.
     Nguyen, and Paul J. Watford, Circuit Judges.
2               LOPEZ-VALENZUELA V. ARPAIO

                   Opinion by Judge Fisher;
                 Concurrence by Judge Nguyen;
                   Dissent by Judge Tallman;
                 Dissent by Judge O’Scannlain


                           SUMMARY*


                            Civil Rights

    The en banc court reversed the district court’s summary
judgment in a class action challenging Proposition 100, a
ballot measure passed by Arizona voters that amended the
state constitution to preclude bail for certain serious felony
offenses if the person charged has entered or remained in the
United States illegally and if the proof is evident or the
presumption great as to the charge.

    The en banc court held that Proposition 100, and its
implementing laws and rules, violate the substantive
component of the Due Process Clause of the Fourteenth
Amendment. Applying the heightened substantive due
process scrutiny set forth in United States v. Salerno, 481
U.S. 739, 746-48 (1987), the en banc court held that the
Proposition 100 laws do not address an established
“particularly acute problem,” are not limited to “a specific
category of extremely serious offenses,” and do not afford the
individualized determination of flight risk or dangerousness
that Salerno deemed essential. Rather, the laws represent a
scattershot attempt at addressing flight risk and are not

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

narrowly tailored to serve a compelling interest. In addition,
the en banc court held that the challenged laws are excessive
in relation to the state’s legitimate interest in assuring
arrestees’ presence for trial.

    Concurring, Judge Nguyen agreed with the majority that
Proposition 100 violates substantive due process. She wrote
separately to address the record of legislative intent, which
she believed demonstrates that Proposition 100 was
intentionally drafted to punish undocumented immigrants for
their “illegal” status, even if they pose no flight risk or danger
to the community.

    Dissenting, Judge Tallman, joined by Judge O’Scannlain,
stated that Proposition 100 is not excessive in relation to
Arizona’s compelling regulatory interest in ensuring that
illegal aliens who commit serious felony offenses stand trial.

    Dissenting, Judge O’Scannlain stated that the question of
whether denying bail to illegal immigrants based on flight
risk is unconstitutionally excessive should have been
analyzed under the Eighth Amendment’s Excessive Bail
Clause. Judge O’Scannlain tentatively concluded that the
Eighth Amendment does not restrict legislative discretion to
declare certain crimes nonbailable.
4             LOPEZ-VALENZUELA V. ARPAIO

                        COUNSEL

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

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

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

Anthony O’Rourke, Associate Professor, SUNY Buffalo Law
School, for Amici Curiae Constitutional Criminal Law and
Immigration Law Professors.

Kathleen E. Brody, Osborn Maledon, P.A., Phoenix, Arizona;
Amy Kalman and Mikel Steinfeld, Office of the Maricopa
County Public Defender, Phoenix, Arizona; David Euchner,
Office of the Pima County Public Defender, Tucson, Arizona,
for Amicus Curiae Arizona Attorneys for Criminal Justice.
                 LOPEZ-VALENZUELA V. ARPAIO                            5

                             OPINION

FISHER, Circuit Judge, with whom KOZINSKI, Chief Judge,
and THOMAS, McKEOWN, BERZON, BYBEE, M. SMITH
and NGUYEN, Circuit Judges, join in full, and with whom
WATFORD, Circuit Judge, joins except as to section III.B.2:

    Arizona law categorically forbids granting undocumented
immigrants arrested for a wide range of felony offenses any
form of bail or pretrial release, even if the particular arrestee
is not a flight risk or dangerous. We must decide whether
such an absolute denial comports with the substantive
component of the Due Process Clause of the Fourteenth
Amendment. We hold that it does not.

                                   I.

    In 2006, Arizona voters overwhelmingly approved an
amendment to their state constitution known as Proposition
100.1 Proposition 100 mandates that Arizona state courts
may not set bail “[f]or serious felony offenses as prescribed
by the legislature if the person charged has entered or
remained in the United States illegally and if the proof is
evident or the presumption great as to the present charge.”
Ariz. Const. art. 2, § 22(A)(4). In a separate enactment, the
Arizona legislature defined “serious felony offenses” as any
class 1, 2, 3 or 4 felony or aggravated driving-under-the-
influence offense. See Ariz. Rev. Stat. Ann. § 13-
3961(A)(5)(b).



  1
    The Arizona legislature passed the legislation and referred it to the
voters in May 2005. The voters approved Proposition 100 in November
2006.
6             LOPEZ-VALENZUELA V. ARPAIO

     The Proposition 100 bail determination is made at an
initial appearance, which under Arizona law occurs within 24
hours of arrest. See Ariz. R. Crim. P. 4.1(a). At the initial
appearance, the court must deny bail, irrespective of whether
the arrestee poses a flight risk or a danger to the community,
“if the court finds (1) that the proof is evident or the
presumption great that the person committed a serious
offense, and (2) probable cause that the person entered or
remained in the United States illegally.” Ariz. R. Crim. P.
7.2(b). An arrestee deemed ineligible for bail at the initial
appearance may move for reexamination, and a hearing on
such motion “shall be held on the record as soon as
practicable but not later than seven days after filing of the
motion.” Ariz. R. Crim. P. 7.4(b). At the follow-up
proceeding, known as a Simpson/Segura hearing, see Simpson
v. Owens, 85 P.3d 478 (Ariz. Ct. App. 2004); Segura v.
Cunanan, 196 P.3d 831 (Ariz. Ct. App. 2008), the arrestee
can dispute whether there is probable cause that he or she
entered or remained in the United States illegally, but may
not refute Proposition 100’s irrebuttable presumption that he
or she poses an unmanageable flight risk. Once the court
determines that there is probable cause to believe an arrestee
has entered or remained in the United States unlawfully, the
court has no discretion to release the arrestee under any
circumstances, even if the court would find – and the state
would concede – that the particular arrestee does not pose a
flight risk or danger to the community.

   In 2008, plaintiffs Angel Lopez-Valenzuela and Isaac
Castro-Armenta filed a class action complaint against
Maricopa County, the Maricopa County Sheriff, the Maricopa
County Attorney and the Presiding Judge of the Maricopa
County Superior Court, challenging the constitutionality of
Proposition 100 and its implementing laws and rules (“the
              LOPEZ-VALENZUELA V. ARPAIO                    7

Proposition 100 laws”). At the time the complaint was filed,
both plaintiffs were charged with state crimes and held in
Maricopa County jails as a result of orders finding that they
had entered or remained in the United States illegally. The
complaint proposed a plaintiff class consisting of “All
persons who have been or will be held ineligible for release
on bond by an Arizona state court in Maricopa County
pursuant to Section 22(A)(4) of the Arizona Constitution and
Ariz. Rev. Stat. § 13-3961(A)(5).”

    The plaintiffs alleged that the Proposition 100 laws
violate the United States Constitution in a number of ways.
As relevant here, they alleged that the Proposition 100 laws
violate the substantive due process guarantees of the
Fourteenth Amendment on two theories: (1) arrestees have a
liberty interest in being eligible for release on bond pending
resolution of criminal charges and the Proposition 100 laws
are not narrowly tailored to serve a compelling governmental
interest; and (2) the laws impermissibly impose punishment
before trial. The plaintiffs also alleged violations of the
procedural due process guarantees of the Fourteenth
Amendment, the Fifth Amendment right against self-
incrimination, the Sixth Amendment right to counsel, the
Excessive Bail Clause of the Eighth Amendment and the
Supremacy Clause, alleging that the Proposition 100 laws are
preempted by federal law. They sought an order declaring
the Proposition 100 laws unconstitutional, enjoining the
enforcement of those laws and affording each of them an
individualized bail hearing at which they may be considered
for release, taking into account particularized facts about
whether release would pose an unacceptable risk of flight or
danger to the community.
8                 LOPEZ-VALENZUELA V. ARPAIO

    In a December 2008 order, the district court granted the
plaintiffs’ motion for class certification, certifying a class
under Rule 23(b)(2) of the Federal Rules of Civil Procedure.
The court also granted the defendants’ motion to dismiss the
plaintiffs’ preemption claims under Rule 12(b)(6).

    The parties filed cross motions for summary judgment.
In a March 2011 order, the district court denied the plaintiffs’
motion for summary judgment and granted the defendants’
motion for partial summary judgment on the plaintiffs’
substantive due process, procedural due process, Eighth
Amendment and Sixth Amendment claims. See Fed. R. Civ.
P. 56. The plaintiffs thereafter voluntarily dismissed their
Fifth Amendment claim. The district court then entered a
final judgment, from which the plaintiffs timely appealed,
challenging the Rule 12(b)(6) dismissal of their preemption
claims and the adverse summary judgment rulings on their
substantive due process, procedural due process, Eighth
Amendment and Sixth Amendment claims.

    After a divided three-judge panel of this court affirmed
the judgment of the district court, a majority of nonrecused
active judges voted in favor of rehearing en banc. See
Lopez-Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054, 1073
(9th Cir. 2013), reh’g en banc granted, 741 F.3d 1015 (9th
Cir. 2014). We have jurisdiction under 28 U.S.C. § 1291, and
we now reverse.2

    2
    Although we assume that the named plaintiffs are no longer in pretrial
detention, no one has suggested that this case has become moot as a
consequence. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 987
(9th Cir. 2007) (en banc) (“With regard to mootness, the Supreme Court
held that the ‘cases or controversies’ requirement of Article III – which
requires a plaintiff with a live case or controversy, not only at the time of
filing and at the time of class certification, but also when a court reviews
                LOPEZ-VALENZUELA V. ARPAIO                           9

                                  II.

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

                                 III.

    The plaintiffs contend that the Proposition 100 laws
violate substantive due process. We agree.

                                  A.

    The Supreme Court has long recognized constitutional
limits on pretrial detention. The Court has prohibited
excessive bail, see Stack v. Boyle, 342 U.S. 1, 4–5 (1951),
required a judicial determination of probable cause within 48
hours of arrest, see Cnty. of Riverside v. McLaughlin,
500 U.S. 44, 56 (1991); Gerstein v. Pugh, 420 U.S. 103, 114
(1975), barred punitive conditions of pretrial confinement,
see Bell v. Wolfish, 441 U.S. 520, 535–37 (1979), prohibited
pretrial detention as punishment, see United States v. Salerno,
481 U.S. 739, 746–48 (1987); Schall v. Martin, 467 U.S. 253,


the case – is satisfied by ‘a named defendant and a member of the class
represented by the named plaintiff, even though the claim of the named
plaintiff has become moot.’” (quoting Sosna v. Iowa, 419 U.S. 393, 402
(1975))).
10             LOPEZ-VALENZUELA V. ARPAIO

269–74 (1984), and held that restrictions on pretrial release of
adult arrestees must be carefully limited to serve a compelling
governmental interest, see Salerno, 481 U.S. at 748–51.

    In the first of these cases, Stack v. Boyle, the Court
observed that the “traditional right to freedom before
conviction permits the unhampered preparation of a defense,
and serves to prevent the infliction of punishment prior to
conviction.” 342 U.S. at 4. The Court noted that, “[u]nless
this right to bail before trial is preserved, the presumption of
innocence, secured only after centuries of struggle, would
lose its meaning,” id., and it held that “[b]ail set at a figure
higher than an amount reasonably calculated to fulfill [its]
purpose [of assuring the presence of the accused at trial] is
‘excessive’ under the Eighth Amendment,” id. at 5.

    In Gerstein v. Pugh, the Court recognized that “[p]retrial
confinement may imperil the suspect’s job, interrupt his
source of income, . . . impair his family relationships” and
affect his “ability to assist in preparation of his defense.”
420 U.S. at 114, 123. The Court held “that the Fourth
Amendment requires a judicial determination of probable
cause as a prerequisite to extended restraint of liberty
following arrest.” Id. at 114. This probable cause
determination is “necessary to effect limited postarrest
detention,” Salerno, 481 U.S. at 752, and ordinarily must
occur within 48 hours of arrest, see McLaughlin, 500 U.S. at
56.

   A few years later, in Bell v. Wolfish, the Court
emphasized that, “under the Due Process Clause, a detainee
may not be punished prior to an adjudication of guilt.”
441 U.S. at 535. Accordingly, the Court held that “the Due
Process Clause protects a detainee from . . . conditions and
              LOPEZ-VALENZUELA V. ARPAIO                    11

restrictions of pretrial detainment” that “amount to
punishment of the detainee.” Id. at 533, 535. The Court
outlined a two-pronged test for determining when conditions
and restrictions of pretrial detention amount to punishment,
focusing first on whether the restrictions were imposed for a
punitive purpose and, if not, on whether the restrictions are
excessive in relation to a legitimate regulatory purpose:

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

Id. at 538–39 (alterations, footnotes, citations and internal
quotation marks omitted).
12             LOPEZ-VALENZUELA V. ARPAIO

    Five years later, in Schall v. Martin, the Court considered
the substantive due process implications of a state law
authorizing pretrial detention of juvenile offenders found to
present “a serious risk” of committing a crime pending their
juvenile court proceedings. 467 U.S. at 255. As it would
later do in Salerno, the Court applied a two-part substantive
due process inquiry. First, relying on general due process
principles, the Court considered whether the law constituted
an impermissible infringement of the juveniles’ liberty
interest. See Schall, 467 U.S. at 263–68. The Court
recognized that juveniles have a “substantial” interest in
“freedom from institutional restraints,” id. at 265, but that
interest had to be “qualified by the recognition that juveniles,
unlike adults, are always in some form of custody,” id.
Accordingly, in lieu of heightened scrutiny, the Court
required the state to show only that the challenged law served
a “legitimate interest.” Id. at 266. This standard was
satisfied because “[s]ociety has a legitimate interest in
protecting a juvenile from the consequences of his criminal
activity – both from potential physical injury which may be
suffered when a victim fights back or a policeman attempts to
make an arrest and from the downward spiral of criminal
activity into which peer pressure may lead the child.” Id.

    Second, relying on the two-pronged test articulated in
Bell, the Court considered whether the challenged law
violated substantive due process by imposing confinement as
punishment. See id. at 269–74. Applying the first prong of
the Bell test, the Court found no evidence that the law was
intended as punishment. See id. at 269. Turning to the
second prong, the Court concluded that the law was not
excessive in relation to the state’s legitimate regulatory
purpose in protecting juveniles from the consequences of
their criminal activity, because the detention was “strictly
               LOPEZ-VALENZUELA V. ARPAIO                    13

limited in time” (to a maximum possible detention of 17
days) and the conditions of confinement were regulatory
rather than punitive. Id. at 269–71. The Court also found
persuasive that every state in the country permitted
preventive detention of juveniles accused of crime, see id. at
267, 274, citing “the widely shared legislative judgment that
preventive detention serves an important and legitimate
function in the juvenile justice system,” id. at 272.

    Three years later, in United States v. Salerno, the Court
rounded out this series of pretrial detention cases by
considering the substantive due process implications of a
federal law authorizing pretrial detention of adult arrestees.
Salerno involved a challenge to a provision of the federal Bail
Reform Act of 1984 requiring pretrial detention of arrestees
charged with certain serious felonies if the government
demonstrated by clear and convincing evidence after an
adversary hearing that no release conditions “will reasonably
assure . . . the safety of any other person and the community.”
18 U.S.C.§ 3142(e). As it had in Schall, the Court applied a
two-part substantive due process inquiry, albeit in the reverse
order.

    First, relying on Bell and Schall, the Court considered
whether the Act violated substantive due process by
authorizing “punishment before trial.” Salerno, 481 U.S. at
746. Under the first Bell prong, the Court found no evidence
that Congress had authorized pretrial detention for a punitive
purpose. See id. at 747. Rather, Congress had authorized
detention for the legitimate regulatory purpose of “preventing
danger to the community.” Id. Turning to Bell’s second
prong, the Court held that “the incidents of pretrial detention”
were not “excessive in relation to the regulatory goal
Congress sought to achieve,” because: (1) the Act “carefully
14             LOPEZ-VALENZUELA V. ARPAIO

limits the circumstances under which detention may be
sought to the most serious of crimes,” including “crimes of
violence, offenses for which the sentence is life imprisonment
or death, serious drug offenses, or certain repeat offenders”;
(2) “[t]he arrestee is entitled to a prompt detention hearing”
at which the arrestee could seek bail; and (3) “the maximum
length of pretrial detention is limited by the stringent time
limitations of the Speedy Trial Act.” Id. Accordingly, the
Court held “that the pretrial detention contemplated by the
Bail Reform Act is regulatory in nature, and does not
constitute punishment before trial in violation of the Due
Process Clause.” Id. at 748.

     Second, as in Schall, the Court also applied general due
process principles and considered whether the law constituted
an impermissible infringement of arrestees’ liberty interest.
See id. at 748–51. Whereas Schall had applied a deferential
standard of review, however, Salerno applied heightened
scrutiny. The Court noted 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. It cited “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.” Id. at 749. It recognized that the Act implicated “the
individual’s strong interest in liberty.” Id. at 750. And it was
careful “not [to] minimize the importance and fundamental
nature of this right.” Id. But the Court concluded that the
Bail Reform Act satisfied heightened scrutiny because it both
served a “compelling” and “overwhelming” governmental
interest “in preventing crime by arrestees” and was “carefully
limited” to achieve that purpose. Id. at 749–50, 755. The Act
was sufficiently tailored because it “careful[ly] delineat[ed]
. . . the circumstances under which detention will be
permitted.” Id. at 751. It: (1) “narrowly focuse[d] on a
              LOPEZ-VALENZUELA V. ARPAIO                    15

particularly acute problem in which the Government interests
are overwhelming,” id. at 750; (2) “operate[d] only on
individuals who have been arrested for a specific category of
extremely serious offenses” – individuals that “Congress
specifically found” were “far more likely to be responsible
for dangerous acts in the community after arrest,” id.; and
(3) afforded arrestees “a full-blown adversary hearing” at
which the government was required to “convince a neutral
decisionmaker by clear and convincing evidence that no
conditions of release can reasonably assure the safety of the
community or any person,” id. It satisfied heightened
scrutiny because it was a “carefully limited exception,” id. at
755, not a “scattershot attempt” at preventing crime by
arrestees, id. at 750.

                              B.

     Salerno and Schall establish the substantive due process
framework that governs here. We first consider whether the
Proposition 100 laws satisfy general substantive due process
principles. Because the Proposition 100 laws regulate adults
rather than juveniles, we apply Salerno’s heightened scrutiny
rather than Schall’s more deferential review. We then
consider in the alternative whether the Proposition 100 laws
violate due process, under Bell, Schall and Salerno, by
imposing punishment before trial. To succeed on their facial
challenge, the plaintiffs must show that the Proposition 100
laws are unconstitutional in all of their applications. See
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 (2008) (citing Salerno, 481 U.S. at 745);
see also id. (“While some Members of the Court have
criticized the Salerno formulation, all agree that a facial
challenge must fail where the statute has a plainly legitimate
16             LOPEZ-VALENZUELA V. ARPAIO

sweep.” (internal quotation marks omitted)); United States v.
Stevens, 559 U.S. 460, 472 (2010).

                               1.

   We first consider whether the Proposition 100 laws satisfy
general substantive due process principles.

    The governing substantive due process standard is a
familiar one. “The Due Process Clause . . . provides
heightened protection against government interference with
certain fundamental rights and liberty interests,” Washington
v. Glucksberg, 521 U.S. 702, 719–20 (1997), “forbid[ding]
the government to infringe certain ‘fundamental’ liberty
interests at all, no matter what process is provided, unless the
infringement is narrowly tailored to serve a compelling state
interest,” Reno v. Flores, 507 U.S. 292, 302 (1993).

    We apply heightened scrutiny here because the
Proposition 100 laws infringe a “fundamental” right.
Salerno, 481 U.S. at 750. The defendants’ brief suggests that
the Proposition 100 laws do not implicate a fundamental
right, because “[b]ail . . . is not a fundamental . . .
constitutional right,” but Salerno made clear that what is at
stake here is “the individual’s strong interest in liberty,” and
the Court was careful “not [to] minimize the importance and
fundamental nature of this right.” Id. (emphasis added). If
there was any doubt about the level of scrutiny applied in
Salerno, it has been resolved in subsequent Supreme Court
decisions, which have confirmed that Salerno involved a
fundamental liberty interest and applied heightened scrutiny.
See Flores, 507 U.S. at 301–02; id. at 316 (O’Connor, J.,
concurring); Foucha v. Louisiana, 504 U.S. 71, 80–83 (1992);
               LOPEZ-VALENZUELA V. ARPAIO                       17

id. at 93 (Kennedy, J., dissenting). Salerno and the cases that
have followed it have recognized that “[f]reedom from bodily
restraint has always been at the core of the liberty protected
by the Due Process Clause from arbitrary governmental
action.”      Foucha, 504 U.S. at 80.              Thus, “[t]he
institutionalization of an adult by the government triggers
heightened, substantive due process scrutiny.” Flores,
507 U.S. at 316 (O’Connor, J., concurring). As the Court
explained in Salerno, 481 U.S. at 755, “liberty is the norm,
and detention prior to trial or without trial is the carefully
limited exception.” See also Zadvydas v. Davis, 533 U.S.
678, 690 (2001) (“Freedom from imprisonment – from
government custody, detention, or other forms of physical
restraint – lies at the heart of the liberty that [the Due
Process] Clause protects.”); Foucha, 504 U.S. at 90
(Kennedy, J., dissenting) (“As incarceration of persons is the
most common and one of the most feared instruments of state
oppression and state indifference, we ought to acknowledge
at the outset that freedom from this restraint is essential to the
basic definition of liberty in the Fifth and Fourteenth
Amendments of the Constitution.”). Thus, the Proposition
100 laws will satisfy substantive due process only if they are
“narrowly tailored to serve a compelling state interest.”
Flores, 507 U.S. at 302 (citing Salerno, 481 U.S. at 746).3

    That the Proposition 100 laws regulate persons when
there is probable cause to believe they have “entered or
remained in the United States illegally,” Ariz. Const. art. 2,
§ 22(A)(4), does not alter the analysis, as the defendants
concede. The Due Process Clauses of the Fifth and
Fourteenth Amendments protect every person within the

   3
     At oral argument, the defendants conceded that Salerno applied
heightened scrutiny and that heightened scrutiny applies here.
18                LOPEZ-VALENZUELA V. ARPAIO

nation’s borders from deprivation of life, liberty or property
without due process of law. See Mathews v. Diaz, 426 U.S.
67, 77 (1976). “Even one whose presence in this country is
unlawful, involuntary, or transitory is entitled to that
constitutional protection.” Id.4

    We also bear in mind that, regardless of whether an
arrestee is a citizen, a lawful resident or an undocumented
immigrant, the costs to the arrestee of pretrial detention are
profound. “Pretrial confinement may imperil the suspect’s
job, interrupt his source of income, and impair his family
relationships.” Gerstein, 420 U.S. at 114. And it may affect
“the defendant’s ability to assist in preparation of his
defense.” Id. at 123. As the Supreme Court stated in Stack,
342 U.S. at 4, the “traditional right to freedom before
conviction permits the unhampered preparation of a defense.”
See also ABA Standards for Criminal Justice: Pretrial Release
29 (3d. ed. 2007) (citing “considerable evidence that pretrial
custody status is associated with the ultimate outcomes of
cases, with released defendants consistently faring better than
defendants in detention”).

    In this case, the defendants argue that the Proposition 100
laws satisfy substantive due process because they serve the
state’s substantial interest in ensuring that persons accused of
crimes are available for trial. They argue that pretrial
detention is a constitutionally acceptable means of furthering


  4
     See also Zadvydas, 533 U.S. at 718 (Kennedy, J., dissenting) (“As
persons within our jurisdiction, . . . aliens are entitled to the protection of
the Due Process Clause.”); cf. Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our
gates, even illegally, may be expelled only after proceedings conforming
to traditional standards of fairness encompassed in due process of law.”).
               LOPEZ-VALENZUELA V. ARPAIO                     19

that interest. And they contend that Proposition 100’s
categorical denial of bail to undocumented immigrants,
without any individualized determination of flight risk, is
justified because undocumented immigrants in general pose
an unmanageable flight risk. The district court accepted this
rationale, concluding that “[t]he Arizona legislature and
Arizona voters made the logical assumption that a person
who is unlawfully present in the United States may not appear
for trial.” We disagree.

     We do not question that Arizona has a compelling interest
in ensuring that persons accused of serious crimes, including
undocumented immigrants, are available for trial. See
Salerno, 481 U.S. at 749 (noting that “an arrestee may be
incarcerated until trial if he presents a risk of flight”); Bell,
441 U.S. at 534 (recognizing the government’s “substantial
interest in ensuring that persons accused of crimes are
available for trials and, ultimately, for service of their
sentences,” and “that confinement of such persons pending
trial is a legitimate means of furthering that interest”). The
plaintiffs properly conceded this point at oral argument.

     We do, however, reject the proposition that the
Proposition 100 laws are carefully limited, as Salerno
requires. Salerno concluded that the challenged provisions of
the Bail Reform Act satisfied the tailoring requirement of
heightened scrutiny because they created a “narrowly
focuse[d],” “carefully limited exception” to 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.” Salerno, 481 U.S. at 749–50, 755 (emphasis added).
The Act thus satisfied the heightened scrutiny standard
because Congress had chosen a “careful delineation of the
circumstances under which detention will be permitted”
20            LOPEZ-VALENZUELA V. ARPAIO

rather than adopting a “scattershot attempt” at advancing the
government’s interest in preventing crime by arrestees. Id. at
750–51 (emphasis added).

    In holding the Act sufficiently tailored to satisfy
heightened scrutiny, Salerno focused on three considerations.
First, that the challenged provisions addressed “a particularly
acute problem.” Id. at 750. Second, that “[t]he Act operates
only on individuals who have been arrested for a specific
category of extremely serious offenses,” where Congress had
“specifically found that these individuals are far more likely
to be responsible for dangerous acts in the community after
arrest.” Id. Third, that the Act required “a full-blown
adversary hearing” at which the government was required to
“convince a neutral decisionmaker by clear and convincing
evidence that no conditions of release can reasonably assure
the safety of the community or any person.” Id. None of
those considerations exist here.

       a. The Proposition 100 Laws Do Not
          Address a Particularly Acute Problem.

     First, the record does not support the argument that the
Proposition 100 laws addressed “a particularly acute
problem.” Salerno, 481 U.S. at 750. The Bail Reform Act at
issue in Salerno addressed an “alarming problem of crimes
committed by persons on release.” Id. at 742 (quoting S.
Rep. No. 98-225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3185) (internal quotation marks omitted). The record
in Salerno contained empirical evidence establishing that the
legislation addressed “a pressing societal problem,” id. at 747
(citing S. Rep. No. 98-225, at 4–8, 1984 U.S.C.C.A.N. at
3186–91), and the law operated only on individuals
“Congress specifically found . . . are far more likely to be
                 LOPEZ-VALENZUELA V. ARPAIO                           21

responsible for dangerous acts in the community after arrest,”
id. at 750 (citing S. Rep. No. 98-225, at 6–7, 1984
U.S.C.C.A.N. at 3188–90).            This evidence figured
prominently in the Court’s decision to uphold the Bail
Reform Act.

    Similarly, in Demore v. Kim, 538 U.S. 510 (2003), where
the Court upheld a federal immigration statute providing for
mandatory detention of certain convicted criminal aliens
during the brief period of their civil removal proceedings, the
record contained evidence that the legislation addressed a
particularly acute problem. The Court emphasized and
discussed at length the considerable evidence in the record,
much of it quantitative, showing that the legislation applied
to persons who were both dangerous and at risk of flight. See
id. at 518–21, 528.5

    Here, there is no evidence that the Proposition 100 laws
were adopted to address a particularly acute problem. In
contrast to Salerno and Demore, the record contains no
findings, studies, statistics or other evidence (whether or not
part of the legislative record) showing that undocumented
immigrants as a group pose either an unmanageable flight
risk or a significantly greater flight risk than lawful residents.
The absence of such evidence both distinguishes this case


  5
    “One 1986 study showed that, after criminal aliens were identified as
deportable, 77% were arrested at least once more and 45% – nearly half
– were arrested multiple times before their deportation proceedings even
began.” Demore, 538 U.S. at 518. Another study showed that “[o]nce
released, more than 20% of deportable criminal aliens failed to appear for
their removal hearings.” Id. at 519. Congress also had empirical evidence
that, “even with individualized screening, releasing deportable criminal
aliens on bond would lead to an unacceptable rate of flight.” Id. at 520;
see also id. at 528. Such evidence is lacking here.
22               LOPEZ-VALENZUELA V. ARPAIO

from Salerno and supports the conclusion that Proposition
100 laws are not carefully limited, as they must be to survive
heightened scrutiny under Salerno.6


 6
   In arguing that Proposition 100 addressed a particularly acute problem,
Judge Tallman focuses on two factors: (1) statements made in support of
Proposition 100 by then-Maricopa County Attorney Andrew Thomas; and
(2) that Arizona voters approved the Proposition by a wide margin.
Neither argument is persuasive.

     As part of the 2006 campaign in favor of Proposition 100, County
Attorney Thomas asserted that “[f]ar too many illegal immigrants accused
of serious crimes have jumped bail and slipped across the border in order
to avoid justice in an Arizona courtroom.” He also told Lou Dobbs
Tonight that Arizona had a “tremendous problem with illegal immigrants
coming into the state, committing serious crimes, and then absconding,
and not facing trial for their crimes, either because they jump bail after
they are out, or because, when they are let out on bail, the federal
government deports them.” The record does not substantiate Thomas’
claims, however, and he is not a credible source. He was disbarred in
2012 for using his office to destroy political enemies, filing malicious and
unfounded criminal charges, committing perjury and engaging in a host
of other crimes, and the state bar committee found that he had
“outrageously exploited power,” “flagrantly fostered fear,” “disgracefully
misused the law” and “dishonored, desecrated, and defiled” the public
trust. In re Thomas, No. PDJ-2011-9002 (Before the Presiding
Disciplinary Judge of the Supreme Court of Arizona, Apr. 10, 2012)
(Opinion and Order Imposing Sanctions), at p. 245, available at
http://www.azcourts.gov/mediaroom/HighProfileCaseUpdate.aspx (last
visited July 10, 2014). Although Judge Tallman relies heavily on
Thomas’ comments (Dissent at 53–54, 58 & n.4), the defendants tellingly
do not even mention them.

     That Arizona voters approved Proposition 100 by a large margin
(Dissent at 53, 58 & n.5, 59, 61) also does not show that the legislation
addressed a particularly acute problem. At most, the vote shows that
voters perceived a problem, not that one actually existed. Moreover, as
discussed below in part III.B.2 and in Judge Nguyen’s concurrence, there
is substantial evidence that Arizona voters approved Proposition 100 at
                 LOPEZ-VALENZUELA V. ARPAIO                             23

    Contrary to Judge Tallman’s reading of our opinion, we
neither “demand” findings, studies, statistics or other
evidence showing that undocumented immigrants pose an
unmanageable flight risk nor impose an “empirical data
requirement” on the defendants. Dissent at 60–61. We do
not hold Proposition 100 “void . . . for want of evidence,”
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000),
but rather that the Proposition 100 laws are not “carefully
limited” under Salerno. Whether Proposition 100 “narrowly
focuses on a particularly acute problem” is part of that
inquiry. Salerno, 481 U.S. at 750; see also Foucha, 504 U.S.
at 81. Thus, although we do not require the defendants to
produce evidence or point to legislative findings, the absence
of any credible showing that the Proposition 100 laws
addressed a particularly acute problem is one factor quite
relevant to demonstrating that the laws are not carefully
limited.

         b. The Proposition 100 Laws Are Not
            Limited to a Specific Category of
            Extremely Serious Offenses.

    Second, the Proposition 100 laws are not limited to “a
specific category of extremely serious offenses.” Salerno,
481 U.S. at 750; cf. Demore, 538 U.S. at 517–18, Kansas v.
Hendricks, 521 U.S. 346, 357 (1997). Instead, they
encompass an exceedingly broad range of offenses, including
not only serious offenses but also relatively minor ones, such
as unlawful copying of a sound recording, altering a lottery
ticket with intent to defraud, tampering with a computer with


least in part for reasons other than a perceived problem of flight risk – to
punish undocumented immigrants for perceived immigration and criminal
violations.
24            LOPEZ-VALENZUELA V. ARPAIO

the intent to defraud and theft of property worth between
$3,000 and $4,000.

       c. The Proposition 100 Laws Do Not
          Require a Full-blown Adversary
          Hearing at Which the State Is Required
          to Prove that an Individual Arrestee
          Presents an Unmanageable Flight Risk.

    Finally, even if some undocumented immigrants pose an
unmanageable flight risk or undocumented immigrants on
average pose a greater flight risk than other arrestees,
Proposition 100 plainly is not carefully limited because it
employs an overbroad, irrebuttable presumption rather than
an individualized hearing to determine whether a particular
arrestee poses an unmanageable flight risk. In Salerno, the
regulatory scheme was limited to arrestees who actually
posed a danger to the community. First, it was limited to
“individuals who have been arrested for a specific category
of extremely serious offenses” – who Congress found were
“far more likely to be responsible for dangerous acts in the
community after arrest.” Salerno, 481 U.S. at 750. Second,
even for arrestees falling within that specific category, the
scheme provided case-by-case determinations of the need for
pretrial detention. Each arrestee was entitled to a “full-blown
adversary hearing,” at which the government was required to
prove by “clear and convincing evidence” that the individual
presented “a demonstrable danger to the community” and that
“no conditions of release c[ould] reasonably assure the safety
of the community.” Id. It was only “[u]nder these narrow
circumstances” that the Court held that society’s interest was
sufficient to outweigh the “individual’s strong interest in
[pretrial] liberty.” Id.
               LOPEZ-VALENZUELA V. ARPAIO                    25

    In contrast, Proposition 100 is not narrowly focused on
those arrestees who actually pose the greatest flight risk.
Demonstrably, many undocumented immigrants are not
unmanageable flight risks. The record includes examples of
undocumented immigrants who were arrested before
Proposition 100, granted bail or released on their own
recognizance, and appeared at their court dates and trials. Yet
even these individuals were needlessly remanded into state
custody following Proposition 100’s passage.

    In Hernandez v. Lynch, 167 P.3d 1264 (Ariz. Ct. App.
2007), for example, police found a social security card and a
resident alien card in Hernandez’s wallet after arresting him
for possessing an open container of alcohol within the
passenger compartment of a motor vehicle. See id. at 1265.
Hernandez admitted that the cards were forged, that he had
purchased them for $5,000 and that he had procured them in
order to work and buy food. See id. at 1266. The state
charged him with two counts of knowingly possessing forged
instruments with intent to defraud, a class 4 felony. See id.
He was released on his own recognizance after an initial
appearance hearing. When he appeared voluntarily for his
preliminary hearing, however, he was automatically denied
bail by operation of Proposition 100. See id. He ultimately
pled guilty to solicitation to commit forgery, a class 6 felony,
and was placed on probation for one year. See id.
Proposition 100 categorically eliminates any opportunity for
persons such as Mr. Hernandez to show that, notwithstanding
their immigration status, they do not pose a flight risk.
26               LOPEZ-VALENZUELA V. ARPAIO

Indeed, it mandates pretrial detention even when the state
concedes that the arrestee does not pose a flight risk.7

    Whether a categorical denial of bail for noncapital
offenses could ever withstand heightened scrutiny is an open
question. See United States v. Scott, 450 F.3d 863, 874 (9th
Cir. 2006) (“Neither Salerno nor any other case authorizes
detaining someone in jail while awaiting trial, or the
imposition of special bail conditions, based merely on the fact
of arrest for a particular crime. To the contrary, Salerno . . .
upheld the constitutionality of a bail system where pretrial
defendants could be detained only if the need to detain them
was demonstrated on an individualized basis.”). Lawmakers
may rely on “reasonable presumptions and generic rules,”
Demore, 538 U.S. at 526; Flores, 507 U.S. at 313, when a
regulation “involves no deprivation of a ‘fundamental’ right,”
Flores, 507 U.S. at 311, but “‘administrative convenience’ is
a thoroughly inadequate basis for the deprivation of core
constitutional rights,” id. at 346 (Stevens, J., dissenting); see
Stanley v. Illinois, 405 U.S. 645, 656–58 (1972). As the
defendants conceded at oral argument, irrebuttable
presumptions are disfavored.

    Thus, at minimum, to survive heightened scrutiny any
such categorical rule, requiring pretrial detention in all cases
without an individualized determination of flight risk or
dangerousness, would have to be carefully limited. The
state’s chosen classification would have to serve as a


  7
    Proposition 100, for example, covers foreign citizens who have no
legal right to return to their home countries. Conversely, Proposition 100
excludes from coverage individuals who would seem more likely to flee
– such as foreign citizens who are in this country lawfully as tourists and
persons having dual citizenship.
                 LOPEZ-VALENZUELA V. ARPAIO                             27

convincing proxy for unmanageable flight risk or
dangerousness. It has generally been thought, for example,
that capital offenses may be made categorically nonbailable
because “most defendants facing a possible death penalty
would likely flee regardless of what bail was set.” United
States v. Kennedy, 618 F.2d 557, 558-59 (9th Cir. 1980) (per
curiam).8

    There is no evidence that undocumented status correlates
closely with unmanageable flight risk. The defendants
speculate that undocumented immigrants pose a greater flight
risk than lawful residents because they supposedly lack strong
ties to the community and have a “home” in another country
to which they can flee. But this assumption ignores those


 8
    We do not, as Judge Tallman writes, “effectively preclud[e] the use of
irrebuttable presumptions in the bail context.” Dissent at 62. Rather, we
conclude that whether a categorical denial of bail for noncapital offenses
could ever withstand heightened scrutiny is an open question, and then
assume without deciding that such a rule would be constitutional were it
adequately tailored. Our conclusion that this is an open question is clearly
correct, given that neither the Supreme Court nor any federal court of
appeals has addressed the question. The closest case is Hunt v. Roth,
648 F.2d 1148 (8th Cir. 1981), vacated as moot sub nom. Murphy v. Hunt,
455 U.S. 478 (1982), where the Eighth Circuit held that a provision of the
Nebraska Constitution categorically denying bail to persons charged with
certain sexual offenses violated the Excessive Bail Clause of the Eighth
Amendment because it employed an irrebuttable presumption rather than
requiring an individualized determination of flight risk. In language that
one might apply here as well, the Eighth Circuit held that “[t]he fatal flaw
in the Nebraska constitutional amendment is that the state has created an
irrebuttable presumption that every individual charged with this particular
offense is incapable of assuring his appearance by conditioning it upon
reasonable bail or is too dangerous to be granted release.” Hunt, 648 F.2d
at 1164. Hunt, however, was later vacated as moot, so it remains the case
that no federal appellate court has yet addressed in a precedential decision
whether a categorical denial of bail comports with the Constitution.
28            LOPEZ-VALENZUELA V. ARPAIO

undocumented immigrants who do have strong ties to their
community or do not have a home abroad. As our own
court’s immigration docket reveals, many undocumented
immigrants were brought here as young children and have no
contacts or roots in another country. Many have “children
born in the United States” and “long ties to the community.”
Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). A
recent study of undocumented immigrants in California,
published by the Center for the Study of Immigrant
Integration at the University of Southern California, found
that, “contrary to popular misperceptions,” undocumented
immigrants are “a fairly settled population.” M. Pastor & E.
Marcelli, What’s at Stake: Undocumented Californians,
Immigration Reform, and Our Future Together 9 (May 2013),
available at http://csii.usc.edu/undocumentedCA.html (last
visited July 28, 2014). The researchers found that “nearly 50
percent of undocumented immigrants have been in the
country for more than 10 years, and over 17 percent of
household heads are homeowners.” Id.

    Moreover, although the defendants consistently refer to
undocumented immigrant arrestees as “flight risks,” the
pertinent inquiry is whether the arrestee is an unmanageable
flight risk. There are a variety of methods to manage flight
risk, such as bond requirements, monitoring and reporting
requirements. See, e.g., Ariz. Rev. Stat. Ann. § 13-3967(D).
Proposition 100 completely ignores these tools for managing
flight risk, instead mandating incarceration in every case.

     Before Proposition 100 passed, Arizona had an extensive
bail scheme designed to help ensure that arrestees appear for
trial. See Ariz. Const. art. 2, § 22(A)(3); Ariz. Rev. Stat.
Ann. § 13-3967(B). These procedures already required
judges to consider factors such as “[t]he accused’s family
               LOPEZ-VALENZUELA V. ARPAIO                     29

ties, employment, financial resources,” “length of residence
in the community,” “[w]hether the accused has entered or
remained in the United States illegally” and “[w]hether the
accused’s residence is in this state, in another state or outside
the United States.” Ariz. Rev. Stat. Ann. § 13-3967(B)(4),
(8), (11)–(12). There is no evidence that this set of
regulations, addressing flight risk on a case-by-case basis,
was inadequate to protect the state’s compelling interest in
ensuring undocumented immigrant arrestees’ appearance at
trial. Cf. Demore, 538 U.S. at 520, 528 (noting that Congress
chose a mandatory detention rule only after evidence showed
that individualized screening had failed to address the
problem of convicted criminal detainees in large numbers
failing to appear at their removal hearings). Furthermore,
Arizona added the last two of these considerations –
“[w]hether the accused has entered or remained in the United
States illegally” and “[w]hether the accused’s residence is in
this state, in another state or outside the United States,” Ariz.
Rev. Stat. Ann. § 13-3967(B)(11)–(12) – only in June 2006,
a few months before Proposition 100 was submitted to the
state’s voters. See 2006 Ariz. Legis. Serv. Ch. 380 (H.B.
2580) (West). Arizona gave these provisions no chance to
succeed before resorting to mandatory detention in every
case. Thus, although Judge Tallman’s dissent asserts that
individualized assessments of flight risk have been tried and
failed (Dissent at 53, 62, 65), neither assertion is borne out by
the record.

    The Proposition 100 laws also do not reflect a “widely
shared legislative judgment.” Schall, 467 U.S. at 272. The
federal criminal justice system does not categorically deny
bail to undocumented immigrant arrestees. See generally
30                LOPEZ-VALENZUELA V. ARPAIO

18 U.S.C. § 3142; see id. § 3142(d).9 Most states that
categorically prohibit bail at all do so only for capital
offenses10 or for other very serious crimes.11 Other than


 9
   Pre-adjudication eligibility for bail is also the norm in federal removal
proceedings. See 8 U.S.C. § 1226(a). Federal law mandates detention
during removal proceedings only for “a limited class of deportable aliens
– including those convicted of an aggravated felony.” Demore, 538 U.S.
at 517–18; see 8 U.S.C. § 1226(c).
 10
     See Ala. Const. art. I, § 16; Alaska Const. art. I, § 11; Ark. Const. art.
2, § 8; Cal. Const. art. I, § 12; Colo. Const. art. II, § 19; Conn. Const. art.
I, § 8; Del. Const. art. I, § 12; Idaho Const. art. I, § 6; Kan. Const. Bill of
Rights § 9; Ky. Const. § 16; La. Const. art. I, § 18; Me. Const. art. I, § 10
(current or former capital offenses nonbailable); Minn. Const. art. I, § 7;
Miss. Const. art. 3, § 29; N.J. Const. art. I, ¶ 11; N.D. Const. art. I, § 11;
Ohio Const. art. I, § 9; Okla. Const. art. 2, § 8; Tenn. Const. art. I, § 15;
Tex. Const. art. I, § 11; Wash. Const. art. I, § 20; Wyo. Const. art. 1, § 14.
  11
     See Fla. Const. art. I, § 14 (capital offenses and offenses punishable
by life imprisonment nonbailable); Ill. Const. art. I, § 9 (capital offenses
and offenses punishable by life imprisonment nonbailable); Ind. Const. art.
1, § 17 (murder and treason nonbailable); Md. Code Ann., Crim. Proc.
§ 5-202 (prohibiting pretrial release for an arrestee charged with escaping
from a correctional facility); Mass. Gen. Laws ch. 276, § 20D (capital
offenses and offenses punishable by life imprisonment nonbailable); Mich.
Const. art. I, § 15 (murder, treason, repeat violent felonies and felonies
committed while out on bail, probation or parole for a prior violent felony
nonbailable); Neb. Const. art. I, § 9 (murder, treason and serious sexual
offenses nonbailable); Nev. Const. art. 1, § 7 (capital offenses or murders
punishable by life imprisonment without possibility of parole
nonbailable); N.H. Rev. Stat. Ann. § 597:1-c (offenses “punishable by up
to life in prison” nonbailable); N.M. Const. art. II, § 13 (capital offenses
and certain repeat felony offenders nonbailable); Or. Const. art. I, § 14
(murder and treason nonbailable); Pa. Const. art. I, § 14 (capital offenses
or offenses punishable by life imprisonment nonbailable); R.I. Const. art.
I, § 9 (offenses punishable by life imprisonment, offenses involving
dangerous weapons by arrestees previously convicted of other offenses
and certain controlled substance offenses nonbailable); S.C. Const. art. I,
                  LOPEZ-VALENZUELA V. ARPAIO                             31

Arizona, only Missouri singles out undocumented immigrants
for the categorical denial of bail. See Mo. Ann. Stat.
§ 544.470(2).12 The American Bar Association’s Standards
for Criminal Justice do not make any offenses categorically
nonbailable. They provide that “only defendants charged
with dangerous or violent crimes or, in certain cases, with
other serious crimes, may even be considered for detention,”
and they state that “[a] decision to detain should be made
only upon a clear showing of evidence that the defendant
poses a danger to public safety or a risk of non-appearance
that requires secure detention.” ABA Standards for Criminal
Justice: Pretrial Release 35, 51 (3d ed. 2007).

    In an attempt to establish that the Proposition 100 laws
satisfy due process, the defendants rely heavily on Demore v.
Kim. This reliance is misplaced. Demore did uphold a
categorical denial of bail without an individualized
determination of flight risk or dangerousness for certain


§ 15 (capital offenses, offenses punishable by life imprisonment and
certain violent offenses nonbailable); Utah Const. art. I, § 8 (capital
offenses and felony offenses committed while out on bail, probation or
parole for prior felony offense nonbailable).
    12
        Alabama formerly categorically denied bail to undocumented
immigrants as well, see Ala. Code § 31-13-18(b), but the state has
concluded that § 31-13-18(b) violates the Alabama Constitution, and the
law is no longer in force. See Dismissal Order and Stipulated Permanent
Injunction, Hispanic Interest Coal. of Alabama v. Bentley, No. 5:11-CV-
2484-SLB (N.D. Ala. Nov. 25, 2013), at 2 n.4 (“The State Defendants
further represent that in light of Article 1, Section 16, of the Alabama
Constitution, they understand that Section 19(b) of H.B. 56 (Ala. Code
§ 31-13-18(b)) can only be applied to deny bail to persons arrested for a
capital crime, and cannot be applied to deny bail to individuals arrested for
or charged solely with non-capital crimes, regardless of their immigration
status.”).
32             LOPEZ-VALENZUELA V. ARPAIO

convicted criminal aliens briefly detained during their civil
deportation proceedings. Demore, however, applied rational
basis review, not heightened scrutiny, because it involved
federal regulation of immigration. See Demore, 538 U.S. at
521–28.      Such regulations have to meet only “the
(unexacting) standard of rationally advancing some legitimate
governmental purpose,” Flores, 507 U.S. at 306; see also
Fiallo v. Bell, 430 U.S. 787, 793 (1977); Mathews, 426 U.S.
at 79–80, not the heightened scrutiny required under Salerno.
Demore, moreover, involved a class of detainees who had
already been convicted of serious crimes, see 538 U.S. at 513,
a “very limited” period of detention, id. at 529–30 & n.12,
and extensive evidence and findings establishing the need for
the policy, see id. at 513, 518–20, 528.

    In sum, we hold that the Proposition 100 laws do not
satisfy the heightened substantive due process scrutiny
Salerno requires. Although the state has a compelling interest
in assuring that arrestees, including undocumented
immigrants, appear for trial, Proposition 100 is not carefully
limited to serve that interest.

     We further hold that the laws are facially unconstitutional.
See Wash. State Grange, 552 U.S. at 449. Because
Proposition 100 is not “carefully limited” as Salerno’s
heightened scrutiny test requires, “the entire statute fails
[Salerno’s] decision rule and would thus be invalid in all of
its applications.” Scott A. Keller & Misha Tseytlin, Applying
Constitutional Decision Rules Versus Invalidating Statutes in
Toto, 98 Va. L. Rev. 301, 331 (2012) (emphasis added).
Even persons who could be detained consistent with due
process under a different categorical statute, or who would be
detained under Proposition 100 if it afforded an
individualized determination, could successfully challenge
                  LOPEZ-VALENZUELA V. ARPAIO                             33

the Proposition 100 laws on the same grounds relied on in our
opinion, namely, failure to provide either a valid categorical
exclusion from bail or an individualized determination. See
Foucha, 504 U.S. at 80–83 (invalidating in toto a statute that
categorically required commitment of all people found not
guilty by reason of insanity as a violation of substantive due
process (citing Salerno, 481 U.S. at 747–51, 755)); Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 376 (2010)
(Roberts, C.J., concurring) (explaining that facial invalidation
is appropriate when, “[g]iven the nature of th[e] claim and
defense, . . . any other [plaintiff] raising the same challenge
would also win”); Keller & Tseytlin, supra, at 322 (“[E]very
person has the right not to be subject to an unconstitutional
law – that is, a law that violates a textual decision rule.”).13
There exists, therefore, “‘no set of circumstances . . . under
which [the Proposition 100 laws] would be valid.’” Wash.
State Grange, 552 U.S. at 449 (quoting Salerno, 481 U.S. at
745).




  13
      Keller and Tseytlin explain that “the Supreme Court has created
various constitutional decision rules to enforce the Constitution’s
provisions and constrain lower courts as they adjudicate constitutional
disputes.” Keller & Tseytlin, supra, at 320. The authors identify “two
broad categories of decision rules: textual decision rules and enforcement
decision rules.” Id. at 322. Textual decision rules “require courts to
examine the statutory text enacted by the legislature or the circumstances
surrounding that text’s enactment.” Id. Enforcement decision rules, by
contrast, “direct courts to examine the particular facts surrounding the
executive’s or the judiciary’s enforcement of a statute instead of the
statutory text itself.” Id. at 324. Salerno’s heightened scrutiny substantive
due process test, which we apply here, is a textual decision rule, and
application of such a rule will lead to in toto invalidation where, as here,
“the litigants’ arguments and the courts’ inquiries focused on the entire
statutory coverage.” Id. at 339.
34             LOPEZ-VALENZUELA V. ARPAIO

   Furthermore, the Proposition 100 laws have been fully
implemented, so there is no possibility that Arizona or
Maricopa County will implement them in a narrower,
constitutional manner, cf. Wash. State Grange, 552 U.S. at
450, and the defendants have not suggested any “reasonable”
or “readily apparent” narrowing construction that would
make the laws constitutional, Stenberg v. Carhart, 530 U.S.
914, 944 (2000) (quoting Boos v. Barry, 485 U.S. 312, 330
(1988)) (internal quotation marks omitted)). Accordingly, the
laws are facially unconstitutional.

                               2.

    We next consider whether the Proposition 100 laws
violate substantive due process by imposing punishment
before trial. See Salerno, 481 U.S. at 746. “To determine
whether a restriction on liberty constitutes impermissible
punishment or permissible regulation, we first look to
legislative intent.” Id. at 747. “Unless [the legislature]
expressly intended to impose punitive restrictions, the
punitive/regulatory distinction turns on whether an alternative
purpose to which the restriction may rationally be connected
is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned to it.” Id.
(alterations and internal quotation marks omitted).

    To discern legislative intent, the district court considered
both (1) the legislative record before the Arizona legislature
that passed and referred Proposition 100 to the voters and
(2) statements made during the referendum drive and in
election materials. The court concluded that the legislative
record “suggests that Proposition 100 may have been
motivated by a desire to punish for past crimes, but there is
also evidence that legislators considered the issue of flight
                 LOPEZ-VALENZUELA V. ARPAIO                             35

risk.” Similarly, the court concluded that the “voter materials
contained some official statements reflecting a punitive
purpose, but ultimately the message was mixed.” And the
court ultimately concluded that “the record as a whole does
not support a finding that Proposition 100 was motivated by
an improper punitive purpose.” Given the mixed nature of
the evidence of legislative and voter intent, and the difficulty
in attributing motives to the electorate, we see no reason to
revisit those conclusions on appeal. By assuming without
deciding that Proposition 100 does not have a punitive
purpose, however, we do not minimize the considerable
evidence of punitive intent found in this record.14 There is

  14
      A partial summary of that evidence: State Representative Russell
Pearce, the bill’s sponsor, stated that Proposition 100 “just simply bridges
the gap, a loophole in the law that would allow people who are not in this
country [ ]legally who have no business to be released if they commit any
crime, they have no business being released if they commit no crime, no
additional crime [be]cause they’re already in this country illegally.”
Senate Judiciary Committee Meeting on H.B. 2389 and HCR 2028, 47th
Leg., 1st Regular Sess. (Ariz. 2005). Said Pearce, “[B]ad enough you’re
illegal but you commit a serious crime you ought not to be bondable.” Id.
He added: “[T]his bill targets very simply those who commit serious,
serious [criminal] acts in our community. A very responsible bill to
protect our citizens from those who would enter our country illegally and
commit serious crimes against us . . . .” Id. Rep. Pearce promoted the bill
on the ground that “all illegal aliens in this country ought to be detained,
debriefed and deported.” Id. He reiterated: “If you’re in this country
illegally you ought to be detained [and] deported[.] [E]nd of story,” and
he defended the bill as a “reasonable approach” to border security. Id.
State Representative Ray Barnes expressly promoted the bill on the
assumption that “the mere fact that they’re here undocumented [means]
that the crime has already been committed.” House Judiciary Committee
Meeting on H.B. 2389, 47th Leg., 1st Regular Sess. (Ariz. 2005). State
Senator Jack Harper said, “what part of illegal don’t we understand?
Illegal aliens shouldn’t be able to get bond for anything.” Senate
Judiciary Committee Meeting on H.B. 2389 and HCR 2028, 47th Leg., 1st
Regular Sess. (Ariz. 2005). In a hearing on a bill to implement
36                 LOPEZ-VALENZUELA V. ARPAIO

strong evidence that Proposition 100 was motivated at least
in significant part by a desire to punish undocumented
immigrants for (1) entering and remaining in the country
without authorization and (2) allegedly committing the
charged offense.15

    Nevertheless, assuming that Proposition 100 was adopted
for the permissible regulatory purpose of managing flight
risk, “the punitive/regulatory distinction turns on whether”
Proposition 100 “appears excessive in relation to the
alternative purpose assigned to it.” Salerno, 481 U.S. at 747
(alterations and internal quotation marks omitted). As
discussed earlier, Salerno held that the Bail Reform Act was
not excessive where it addressed a “pressing societal


Proposition 100 after its passage, State Representative John Kavanagh
said: “I’m amazed that we provide bail to anybody who’s arrested for a
crime that’s an illegal alien . . . . I therefore support this bill as a first step
to what we should be really doing and that’s deporting anybody here
illegally.” House Floor Meeting on S.B. 1265, 48th Leg., 1st Regular
Sess. (Ariz. 2007).
     15
       Denying an arrestee bail for either of these reasons would be
impermissible. Being present in the United States without authorization
is not a crime, see Arizona v. United States, 132 S. Ct. at 2505 (“As a
general rule, it is not a crime for a removable alien to remain present in the
United States.”), and even if it were, only the federal government would
be permitted to impose punishment for it, see id. at 2509 (“[I]t would
disrupt the federal framework to put state officers in the position of
holding aliens in custody for possible unlawful presence without federal
direction and supervision.”). And bail could not be denied to punish
arrestees for their charged, but unproven, crimes. See Bell, 441 U.S. at
535 (“[U]nder the Due Process Clause, a [defendant] may not be punished
prior to an adjudication of guilt in accordance with due process of law.”);
Salerno, 481 U.S. at 746 (citing Bell for the proposition that pretrial
detention violates substantive due process when it constitutes
“impermissible punishment before trial”).
               LOPEZ-VALENZUELA V. ARPAIO                    37

problem,” “carefully limit[ed] the circumstances under which
detention may be sought to the most serious of crimes” and
entitled the arrestee to “a prompt detention hearing” at which
an individualized determination of dangerousness was
required. Id. By contrast, Proposition 100 is excessive in
relation to its stated legitimate purpose because it purports to
deal with a societal ill – unmanageable flight risk posed by
undocumented immigrants as a class – that has not been
shown to exist. Even if we assume that a problem exists,
Proposition 100 employs a profoundly overbroad irrebuttable
presumption, rather than an individualized evaluation, to
determine whether an arrestee is an unmanageable flight risk.
As discussed, this mechanism necessarily results in the
deprivation of liberty even where not necessary to ensure
appearance at trial, because undocumented immigrants who
do not pose a flight risk or who pose a manageable one are
categorically denied bail based solely on their status. Given
this severe lack of fit between the asserted nonpunitive
purpose and the actual operation of the law, we conclude that
Proposition 100’s bail provisions are punitive rather than
regulatory. Thus, the Proposition 100 laws facially violate
substantive due process by imposing punishment before trial.

                              IV.

    To conclude, Proposition 100 categorically denies bail or
other pretrial release and thus requires pretrial detention for
every undocumented immigrant charged with any of a broad
range of felonies, regardless of the seriousness of the offense
or the individual circumstances of the arrestee, including the
arrestee’s strong ties to and deep roots in the community.
The defendants maintain that this unusual, sweeping pretrial
detention statute, directed solely at undocumented
immigrants, comports with substantive due process. It does
38             LOPEZ-VALENZUELA V. ARPAIO

not. The Supreme Court has made clear that “[i]n our society
liberty is the norm, and detention prior to trial or without trial
is the carefully limited exception.” Salerno, 481 U.S. at 755.
The “narrowly focuse[d]” pretrial release statute upheld in
Salerno provided a “careful delineation of the circumstances
under which detention will be permitted.” Id. at 750–51. In
contrast, the Proposition 100 laws do not address an
established “particularly acute problem,” are not limited to “a
specific category of extremely serious offenses,” and do not
afford the individualized determination of flight risk or
dangerousness that Salerno deemed essential. Id. at 750.
These laws represent a “scattershot attempt” at addressing
flight risk and are not narrowly tailored to serve a compelling
interest. Id. In addition, and for the same reasons, the
challenged laws are excessive in relation to the state’s
legitimate interest in assuring arrestees’ presence for trial.
They therefore impermissibly impose punishment before an
adjudication of guilt. For these reasons, we hold that the
Proposition 100 laws violate the substantive component of the
Due Process Clause of the Fourteenth Amendment on these
two independent grounds. Because we hold that the laws
facially violate substantive due process, we do not reach the
plaintiffs’ procedural due process, Eighth Amendment, Sixth
                  LOPEZ-VALENZUELA V. ARPAIO                             39

Amendment and preemption claims.16 The judgment of the
district court is reversed.

      REVERSED AND REMANDED.



NGUYEN, Circuit Judge, concurring:

    I agree with the majority that Proposition 100 violates
substantive due process. However, the majority assumes,
without deciding, that Proposition 100 was not motivated by
an improper punitive purpose. I write separately to address
the extraordinary record of legislative intent, which I believe
demonstrates that Proposition 100 was intentionally drafted
to punish undocumented immigrants for their “illegal” status,
even if they pose no flight risk or danger to the community.
This record also sheds light on why the law’s provisions are
excessive in so many respects. Acknowledging the improper


 16
    We disagree with Judge O’Scannlain’s argument that the Proposition
100 laws must be evaluated under the Excessive Bail Clause of the Eighth
Amendment rather than the substantive component of the Due Process
Clause of the Fourteenth Amendment. Dissent at 66–70. The Supreme
Court applied substantive due process review to bail-denial schemes in
Salerno and Schall. Judge O’Scannlain would distinguish those cases on
the ground that they involved the denial of bail for dangerousness rather
than flight risk, but the Supreme Court has never recognized – or even
suggested – that distinction. See, e.g., Zadvydas, 533 U.S. at 690 (citing
Salerno as setting out the general standard for detention in criminal cases);
Foucha, 504 U.S. at 83 (citing Salerno as setting out the general standard
for the “pretrial detention of arrestees”). As Judge O’Scannlain
recognizes, Dissent at 71, the parties also have not “thorough[ly]
brief[ed]” the Eighth Amendment issues. For these reasons, we properly
rely on substantive due process rather than the Eighth Amendment to
address Proposition 100’s constitutionality.
40            LOPEZ-VALENZUELA V. ARPAIO

legislative purpose in this case not only aids our substantive
due process analysis, but also reaffirms our constitutional
commitment to provide due process to all, regardless of
immigration status.

                              I

    The Supreme Court has instructed that “[t]o determine
whether a restriction on liberty constitutes impermissible
punishment or permissible regulation, we first look to
legislative intent.” United States v. Salerno, 481 U.S. 739,
747 (1987) (citing Schall v. Martin, 467 U.S. 253, 269
(1984)). Absent evidence of express intent to punish, the
analysis depends on whether the restrictions are reasonably
connected to a legitimate purpose, and whether they appear
excessive in relation to that purpose. Bell v. Wolfish,
441 U.S. 520, 538–39 (1979); Salerno, 481 U.S. at 747.
However, whether a statute is intended as punitive, or
excessive in relation to some legitimate purpose, are not
analytically distinct inquiries. One informs the other:

       Thus, if a particular restriction of pretrial
       detention is reasonably related to a legitimate
       governmental objective, it does not, without
       more, amount to “punishment.” Conversely,
       if a restriction or condition is not reasonably
       related to a legitimate goal—if it is arbitrary
       or purposeless—a court permissibly may infer
       that the purpose of the governmental action is
       punishment that may not constitutionally be
       inflicted upon detainees qua detainees.

Bell, 441 U.S. at 539 (footnote omitted). Conceptually, this
makes sense. Because the ultimate question is whether or not
              LOPEZ-VALENZUELA V. ARPAIO                    41

a statute constitutes impermissible punishment, we may
consider both what legislators had to say about the law they
crafted, and the extent to which the law was drawn
accordingly.

    Significantly, “the mere invocation of a legitimate
purpose will not justify particular restrictions and conditions
of confinement amounting to punishment.” Schall, 467 U.S.
at 269. Even if the restrictions “serve legitimate regulatory
purposes, it is still necessary to determine whether the terms
and conditions of confinement under [the challenged statute]
are in fact compatible with those purposes.” Id. (citing
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69
(1963)).

    These inquiries do not lend themselves to a rigid,
formulaic approach. Rather, “each case has turned on its own
highly particularized context.” Flemming v. Nestor, 363 U.S.
603, 616 (1960). Where the record of legislative intent is
inconclusive, the Supreme Court has not hesitated to
consider—rather expansively, in fact—the nature and history
of the restraint, among other factors. Mendoza-Martinez,
372 U.S. at 168–69. See also Bell, 441 U.S. at 538 (“The
factors identified in Mendoza-Martinez provide useful
guideposts in determining whether particular restrictions and
conditions accompanying pretrial detention amount to
punishment in the constitutional sense of that word.”).

    The facts of this case illustrate precisely why legislative
intent and tailoring have been considered two sides of the
same coin. I therefore turn to some of the record evidence
that informs my judgment regarding the unconstitutionality
of Proposition 100.
42                LOPEZ-VALENZUELA V. ARPAIO

                                     II

                                     A

     Proposition 100 was sponsored by former State
Representative Russell Pearce. Introducing the bill to the
Senate Judiciary Committee, Representative Pearce noted that
a majority of Americans “want the border secured, [and] our
laws enforced,” and described Proposition 100 as a “very
reasonable approach” to accomplishing those ends.1 Senate
Judiciary Committee Meeting on H.B. 2389 and H.C.R. 2028,
Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). He
described the purpose of Proposition 100: “[W]hen people are
in this country illegally and they commit a serious felony they
ought not to be bondable . . . .” Id. Although he alluded
generally to the supposed dangers that “violent aliens” pose
to the public, he did not cite a single example or any other
evidence of the problem,2 and instead elaborated:


 1
   According to Pearce, Proposition 100 was originally part of a package
of legislation intended to “secure the borders.” The package also
included: the Fair and Legal Employment Act, Ariz. Rev. Stat. § 23-212,
which imposes penalties on employers for hiring undocumented
immigrants; Proposition 102, Ariz. Const. art. II, § 35, a constitutional
amendment to deny undocumented immigrants standing to recover in civil
suits; Proposition 103, Ariz. Const. art. XXVIII, § 2, declaring English as
the official language of Arizona; and Proposition 300, Ariz. Rev. Stat.
§§ 15-191.01, 15-232, 15-1803, 15-1825, 46-801, 46-803, which prohibits
undocumented aliens from receiving child care assistance, and those
enrolled in public community colleges and universities from receiving the
benefit of in-state tuition rates and financial aid, or participating in adult
education classes.
 2
  The record reflects that Proposition 100’s sponsors and supporters also
presumed that undocumented immigrants are categorically more
dangerous than other arrestees. In these proceedings, however, appellees
              LOPEZ-VALENZUELA V. ARPAIO                     43

       I mean, you know bad enough you’re illegal
       but you commit a serious crime you ought not
       to be bondable unless you’re released after
       prosecution, after you do your time to ICE
       and then to be deported. In fact, all illegal
       aliens in this country ought to be detained,
       debriefed, and deported . . . .

Id. He continued:

       Violent criminals in our society who, again,
       may not be brought to justice if they’re
       released and should not be released first of all,
       according to federal law, but they’re to be
       deported, so seriously, they’ve committed [a]
       serious crime, I think that this just simply
       bridges the gap, a loophole in the law that
       would allow people who are not in this
       country [ ]legally who have no business to be
       released if they commit any crime, they have
       no business being released if they commit no
       crime, no additional crime [be]cause they’re
       already in this country illegally.

Id. (emphasis added). Maricopa County Attorney Andrew
Thomas, whose office played a central role in drafting
Proposition 100, also testified before the Committee. Thomas
explained the purpose of the bill as follows:

       I believe it is time to end the first class tickets
       that we have been giving from our jails for


have wisely abandoned this premise because it is completely
unsubstantiated.
44               LOPEZ-VALENZUELA V. ARPAIO

         serious criminals. . . . [C]ertain serious
         criminals currently enjoy this simply because
         of their status as illegal immigrants and I
         believe that we need to take action to put an
         end to this.

Id. In his testimony, Thomas, much like Representative
Pearce, alluded to “numerous examples of serious and violent
criminals that Maricopa County Attorney’s Office has
prosecuted in the past that have escaped justice”—but also
could not cite a single case to support his position.3
Testifying later in these proceedings, Thomas again could not
identify a single such case, and further conceded that his
office did not possess any data or information illustrating the
problem.

    During the same Judiciary Committee hearing, State
Senator Bill Brotherton raised concerns about the breadth of
the bill. Senator Brotherton gave an example—a student who
overstayed his or her visa and was charged with pirating
music online would automatically be denied bail, even though
a judge might not consider such a defendant a flight risk.
Senate Judiciary Committee Meeting on H.B. 2389 and
H.C.R. 2028, Mar. 28, 2005, 47th Leg., 1st Regular Sess.
(Ariz. 2005). Representative Pearce dismissed this concern



  3
    The only specific case Thomas discussed was that of Oscar Garcia
Martinez, who, according to Thomas, was released on bail, and deported
by the federal government, rendering him unavailable to the state. Id.
Sometime later Martinez apparently reentered, and was present at a
confrontation that resulted in the shooting of a police officer by a third
party. Id. However troubling Martinez’s case may be, it certainly does
not demonstrate that undocumented immigrants pose a greater flight risk,
given that it was the federal government that rendered Martinez absent.
               LOPEZ-VALENZUELA V. ARPAIO                    45

as an attempt to “muddy the waters,” id., and reiterated the
intent of the bill:

       The fact that we would continue to try to put
       some veil over what’s really happening and
       try to paint this face of this poor student who
       overstays his visa, everybody knows what this
       is targeting. This is, you know, and my issue
       is very simple. This bill doesn’t go as far as it
       ought to go. This is a very modest bill. If
       you’re in this country illegally you ought to be
       detained, deported[,] end of story.

Id. Similarly, when Senator Brotherton expressed his concern
that altering a lottery ticket ought not to be a non-bondable
offense, State Senator Jack W. Harper interjected:

       To that point, what part of illegal don’t we
       understand? Illegal aliens shouldn’t be able
       to get bond for anything let alone a Class 1, 2,
       or 3 felony. . . . We need to just get off the
       subject of lottery ticket[s] because
       fraudulently altering lottery tickets is a crime
       and they shouldn’t make bail for anything, so
       let’s just move on.

Id. (emphases added). Ultimately, the Committee amended
the legislation to specify that, should the ballot measure pass,
the Legislature would reserve to itself the task of defining
“serious felony offense.” To that end, Representative Pearce
introduced legislation that would define “serious felony
offense” as entailing any class 1, 2, 3, or 4 felony, as well as
aggravated driving under the influence. House Floor Meeting
on H.B. 2580, Mar. 7, 2006, 47th Leg., 2nd Regular Sess.
46               LOPEZ-VALENZUELA V. ARPAIO

(Ariz. 2006). That bill was eventually passed by the
Legislature, and signed into law.

    Months later, Proposition 100 was referred to the state’s
voters. The ballot materials did not inform voters of the
definition of “serious felony offense,” or that it included
many non-violent offenses. Instead, in a statement of support
on the ballot, Representative Pearce warned voters of
“[l]arge, well-organized gangs of illegal aliens,” and the need
to keep such “dangerous thugs in jail rather than releasing
them onto the streets.” Publicity Pamphlet Issued by Janice
K. Brewer, then-Arizona Secretary of State, Ballot
Propositions & Judicial Performance Review, General
Election, Nov. 7, 2006, available at http://www.azsos.gov/
election/2006/info/pubpamphlet/english/Prop100.htm.
Maricopa County Attorney Thomas urged voters4:

         Thanks to an amendment approved
         overwhelmingly by voters in 2002, the
         Arizona Constitution now denies bail to
         defendants accused of rape and child
         molestation. This proposition similarly would
         deny bail to illegal immigrants who pose a
         clear danger to society and who too often use


  4
     Thomas also claimed: “Other examples of illegal immigrants who
made bail and avoided prosecution for serious crimes include accused
child predators, armed robbers, drug dealers and other accused criminals.”
Id. The only example Thomas provided, however, was the case of Oscar
Martinez. See supra at note 3. And, as another legislator later correctly
noted, “[t]hose individuals who are accused of committing heinous crimes
[such as those cited by Proposition 100’s supporters] are already denied
bail under current state statutes . . . .” House Floor Meeting on S.B. 1265,
June 7, 2007, 48th Leg., 1st Regular Sess. (Ariz. 2007) (statement of Rep.
Krysten Sinema).
             LOPEZ-VALENZUELA V. ARPAIO                 47

       our border as an escape route. Our state
       constitution was not intended to “bail out”
       illegal immigration. I urge you to vote yes to
       end this abuse of our criminal justice system.

Id. Don Goldwater, a gubernatorial candidate, placed this
statement on the ballot:

       I commit to you that, as your Governor, I will
       apply all legal measures to protect and defend
       Arizonans from the illegal invasion. This
       Ballot Measure addresses one area that needs
       to be resolved in this fight to secure our
       borders and reduced the level of crime in our
       neighborhoods.

       It is embarrassing to have our state lead the
       nation in crime. Unfortunately, the current
       governor has vetoed ten separate bills sent to
       her desk the legislature that were written to
       protect you from illegal immigration.

Id. By contrast, the sole statement of opposition to
Proposition 100, signed by several individuals, cautioned:

       Prop 100 would . . . create a sub-class of
       people within the justice system based solely
       on race or national origin, and unnecessarily
       penalize people who pose little or no risk to
       the community. This proposition would do
       nothing more than institutionalize bias and
48            LOPEZ-VALENZUELA V. ARPAIO

       discrimination in the justice system, at
       taxpayer expense.

Id. Voters approved the constitutional amendment.

    After the popular vote, follow-on legislation was
introduced that would have lowered the standard of proof
applicable to the determination of immigration status from
“proof evident and presumption great,” to “preponderance of
the evidence.” Pearce rose on the floor of the House to
oppose the bill because, in his view, it did not lower the
standard even further, to “probable cause.” In his opposition,
Pearce repeatedly emphasized the immigrants’ “illegal”
status:

       You don’t need to make that kind of a
       standard for preponderance or anything else to
       the charge[,] they are here illegally . . . . they
       are here illegally, they have no business being
       released no [matter] what the charge in reality
       because they’re a flight risk. They’re here
       illegally. They need to be turned over to ICE
       ....

House Floor Meeting on S.B. 1265, June 7, 2007, 48th Leg.,
1st Regular Sess. (Ariz. 2007). Representative John
Kavanagh raised similar arguments. Id. Ultimately, the
measure to set the burden of proof at “preponderance of the
evidence” failed. Days later, discussing an amendment to
lower the standard to “probable cause,” Representative
Kavanagh explained his support for the latter:

       I’m amazed that we provide bail to anybody
       who’s arrested for a crime that’s an illegal
                 LOPEZ-VALENZUELA V. ARPAIO                           49

         alien. I think anybody, regardless if it’s
         serious or a minor crime[,] should be denied
         bail . . . . We should deny bail to anybody
         here illegally who’s picked up. I therefore
         support this bill as a first step to what we
         should be really doing and that’s deporting
         anybody here illegally.

House Floor Meeting on S.B. 1265, June 13, 2007, 48th Leg.,
1st Regular Sess. (Ariz. 2007). The amendment lowering the
standard of proof to “probable cause” passed.

    While this is by no means an exhaustive survey of the
evidence of punitive intent to be found in the record, the
foregoing summary at least conveys the tenor of the
legislative debates and ballot materials. The hostility directed
toward undocumented immigrants based solely on their status
could not be more obvious.

                                   B

    I acknowledge, of course, that there are references in the
record to flight risk—indisputably, a legitimate objective of
regulation, Salerno, 481 U.S. at 749; Bell, 441 U.S. at
534—and more specifically, the unsupported premise that
undocumented immigrants inherently pose a greater flight
risk than other arrestees.5 But there is nothing unusual about

    5
       For example, in one exchange, Representative Pearce asked:
“[W]ouldn’t you agree that somebody that’s not in this country legally
probably is a greater flight risk than somebody who is, who has roots here
and is a citizen here?” House Floor Meeting on S.B. 1265, June 7, 2007,
48th Leg., 1st Regular Sess. (Ariz. 2007). State Representative Pete Rios,
who previously served as the first Latino president of Arizona’s State
Senate, responded: “I know of some people in this country who don’t have
50               LOPEZ-VALENZUELA V. ARPAIO

a “mixed” legislative record; legislators and voters often take
positions for diverse reasons.

    Indeed, the very concept of legislative intent can be
“elusive,” Mendoza-Martinez, 372 U.S. at 168, and

         [j]udicial inquiries into [legislative] motives
         are at best a hazardous matter, and when that
         inquiry seeks to go behind objective
         manifestations it becomes a dubious affair
         indeed.     Moreover, the presumption of
         constitutionality with which this enactment,
         like any other, comes to us forbids us lightly
         to choose that reading of the statute’s setting
         which will invalidate it over that which will
         save it.

Flemming, 363 U.S. at 617. But recognizing the perils of
second-guessing legislative intent does not relieve us of the
responsibility to ascertain the law’s purpose, particularly here
because, in my view, the overriding legislative intent is so
apparent. See Salerno, 481 U.S. at 747 (in evaluating
restrictions on liberty, “we first look to legislative intent”).

    That there are references to flight risk, as noted by the
dissent, illustrates why the Supreme Court has prescribed a
mutually-reinforcing, twin-pronged framework for analysis.
See Bell, 441 U.S. at 539. To the extent there is any doubt
about the purpose of Proposition 100, the statements in the


proper documentation that probably have deeper roots in the state of
Arizona than I do. They’ve been here for a couple of generations, they’ve
got grandkids, so I mean that, in itself, I think does not determine whether
or not one is a flight risk.” Id.
               LOPEZ-VALENZUELA V. ARPAIO                    51

legislative record further support the conclusion, consistent
with the majority’s analysis of its various provisions, that the
law was intended as punishment.

     This principle rings true at a general level—naturally, the
law’s drafting and design sheds light on its purpose, and vice
versa—but it also informs my analysis of the law’s specific
provisions. For example, a number of Proposition 100’s
excesses, including the evident overbreadth of the critical
term “serious felony offense,” were pointed out to the bill’s
sponsors in Committee. As noted above, Senator Brotherton
drew attention to the specific examples of illegal
downloading and alteration of a lottery ticket to emphasize
the law’s excessive reach. See Senate Judiciary Committee
Meeting on H.B. 2389 and H.C.R. 2028, Mar. 28, 2005, 47th
Leg., 1st Regular Sess. (Ariz. 2005). Yet, Proposition 100’s
sponsors declined to narrow the definition of covered “serious
felonies,” which renders “an exceedingly broad range of
offenses” non-bondable. Maj. Op. at 23. Why Senator
Brotherton’s concerns regarding Proposition 100’s
excessiveness were brushed aside is plain from the
record—because, as expressed by the bill’s supporters,
“illegal aliens” “shouldn’t make bail for anything.” Senate
Judiciary Committee Meeting on H.B. 2389 and H.C.R. 2028,
Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). The
legislative debate over the standard of proof is also
illustrative. Statements such as, “I’m amazed that we provide
bail to anybody who’s arrested for a crime that’s an illegal
alien,” House Floor Meeting on S.B. 1265, June 13, 2007,
48th Leg., 1st Regular Sess. (Ariz. 2007), strongly suggest
that the standard of proof was lowered in order to target
undocumented immigrants as such, without respect to flight
risk.
52                LOPEZ-VALENZUELA V. ARPAIO

    I agree with the majority that we do not affirmatively
require formal legislative findings or other evidence, yet may
find the absence of such a record to be significant.6 Maj. Op.
at 23. I also readily acknowledge that there may be many
cases where the mixed record renders legislative intent too
elusive, or otherwise unknowable. This case, however, is not
one of them. Intentionally meting out pretrial punishment for
charged but unproven crimes, or the nonexistent crime of
being “in this country illegally,”7 is without question, a
violation of due process principles. Mendoza-Martinez,
372 U.S. at 167; Bell, 441 U.S. at 539.

                                     III

    “[I]t is not on slight implication and vague conjecture that
the legislature is to be pronounced to have transcended its
powers, and its acts considered to be void,” Fletcher v. Peck,
6 Cranch 87, 128 (1810) (Marshall, C.J.), and I do not reach
that conclusion lightly.          However, the unequivocal
expressions of penal intent in the record, viewed together
with the excesses of the law’s various provisions, lead me to
conclude that Proposition 100 is facially unconstitutional.



  6
     Nobody disputes that there is no such evidence in the record. The
dissent observes that undocumented immigrants reportedly commit a
disproportionate share of felonies in Arizona. Tallman dissent at 59
(citing Arizona v. United States, 132 S. Ct. 2492, 2500 (2012)). But even
assuming that is true, it does not suggest undocumented immigrants
overall are more likely to flee than other arrestees, nor does it shed light on
the flight risk posed by any given individual defendant.
  7
   The majority correctly points out that, “[a]s a general rule, it is not a
crime for a removable alien to remain present in the United States.”
Arizona, 132 S. Ct. at 2505.
              LOPEZ-VALENZUELA V. ARPAIO                    53

TALLMAN, Circuit Judge, with whom Circuit Judge
O’SCANNLAIN joins, dissenting:

    In striking down Proposition 100, the majority sets aside
the policy judgment of the Arizona legislature and nearly 80
percent of Arizona’s voting electorate, telling the State it
really doesn’t have an illegal immigration problem adversely
affecting its criminal justice system. But Arizonans thought
Proposition 100 was the solution to an ineffective bail system
that was letting too many illegal aliens avoid answering for
their serious felony charges. They were concerned that these
offenders, who often lack community ties, too often skirt
justice by fleeing the state or the country before trial.
Plaintiffs-Appellants Lopez-Valenzuela and Castro-Armenta
are good examples. Between the two of them they were
charged with aggravated assault with a deadly weapon,
kidnapping, theft by extortion, assisting a criminal syndicate,
and transportation of a dangerous drug.

     Today’s holding leaves Arizona nowhere to turn. For
years before Arizona passed Proposition 100, it tried to assess
flight risk based on family ties, employment, and length of
residency in the community on an individualized basis.
Immigration status was assuredly a critical consideration in
this assessment, even well before Proposition 100’s
enactment. The majority ignores reality to suggest otherwise.
Yet despite these individualized flight-risk assessments, the
Maricopa County Attorney explained in 2006 that Arizona
still had a “tremendous problem with illegal immigrants
coming into the state, committing serious crimes, and then
absconding, and not facing trial for their crimes.” Lou Dobbs
Tonight (CNN television broadcast Oct. 13, 2006). Faced
with this continuing problem, Arizona took a logical next step
by denying bail to illegal aliens who commit serious felony
54                LOPEZ-VALENZUELA V. ARPAIO

offenses. Because Proposition 100 is not excessive in relation
to Arizona’s compelling regulatory interest in ensuring that
illegal aliens who commit serious felony offenses stand trial,
I respectfully dissent.

                                      I

                                     A

    The majority’s errors begin with its substantive due
process framework. It applies what it calls “Salerno’s
heightened scrutiny” to Proposition 100. Maj. Op. at 15; see
United States v. Salerno, 481 U.S. 739 (1987). Under this
test, it says, the law survives only when it is “narrowly
tailored to serve a compelling state interest.” Maj. Op. at 17.
This is strict scrutiny. See, e.g., Green v. City of Tucson, 340
F.3d 891, 896 (9th Cir. 2003) (Fisher, J.) (Under “strict
scrutiny,” “the statute will be upheld only if the state can
show that the statute is narrowly drawn to serve a compelling
state interest.”). However, you will not find strict scrutiny
mentioned, let alone applied, anywhere in Salerno.1

    The majority mistakenly applies strict scrutiny by
misreading Salerno, which addressed the consideration of
danger to the community in bail determinations, as holding
that the Bail Reform Act implicated a fundamental liberty
interest. Salerno held just the opposite. The Court

   1
     If you find it peculiar that the Supreme Court would apply strict
scrutiny without telling us, you have good reason. It certainly knows how
to say that it is applying strict scrutiny when it does so. See, e.g., Johnson
v. California, 543 U.S. 499, 507 (2005) (explaining that it is applying
“strict scrutiny”); Bush v. Vera, 517 U.S. 952, 976 (1996) (same); Miller
v. Johnson, 515 U.S. 900, 920 (1995) (same); Bernal v. Fainter, 467 U.S.
216, 227 (1984) (same).
              LOPEZ-VALENZUELA V. ARPAIO                    55

acknowledged that liberty, in its broadest sense, is a
fundamental right. Salerno, 481 U.S. at 750. It explained,
however, that the right asserted in Salerno was more limited;
it was the right to bail after “the Government proves by clear
and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the
community.” Id. at 751. As to that right, the Court said: “we
cannot categorically state that pretrial detention ‘offends
some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.’”
Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105
(1934)). Thus, rather than holding that liberty is a
fundamental right in all instances, the Court held that the
liberty right “under the[] circumstances” of the Bail Reform
Act was not fundamental. Id.

    The Court’s narrow construction of the liberty interest at
stake in Salerno is consistent with its instruction that
“‘[s]ubstantive due process’ analysis must begin with a
careful description of the asserted right, for the doctrine of
judicial self-restraint requires us to exercise the utmost care
whenever we are asked to break new ground in this field.”
Reno v. Flores, 507 U.S. 292, 302 (1993) (citations and
internal quotations omitted). Thus, we must “carefully
formulat[e]” the liberty interest, Washington v. Glucksberg,
521 U.S. 702, 722 (1997), and define it “narrowly,” Flores v.
Meese, 913 F.2d 1315, 1330 (9th Cir. 1990) (emphasis
supplied). Only then can we determine whether the asserted
right is fundamental.

    The majority ignores that instruction and concludes that
the Bail Reform Act and Proposition 100 impinge on some
generalized fundamental liberty right. In fact, the majority
makes no effort to even define the right at stake. But it isn’t
56               LOPEZ-VALENZUELA V. ARPAIO

simply “liberty” as the majority would have it. Rather,
Proposition 100 implicates an arrestee’s alleged right to bail
where the proof is evident or the presumption great that the
arrestee committed a serious felony offense,2 and there is
probable cause to believe the arrestee has entered or remained
in the United States illegally. That is, the right is not merely
to be free from detention, but to be free from detention “under
these circumstances.” Salerno, 481 U.S. at 751.

    In my view, this asserted right is not “so rooted in the
traditions and conscience of our people as to be ranked
fundamental.” Id.; see, e.g., Demore v. Kim, 538 U.S. 510,
522 (2003) (stating, in approving the detention of aliens
awaiting deportation, that “this Court has firmly and
repeatedly endorsed the proposition that Congress may make
rules as to aliens that would be unacceptable if applied to
citizens”); Carlson v. Landon, 342 U.S. 524, 545 (1952)
(“The bail clause was lifted with slight changes from the
English Bill of Rights Act. In England that clause has never
been thought to accord a right to bail in all cases[.]”); United
States v. Edwards, 430 A.2d 1321, 1327 (D.C. App. 1981)
(“[A] fundamental right to bail was not universal among the
colonies or among the early states;” “the language of several
state constitutions explicitly limiting the power of the
judiciary to set excessive bail negates any suggestion that the
excessive bail clause was intended to restrict the definition of
bailable offenses by the legislature.”), cert. denied, 455 U.S.




 2
   “Serious felony offense” is statutorily defined as “any class 1, 2, 3 or
4 felony or [aggravated driving under the influence].” Ariz. Rev. Stat.
Ann. § 13-3961(A)(5)(b).
                 LOPEZ-VALENZUELA V. ARPAIO                            57

1022 (1982). Because the right is not fundamental, strict
scrutiny does not apply.3

                                    B

    Whatever substantive due process standard Salerno
provides—and I concede that there is some ambiguity—
Proposition 100 meets it. Nobody disputes that “Arizona has
a compelling interest in ensuring that persons accused of
serious crimes, including undocumented immigrants, are
available for trial.” Maj. Op. at 19. And Proposition 100 is

  3
    Given that the Court in Salerno said that the right at issue was not
fundamental, id. at 751, and never applied strict scrutiny, how does the
majority divine that strict scrutiny applies to Proposition 100? Apparently
from a couple of fractured Supreme Court opinions that hint, but do not
hold, that Salerno may have meant something it never said. See Flores,
507 U.S. at 302 (including Salerno in a string cite about defining
“substantive due process”); Foucha v. Louisiana, 504 U.S. 71, 80–83
(1992) (discussing Salerno but not elucidating its standard). I am not
convinced.

     Flores cited Salerno merely for the proposition that there is “a
substantive component” to the Constitution’s due process guarantee.
Flores, 507 U.S. at 302–03. Surely the majority would not suggest that
the other cases cited in the same string cite—Collins v. City of Harker
Heights, Tex., 503 U.S. 115 (1992), and Bowers v. Hardwick, 478 U.S.
186 (1986)—applied strict scrutiny to any fundamental right. Moreover,
the page of Salerno cited simply defines “substantive due process”; it does
not mention fundamental rights or strict scrutiny. See 481 U.S. at 746.
Similarly, Foucha cites the same page of Salerno for the same limited
proposition, surrounded by citations to cases that merely describe
substantive due process. 504 U.S. at 80 (citing Zinermon v. Burch,
494 U.S. 113 (1990); Salerno, 481 U.S. at 746; and Daniels v. Williams,
474 U.S. 327 (1986)). True, Foucha discusses Salerno at greater length,
but for the circumstances in which a person can be detained because he
poses “a danger to others or to the community,” not because of flight risk.
Id. at 81.
58               LOPEZ-VALENZUELA V. ARPAIO

“careful[ly] delineat[ed]” and “carefully limited”—it is even
“narrowly focuse[d].” Salerno, 481 U.S. at 750–51, 755.
Several fundamental errors in the majority’s opinion lead it
to conclude otherwise.

    First, by ignoring all evidence to the contrary, the
majority concludes that “unmanageable flight risk posed by
undocumented immigrants . . . has not been shown to exist.”
Maj. Op. at 37. Tell that to the Maricopa County Attorney
who, from his vantage on the front line just a month before
the Proposition 100 vote, thought flight risk among illegal
aliens in Arizona was “a tremendous problem.” Lou Dobbs
Tonight (CNN television broadcast Oct. 13, 2006) (emphasis
supplied).4 The majority insists that the record does not
substantiate this claim, but the claim—by the Maricopa
County Attorney no less—is part of the record.5 It is one
thing for my colleagues to declare that Proposition 100 is an
excessive measure to address Arizona’s flight problem;
reasonable minds can disagree. It is quite another for an
Article III court to tell Arizona, based on this record and
considering the majority vote of the Arizona legislature and
electorate in favor of Proposition 100, that its perceived

     4
     The prosecutor also testified before the Arizona Senate Judiciary
Committee, explaining that there were “numerous examples of serious and
violent criminals that [the] Maricopa County Attorney’s Office has
prosecuted in the past that have escaped justice because they have []
slipped back across the border after they’ve been released.” Senate
Judiciary Committee Meeting on H.B. 2389, Mar. 28, 2005, 47th Leg., 1st
Regular Sess. (Ariz. 2005).
 5
    The majority responds to the Maricopa County Attorney’s statements
by attempting to discredit his testimony through extra-record evidence not
cited to or relied on by any party. Maj. Op. at 22–23, n.6. Of course, the
majority cannot so easily impeach the four out of five Arizona voters who
must live with the problem the majority concludes does not exist.
               LOPEZ-VALENZUELA V. ARPAIO                     59

problem is not really a problem. Maj. Op. at 37. Even the
Arizona courts have concluded that “Proposition 100 reflects
that [the Arizona] electorate and Legislature perceived
pretrial detention as a potential solution to a pressing societal
problem.” Hernandez v. Lynch, 167 P.3d 1264, 1274 (Ariz.
Ct. App. 2007) (internal quotations and citations omitted).
They are the ones who have to live with it.

    Second, the majority takes issue with Proposition 100 not
being a widely shared legislative judgment because few states
categorically deny bail for illegal aliens. Maj. Op. at 29–30.
While factually true, perspective here is critical. As an initial
matter, novelty alone does not render a law unconstitutional.
See Ewing v. California, 538 U.S. 11, 24 (2003) (holding that
defendant’s sentence under California’s novel “three strikes”
law was not unconstitutional). In Ewing, the Supreme Court
explained that “[t]hough three strikes laws may be relatively
new, our tradition of deferring to state legislatures in making
and implementing such important policy decisions is
longstanding.” Id. My colleagues give no deference to the
policy judgment of the Arizona legislature or the democratic
views of the electorate.

    Moreover, we cannot judge this case with blinders on.
Arizona faces unique challenges as one of four states
bordering Mexico. Indeed, “Arizona bears many of the
consequences of unlawful immigration . . . . Unauthorized
aliens who remain in the State comprise, by one estimate,
almost six percent of the population.” Arizona v. United
States, 132 S. Ct. 2492, 2500 (2012). “[I]n the State’s most
populous county, these aliens are reported to be responsible
for a disproportionate share of serious crime.” Id. I find it
hardly surprising that other states have not enacted their own
Proposition 100 laws. Kansas, for example, may have its
60               LOPEZ-VALENZUELA V. ARPAIO

share of illegal immigrants, but certainly not to the extent of
Arizona. More importantly, only four states—Arizona
among them—provide serious felony offenders with such a
quick and convenient route into Mexico.6 Thus, while
Proposition 100 may be relatively unique among the fifty
states, that’s nothing more than a reflection of Arizona’s
unique flight risk problem and geography.

    Third, the majority mistakenly demands “findings,
studies, statistics or other evidence . . . showing that
undocumented immigrants as a group pose either an
unmanageable flight risk or a significantly greater flight risk
than lawful residents.” Maj. Op. at 21. Arizona is not
required to support its legislative judgment with empirical
studies. This is a slippery slope on which the majority is
quick to tread, and one which threatens the delicate balance
between the judiciary and the people we serve.

   While we have imposed empirical fact-finding
requirements in a few contexts,7 those are the exceptions to


  6
     The majority’s argument also ignores a host of practical concerns
facing border states like Arizona, such as the time and expense in trying
to apprehend felony fugitives in Mexico and elsewhere, and the
cumbersome and lengthy extradition process required to bring fugitives
back to Arizona to face justice.
    7
      The most prevalent example is in the context of content-based
regulations under the First Amendment. See Video Software Dealers
Ass’n v. Schwarzenegger, 556 F.3d 950, 962 (9th Cir. 2009). But even in
the First Amendment context, the Supreme Court has explained that “[t]he
quantum of empirical evidence needed to satisfy heightened judicial
scrutiny of legislative judgments will vary up or down with the novelty
and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov’t
PAC, 528 U.S. 377, 378 (2000). I find it neither novel nor implausible
that a border state struggles to prevent serious felony offenders who are
                  LOPEZ-VALENZUELA V. ARPAIO                             61

the rule. See, e.g., Gonzales v. Raich, 545 U.S. 1, 21 (2005)
(“[W]e have never required Congress to make particularized
findings in order to legislate, absent a special concern such as
the protection of free speech.” (citations omitted)). Indeed,
the Supreme Court has explained that “[w]hile Congressional
findings are certainly helpful . . . the absence of particularized
findings does not call into question Congress’ authority to
legislate.” Id. We have never held that a state legislature—
let alone a state’s voting electorate, as here—must prove its
flight-risk concerns with empirical data. Nor have we been
instructed to require supporting data in connection with
pretrial detention schemes—not in Salerno and not in
Demore.8 The majority’s empirical data requirement,
imposed today by judicial fiat, is particularly inappropriate
and dangerous in this case, where Arizona voters passed
Proposition 100 by a whopping 78 percent. See Nixon, 528
U.S. at 394 (observing, even under the heightened
requirements of First Amendment challenges, that a 74-
percent statewide vote passage rate “certainly attested to the



in the country illegally from fleeing before trial. The majority decrees that
Arizonans will just have to live with it.
 8
   In Salerno, the Supreme Court merely mentioned, in a single sentence
and without any hint of a requirement, that Congress made findings in
enacting the Bail Reform Act. 481 U.S. at 750. In Demore, the
respondent argued that Congress had no evidence that individualized bond
hearings would be ineffective, but the Court observed that Congress had
evidence suggesting that permitting discretionary release of aliens pending
their removal hearings would lead to large numbers of deportable criminal
aliens absconding. 538 U.S. at 528. Demore did not hold that
congressional fact-finding was required; but even if we read in such a
requirement, Arizona’s legislators met that requirement by taking
testimony to that effect. See Senate Judiciary Committee Meeting on H.B.
2389, Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005).
62             LOPEZ-VALENZUELA V. ARPAIO

perception” that the challenged law was necessary to remedy
the state’s identified concern).

    Finally, the majority errs by effectively precluding the use
of irrebuttable presumptions in the bail context. Proposition
100 “plainly is not carefully limited,” says the majority,
“because it employs an overbroad, irrebuttable presumption
rather than an individualized hearing” to assess flight risk.
Maj. Op. at 24. That conclusion relies on the premise that
individualized hearings would solve Arizona’s troubles. In
Demore, the Supreme Court upheld a categorical bail
prohibition in part because individualized hearings had
proven unsuccessful. 538 U.S. at 528. Here, like in Demore,
Arizona has already tried determining flight risk on an
individualized basis, considering factors such as family ties,
employment, and length of residency in the community. If
you believe the record—and Plaintiffs-Appellants have given
us no reason not to—the pressing problem of illegal aliens
absconding before trial survived these individualized
hearings. Thus, Proposition 100’s lack of individualized
flight risk determinations cannot render its irrebuttable
presumption excessive. See Demore, 538 U.S. at 528.

    Applying well-established substantive due process
principles to this record reveals that Proposition 100—while
distasteful to some—survives substantive due process review.

                              II

    The majority also errs by finding Proposition 100
impermissibly punitive, although it purports to leave
untouched the district court’s factual conclusion that
Proposition 100 was not intended to impose punitive
restrictions. Salerno provides the two-part test to determine
               LOPEZ-VALENZUELA V. ARPAIO                     63

whether the pretrial detention scheme at issue constitutes
“impermissible punishment or permissible regulation.”
Salerno, 481 U.S. at 747. First, we look to legislative intent
to determine whether the legislature “expressly intended to
impose punitive restrictions.” Id. Second, we ask “whether
an alternative purpose to which the restriction may rationally
be connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned to it.”
Id. (alterations and internal quotation marks omitted). In
other words, in the absence of an express punitive intent, “the
punitive/regulatory distinction turns on” whether the pretrial
detention scheme is “excessive in relation to the regulatory
goal [the legislature] sought to achieve.” Id.

    Reviewing the record as a whole, including legislative
history and election-related materials, it is clear that Arizona
legislators and voters passed Proposition 100 as a regulatory
measure to ensure illegal aliens who commit serious felony
offenses stand trial. But don’t just take my word for it, see
Lopez-Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054,
1060–61 (9th Cir. 2013) (reviewing the record de novo);
District Judge Susan Bolton and the Arizona Court of
Appeals conducted their own independent review of the
record and reached the same conclusion, Lopez-Valenzuela v.
Maricopa Cnty., No. 08-00660, at 10 (D. Ariz. March 29,
2011) (“Having reviewed the voluminous evidence submitted
in this case, the Court finds that the record as a whole does
not support a finding that Proposition 100 was motivated by
an improper punitive purpose.”); Hernandez, 167 P.3d at
1273 (“[W]e hold that the purpose behind Proposition 100
was not to punish illegal aliens, but to prevent them from
fleeing before trial.”). The majority wisely declines to disturb
these findings. Maj. Op. at 35 (“[W]e see no reason to revisit
64            LOPEZ-VALENZUELA V. ARPAIO

those conclusions on appeal.”). Yet my colleagues spend
several pages attempting to impeach them.

    Turning to the second step, we all agree that “Arizona has
a compelling interest in ensuring that persons accused of
serious crimes, including undocumented immigrants, are
available for trial.” Maj. Op. at 19. But the majority
concludes that Proposition 100 is excessive in relation to its
purpose. Maj. Op. at 37. It isn’t.

     Proposition 100, like the Bail Reform Act, “carefully
limits the circumstances under which detention may be
sought.” Salerno, 481 U.S. at 747. Two threshold
requirements must be met before an individual can be denied
bail pursuant to Proposition 100. First, the court must find,
at the arrestee’s initial appearance, that there is probable
cause to believe that the arrestee has entered or remained in
the United States illegally. Ariz. R. Crim. P. 7.2(b). But
more than that, the court must also find that the proof is
evident or the presumption great that the individual
committed a “serious felony offense.” Id.; Ariz. Const. art.
II § 22(4).

    An arrestee is also able to challenge this initial
determination by “mov[ing] for reexamination of the
conditions of release.” Ariz. R. Crim. P. 7.4(b). Upon such
a motion—and whether or not the arrestee alleges new
facts—a hearing must be held on the record “as soon as
practicable but not later than seven days after filing of the
motion.” Id. These procedural and substantive protections
make Proposition 100 far from a “scattershot attempt to
incapacitate those who are merely suspected” of being in the
country illegally or of committing a serious felony offense.
Salerno, 481 U.S. at 750 (emphasis supplied).
                 LOPEZ-VALENZUELA V. ARPAIO                           65

    For years, Arizona tried making individualized flight-risk
determinations for aliens alleged to have committed serious
felony offenses. That system didn’t solve Arizona’s
particularly acute flight-risk problem. Its voters then
overwhelmingly approved Proposition 100 as a measured
response in light of the state’s prior efforts. How can that be
excessive?

                                   III

    The majority does not reach Plaintiffs-Appellants’
remaining claims because it doesn’t have to. However, I
remain convinced that the district court properly awarded
Defendants-Appellees summary judgment on those claims as
well. I stand by the reasons set forth in that opinion. See
Lopez-Valenzuela, 719 F.3d at 1064–1073. For all these
reasons, I respectfully dissent.



O’SCANNLAIN, Circuit Judge, dissenting:

    Today, the majority divines, under the rubric of
substantive due process, that Arizona’s categorical denial of
bail is “excessive” notwithstanding the State’s interest in
mitigating flight risk. Remarkably, the majority scarcely
mentions the Constitution’s command that “[e]xcessive bail
shall not be required.” U.S. Const. amend. VIII.

   I respectfully dissent from our expansion of substantive
due process and neglect of express constitutional text.1

  1
    Because I believe that the majority’s substantive due process analysis
is wrong as well as unnecessary, I also join Judge Tallman’s dissent.
66            LOPEZ-VALENZUELA V. ARPAIO

                               I

                              A

    “[R]eluctant to expand the concept of substantive due
process,” Collins v. City of Harker Heights, Tex., 503 U.S.
115, 125 (1992), the Supreme Court held in Graham v.
Connor, 490 U.S. 386 (1989), that “[w]here a particular
Amendment provides an explicit textual source of
constitutional protection against a particular sort of
government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the
guide for analyzing these claims.” Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 842 (1998) (alteration in original)
(quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)
(plurality opinion of Rehnquist, C.J.)). “Graham . . . requires
that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or 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.7 (1997) (emphasis added) (citing Graham,
490 U.S. at 394).

    The majority flouts this requirement. It “first” analyzes
the Proposition 100 laws under “general substantive due
process principles,” Maj. Op. at 15, 15–34, then considers
whether the Proposition 100 laws violate the specific due
process prohibition on imposing punishment before trial, id.
at 15, 34–37. My colleagues in the majority decline to
consider—ever—whether the Proposition 100 laws violate
the Eighth Amendment. Id. at 38–39 & n.16.
                 LOPEZ-VALENZUELA V. ARPAIO                           67

    One would hardly know, after reading the majority’s
forty-three page opinion—analyzing whether Arizona’s
denial of bail was excessive in light of the flight risk posed by
illegal immigrants—that, under the Eighth Amendment of the
Constitution itself, “[e]xcessive bail shall not be required.”2
Indeed, one might think that “[t]he Court has prohibited
excessive bail.” Maj. Op. at 9 (emphasis added).

                                   B

    To be sure, specific constitutional provisions do not
preclude recognition of substantive due process rights that
touch on related subjects. Lewis, 523 U.S. at 843
(“Substantive due process analysis is therefore inappropriate
in this case only if respondents’ claim is ‘covered by’ the
Fourth Amendment.”); see, e.g., Lanier, 520 U.S. at 272 n. 7
(Graham did “not hold that all constitutional claims relating
to physically abusive government conduct must arise under
either the Fourth or Eighth Amendments.”). Not every
conceivable constitutional dispute regarding bail is resolved
by the Eighth Amendment. But the question whether denying
bail to illegal immigrants based on flight risk is
unconstitutionally excessive is posed, precisely, by the
Excessive Bail Clause. See Stack, 342 U.S. at 4–5.

   The majority relies primarily on United States v. Salerno,
481 U.S. 739 (1987), to justify its substantive due process
inquiry, but I suggest that it has not read that case carefully
enough. Salerno does not excuse the majority’s disregard of



 2
  A sharp-eyed reader might spot the majority’s brief gestures toward the
Eighth Amendment’s prohibition in its discussion of Stack v. Boyle,
342 U.S. 1 (1951). Maj. Op. at 9–10.
68            LOPEZ-VALENZUELA V. ARPAIO

the Eighth Amendment, because this case, unlike Salerno,
concerns detention based on flight risk.

    Two substantive due process arguments against the Bail
Reform Act of 1984 were rejected in Salerno: The Court
analyzed whether “the Due Process Clause prohibits pretrial
detention on the ground of danger to the community.” Id. at
748. And the Court considered whether it was
unconstitutional “because the pretrial detention it authorizes
constitutes impermissible punishment before trial.” Id. at
746. Both claims were grounded in the Court’s substantive
due process precedents; they required the Court to decide
whether the Bail Reform Act violated already established due
process rights. See id. at 749–51 (detention based on
dangerousness) (citing, inter alia, Schall, 467 U.S. 253,
Addington v. Texas, 441 U.S. 418 (1979), and Carlson v.
Landon, 342 U.S. 524 (1952)); id. at 746–47 (punishment
before trial) (citing Bell v. Wolfish, 441 U.S. 520 (1979) and
Schall v. Martin, 467 U.S. 253 (1984)). Neither claim
implicated the Eighth Amendment inquiry proper to this
case—whether the Proposition 100 bail laws are
constitutionally “excessive” based on flight risk.

                              1

    As to its “general substantive due process principles,” the
majority misreads Salerno by conflating detention based on
dangerousness, which the Court considered, with detention
based on flight risk, which the Court did not. In Salerno, the
Court rejected the “categorical imperative”—advanced by the
Second Circuit—that the Due Process Clause “prohibits
pretrial detention on the ground of danger to the community.”
Id. at 748 (emphasis added). Because due process does not
“erect[] an impenetrable ‘wall’” to such detention, the Court
                  LOPEZ-VALENZUELA V. ARPAIO                             69

reasoned “that the present statute providing for pretrial
detention on the basis of dangerousness must be evaluated in
precisely the same manner”—applying means-end scrutiny—
“that we evaluated the laws in the cases discussed above.” Id.
at 748–49 (emphasis added).

    Nothing in Salerno suggests that detention based on flight
risk should be evaluated in the same manner. See id. at 749
(Detainees “concede and the Court of Appeals noted that an
arrestee may be incarcerated until trial if he presents a risk of
flight.”).3 Indeed, the Eighth Amendment secures the specific
right not to be required to post excessive bail in light of flight
risk. See Stack, 342 U.S. at 4–5. The majority’s substantive
due process inquiry is thus inappropriate under Graham. See,
e.g., John Corp. v. City of Houston, 214 F.3d 573, 582 (5th
Cir. 2000) (“The purpose of Graham is to avoid expanding
the concept of substantive due process where another
constitutional provision protects individuals against the
challenged governmental action.”).

                                     2

    The Court’s substantive due process jurisprudence indeed
secures the specific right to be free from punishment before
trial. E.g., Schall, 467 U.S. at 269. But the majority
misapplies that jurisprudence, asking under substantive due
process questions properly considered under the Eighth
Amendment and thereby displacing specific constitutional
text.


  3
     Thus, the distinction between denial of bail for dangerousness and
denial of bail based on flight risk is “recognized” in Salerno itself, contra
Maj. Op. at 39 n.16, the majority’s misinterpreted dicta notwithstanding,
cf. Tallman Dissent at 57 n.3.
70               LOPEZ-VALENZUELA V. ARPAIO

     Our role is to question whether a particular “disability is
imposed for the purpose of punishment.” Bell v. Wolfish,
441 U.S. 520, 538 (1979). To decide whether the legislative
purpose was punitive, in the absence of an “express intent to
punish,” we must discern whether pretrial detention is
“excessive in relation to the alternative purpose assigned [to
it].” Id. Answering that question, Salerno considered the
“incidents of pretrial detention” under the Bail Reform Act—
such as prompt detention hearings and whether pretrial
detainees were housed separately from postconviction
detainees—and concluded that they did not reveal an
improper punitive purpose. 481 U.S. at 747 (emphasis
added). By contrast, the majority here considers the
substance of Proposition 100—categorical denial of
bail—and decides it is excessive notwithstanding the
heightened risk of flight, the very question properly
considered under the Eighth Amendment.4

                                   C

    The Supreme Court tells us not to rely on generalized
substantive due process “because guideposts for responsible
decisionmaking in this unchartered area are scarce and
open-ended.” Collins, 503 U.S. at 125. The majority’s
incautious expansion of substantive due process confirms the


  4
    The majority’s confusion is also evident in what meaning it affords a
finding of “excessiveness.” In Schall, 467 U.S. at 269, and in Salerno,
481 U.S. at 747, excessiveness may indicate an improper punitive purpose.
In the majority’s view, however, “excessiveness” is an independent
constitutional violation under substantive due process. See Maj. Op. at
36–37. Here, the majority assumes “that Proposition 100 was adopted for
the permissible regulatory purpose of managing flight risk.” Id. at 36.
Under substantive due process, that should have been the end of the
inquiry.
                 LOPEZ-VALENZUELA V. ARPAIO                           71

wisdom of such advice. Grounded in neither text nor history,
the majority’s due process inquiry simply replaces legislative
and popular judgment with its own, at least until Arizona
provides sufficiently robust statistical analysis to suit.

       If we must remove “a difficult question of public policy
. . . from the reach of the voters” of Arizona, Schuette v. Coal.
to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014),
we should pay them the respect of grounding our decision in
the textual guarantees of the Constitution, not the nebulous
haze of substantive due process.

                                   II

    The question we ought to have considered is whether the
Eighth Amendment contains any substantive restrictions on
Arizona’s authority to declare certain classes of crimes or
criminals nonbailable, and, if so, whether Proposition 100
violates such restrictions.5 Without thorough briefing on such
questions from the parties, but guided by sparse discussion in
Supreme Court precedent, I offer a tentative answer.

    In Carlson, the Supreme Court rejected the proposition
that the Eighth Amendment required certain detainees to be
admitted to bail:

            The bail clause was lifted with slight
         changes from the English Bill of Rights Act.


  5
   For the purposes of this dissent, I assume the Excessive Bail Clause
has been incorporated against the States. See McDonald v. City of
Chicago, 130 S. Ct. 3020, 3034 & n.12 (2010) (citing Schilb v. Kuebel,
404 U.S. 357, 365 (1971) (noting that the Excessive Bail Clause “has been
assumed to have application to the States”)).
72               LOPEZ-VALENZUELA V. ARPAIO

         In England that clause has never been thought
         to accord a right to bail in all cases, but
         merely to provide that bail shall not be
         excessive in those cases where it is proper to
         grant bail. When this clause was carried over
         into our Bill of Rights, nothing was said that
         indicated any different concept. The Eighth
         Amendment has not prevented Congress from
         defining the classes of cases in which bail
         shall be allowed in this country.

342 U.S. 524, 545–46 (1952) (emphasis added) (footnotes
omitted). In Salerno, the Court reserved the question
“whether the Excessive Bail Clause speaks at all to Congress’
power to define the classes of criminal arrestees who shall be
admitted to bail.” 481 U.S. at 754.6

    As noted in Carlson, the Eighth Amendment echoes the
English Bill of Rights of 1689. Compare U.S. Const. amend.
VIII (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”),
with English Bill of Rights 1689 (declaring that “excessive
bail ought not to be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted”). But “bail was
not an absolute right in England.” William F. Duker, The
Right to Bail: A Historical Inquiry, 42 Albany L. Rev. 33, 77
(1977). The English Bill of Rights did not restrain Parliament


  6
    Lopez and Castro rely, as did the detainees in Salerno, on Stack’s
dictum that “[b]ail set at a figure higher than an amount reasonably
calculated to [to assure the presence of the accused] is ‘excessive’ under
the Eighth Amendment.” 342 U.S. at 5. But that standard addresses how
the Eighth Amendment constrains courts. It does not answer how, if at all,
the Amendment constrains legislatures.
               LOPEZ-VALENZUELA V. ARPAIO                     73

from declaring which classes of crimes were bailable. See
Hermine Herta Meyer, Constitutionality of Pretrial
Detention, 60 Geo. L. J. 1139, 1155–58 (1972); see also
Duker, supra, at 81. Of course, “that Parliament classified
certain offenses as nonbailable is not an absolute indication
that Congress was to enjoy the same power” under the Eighth
Amendment, “to define bailable and nonbailable offenses.”
Hunt v. Roth, 648 F.2d 1148, 1159 (8th Cir. 1981), vacated
sub nom. Murphy v. Hunt, 455 U.S. 478 (1982).

    Early American constitutions suggest, nonetheless, that
their prohibitions of “excessive bail” limited the judiciary, not
the legislature. E.g., Md. Const. of 1776, § 22 (“That
excessive bail ought not to be required . . . by the courts of
law.”); N.H. Const. of 1784, art. I, § 33 (“No magistrate or
court of law shall demand excessive bail or sureties . . . .”);
see generally, Duker, supra, at 79–83. “[B]y the time of the
formulation of the Bill of Rights by the first Congress of the
United States, the experience in America had been to grant
bail in cases which were bailable, as determined by the
legislature.” Id. at 83 (emphasis added). Legislatures were
free to declare horse stealing, for example, bailable or not.
Compare Caleb Foote, The Coming Constitutional Crisis:
Part I, 113 U. Pa. L. Rev. 959, 976–77 (1965) (describing the
failure by one vote of Jefferson’s bill to render horse theft
bailable), with Duker, supra, at 82 & n. 293 (noting that
Georgia’s legislature denied bail for horse stealing despite
constitutional guarantee that “excessive bail” shall not be
“demanded”).

    The First Congress’s debates over the Bill of Rights
contain no hint that the originally understood meaning of the
Eighth Amendment’s Excessive Bail Clause was any
different from the right guaranteed by the same words in the
74               LOPEZ-VALENZUELA V. ARPAIO

English Bill of Rights or the State constitutions. Carlson,
342 U.S. at 545 & n. 44; see also Duker, supra, at 85–86.

    I tentatively conclude, therefore, based on the text of the
Constitution and the history of the right to bail, that the
Eighth Amendment secures a right to reasonable bail where
a court has discretion to grant bail. Cf. Ex parte Watkins,
32 U.S. (7 Pet.) 568, 573–74 (1833) (Story, J.) (“The [E]ighth
[A]mendment is addressed to courts of the United States
exercising criminal jurisdiction, and is doubtless mandatory
to them and a limitation upon their discretion.”). It does not,
however, restrict legislative discretion to declare certain
crimes nonbailable. See Duker, supra, at 86–87 (“Although
the amendment limits the discretion of the courts in setting
bail, Congress is free to determine the cases for which bail
shall be allowed, or whether it shall be allowed at all.”);
Meyer, supra, at 1194 (The Constitution “reserved for
Congress the right to make legislative changes [to bail]
whenever required by changed circumstances.”). I have
found no evidence to suggest that the Excessive Bail Clause,
as originally understood, limited legislative discretion.7




 7
   Even Professor Foote, foremost proponent of the view that the Eighth
Amendment was “meant to provide a constitutional right to bail,”
conceded that “the underlying right to the remedy of bail itself . . . was
omitted” from the Constitution, albeit through “inadvertence.” Foote,
supra, at 968, 987. I agree with the perceptive law student who dismissed
Foote’s argument as supported by “little more than speculation about the
workings of the minds of George Mason and the Framers,” and “flawed”
speculation at that. Donald B. Verrilli, Jr., Note, The Eighth Amendment
and the Right to Bail: Historical Perspectives, 82 Colum. L. Rev. 328, 340
(1982).
                LOPEZ-VALENZUELA V. ARPAIO                         75

                                 III

    During Congress’s debates on the Bill of Rights, the only
comment on the Excessive Bail Clause was by Samuel
Livermore, Representative for New Hampshire, “who
remarked: ‘The clause seems to have no meaning to it, I do
not think it necessary. What is meant by the terms excessive
bail? Who are the judges . . . ?’”8 Ignoring the first question,
regrettably, the majority firmly answers the second: “We
are.”

    On the majority’s chosen ground, Judge Tallman has the
better of the argument, so I happily join his dissent. But I
regret the majority’s impulse to clash in the terra incognitia
of substantive due process. Guided by text and history, we
might have found surer footing by applying the Excessive
Bail Clause.

    I respectfully dissent.




  8
    Duker, supra, at 86 (quoting 1 Cong. Deb. 754 (Gales & Seaton eds.
1834)).
