U.S. District Court U.S. District Court for the Northern District of Oklahoma (Tulsa)
CIVIL DOCKET FOR CASE #: 4:18-cv-00298-CVE-JFJ

Feltz v. Regalado et al Assigned to: Judge Claire V Eagan Referred to: Magistrate Judge Jodi F Jayne Cause: 42:1983 Civil Rights Act

Date Filed: 06/06/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Michael Parga TERMINATED: 04/24/2020

represented by Michael Parga deceased PRO SE

Akeeb Dami Animashaun Civil Rights Corps (Ste 200) 910 17TH ST NW STE 200 WASHINGTON, DC 20006 202-670-9541 Email: dami@civilrightscorps.org TERMINATED: 08/15/2019 LEAD ATTORNEY

Alexander Karakatsanis Civil Rights Corps 910 17TH ST NW STE 200 WASHINGTON, DC 20006 202-681-2409 Fax: 202-609-8030 Email: alec@civilrightscorps.org TERMINATED: 02/21/2020 LEAD ATTORNEY

Alexandria Twinem Civil Rights Corps 1601 Connecticut Avenue NW Suite 800 Washington, DC 20009 202-894-6126 Email: alexandria@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Lewis Gerstein Civil Rights Corps 910 17TH ST NW STE 200 WASHINGTON, DC 20006 202-670-9541 Email: charlie@civilrightscorps.org TERMINATED: 02/21/2020 LEAD ATTORNEY
Hayley Elizabeth Horowitz Still She Rises, Inc. 567 East 36th Street North Tulsa, OK 74106 918-392-0883 Email: hayleyh@stillsherises.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Michelle Saleh Still She Rises 567 E 36TH ST N TULSA, OK 74106 918-392-0867 Fax: 918-392-0865 Email: kristinas@stillsherises.org TERMINATED: 02/21/2020 LEAD ATTORNEY
Laura Gaztambide Arandes Civil Rights Corps 1601 Connecticut Ave NW Suite 800 Washington, DC 20009 202-894-6134 Email: arandes@civilrightscorps.org TERMINATED: 02/21/2020 LEAD ATTORNEY
Ruth Ellen Lando Hamilton Still She Rises 567 E 36TH ST N TULSA, OK 74106 918-392-0867 Fax: 918-392-0865 Email: ruthh@stillsherises.org TERMINATED: 08/15/2019

Plaintiff Richard Feltz

LEAD ATTORNEY
Ryan Downer Civil Rights Corps (Ste 200) 910 17TH ST NW STE 200 WASHINGTON, DC 20006 202-844-4975 Fax: 202-609-8030 Email: ryan@civilrightscorps.org TERMINATED: 02/21/2020 LEAD ATTORNEY
represented by Akeeb Dami Animashaun (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Alexander Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandria Twinem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison Holt Hogan Lovells US LLP 555 13th Street Nw Washington, DC 20004 202-637-5600 Email: allison.holt@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hayley Elizabeth Horowitz (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Kristina Michelle Saleh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Gaztambide Arandes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Anne Kisloff Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 202-637-6631 Email: michelle.kisloff@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phoebe Anne Kasdin Still She Rises 567 E. 36th St. North Tulsa, OK 74106 918-392-0867 Email: phoebek@stillsherises.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ellen Lando Hamilton (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Ryan Downer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vassi Iliadis Hogan Lovells US LLP 1999 Avenue of the Stars Suite 1400

Plaintiff Tara O'Donley TERMINATED: 04/24/2020
Plaintiff Christopher Wood on behalf of themselves and all others similarly situated TERMINATED: 04/24/2020

Los Angeles, CA 90067 310-785-4640 Email: vassi.iliadis@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Akeeb Dami Animashaun (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Alexander Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Hayley Elizabeth Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ellen Lando Hamilton (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Ryan Downer (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
represented by Akeeb Dami Animashaun (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Alexander Karakatsanis (See above for address)

V. Defendant Tulsa County TERMINATED: 10/22/2018
Defendant Vic Regalado Tulsa County Sheriff, in his official capacity

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Hayley Elizabeth Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ellen Lando Hamilton (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
Ryan Downer (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY
represented by Douglas Allen Wilson District Attorney's Office (Tulsa900) 500 S DENVER AVE STE 900 TULSA, OK 74103-3832 918-596-8795 Fax: 918-596-4804 Email: douglas.wilson@tulsacounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Majors Hall District Attorney's Office (Tulsa800) 500 S DENVER STE 800

Defendant
Terry H Bitting in his capacity as Tulsa County Special Judge

TULSA, OK 74103 918-596-4845 Fax: 918-596-4804 Email: khall@tulsacounty.org TERMINATED: 01/04/2019 LEAD ATTORNEY
James Griffin Rea District Attorney's Office (Tulsa800) 500 S DENVER STE 800 TULSA, OK 74103 918-596-8795 Fax: 918-596-4804 Email: jrea@tulsacounty.org ATTORNEY TO BE NOTICED
represented by Devan A Pederson Office of the Attorney General (OKC-313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405-522-2931 Fax: 405-521-4518 Email: Devan.Pederson@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore Oklahoma Attorney General 313 NE 21st Street Oklahoma City Oklahoma City, OK 73105 405-521-3921 Email: erin.moore@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson Office of the Attorney General (OKC-313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105

Defendant Tammy Bruce in her capacity as Tulsa County Special Judge
Defendant Martha Rupp Carter in her capacity as Tulsa County Special Judge
Defendant Stephen R Clark in his capacity as Tulsa County Special Judge

405-521-4274 Fax: 405-521-4518 Email: stefanie.lawson@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY

Defendant Theresa Dreiling in her capacity as Tulsa County Special Judge
Defendant Owen Evens in his capacity as Tulsa County Special Judge
Defendant James W Keeley in his capacity as Tulsa County Special Judge

ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address)

Defendant Deborah Ludi Leitch in her capacity as Tulsa County Special Judge
Defendant J Anthony Miller in his capacity as Tulsa County Special Judge
Defendant Dawn Moody in her capacity as Tulsa County Special Judge

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore

Defendant Millie Otey in her capacity as Tulsa County Special Judge
Defendant Kirsten Pace in her capacity as Tulsa County Special Judge
Defendant April Seibert in her capacity as Tulsa County Special Judge

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Clifford Smith in his capacity as Tulsa County Special Judge
Defendant Sarah Smith in her capacity as Tulsa County Special Judge
Defendant William Musseman in his capacity as Tulsa County District Court Judge TERMINATED: 05/11/2020

Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Board of County Commissioners of the County of Tulsa
Defendant Presiding Judge William D LaFortune
Movant Bill Hiddle

Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Allen Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Majors Hall (See above for address) TERMINATED: 01/04/2019 LEAD ATTORNEY
James Griffin Rea (See above for address) ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant David Guten
Movant Jari Askins Non-Party
Movant Ashton Dennis

represented by Erin Morgan Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie Erin Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeb Emmet Joseph Office of the Attorney General (OKC-313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405-521-3921 Fax: 405-521-4518 Email: jeb.joseph@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandria Twinem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison Holt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hayley Elizabeth Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Anne Kisloff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phoebe Anne Kasdin

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vassi Iliadis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/06/2018 06/06/2018 06/06/2018 06/06/2018
06/06/2018 06/07/2018
06/07/2018 06/07/2018

# Docket Text
1 CIVIL COVER SHEET by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Hamilton, Ruth) (Entered: 06/06/2018)
2 COMPLAINT against All Defendants (paid $400 filing fee; receipt number 1085-1924730) by Richard Feltz, Michael Parga, Tara O'Donley, Christopher Wood (Hamilton, Ruth) (Entered: 06/06/2018)
3 MOTION for Class Action Certification by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Hamilton, Ruth) (Entered: 06/06/2018)
4 MOTION for Attorney(s) Akeeb Dami Animashaun to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number 1085-1924795) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (With attachments) (Hamilton, Ruth) Modified on 6/7/2018 to add filers not selected at filing (sac-qc, Dpty Clk). (Entered: 06/06/2018)
5 MOTION for Attorney(s) Charles Gerstein to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number 1085-1924801) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (With attachments) (Hamilton, Ruth) (Entered: 06/06/2018)
NOTICE of Docket Entry Modification; Error: not all filers were selected; Correction: added Michael Parga, Christopher Wood as filers (Re: 4 MOTION for Attorney(s) Akeeb Dami Animashaun to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number 10851924795) ) (sac-qc, Dpty Clk) (Entered: 06/07/2018)
6 MOTION for Attorney(s) Hayley Horowitz to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number 1085-1925062) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (With attachments) (Hamilton, Ruth) (Entered: 06/07/2018)
7 ORDER by Judge Claire V Eagan (re Attys Akeeb Dami Animashaun, Charles Gerstein, and Hayley Horowitz for plaintiffs) ; granting 4 Motion for Admission Pro Hac Vice; granting 5 Motion for Admission Pro Hac Vice; granting 6 Motion for Admission Pro Hac Vice (RGG, Chambers) (Entered: 06/07/2018)

06/11/2018 06/19/2018 06/19/2018 06/25/2018 06/25/2018 06/25/2018 06/25/2018 07/09/2018 07/09/2018 07/09/2018
07/09/2018
07/09/2018

8 SUMMONS Issued by Court Clerk as to All Defendants (jln, Dpty Clk) (Entered: 06/11/2018)
9 MOTION for Attorney(s) Alec Karakatsanis to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number 1085-1928961) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (With attachments) (Animashaun, Akeeb) (Entered: 06/19/2018)
10 ORDER by Judge Claire V Eagan (re Atty Alec Karakatsanis for plaintiffs) ; granting 9 Motion for Admission Pro Hac Vice (RGG, Chambers) (Entered: 06/19/2018)
11 SUMMONS Returned Executed re: Tulsa County (Re: 2 Complaint ) by Richard Feltz, Michael Parga, Tara O'Donley, Christopher Wood (Horowitz, Hayley) (Entered: 06/25/2018)
12 SUMMONS Returned Executed re: Vic Regalado (Re: 2 Complaint ) by Richard Feltz, Michael Parga, Tara O'Donley, Christopher Wood (Horowitz, Hayley) (Entered: 06/25/2018)
13 SUMMONS Returned Executed re: William Musseman (Re: 2 Complaint ) by Richard Feltz, Michael Parga, Tara O'Donley, Christopher Wood (Horowitz, Hayley) (Entered: 06/25/2018)
14 SUMMONS Returned Executed re: Dawn Moody (Re: 2 Complaint ) by Richard Feltz, Michael Parga, Tara O'Donley, Christopher Wood (Horowitz, Hayley) (Entered: 06/25/2018)
15 ATTORNEY APPEARANCE by Douglas Allen Wilson on behalf of Vic Regalado [Note: Attorney Douglas Allen Wilson added to party Vic Regalado(pty:dft).] (Wilson, Douglas) (Entered: 07/09/2018)
16 Unopposed MOTION for Extension of Time to Answer (Re: 2 Complaint ) by Vic Regalado (Wilson, Douglas) (Entered: 07/09/2018)
17 MINUTE ORDER by Judge Claire V Eagan : It is hereby ordered that Defendant Vic Regalado, Tulsa County Sheriff, in his official capacity, is granted an additional 21 days to 8-8-2018 to file his answer or other pleading in response to plaintiffs' class action complaint ; granting 16 Motion for Extension of Time to Answer (This entry is the Official Order of the Court. No document is attached.) (djh, Dpty Clk) (Entered: 07/09/2018)
18 ATTORNEY APPEARANCE by Stefanie Erin Lawson on behalf of Dawn Moody, William Musseman [Note: Attorney Stefanie Erin Lawson added to party Dawn Moody(pty:dft), Attorney Stefanie Erin Lawson added to party William Musseman(pty:dft).] (Lawson, Stefanie) (Entered: 07/09/2018)
19 Unopposed MOTION to Accelerate/Extend/Reset Hearings/DeadlinesTO FILE RESPONSIVE PLEADING by Dawn Moody, William Musseman

07/10/2018
07/10/2018 07/13/2018 08/03/2018 08/08/2018
08/08/2018

(Lawson, Stefanie) Modified on 7/10/2018 to change event(sac-qc, Dpty Clk). (Entered: 07/09/2018)
20 MINUTE ORDER by Judge Claire V Eagan that defendants Dawn Moody and William Musseman's unopposed motion to extend time is granted. Said defendants shall file their answer or other responsive pleading no later than 8/8/2018. ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 8/8/2018); granting 19 Motion to Accelerate/Extend/Reset Settlement Deadline(s)/Conference (Re: 2 Complaint ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 07/10/2018)
NOTICE of Docket Entry Modification; Error: wrong event selected (Motion to Accelerate/Extend/Reset Settlement Deadlines/Conference); Correction: changed event (Motion to Accelerate/Extend/Reset Hearings/Deadlines) (Re: 19 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) (sac-qc, Dpty Clk) (Entered: 07/10/2018)
21 ATTORNEY APPEARANCE by Kimberly Majors Hall on behalf of Vic Regalado [Note: Attorney Kimberly Majors Hall added to party Vic Regalado(pty:dft).] (Hall, Kimberly) (Entered: 07/13/2018)
22 ANSWER (Re: 2 Complaint ) by Vic Regalado (Wilson, Douglas) (Entered: 08/03/2018)
23 ATTORNEY APPEARANCE by Stefanie Erin Lawson on behalf of Terry H Bitting, Tammy Bruce, Owen Evens, James W Keeley, J Anthony Miller, Kirsten Pace, April Seibert, Clifford Smith [Note: Attorney Stefanie Erin Lawson added to party Terry H Bitting(pty:dft), Attorney Stefanie Erin Lawson added to party Tammy Bruce(pty:dft), Attorney Stefanie Erin Lawson added to party Owen Evens(pty:dft), Attorney Stefanie Erin Lawson added to party James W Keeley(pty:dft), Attorney Stefanie Erin Lawson added to party J Anthony Miller(pty:dft), Attorney Stefanie Erin Lawson added to party Kirsten Pace(pty:dft), Attorney Stefanie Erin Lawson added to party April Seibert(pty:dft), Attorney Stefanie Erin Lawson added to party Clifford Smith(pty:dft).] (Lawson, Stefanie) (Entered: 08/08/2018)
24 MOTION to Dismiss by Terry H Bitting, Tammy Bruce, Owen Evens, James W Keeley, J Anthony Miller, Dawn Moody, William Musseman, Kirsten Pace, April Seibert, Sarah Smith [Note: Attorney Stefanie Erin Lawson added to party Sarah Smith(pty:dft).] (Lawson, Stefanie)On 10/19/2018 additional moving defendants Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, and Clifford Smith added to motion per minute order [Dkt.#31](djh, Dpty Clk). (Entered: 08/08/2018)

08/29/2018 09/12/2018 10/09/2018
10/09/2018 10/10/2018
10/10/2018 10/18/2018 10/19/2018

25 RESPONSE in Opposition to Motion to Dismiss (Re: 24 MOTION to Dismiss ) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood ; (Animashaun, Akeeb) (Entered: 08/29/2018)
26 REPLY to Response to Motion (Re: 24 MOTION to Dismiss ) by Terry H Bitting, Tammy Bruce, Owen Evens, James W Keeley, J Anthony Miller, Dawn Moody, William Musseman, Kirsten Pace, April Seibert, Sarah Smith ; (With attachments) (Lawson, Stefanie) (Entered: 09/12/2018)
27 ATTORNEY APPEARANCE by Stefanie Erin Lawson on behalf of Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, Clifford Smith [Note: Attorney Stefanie Erin Lawson added to party Martha Rupp Carter(pty:dft), Attorney Stefanie Erin Lawson added to party Stephen R Clark(pty:dft), Attorney Stefanie Erin Lawson added to party Theresa Dreiling(pty:dft), Attorney Stefanie Erin Lawson added to party Deborah Ludi Leitch(pty:dft), Attorney Stefanie Erin Lawson added to party Millie Otey(pty:dft).] (Lawson, Stefanie) (Entered: 10/09/2018)
28 First MOTION for Hearing by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Horowitz, Hayley) (Entered: 10/09/2018)
29 MINUTE ORDER by Judge Claire V Eagan - that the motion for hearing 28 is denied without prejudice to refiling after ruling on the motion to dismiss 24 ; discovery is stayed pending that ruling; counsel for plaintiffs is directed to properly name and serve County defendant. ; denying 28 Motion for Hearing (Re: 11 Summons Returned Executed, 2 Complaint, 28 First MOTION for Hearing , 24 MOTION to Dismiss ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) Modified on 10/10/2018 (pll, Dpty Clk). (Entered: 10/10/2018)
NOTICE of Docket Entry Modification; Error: typographical error; Correction: correct text to read: that the motion for hearing 28 is denied without prejudice to refiling after ruling on the motion to dismiss 24 ; discovery is stayed pending that ruling; counsel for plaintiffs is directed to properly name and serve County defendant (Re: 29 Minute Order,,,,,, Ruling on Motion for Hearing,, ) (pll, Dpty Clk) (Entered: 10/10/2018)
30 JOINDER in Motion (Re: 24 MOTION to Dismiss ) by Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Deborah Ludi Leitch (Lawson, Stefanie) Modified on 10/19/2018 to correct event and remove filers selected in error (srt, Dpty Clk). (Entered: 10/18/2018)
NOTICE of Docket Entry Modification; Error: wrong event (Motion to Amend); filers selected in error; Correction: corrected event (Joinder in Motion) and removed filers selected in error (Re: 30 JOINDER in Motion ) (srt, Dpty Clk) (Entered: 10/19/2018)

10/19/2018 10/22/2018 10/24/2018 10/24/2018 10/25/2018 10/31/2018

31 MINUTE ORDER by Judge Claire V Eagan : It is hereby ordered that Defendants' Unopposed Motion to Amend the Motion to Dismiss [Dkt. #30] is granted. Defendants' Motion to Dismiss [Dkt. #24] is hereby amended without objection to add defendants Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, and Clifford Smith as additional moving parties. ; granting 30 Joinder in Motion (Re: 24 MOTION to Dismiss ) (This entry is the Official Order of the Court. No document is attached.) (djh, Dpty Clk) (Entered: 10/19/2018)
32 First AMENDED COMPLAINT against Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, Vic Regalado, April Seibert, Clifford Smith, Sarah Smith, Board of County Commissioners for the County of Tulsa (Re: 2 Complaint ) by Richard Feltz, Michael Parga, Tara O'Donley, Christopher Wood (Horowitz, Hayley) (Entered: 10/22/2018)
33 MINUTE ORDER by Judge Claire V Eagan - 32 First Amended Complaint was filed at the Court's direction to correct name of first named defendant, Board of County Commissioners of the County of Tulsa; 24 motion to dismiss remains under advisement and will be deemed a motion to dismiss 32 ., taking motion(s) under advisement (Re: 32 Amended Complaint, 29 Minute Order,,,,,, Ruling on Motion for Hearing,, 24 MOTION to Dismiss ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 10/24/2018)
34 Unopposed MOTION for Extension of Time to Respond to Motion (Re: 3 MOTION for Class Action Certification ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, Vic Regalado, April Seibert, Clifford Smith, Sarah Smith (Lawson, Stefanie) (Entered: 10/24/2018)
35 MINUTE ORDER by Judge Claire V Eagan - 34 is granted; response to 3 due 30 days following ruling on 24 . ; striking/terminating deadline(s)/Hearing(s); granting 34 Motion for Extension of Time to Respond to Motion (Re: 3 MOTION for Class Action Certification , 29 Minute Order,,,,,, Ruling on Motion for Hearing,, 24 MOTION to Dismiss , 33 Minute Order,,,,,, Taking Motion(s) Under Advisement,, ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 10/25/2018)
36 First MOTION for Attorney(s) Ryan C. Downer to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number 1085-1977061) by Richard

11/01/2018 11/02/2018 11/02/2018 11/19/2018
11/19/2018 11/19/2018 12/11/2018
01/02/2019 01/02/2019

Feltz, Tara O'Donley, Michael Parga, Christopher Wood (With attachments) (Animashaun, Akeeb) (Entered: 10/31/2018)
37 ORDER by Judge Claire V Eagan (re Atty R. Downer for plaintiffs); directing counsel to correct case caption on future pleadings. ; granting 36 Motion for Admission Pro Hac Vice (Re: 32 Amended Complaint, ) (RGG, Chambers) (Entered: 11/01/2018)
38 ANSWER (Re: 32 Amended Complaint, ) by Vic Regalado (Wilson, Douglas) (Entered: 11/02/2018)
39 ANSWER (Re: 32 Amended Complaint, ) by Board of County Commissioners of the County of Tulsa [Note: Attorney Douglas Allen Wilson added to party Board of County Commissioners of the County of Tulsa(pty:dft).] (Wilson, Douglas) (Entered: 11/02/2018)
40 OPINION AND ORDER by Judge Claire V Eagan that moving defendants' motion to dismiss (Dkt. # 24) is declared moot. Plaintiffs' motion for class certification (Dkt. # 3) is declared moot. Plaintiffs' amended complaint (Dkt. # 32) is dismissed without prejudice as moot. ; finding as moot 24 Motion to Dismiss; finding as moot 3 Motion for Class Action Certification (Re: 32 Amended Complaint, ) (RGG, Chambers) Modified on 3/18/2019 - VACATED per 48 (sac-qc, Dpty Clk). (Entered: 11/19/2018)
41 JUDGMENT by Judge Claire V Eagan (JUDGMENT OF DISMISSAL), dismissing/terminating case (terminates case) (Re: 40 Opinion and Order,,,, Ruling on Motion to Dismiss,, Ruling on Motion for Class Action Certification, ) (RGG, Chambers) Modified on 3/18/2019 VACATED per 48 (sac-qc, Dpty Clk). (Entered: 11/19/2018)
***Civil Case Terminated (see document number 41 ) (sac-qc, Dpty Clk) (Entered: 11/19/2018)
42 MOTION to Reconsider Order and Judgment Dismissing Case as Moot and Denying Class Certification Motion, MOTION to Alter Order/Judgment (Re: 40 Opinion and Order,,,, Ruling on Motion to Dismiss,, Ruling on Motion for Class Action Certification, 41 Judgment,, Dismissing/Terminating Case ) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (With attachments) (Gerstein, Charles) (Entered: 12/11/2018)
43 RESPONSE in Opposition to Motion (Re: 42 MOTION to Reconsider Order and Judgment Dismissing Case as Moot and Denying Class Certification Motion MOTION to Alter Order/Judgment ) by Board of County Commissioners of the County of Tulsa, Vic Regalado ; (Wilson, Douglas) (Entered: 01/02/2019)
44 RESPONSE in Opposition to Motion And Brief in Support (Re: 42 MOTION to Reconsider Order and Judgment Dismissing Case as Moot and Denying Class Certification Motion MOTION to Alter

01/03/2019 01/04/2019 01/16/2019 03/15/2019

Order/Judgment ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, Vic Regalado, April Seibert, Clifford Smith, Sarah Smith ; (Lawson, Stefanie) (Entered: 01/02/2019)
45 MOTION to Withdraw Attorney(s) by Board of County Commissioners of the County of Tulsa, Vic Regalado [Note: Attorney Kimberly Majors Hall added to party Board of County Commissioners of the County of Tulsa(pty:dft).] (Hall, Kimberly) (Entered: 01/03/2019)
46 MINUTE ORDER by Judge Claire V Eagan ; terminating attorney Kimberly Majors Hall ; granting 45 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 01/04/2019)
47 REPLY to Response to Motion (Re: 42 MOTION to Reconsider Order and Judgment Dismissing Case as Moot and Denying Class Certification Motion MOTION to Alter Order/Judgment ) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood ; (Gerstein, Charles) (Entered: 01/16/2019)
48 OPINION AND ORDER by Judge Claire V Eagan - Plaintiffs' motion to alter or amend judgment or for relief from judgment (Dkt. # 42) is granted, the Opinion and Order (Dkt. # 40) and the Judgment of Dismissal (Dkt. # 41) are vacated, and this case is reopened. The amended complaint (Dkt. # 32), the motion for class certification (Dkt. # 3), and the motion to dismiss (Dkt. # 24) are reinstated. Defendants' motion to dismiss (Dkt. # 24) is granted in part and denied in part as follows: Count One - The motion is granted as to defendants Tulsa County Special Judges Terry H. Bitting, Tammy Bruce, Owen Evens, James W. Keeley, J. Anthony Miller, Dawn Moody, Kirsten Pace, April Seibert, Sarah Smith, Martha Rupp Carter, Stephen R. Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, and Clifford Smith for lack of Article III standing. The motion is denied as to defendant Tulsa County District Judge William Musseman. Count Two - The motion is denied as to all defendants, subject to plaintiffs' limitation on the type of relief sought against defendant special judges only (i.e., declaratory relief only), as discussed herein. Count Three - The motion is granted as to all defendants. ; reopening case; vacating/setting aside order(s); reinstating document(s); granting 42 Motion to Reconsider; granting 42 Motion to Alter Order/Judgment (Re: 40 Opinion and Order,,,, Ruling on Motion to Dismiss,, Ruling on Motion for Class Action Certification, 41 Judgment,, Dismissing/Terminating Case, 3 MOTION for Class Action Certification , 24 MOTION to Dismiss , 42 MOTION to Reconsider Order and Judgment Dismissing Case as Moot and Denying Class Certification Motion MOTION to Alter Order/Judgment , 32 Amended Complaint, ) (Documents

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Terminated: 41 Judgment,, Dismissing/Terminating Case, 40 Opinion and Order,,,, Ruling on Motion to Dismiss,, Ruling on Motion for Class Action Certification, ) (RGG, Chambers) (Entered: 03/15/2019)
49 ANSWER (Re: 32 Amended Complaint, ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (Lawson, Stefanie) (Entered: 03/25/2019)
50 ORDER by Judge Claire V Eagan , directing parties to file joint status report ( Status Report due by 4/25/2019) (RGG, Chambers) (Entered: 03/26/2019)
51 RESPONSE in Opposition to Motion (Re: 3 MOTION for Class Action Certification ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (With attachments) (Lawson, Stefanie) (Entered: 04/15/2019)
52 ADOPTION of (Re: 51 RESPONSE in Opposition to Motion) (Re: 3 MOTION for Class Action Certification ) by Board of County Commissioners of the County of Tulsa, Vic Regalado ; (Wilson, Douglas) Modified on 4/16/2019 to change text to reflect correct event and create link to 51 (sac-qc, Dpty Clk). (Entered: 04/15/2019)
NOTICE of Docket Entry Modification; Error: wrong event selected (Response in Opposition to Motion); Correction: changed text to reflect correct event (Adoption) and created link to 51 (Re: 52 Response in Opposition to Motion, ) (sac-qc, Dpty Clk) (Entered: 04/16/2019)
53 ERRATA/CORRECTION (Re: 51 Response in Opposition to Motion, ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (With attachments) (Lawson, Stefanie) (Entered: 04/16/2019)
54 First JOINT STATUS REPORT by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Horowitz, Hayley) (Entered: 04/25/2019)
55 MOTION to Stay Proceedings by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (With attachments) (Lawson, Stefanie) (Entered: 04/26/2019)

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56 ATTORNEY APPEARANCE by Erin Morgan Moore on behalf of Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith [Note: Attorney Erin Morgan Moore added to party Terry H Bitting(pty:dft), Attorney Erin Morgan Moore added to party Tammy Bruce(pty:dft), Attorney Erin Morgan Moore added to party Martha Rupp Carter(pty:dft), Attorney Erin Morgan Moore added to party Stephen R Clark(pty:dft), Attorney Erin Morgan Moore added to party Theresa Dreiling(pty:dft), Attorney Erin Morgan Moore added to party Owen Evens(pty:dft), Attorney Erin Morgan Moore added to party James W Keeley(pty:dft), Attorney Erin Morgan Moore added to party Deborah Ludi Leitch(pty:dft), Attorney Erin Morgan Moore added to party J Anthony Miller(pty:dft), Attorney Erin Morgan Moore added to party Dawn Moody(pty:dft), Attorney Erin Morgan Moore added to party William Musseman(pty:dft), Attorney Erin Morgan Moore added to party Millie Otey(pty:dft), Attorney Erin Morgan Moore added to party Kirsten Pace(pty:dft), Attorney Erin Morgan Moore added to party April Seibert(pty:dft), Attorney Erin Morgan Moore added to party Clifford Smith(pty:dft), Attorney Erin Morgan Moore added to party Sarah Smith(pty:dft).] (Moore, Erin) (Entered: 04/26/2019)
57 MINUTE ORDER by Judge Claire V Eagan - ACCELERATING DEADLINE - Plaintiffs' response to the motion 55 is accelerated and due 5/3/19; No Reply., setting/resetting deadline(s)/hearing(s): ( Responses due by 5/3/2019) (Re: 55 MOTION to Stay Proceedings ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 04/29/2019)
58 First REPLY to Response to Motion (Re: 3 MOTION for Class Action Certification ) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood ; (With attachments) (Horowitz, Hayley) (Entered: 04/29/2019)
59 First RESPONSE in Opposition to Motion to Stay (Re: 55 MOTION to Stay Proceedings ) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood ; (With attachments) (Horowitz, Hayley) (Entered: 05/03/2019)
60 ERRATA/CORRECTION (Re: 58 Reply to Response to Motion ) by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Horowitz, Hayley) (Entered: 05/07/2019)
61 OPINION AND ORDER by Judge Claire V Eagan - Defendants' motion (Dkt. # 55) to stay proceedings until the end of the current legislative session or until Senate Bill 252 is signed into law, whichever occurs first, is granted, and this matter is stayed. The parties shall file a notice in this Court within three (3) days of the end of the Oklahoma legislative

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session, or the signing into law of Senate Bill 252, whichever occurs first. The Court will enter a scheduling order when the stay is lifted. ; staying case; granting 55 Motion to Stay (Re: 55 MOTION to Stay Proceedings ) (RGG, Chambers) (Entered: 05/09/2019)
62 NOTICE to the Court Pursuant to Doc 61 (Re: 61 Opinion and Order,,,,,, Staying Case,,, Ruling on Motion to Stay,, ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (Lawson, Stefanie) (Entered: 05/28/2019)
63 MOTION to Lift Stay and enter scheduling order by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Horowitz, Hayley) (Entered: 06/13/2019)
64 ORDER by Judge Claire V Eagan that the motion to lift stay (Dkt. # 63) is granted, and the stay of proceedings (Dkt. # 61) is lifted. A scheduling conference is hereby set for June 24, 2019 at 9:30 a.m. Scheduling order will be entered afterward as appropriate. ; lifting the stay; setting/resetting deadline(s)/hearing(s): ( Scheduling Conference set for 6/24/2019 at 09:30 AM before Judge Claire V Eagan); granting 63 Motion to Lift Stay (Re: 61 Opinion and Order,,,,,, Staying Case,,, Ruling on Motion to Stay,, 63 MOTION to Lift Stay and enter scheduling order ) (RGG, Chambers) (Entered: 06/14/2019)
65 MOTION for Leave to Appear , in part, by telephone by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Horowitz, Hayley) (Entered: 06/18/2019)
66 MINUTE ORDER by Judge Claire V Eagan Plaintiffs' motion for counsel to appear by telephone (Dkt. # 65) is GRANTED. Counsel wishing to appear by telephone at the scheduling conference, shall provide their individual telephone numbers (not a conferencing service call-in number) to the courtroom deputy, Camie Portilloz, 918-699-4713, no later than the close of business on June 21, 2019. The courtroom deputy will place the calls to counsel on the courtroom conference system ; granting 65 Motion for Leave to Appear (Re: 65 MOTION for Leave to Appear , in part, by telephone, 64 Order,,, Lifting the Stay,,, Setting/Resetting Deadline(s)/Hearing(s),,,,,, Ruling on Motion to Lift Stay,, ) (This entry is the Official Order of the Court. No document is attached.) (crp, Dpty Clk) (Entered: 06/19/2019)
67 ATTORNEY APPEARANCE by James Griffin Rea on behalf of Board of County Commissioners of the County of Tulsa, Vic Regalado [Note: Attorney James Griffin Rea added to party Board of County Commissioners of the County of Tulsa(pty:dft), Attorney James Griffin Rea added to party Vic Regalado(pty:dft).] (Rea, James) (Entered: 06/21/2019)

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68 MINUTES of Proceedings - held before Judge Claire V Eagan: Scheduling Conference held on 6/24/2019 Phase I and II discovery deadlines scheduled, striking/terminating deadline(s)/Hearing(s) (Re: 3 MOTION for Class Action Certification ) (Court Reporter: Greg Bloxom) (crp, Dpty Clk) Modified on 5/8/2020 to remove extra page of pdf (crp, Dpty Clk). (Entered: 06/24/2019)
69 SCHEDULING ORDER by Judge Claire V Eagan Motions for Joinder of Additional Parties deadline 7/15/19, Phase I Discovery deadline 9/24/19, Phase II Discovery deadline 1/24/20, setting/resetting scheduling order date(s): ( Discovery due by 1/24/2020) (crp, Dpty Clk) (Entered: 06/24/2019)
70 SCHEDULING ORDER by Judge Claire V Eagan (SUPPLEMENT TO SCHEDULING ORDER), setting/resetting scheduling order date(s): ( Dispositive Motions due by 2/14/2020) (Re: 69 Scheduling Order,, Setting/Resetting Scheduling Order Date(s), ) (crp, Dpty Clk) (Entered: 06/25/2019)
71 MOTION to Withdraw Attorney(s) Ruth Hamilton by Richard Feltz, Tara O'Donley, Michael Parga, Christopher Wood (Hamilton, Ruth) (Entered: 08/14/2019)
72 ATTORNEY APPEARANCE by Kristina Michelle Saleh on behalf of Richard Feltz, Michael Parga [Note: Attorney Kristina Michelle Saleh added to party Richard Feltz(pty:pla), Attorney Kristina Michelle Saleh added to party Michael Parga(pty:pla).] (Saleh, Kristina) (Entered: 08/14/2019)
73 MOTION to Withdraw Attorney(s) Hayley Horowitz, Charles Gerstein, Ryan Downer, and Akeeb Dami Animashaun by Tara O'Donley, Christopher Wood (Horowitz, Hayley) (Entered: 08/14/2019)
74 MINUTE ORDER by Judge Claire V Eagan ; terminating attorney Ruth Ellen Lando Hamilton ; granting 71 Motion to Withdraw Attorney(s) (Re: 71 MOTION to Withdraw Attorney(s) Ruth Hamilton ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 08/15/2019)
75 MINUTE ORDER by Judge Claire V Eagan (re plaintiffs Tara O'Donley and Christopher Wood) ; terminating attorney Charles Lewis Gerstein; Hayley Elizabeth Horowitz; Akeeb Dami Animashaun and Ryan Downer ; granting 73 Motion to Withdraw Attorney(s) (Re: 73 MOTION to Withdraw Attorney(s) Hayley Horowitz, Charles Gerstein, Ryan Downer, and Akeeb Dami Animashaun ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 08/15/2019)
76 MOTION to Dismiss Party Tara O'Donley and Christopher Wood and Brief in Support by Terry H Bitting, Tammy Bruce, Martha Rupp Carter,

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Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (With attachments) (Lawson, Stefanie) (Entered: 09/12/2019)
77 NOTICE of Change of Address by Akeeb Dami Animashaun by on behalf of Richard Feltz, Michael Parga (With attachments) (Animashaun, Akeeb) (Entered: 10/08/2019)
78 MOTION for Attorney(s) Laura Gaztambide Arandes to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2119703) by Richard Feltz, Michael Parga (With attachments) (Animashaun, Akeeb) (Entered: 10/09/2019)
79 ORDER by Judge Claire V Eagan (re Atty Laura Gaztambide Arandes for plaintiffs) ; granting 78 Motion for Admission Pro Hac Vice (RGG, Chambers) (Entered: 10/09/2019)
80 MOTION to Refer/for Referal to Magistrate Judge for Settlement Conference by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (Lawson, Stefanie) (Entered: 10/15/2019)
81 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Cleary (Re: 80 MOTION to Refer/for Referal to Magistrate Judge for Settlement Conference ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 10/16/2019)
82 MINUTE ORDER by Magistrate Judge Paul J Cleary a telephone conference is scheduled for 11/8/2019 at 10:00 a.m. Counsel for Defendant, Stefanie Erin Lawson, is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 11/8/2019 at 10:00 AM before Magistrate Judge Paul J Cleary) (Re: 80 MOTION to Refer/for Referal to Magistrate Judge for Settlement Conference ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 10/29/2019)
83 MOTION to Withdraw Attorney(s) Akeeb Dami Animashaun by Richard Feltz, Michael Parga (Animashaun, Akeeb) (Entered: 11/07/2019)
84 MINUTE ORDER by Judge Claire V Eagan that attorney Akeeb Dami Animashaun is withdrawn as counsel for all plaintiffs in this matter. ; granting 83 Motion to Withdraw Attorney(s) (This entry is the Official

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Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 11/07/2019)
85 MINUTES of Proceedings - held before Magistrate Judge Paul J Cleary: Motion Hearing held on 11/8/2019 ; striking/terminating deadline(s)/Hearing(s); granting 80 Motion to Refer/Referral (Re: 80 MOTION to Refer/for Referal to Magistrate Judge for Settlement Conference ) (Court Reporter: C1) (sdc, Dpty Clk) (Entered: 11/08/2019)
86 ATTORNEY APPEARANCE by Laura Gaztambide Arandes on behalf of Richard Feltz, Michael Parga [Note: Attorney Laura Gaztambide Arandes added to party Richard Feltz(pty:pla), Attorney Laura Gaztambide Arandes added to party Michael Parga(pty:pla).] (Gaztambide Arandes, Laura) (Entered: 11/13/2019)
87 SUGGESTION of Death as to Michael Parga by Terry H Bitting, Board of County Commissioners of the County of Tulsa, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, Vic Regalado, April Seibert, Clifford Smith, Sarah Smith (Lawson, Stefanie) (Entered: 11/20/2019)
88 MOTION to Compel Depositions by Richard Feltz, Michael Parga (With attachments) (Horowitz, Hayley) (Entered: 12/05/2019)
89 MOTION for Protective Order by Deborah Ludi Leitch (With attachments) (Lawson, Stefanie) (Entered: 12/05/2019)
90 MOTION for Protective Order by Bill Hiddle, David Guten [Note: Attorney Stefanie Erin Lawson added to party Bill Hiddle(pty:mov), Attorney Stefanie Erin Lawson added to party David Guten(pty:mov).] (With attachments) (Lawson, Stefanie) (Entered: 12/06/2019)
91 ATTORNEY APPEARANCE by Stefanie Erin Lawson on behalf of David Guten, Bill Hiddle (Lawson, Stefanie) (Entered: 12/06/2019)
92 ATTORNEY APPEARANCE by Erin Morgan Moore on behalf of David Guten, Bill Hiddle [Note: Attorney Erin Morgan Moore added to party David Guten(pty:mov), Attorney Erin Morgan Moore added to party Bill Hiddle(pty:mov).] (Moore, Erin) (Entered: 12/06/2019)
93 ERRATA/CORRECTION (Re: 89 MOTION for Protective Order ) by Deborah Ludi Leitch (With attachments) (Lawson, Stefanie) (Entered: 12/06/2019)
94 MOTION for Attorney(s) Alexandria Twinem to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2146125) by Richard Feltz, Michael Parga (With attachments) (Gaztambide Arandes, Laura) (Entered: 12/06/2019)

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95 ORDER by Judge Claire V Eagan (re Atty Alexandria Twinem for plaintiffs) ; granting 94 Motion for Admission Pro Hac Vice (RGG, Chambers) (Entered: 12/09/2019)
96 MOTION for Protective Order by William Musseman (With attachments) (Lawson, Stefanie) (Entered: 12/09/2019)
97 MOTION for Protective Order by Dawn Moody (With attachments) (Lawson, Stefanie) (Entered: 12/09/2019)
98 MOTION for Protective Order by Vic Regalado (With attachments) (Wilson, Douglas) Modified on 12/10/2019; this is a two-part motion of which only one part was efiled - see 100 for Motion to Quash (sac, Dpty Clk). (Entered: 12/09/2019)
99 MOTION for Protective Order by Board of County Commissioners of the County of Tulsa (With attachments) (Wilson, Douglas) Modified on 12/10/2019; this is a two-part motion of which only one part was efiled see 101 for Motion to Quash (sac, Dpty Clk). (Entered: 12/09/2019)
101 MOTION to Quash (submitted as part of 99 ) by Board of County Commissioners of the County of Tulsa (sac, Dpty Clk) (Entered: 12/10/2019)
100 MOTION to Quash (submitted as part of 98 ) by Vic Regalado (sac, Dpty Clk) (Entered: 12/10/2019)
NOTICE of Docket Entry Modification; Error: this is a two-part motion of which only one part was efiled; Correction: efiled Motion to Quash see 100 (Re: 98 MOTION for Protective Order ) (sac, Dpty Clk) (Entered: 12/10/2019)
NOTICE of Docket Entry Modification; Error: this is a two-part motion of which only one part was efiled; Correction: efiled Motion to Quash see 101 (Re: 99 MOTION for Protective Order ) (sac, Dpty Clk) (Entered: 12/10/2019)
102 MINUTE ORDER by Magistrate Judge Jodi F Jayne , : Counsel for Defendant Vic Regalado is directed to provide, forthwith and in a threering binder notebook for use by the Court, a paper copy of the document and/or exhibit(s) as filed at Dkt. #[98/100]. Said paper copy shall be a COMPLETE and EXACT duplicate of the filing AFTER it is filed with the Court, including the case and docket number information at the top of each page. Counsel shall not reorganize the filing or insert other separately docketed items. If a copy of a sealed item is ordered by the Court, then said copy shall be a separate and complete submission. (Re: 100 MOTION to Quash (submitted as part of 98 ), 98 MOTION for Protective Order ) (This entry is the Official Order of the Court. No document is attached.) (kah, Chambers) (Entered: 12/10/2019)

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103 MINUTE ORDER by Magistrate Judge Jodi F Jayne , : Counsel for Defendant Board of County Commissioners of the County of Tulsa is directed to provide, forthwith and in a three-ring binder notebook for use by the Court, a paper copy of the document and/or exhibit(s) as filed at Dkt. #[99/101]. Said paper copy shall be a COMPLETE and EXACT duplicate of the filing AFTER it is filed with the Court, including the case and docket number information at the top of each page. Counsel shall not reorganize the filing or insert other separately docketed items. If a copy of a sealed item is ordered by the Court, then said copy shall be a separate and complete submission. (Re: 101 MOTION to Quash (submitted as part of 99 ), 99 MOTION for Protective Order ) (This entry is the Official Order of the Court. No document is attached.) (kah, Chambers) (Entered: 12/10/2019)
104 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (With attachments) (Lawson, Stefanie) (Entered: 12/10/2019)
105 MOTION to Stay 30(B)(6) Depositions by Board of County Commissioners of the County of Tulsa, Vic Regalado (Wilson, Douglas) (Entered: 12/11/2019)
106 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 105 MOTION to Stay 30(B)(6) Depositions ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 12/11/2019)
107 MINUTE ORDER by Magistrate Judge Jodi F Jayne This matter is set for a phone conference to discuss briefing deadlines and scheduling related to the pending discovery motions. The parties should also be prepared to discuss the depositions scheduled for December 18 and 19, 2019. The conference is set for Monday, December 16, 2019, at 10:00am. Counsel for Plaintiff, Hayley Elizabeth Horowitz, is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 12/16/2019 at 10:00 AM before Magistrate Judge Jodi F Jayne) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 12/12/2019)
108 MINUTES of Proceedings - held before Magistrate Judge Jodi F Jayne: Miscellaneous Hearing held on 12/16/2019 , striking/terminating deadline(s)/Hearing(s) (Court Reporter: C1) (sdc, Dpty Clk) (Entered: 12/16/2019)

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109 ORDER by Magistrate Judge Jodi F Jayne a telephone conference is scheduled for January 8, 2020 at 10:00 a.m. Counsel for Plaintiff is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number, setting/resetting deadline(s)/hearing(s): ( Responses due by 12/16/2019, Responses due by 12/23/2019, Replies due by 12/31/2019, Replies due by 1/6/2020, Motion Hearing set for 1/8/2020 at 10:00 AM before Magistrate Judge Jodi F Jayne), striking/withdrawing document(s) (Re: 98 MOTION for Protective Order , 101 MOTION to Quash (submitted as part of 99 ), 99 MOTION for Protective Order , 105 MOTION to Stay 30(B)(6) Depositions, 100 MOTION to Quash (submitted as part of 98 ), 90 MOTION for Protective Order , 89 MOTION for Protective Order , 96 MOTION for Protective Order , 97 MOTION for Protective Order , 88 MOTION to Compel Depositions ) (Documents Terminated: 88 MOTION to Compel Depositions ) (sdc, Dpty Clk) (Entered: 12/16/2019)
110 RESPONSE in Opposition to Motion (Re: 105 MOTION to Stay 30(B)(6) Depositions, 100 MOTION to Quash (submitted as part of 98 ), 101 MOTION to Quash (submitted as part of 99 ) ) by Richard Feltz, Michael Parga ; (With attachments) (Horowitz, Hayley) (Entered: 12/16/2019)
111 Unopposed MOTION for Extension of Time to Respond to Motion (Re: 104 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support ) by Richard Feltz, Michael Parga (Horowitz, Hayley) (Entered: 12/20/2019)
112 MINUTE ORDER by Judge Claire V Eagan that plaintiff's motion to extend deadlines 111 regarding the motion to dismiss 104 is granted as requested. Response / Reply deadlines are extended as follows: ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/10/2020, Replies due by 1/24/2020); granting 111 Motion for Extension of Time to Respond to Motion (Re: 104 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 12/20/2019)
113 ATTORNEY APPEARANCE by Alexandria Twinem on behalf of Richard Feltz, Michael Parga [Note: Attorney Alexandria Twinem added to party Richard Feltz(pty:pla), Attorney Alexandria Twinem added to party Michael Parga(pty:pla).] (Twinem, Alexandria) (Entered: 12/23/2019)
114 RESPONSE in Opposition to Motion (Re: 97 MOTION for Protective Order , 96 MOTION for Protective Order , 90 MOTION for Protective Order , 89 MOTION for Protective Order ) by Richard Feltz, Michael Parga ; (With attachments) (Horowitz, Hayley) Modified on 12/26/2019 to seal exhibits #2, 3, & 4 as they were filed unredacted; counsel will file the redacted version (sc, Dpty Clk). (Entered: 12/23/2019)

12/26/2019 12/31/2019
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01/13/2020

115 ERRATA/CORRECTION (Re: 114 Response in Opposition to Motion, ) by Richard Feltz, Michael Parga (With attachments) (Horowitz, Hayley) (Entered: 12/26/2019)
116 REPLY to Response to Motion (Re: 105 MOTION to Stay 30(B)(6) Depositions, 100 MOTION to Quash (submitted as part of 98 ), 98 MOTION for Protective Order , 101 MOTION to Quash (submitted as part of 99 ), 99 MOTION for Protective Order ) by Board of County Commissioners of the County of Tulsa, Vic Regalado ; (With attachments) (Wilson, Douglas) (Entered: 12/31/2019)
117 REPLY to Response to Motion (Re: 97 MOTION for Protective Order , 89 MOTION for Protective Order , 96 MOTION for Protective Order , 90 MOTION for Protective Order ) by David Guten, Bill Hiddle, Deborah Ludi Leitch, Dawn Moody, William Musseman ; (With attachments) (Lawson, Stefanie) (Entered: 01/06/2020)
118 ORDER by Magistrate Judge Jodi F Jayne , striking/terminating deadline(s)/Hearing(s) (sdc, Dpty Clk) (Entered: 01/08/2020)
119 MOTION to Lift Stay or Limit Stay by Richard Feltz (Horowitz, Hayley) (Entered: 01/09/2020)
120 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 119 MOTION to Lift Stay or Limit Stay ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 01/10/2020)
121 RESPONSE in Opposition to Motion (Re: 104 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support ) by Richard Feltz, Michael Parga ; (Horowitz, Hayley) (Entered: 01/10/2020)
122 MINUTE ORDER by Magistrate Judge Jodi F Jayne Plaintiffs Motion to Lift or Limit Stay Order (ECF No. 119) is set for a telephone hearing on Wednesday, January 15, 2020, at 2:00 pm. Counsel for Plaintiff is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number, setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 1/15/2020 at 02:00 PM before Magistrate Judge Jodi F Jayne) (Re: 119 MOTION to Lift Stay or Limit Stay ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 01/13/2020)
123 ATTORNEY APPEARANCE by Devan A Pederson on behalf of Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith [Note: Attorney Devan A Pederson added to party Terry H Bitting(pty:dft), Attorney Devan A Pederson added to party Tammy Bruce(pty:dft), Attorney Devan A

01/14/2020
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02/10/2020

Pederson added to party Martha Rupp Carter(pty:dft), Attorney Devan A Pederson added to party Stephen R Clark(pty:dft), Attorney Devan A Pederson added to party Theresa Dreiling(pty:dft), Attorney Devan A Pederson added to party Owen Evens(pty:dft), Attorney Devan A Pederson added to party James W Keeley(pty:dft), Attorney Devan A Pederson added to party Deborah Ludi Leitch(pty:dft), Attorney Devan A Pederson added to party J Anthony Miller(pty:dft), Attorney Devan A Pederson added to party Dawn Moody(pty:dft), Attorney Devan A Pederson added to party William Musseman(pty:dft), Attorney Devan A Pederson added to party Millie Otey(pty:dft), Attorney Devan A Pederson added to party Kirsten Pace(pty:dft), Attorney Devan A Pederson added to party April Seibert(pty:dft), Attorney Devan A Pederson added to party Clifford Smith(pty:dft), Attorney Devan A Pederson added to party Sarah Smith(pty:dft).] (Pederson, Devan) (Entered: 01/13/2020)
124 RESPONSE in Opposition to Motion to Lift Stay (Re: 119 MOTION to Lift Stay or Limit Stay ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (Lawson, Stefanie) (Entered: 01/14/2020)
125 ADOPTION (Re: 124 Response in Opposition to Motion, ) by Board of County Commissioners of the County of Tulsa, Vic Regalado (Wilson, Douglas) (Entered: 01/15/2020)
126 SETTLEMENT CONFERENCE ORDER by Magistrate Judge Paul J Cleary , setting/resetting deadline(s)/hearing(s): ( Settlement Conference set for 2/26/2020 at 10:00 AM before Magistrate Judge Paul J Cleary) (sdc, Dpty Clk) (Entered: 01/15/2020)
127 MINUTES of Proceedings - held before Magistrate Judge Jodi F Jayne: Motion Hearing held on 1/15/2020 ; striking/terminating deadline(s)/Hearing(s); granting in part and denying in part 119 Motion to Lift Stay (Re: 119 MOTION to Lift Stay or Limit Stay ) (Court Reporter: C1) (sdc, Dpty Clk) (Entered: 01/15/2020)
128 REPLY to Response to Motion (Re: 104 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (Moore, Erin) (Entered: 01/24/2020)
129 MOTION to be Excused from the Settlement Conference set on February 26, 2020 With Brief in Support by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith, William

02/10/2020 02/12/2020 02/12/2020 02/12/2020 02/13/2020
02/13/2020 02/18/2020 02/18/2020 02/19/2020

D LaFortune [Note: Attorney Devan A Pederson added to party William D LaFortune(pty:mov).] (With attachments) (Pederson, Devan) (Entered: 02/10/2020)
130 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Cleary (Re: 129 MOTION to be Excused from the Settlement Conference set on February 26, 2020 With Brief in Support ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 02/10/2020)
131 MOTION to Accelerate/Extend/Reset Settlement Deadline(s)/Conference to Submit Conference Statement by Richard Feltz (Horowitz, Hayley) (Entered: 02/12/2020)
132 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Cleary (Re: 131 MOTION to Accelerate/Extend/Reset Settlement Deadline(s)/Conference to Submit Conference Statement ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 02/12/2020)
133 MINUTE ORDER by Magistrate Judge Paul J Cleary ; granting 131 Motion to Accelerate/Extend/Reset Settlement Deadline(s)/Conference (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 02/12/2020)
134 NOTICE Notice Regarding Plaintiff's Position on Motion to Excuse Parties from Settlement Conference (Re: 129 MOTION to be Excused from the Settlement Conference set on February 26, 2020 With Brief in Support ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (Pederson, Devan) (Entered: 02/13/2020)
135 MINUTE ORDER by Magistrate Judge Paul J Cleary ; granting 129 Motion to be Excused from Hearing (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 02/13/2020)
136 MOTION to be Excused from the Settlement Conference set on Feb. 26, 2020 by Richard Feltz (Horowitz, Hayley) (Entered: 02/18/2020)
137 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Cleary (Re: 136 MOTION to be Excused from the Settlement Conference set on Feb. 26, 2020 ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 02/18/2020)
138 RESPONSE in Opposition to Motion (Re: 136 MOTION to be Excused from the Settlement Conference set on Feb. 26, 2020 ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa

02/19/2020 02/19/2020 02/20/2020 02/20/2020 02/21/2020
02/26/2020 02/27/2020
02/28/2020
03/06/2020

Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (With attachments) (Pederson, Devan) (Entered: 02/19/2020)
139 ADOPTION (Re: 138 Response in Opposition to Motion, ) by Board of County Commissioners of the County of Tulsa, Vic Regalado (Wilson, Douglas) (Entered: 02/19/2020)
140 ORDER by Magistrate Judge Paul J Cleary ; denying 136 Motion to be Excused from Hearing (sdc, Dpty Clk) (Entered: 02/19/2020)
141 MOTION to Withdraw Attorney(s) by Michael Parga (Horowitz, Hayley) (Entered: 02/20/2020)
142 NOTICE of Persons to Attend Settlement Conference by Richard Feltz (Horowitz, Hayley) (Entered: 02/20/2020)
143 MINUTE ORDER by Judge Claire V Eagan that the motion to withdraw as counsel for plaintiff Michael Parga 141 is granted. ; terminating attorney Charles Lewis Gerstein; Hayley Elizabeth Horowitz; Alexander Karakatsanis; Kristina Michelle Saleh; Alexandria Twinem; Ryan Downer and Laura Gaztambide Arandes ; granting 141 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 02/21/2020)
145 SETTLEMENT CONFERENCE REPORT by Magistrate Judge Paul J Cleary settlement negotiations are ongoing, striking/terminating deadline(s)/Hearing(s) (sdc, Dpty Clk) (Entered: 02/28/2020)
144 MINUTE ORDER by Magistrate Judge Paul J Cleary By March 4, 2020, Defendants are to respond to Plaintiffs Consent Decree settlement proposal with a counter-proposal. The parties shall then file a Joint Settlement Status Report with the Court by March 7, 2020 indicating whether settlement discussions are ongoing and, if so, a proposed schedule for settlement negotiations., setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 3/4/2020, Status Report due by 3/7/2020) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 02/27/2020)
146 ORDER by Magistrate Judge Jodi F Jayne a telephone status conference is scheduled for March 9, 2020 at 3:00 p.m. Counsel for Plaintiff is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number, setting/resetting deadline(s)/hearing(s): ( Status Hearing set for 3/9/2020 at 03:00 PM before Magistrate Judge Jodi F Jayne) (sdc, Dpty Clk) (Entered: 02/28/2020)
147 Joint STATUS REPORT by Richard Feltz (Horowitz, Hayley) (Entered: 03/06/2020)

03/09/2020 03/10/2020
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148 MINUTES of Proceedings - held before Magistrate Judge Jodi F Jayne: Status Hearing held on 3/9/2020 , striking/terminating deadline(s)/Hearing(s) (Court Reporter: C1) (crp, Dpty Clk) (Entered: 03/09/2020)
149 ORDER by Magistrate Judge Jodi F Jayne , setting/resetting deadline(s)/hearing(s): ( Motion Hearing set for 4/3/2020 at 10:00 AM before Magistrate Judge Jodi F Jayne) (Re: 90 MOTION for Protective Order , 98 MOTION for Protective Order , 101 MOTION to Quash (submitted as part of 99 ), 89 MOTION for Protective Order , 99 MOTION for Protective Order , 96 MOTION for Protective Order , 97 MOTION for Protective Order , 100 MOTION to Quash (submitted as part of 98 ) ) (sdc, Dpty Clk) (Entered: 03/10/2020)
150 MINUTE ORDER by Magistrate Judge Jodi F Jayne The Motion Hearing set for April 3, 2020 at 10:00 a.m. is reset as a telephone conference. Counsel for Plainitff is directed to arrange the conference call and contact the Courtroom Deputy at stephanie_cope@oknd.uscourts.gov and all counsel of the conference number (Re: 149 Order,,, Setting/Resetting Deadline(s)/Hearing(s),, ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 03/16/2020)
151 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 105 MOTION to Stay 30(B)(6) Depositions, 100 MOTION to Quash (submitted as part of 98 ), 98 MOTION for Protective Order , 101 MOTION to Quash (submitted as part of 99 ), 99 MOTION for Protective Order ) by Board of County Commissioners of the County of Tulsa, Vic Regalado (With attachments) (Wilson, Douglas) (Entered: 03/30/2020)
152 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 151 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 03/30/2020)
153 RESPONSE in Opposition to Motion (Re: 151 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) by Richard Feltz ; (Twinem, Alexandria) (Entered: 03/31/2020)
154 RESPONSE in Support of Motion (Re: 151 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) by David Guten, Bill Hiddle, Deborah Ludi Leitch, Dawn Moody, William Musseman ; (Lawson, Stefanie) (Entered: 03/31/2020)
155 REPLY to Response to Motion (Re: 151 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) ) by Board of County Commissioners of the County of Tulsa, Vic Regalado ; (Wilson, Douglas) (Entered: 03/31/2020)

04/01/2020 04/02/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020
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156 ORDER by Magistrate Judge Jodi F Jayne ; denying 151 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (sdc, Dpty Clk) (Entered: 04/01/2020)
157 MOTION to Dismiss for Lack of Jurisdiction and Brief in Support by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (With attachments) (Lawson, Stefanie) (Entered: 04/02/2020)
158 MOTION for Preliminary Injunction by Richard Feltz (With attachments) (Horowitz, Hayley) Modified on 4/3/2020; this is a two-part motion of which only one part was efiled - see 159 for Motion for Temporary Restraining Order (sac, Dpty Clk). (Entered: 04/03/2020)
159 MOTION for Temporary Restraining Order (submitted as part of 158 ) by Richard Feltz (sac, Dpty Clk) (Entered: 04/03/2020)
NOTICE of Docket Entry Modification; Error: this is a two-part motion of which only one part was efiled; Correction: efiled Motion for Temporary Restraining Order - see 159 (Re: 158 MOTION for Preliminary Injunction ) (sac, Dpty Clk) (Entered: 04/03/2020)
160 MINUTES of Proceedings - held before Magistrate Judge Jodi F Jayne: Motion Hearing held on 4/3/2020 ; striking/terminating deadline(s)/Hearing(s); taking motion(s) under advisement; denying 105 Motion to Stay (Re: 97 MOTION for Protective Order , 101 MOTION to Quash (submitted as part of 99 ), 89 MOTION for Protective Order , 105 MOTION to Stay 30(B)(6) Depositions, 100 MOTION to Quash (submitted as part of 98 ), 98 MOTION for Protective Order , 96 MOTION for Protective Order , 99 MOTION for Protective Order , 88 MOTION to Compel Depositions, 90 MOTION for Protective Order ) (Court Reporter: C1) (sdc, Dpty Clk) (Entered: 04/03/2020)
161 ORDER by Judge Claire V Eagan - The Court hereby accelerates briefing on the motions (Dkt. ## 158, 159) solely on the issue of whether there is a risk of imminent harm from COVID-19 at the Tulsa County Jail, and what procedures the Tulsa County Sheriff has implemented to mitigate such harm. Responses Due: April 10, 2020; Reply Due: April 14, 2020., setting/resetting deadline(s)/hearing(s): ( Responses due by 4/10/2020, Replies due by 4/14/2020) (Re: 159 MOTION for Temporary Restraining Order (submitted as part of 158 ), 158 MOTION for Preliminary Injunction ) (RGG, Chambers) (Entered: 04/06/2020)
162 MOTION to Supplement (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Richard Feltz (Horowitz, Hayley) (Entered: 04/08/2020)

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163 MINUTE ORDER by Judge Claire V Eagan - The motion 162 is granted; directing that the supplemental exhibit be filed immediately. ; granting 162 Motion to Supplement (Re: 158 MOTION for Preliminary Injunction , 162 MOTION to Supplement , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 04/08/2020)
164 SUPPLEMENT (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Richard Feltz (Horowitz, Hayley) (Entered: 04/08/2020)
165 MINUTE ORDER by Judge Claire V Eagan - The parties are directed that, under no circumstance, shall future pleadings be filed without proper case caption cover page (Re: 164 Supplement ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 04/08/2020)
166 RESPONSE in Opposition to Motion (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Vic Regalado ; (With attachments) (Wilson, Douglas) (Entered: 04/09/2020)
167 RESPONSE in Opposition to Motion (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; [Note: Attorney Stefanie Erin Lawson added to party William D LaFortune(pty:mov).] (With attachments) (Lawson, Stefanie) (Entered: 04/10/2020)
168 First REPLY to Response to Motion (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Richard Feltz ; (With attachments) (Horowitz, Hayley) (Entered: 04/14/2020)
169 MOTION for Leave to File Sur-Reply Brief (Re: 168 Reply to Response to Motion ) by Vic Regalado (Wilson, Douglas) (Entered: 04/16/2020)
170 MINUTE ORDER by Judge Claire V Eagan - that the motion 169 is granted. Regalado's surreply brief not to exceed 15 pages may be filed no later than 4/20/20. ; granting 169 Motion for Leave to File Document(s) (Re: 168 Reply to Response to Motion, 158 MOTION for Preliminary Injunction , 169 MOTION for Leave to File Sur-Reply Brief , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 04/16/2020)

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171 SURREPLY to Motion (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Vic Regalado ; (With attachments) (Wilson, Douglas) (Entered: 04/20/2020)
172 MINUTE ORDER by Judge Claire V Eagan - Plaintiffs' motions for preliminary injunction/TRO [158,159] are briefed and all parties have filed declarations/affidavits/witness statements/documentary evidence on the issue of irreparable harm due to COVID-19 risks. Any party wishing to file any additional briefing on the other elements of preliminary injunctive relief shall do so simultaneously no later than 4/27/20. Also, due to the suspension of civil hearings in this District (see General Order 20-06), each party shall file a statement no later than 4/27/20 as to whether he/she consents to a ruling based on the briefing and evidence of record without the necessity of a hearing., setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 4/27/2020) (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 04/23/2020)
173 RESPONSE in Opposition to Motion (Re: 157 MOTION to Dismiss for Lack of Jurisdiction and Brief in Support ) by Richard Feltz ; (With attachments) (Horowitz, Hayley) (Entered: 04/23/2020)
174 OPINION AND ORDER by Judge Claire V Eagan - Defendant state judges' motion to dismiss plaintiffs O'Donley and Wood's claims (Dkt. # 76) is granted, and plaintiff O'Donley's and Wood's claims are dismissed without prejudice. Michael Parga is terminated as a party plaintiff. Plaintiffs O'Donley and Wood are terminated as parties unless and until they enter an appearance through counsel. Richard Feltz remains as the only named plaintiff. The parties are directed to modify the case caption in future pleadings to comply with this Opinion and Order. ; terminating party Christopher Wood (on behalf of themselves and all others similarly situated), Tara O'Donley and Michael Parga ; granting 76 Motion to Dismiss Party (Re: 87 Suggestion of Death, 76 MOTION to Dismiss Party Tara O'Donley and Christopher Wood and Brief in Support, 74 Minute Order,, Adding/Terminating Attorney(s),,,, Ruling on Motion to Withdraw Attorney(s), 32 Amended Complaint, 75 Minute Order,,, Adding/Terminating Attorney(s),,,,,, Ruling on Motion to Withdraw Attorney(s),, ) (RGG, Chambers) (Entered: 04/24/2020)
175 Supplemental RESPONSE in Opposition to Motion (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace,

04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/28/2020
04/28/2020

April Seibert, Clifford Smith, Sarah Smith ; (With attachments) (Lawson, Stefanie) (Entered: 04/27/2020)
176 NOTICE DEFENDANT STATE JUDGES CONSENT TO RULING ON THE BRIEFS by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (Lawson, Stefanie) (Entered: 04/27/2020)
177 Supplemental RESPONSE in Opposition to Motion (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) by Vic Regalado ; (Wilson, Douglas) (Entered: 04/27/2020)
178 NOTICE of Consent to Allow Court to Decide Plaintiff's Motion for Preliminary Injunction/TRO on the briefs and without oral argument or an evidentiary hearing by Vic Regalado (Wilson, Douglas) (Entered: 04/27/2020)
179 Second REPLY to Response to Motion (Re: 158 MOTION for Preliminary Injunction ) by Richard Feltz ; (Horowitz, Hayley) (Entered: 04/27/2020)
180 NOTICE of Plaintiff's Position Regarding a Preliminary Injunction Hearing by Richard Feltz (Horowitz, Hayley) (Entered: 04/27/2020)
181 NOTICE of Plaintiff's Position Regarding a Preliminary Injunction Hearing - CORRECTED by Richard Feltz (Horowitz, Hayley) (Entered: 04/27/2020)
182 ORDER by Judge Claire V Eagan - The Court directs that, in lieu of an evidentiary hearing, the Sheriff submit a sworn declaration, of himself or a designee most knowledgeable, updating the evidence related to Paragraph 5 (a - e) of Dkt. # 181, no later than May 4, 2020. Said declaration shall be updated, if necessary, with any changes to the information, no later than May 8, 2020. Plaintiff may file a reply to defendants' briefs (Dkt. ## 175, 177) no later than May 6, 2020. The Court hereby sets a telephonic oral argument on plaintiff's motions for a preliminary injunction and a temporary restraining order (Dkt. ## 158, 159) for May 11, 2020 at 10:00 a.m. Each side will be limited to one-half hour of oral argument. See Order for specific instructions., setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 5/4/2020, Motion Hearing set for 5/11/2020 at 10:00 AM before Judge Claire V Eagan) (Re: 159 MOTION for Temporary Restraining Order (submitted as part of 158 ), 158 MOTION for Preliminary Injunction ) (RGG, Chambers) (Entered: 04/28/2020)
183 OPINION AND ORDER by Magistrate Judge Jodi F Jayne ; granting 89 Motion for Protective Order; granting in part and denying in

04/29/2020
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05/07/2020

part 90 Motion for Protective Order; granting in part and denying in part 96 Motion for Protective Order; granting in part and denying in part 97 Motion for Protective Order; granting in part and denying in part 98 Motion for Protective Order; granting in part and denying in part 99 Motion for Protective Order; granting in part and denying in part 100 Motion to Quash; granting in part and denying in part 101 Motion to Quash (sdc, Dpty Clk) Modified on 4/29/2020 to replace pdf due to clerical error (sdc, Dpty Clk) (Main Document 183 replaced on 4/29/2020) per Minute Order #184 (sdc, Dpty Clk). (Entered: 04/28/2020)
184 MINUTE ORDER by Magistrate Judge Jodi F Jayne The Clerk is directed to replace the PDF of ECF No. 183 to correct typographical errors on pages 20 and 23 (Re: 183 Opinion and Order,,, Ruling on Motion for Protective Order,,,,,,,,,,,,,,,,,, Ruling on Motion to Quash,,,,, ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 04/29/2020)
185 NOTICE of Docket Entry Modification; Error: original pdf contained clerical errors; Correction: replace document with corrected PDF (Re: 183 Opinion and Order,,,, Ruling on Motion for Protective Order,,,,,,,,,,,,,,,,,,,,,,,, Ruling on Motion to Quash,,,,,,, ) (sdc, Dpty Clk) (Entered: 04/29/2020)
186 DECLARATION of David Parker, Tulsa County Jail Administrator (Re: 182 Order,,,,, Setting/Resetting Deadline(s)/Hearing(s),,,,,,,,, ) by Vic Regalado (Wilson, Douglas) (Entered: 05/04/2020)
187 Third REPLY to Response to Motion (Re: 158 MOTION for Preliminary Injunction ) by Richard Feltz ; (Horowitz, Hayley) (Entered: 05/06/2020)
188 REPLY to Response to Motion (Re: 157 MOTION to Dismiss for Lack of Jurisdiction and Brief in Support ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, William Musseman, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (With attachments) (Lawson, Stefanie) (Entered: 05/07/2020)
189 MINUTE ORDER by Judge Claire V Eagan , : Counsel for State Court Judges is directed to provide, forthwith and in a three-ring binder notebook for use by the Court, a paper copy of the document and/or exhibit(s) as filed at Dkt. # 188 . Said paper copy shall be a COMPLETE and EXACT duplicate of the filing AFTER it is filed with the Court, including the case and docket number information at the top of each page. Counsel shall not reorganize the filing or insert other separately docketed items. If a copy of a sealed item is ordered by the Court, then said copy shall be a separate and complete submission. (Re: 188 Reply to Response

05/08/2020 05/11/2020 05/11/2020
05/22/2020 05/29/2020 06/01/2020
06/01/2020 08/11/2020 08/11/2020

to Motion, ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 05/07/2020)
190 DECLARATION of George Roberts, Tulsa County Jail Assistant Administrator (Re: 182 Order,,,,, Setting/Resetting Deadline(s)/Hearing(s),,,,,,,,, ) by Vic Regalado (Wilson, Douglas) (Entered: 05/08/2020)
191 OPINION AND ORDER by Judge Claire V Eagan ; denying 158 Motion for Preliminary Injunction; finding as moot 159 Motion for Temporary Restraining Order (RGG, Chambers) (Entered: 05/11/2020)
192 MINUTES of Proceedings - held before Judge Claire V Eagan: Motion Hearing held on 5/11/2020 without objection, Court orders the substitution of William LaForturne for William Musseman, striking/terminating deadline(s)/Hearing(s), terminating party William Musseman (in his capacity as Tulsa County District Court Judge) (Re: 158 MOTION for Preliminary Injunction , 159 MOTION for Temporary Restraining Order (submitted as part of 158 ) ) (Court Reporter: Brian Neil) (crp, Dpty Clk) (Entered: 05/11/2020)
193 Joint STATUS REPORT by Richard Feltz (Horowitz, Hayley) (Entered: 05/22/2020)
194 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) and enter scheduling order by Richard Feltz (Horowitz, Hayley) (Entered: 05/29/2020)
195 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 194 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) and enter scheduling order ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) Modified on 6/1/2020 to delete text (sac, Dpty Clk). (Entered: 06/01/2020)
196 ORDER by Magistrate Judge Jodi F Jayne ; setting/resetting scheduling order date(s): ( Discovery due by 1/7/2021, Dispositive Motions due by 2/15/2021); granting 194 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (sdc, Dpty Clk) (Entered: 06/01/2020)
197 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to complete discovery (Re: 196 Order,, Setting/Resetting Scheduling Order Date(s),, Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), ) by Richard Feltz (Horowitz, Hayley) (Entered: 08/11/2020)
198 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jodi F. Jayne (Re: 197 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to complete discovery ) (This entry is the Official Order of the Court. No document is attached.) (crp, Dpty Clk) (Entered: 08/11/2020)

08/12/2020
08/13/2020 08/13/2020 08/13/2020 08/13/2020
08/20/2020 08/21/2020 10/13/2020 10/14/2020

199 ORDER by Magistrate Judge Jodi F Jayne ; setting/resetting deadline(s)/hearing(s): ( Discovery due by 2/18/2021, Dispositive Motions due by 3/29/2021); granting 197 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (sdc, Dpty Clk) (Entered: 08/12/2020)
200 MOTION for Attorney(s) Allison Ryan to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2247840) by Richard Feltz (With attachments) (Saleh, Kristina) (Entered: 08/13/2020)
201 MOTION for Attorney(s) Michelle Kisloff to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2247850) by Richard Feltz (With attachments) (Saleh, Kristina) (Entered: 08/13/2020)
202 MOTION for Attorney(s) Vassi Iliadis to be Admitted Pro Hac Vice (paid $50 PHV fee; receipt number AOKNDC-2247851) by Richard Feltz (With attachments) (Saleh, Kristina) (Entered: 08/13/2020)
203 ORDER by Judge Claire V Eagan that Allison Ryan, Michelle Kisloff, and Vassi Iliadis are admitted pro hac vice for the limited purpose of representing plaintiff in this matter ; granting 200 Motion for Admission Pro Hac Vice; granting 201 Motion for Admission Pro Hac Vice; granting 202 Motion for Admission Pro Hac Vice (RGG, Chambers) (Entered: 08/13/2020)
204 ATTORNEY APPEARANCE by Vassiliki Iliadis on behalf of Richard Feltz [Note: Attorney Vassiliki Iliadis added to party Richard Feltz(pty:pla).] (Iliadis, Vassiliki) (Entered: 08/20/2020)
205 ATTORNEY APPEARANCE by Allison Holt on behalf of Richard Feltz [Note: Attorney Allison Holt added to party Richard Feltz(pty:pla).] (Holt, Allison) (Entered: 08/21/2020)
206 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by Richard Feltz (Horowitz, Hayley) (Entered: 10/13/2020)
207 MINUTE ORDER by Judge Claire V Eagan - Plaintiff's unopposed motion 26 is granted. The deadline for fact discovery is extended to January 11, 2021. The deadline for plaintiff's expert reports and disclosures is extended to February 12, 2021. The deadline for defendants' expert reports and disclosures is extended March 15, 2021. The deadline for ALL discovery is extended to April 19, 2021. The deadline for dispositive and Daubert motions is extended to May 28, 2021. All other deadlines remain unchanged. ; setting/resetting scheduling order date(s): ( Discovery due by 4/19/2021, Dispositive Motions due by 5/28/2021); granting 206 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 206 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) , 199 Order,, Setting/Resetting Deadline(s)/Hearing(s),, Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), ) (This entry is the

11/02/2020 11/10/2020 11/25/2020 11/30/2020 12/07/2020 12/08/2020 12/08/2020
12/09/2020
12/11/2020 12/11/2020 12/14/2020
12/16/2020

Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 10/14/2020)
208 NOTICE Under Professional Conduct Rule 1.12 by Richard Feltz (Horowitz, Hayley) (Entered: 11/02/2020)
209 ATTORNEY APPEARANCE by Phoebe Anne Kasdin on behalf of Richard Feltz [Note: Attorney Phoebe Anne Kasdin added to party Richard Feltz(pty:pla).] (Kasdin, Phoebe) (Entered: 11/10/2020)
210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion by Richard Feltz (With attachments) (Horowitz, Hayley) (Entered: 11/25/2020)
211 CERTIFICATE of Service (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion ) by Richard Feltz (Horowitz, Hayley) (Entered: 11/30/2020)
212 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to extend discovery by Richard Feltz (Horowitz, Hayley) (Entered: 12/07/2020)
213 ATTORNEY APPEARANCE by Michelle Anne Kisloff on behalf of Richard Feltz [Note: Attorney Michelle Anne Kisloff added to party Richard Feltz(pty:pla).] (Kisloff, Michelle) (Entered: 12/08/2020)
214 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 212 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to extend discovery ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 12/08/2020)
215 ORDER by Magistrate Judge Jodi F Jayne ; setting/resetting scheduling order date(s): ( Discovery due by 5/3/2021, Dispositive Motions due by 6/11/2021); granting 212 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (sdc, Dpty Clk) (Entered: 12/09/2020)
216 MOTION to Stay Plaintiff's Motion to Compel by Jari Askins (Joseph, Jeb) (Entered: 12/11/2020)
217 ATTORNEY APPEARANCE by Jeb Emmet Joseph on behalf of Jari Askins [Note: Attorney Jeb Emmet Joseph added to party Jari Askins(pty:mov).] (Joseph, Jeb) (Entered: 12/11/2020)
218 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 216 MOTION to Stay Plaintiff's Motion to Compel ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 12/14/2020)
219 MINUTE ORDER by Magistrate Judge Jodi F Jayne Non-party Jari Askins' Motion to Stay Plaintiff's Motion to Compel (ECF No. 216) is GRANTED, and Plaintiff's Motion to Compel (ECF No. 210) is held in abeyance pending resolution of 20-MC-12-SLP (W.D. Okla.). The Court

12/17/2020 12/17/2020 12/20/2020 12/20/2020 12/20/2020 12/20/2020 12/20/2020 12/21/2020 12/21/2020
12/21/2020 12/21/2020

will set new briefing deadlines upon resolution of the related proceeding. ; granting 216 Motion to Stay (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion ) (This entry is the Official Order of the Court. No document is attached.) (kah, Chambers) (Entered: 12/16/2020)
220 MOTION to Reconsider (Re: 219 Minute Order,,,,,, Ruling on Motion to Stay,, ) by Richard Feltz (With attachments) (Horowitz, Hayley) (Entered: 12/17/2020)
221 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 220 MOTION to Reconsider ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 12/17/2020)
222 ATTORNEY APPEARANCE by Phoebe Anne Kasdin on behalf of Ashton Dennis [Note: Attorney Phoebe Anne Kasdin added to party Ashton Dennis(pty:mov).] (Kasdin, Phoebe) (Entered: 12/20/2020)
223 ATTORNEY APPEARANCE by Hayley Elizabeth Horowitz on behalf of Ashton Dennis [Note: Attorney Hayley Elizabeth Horowitz added to party Ashton Dennis(pty:mov).] (Horowitz, Hayley) (Entered: 12/20/2020)
224 Second MOTION to Amend the Complaint by Richard Feltz (Horowitz, Hayley) (Entered: 12/20/2020)
225 MOTION to Intervene as a Named Plaintiff by Ashton Dennis (Horowitz, Hayley) (Entered: 12/20/2020)
226 BRIEF in Support of Motion (Re: 225 MOTION to Intervene as a Named Plaintiff, 224 Second MOTION to Amend the Complaint ) by Ashton Dennis, Richard Feltz ; (With attachments) (Horowitz, Hayley) (Entered: 12/20/2020)
227 ATTORNEY APPEARANCE by Alexandria Twinem on behalf of Ashton Dennis [Note: Attorney Alexandria Twinem added to party Ashton Dennis(pty:mov).] (Twinem, Alexandria) (Entered: 12/21/2020)
228 MINUTE ORDER by Judge Claire V Eagan , referring motion(s) to Magistrate Judge Jayne (Re: 225 MOTION to Intervene as a Named Plaintiff, 224 Second MOTION to Amend the Complaint, 226 Brief in Support of Motion ) (This entry is the Official Order of the Court. No document is attached.) (RGG, Chambers) (Entered: 12/21/2020)
229 ATTORNEY APPEARANCE by Michelle Anne Kisloff on behalf of Ashton Dennis [Note: Attorney Michelle Anne Kisloff added to party Ashton Dennis(pty:mov).] (Kisloff, Michelle) (Entered: 12/21/2020)
230 ATTORNEY APPEARANCE by Vassi Iliadis on behalf of Ashton Dennis [Note: Attorney Vassi Iliadis added to party Ashton Dennis(pty:mov).] (Iliadis, Vassi) (Entered: 12/21/2020)

12/21/2020 12/21/2020
12/30/2020 12/31/2020 01/11/2021 01/11/2021 01/11/2021

231 ATTORNEY APPEARANCE by Allison Holt on behalf of Ashton Dennis [Note: Attorney Allison Holt added to party Ashton Dennis(pty:mov).] (Holt, Allison) (Entered: 12/21/2020)
232 MINUTE ORDER by Magistrate Judge Jodi F Jayne The Court is advised that the related discovery proceeding in the Western District of Oklahoma has been dismissed, and Plaintiffs and Jari Askins agreed to reset Jari Askins' response deadline for December 31, 2020. Therefore, the Court orders that Jari Askins shall respond to the Motion to Compel (ECF No. 210) no later than December 31, 2020, and Plaintiffs may file a reply no later than January 11, 2021. Plaintiffs' Motion to Reconsider (ECF No. 220) is denied as moot ; setting/resetting deadline(s)/hearing(s): ( Responses due by 12/31/2020, Replies due by 1/11/2021); finding as moot 220 Motion to Reconsider (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion ) (This entry is the Official Order of the Court. No document is attached.) (sdc, Dpty Clk) (Entered: 12/21/2020)
233 RESPONSE in Opposition to Motion (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (With attachments) (Pederson, Devan) (Entered: 12/30/2020)
234 RESPONSE in Opposition to Motion (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion ) by Jari Askins ; (Joseph, Jeb) (Entered: 12/31/2020)
235 MOTION for Protective Order by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith (With attachments) (Pederson, Devan) (Entered: 01/11/2021)
236 RESPONSE in Opposition to Motion (Re: 225 MOTION to Intervene as a Named Plaintiff, 224 Second MOTION to Amend the Complaint ) by Terry H Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R Clark, Theresa Dreiling, Owen Evens, James W Keeley, William D LaFortune, Deborah Ludi Leitch, J Anthony Miller, Dawn Moody, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, Sarah Smith ; (Lawson, Stefanie) (Entered: 01/11/2021)
237 REPLY to Response to Motion (Re: 210 MOTION to Compel Compliance with a Subpoena and Opening Brief in Support of Motion ) by Richard Feltz ; (Horowitz, Hayley) (Entered: 01/11/2021)

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 Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

1)Michael Parga, 2) Richard Feltz, 3) Tara )

O’Donley, and 4) Christopher Wood,

) )

on behalf of themselves and all others )

similarly situated,

)

Plaintiffs,

) )

)

vs.

) Case No.18-cv-00298

)

1)Tulsa County; 2) Vic Regaldo, Tulsa

) )

CLASS ACTION COMPLAINT

County Sheriff, in his official capacity; 3) )

Terry H. Bitting, 4) Tammy Bruce, 5) Martha Rupp Carter,6) Stephen R. Clark,

) ) )

7) Theresa Dreiling, 8) Owen Evens, 9) )

James W. Keeley, 10) Deborah Ludi Leitch, 11) J. Anthony Miller, 12) Dawn

) ) )

Moody, 13) Millie Otey, 14) Kirsten Pace, )

15) April Seibert, 16) Clifford Smith, and 17) Sarah Smith, in their capacity as Tulsa

) ) )

County Special Judges; 18)William

)

Musseman, in his capacity as Tulsa County )

District Court Judge,

) )

)

Defendants.

)

)

)

Introduction 1. In 1980, Tulsa County concluded that “it violated a defendant’s 14th Amendment rights to be held in jail if they were too poor to post bail.”1

1

Tulsa

County

Court

Services,

https://www.tulsacounty.org/Tulsacounty/dynamic.aspx?id=642 (last visited, June 4, 2018).

1

History,

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 2 of 34
2. In 2018, hundreds of people are detained in the Tulsa County Jail every day solely because they cannot afford to purchase their liberty.
3. Named Plaintiffs are currently confined in Tulsa County jail cells solely because they do not have enough money to purchase their pretrial release. They are jailed pursuant to Tulsa County’s wealth-based detention scheme, which jails people who are unable to meet secured financial conditions of release. No official has conducted any inquiry into any Plaintiffs’ ability to pay or made any inquiry into or findings concerning alternative conditions of pretrial release or the necessity of pretrial detention. Because they cannot access the payments Defendants require for their release, the presumptively innocent Plaintiffs will be detained in the Tulsa County Jail for days, weeks, or months.
4. On behalf of themselves and all others similarly situated, the named Plaintiffs seek declaratory and injunctive relief against the Defendants. After arresting a person, Defendants require secured financial conditions of release, almost always according to a predetermined chart of offenses and corresponding dollar amounts. They do not provide any process for assessing a person’s ability to pay or determining the necessity of imposing monetary conditions of release in any individual case. People who are arrested and are unable to pay preset cash deposits to secure their release must remain in jail cells for six or more days before an arraignment, which is the first appearance in front of a judicial officer. Those who cannot afford private counsel are not appointed counsel during the initial period of wealth-based detention, and no lawyer appears with them at arraignment. Defendants refuse to address conditions of release at arraignments.
2

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 3 of 34
5. Defendants’ routine practice of requiring people to pay unattainable amounts of money to secure their release is the equivalent of issuing orders of detention against them, but without any of the substantive findings or procedural safeguards constitutionally required for orders of detention. As a result of Defendants’ policies, people too poor to pay for their release are jailed for days, weeks, or months. This automatic pretrial detention of poor people has devastating consequences: people who are arrested lose their jobs, are evicted from their homes, endure separation from their children and loved ones, and face pressure to plead guilty as soon as possible because that is often the quickest way to terminate their unlawful confinement. Plaintiffs seek an order declaring that this wealthbased detention scheme violates the Sixth and Fourteenth Amendments to the United States Constitution and an order enjoining Defendants from continuing its operation.
Nature of the Action2 6. Defendants have a policy and practice of refusing to release arrested people from custody unless they pay money. The amount of money required is predetermined in almost all cases by an offense-based, secured money-bail “schedule.” Defendants require payment of a generic, predetermined amount without considering a person’s ability to pay or the necessity of imposing secured money bail, and without making the substantive findings or providing the procedural safeguards that the United States Constitution and Oklahoma law require to ensure that pretrial detention is necessary to further a compelling government interest.
2 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
3

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 4 of 34
7. This policy and practice results in the systemic wealth-based detention of arrested people who are too poor to pay financial conditions of release. As a result, the majority of people incarcerated in the Tulsa County Jail are pretrial detainees: More than 62 percent of people incarcerated in the Tulsa County Jail on an average day are awaiting adjudication of state misdemeanor or felony charges. They are presumptively innocent.
8. As a result of the Defendants’ wealth-based pretrial detention policies and practices, as of August 2017, Tulsa County’s pretrial detention rate was 18 percent higher than the statewide rate and 83 percent higher than the national average.
9. Individuals who are living in poverty bear the weight of this systemic illegal detention. Women and people of color, who are more likely to be poor, are most profoundly affected. The disproportionate incarceration of people of color in Tulsa and the unusually high rates of incarceration for women derive in part from Defendants’ decision to automatically condition release on monetary payment.
10. People detained before trial face worse case outcomes than those able to pay for their freedom, including higher rates of conviction and longer sentences. They also endure overwhelming effects on their personal lives—on their families, their employment, and their physical and mental health.
11. Tulsa County’s finances have been burdened by Defendants’ pretrial detention policies. The jail costs taxpayers more than $30 million a year. To fund jail operations and jail expansion, the County imposes two different sales taxes, and provides additional funding.
4

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 5 of 34
Jurisdiction and Venue 12. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 13. Venue in this Court is proper under 28 U.S.C. § 1391.
Parties Plaintiffs
14. Plaintiff Michael Parga is a 37-year-old man. He lives in Tulsa County. 15. Plaintiff Richard Feltz is a 48-year-old man. He lives in Tulsa County. 16. Plaintiff Tara O’Donley is a 34-year-old woman. She is homeless. 17. Plaintiff Christopher Wood is a 48-year-old man. He lives in Tulsa County. Defendants 18. Defendant Tulsa County is a municipal corporation organized under the laws of the State of Oklahoma. Tulsa County maintains policies of jailing people who are unable to pay generic money bail amounts, usually predetermined by the County’s bail schedule. Tulsa County also maintains a policy of delaying the appointment of counsel for people who are unable to pay generic money bail amounts and denying counsel at legal proceedings where pretrial release and pretrial detention determinations are made. 19. Defendant Vic Regalado is the Tulsa County Sheriff. The Tulsa County Sheriff is a County official, the head of the Tulsa County Sheriff’s Office, and the keeper of the County Jail. The Tulsa County Sheriff is the final policymaker for the jail in Tulsa
5

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 6 of 34
County. The Sheriff’s Office detains arrested people who cannot pay a predetermined secured money bail prior to any individualized hearing. The Sheriff’s Office continues to detain arrested people who cannot pay a secured money bail amount after an individualized hearing, even though there has been no inquiry into or findings concerning ability to pay, consideration of alternatives conditions of release, or findings concerning the necessity of pretrial detention. Defendant Regalado is sued in his official capacity.3
20. Defendants Terry H. Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R. Clark, Theresa Dreiling, Owen Evens, James W. Keeley, Deborah Ludi Leitch, J. Anthony Miller, Dawn Moody, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, and Sarah Smith (collectively “Special Judges”) are special judges for the District Court for Tulsa County. Defendant Special Judges are appointed by Tulsa County district court judges. They are authorized by state law to perform the duties of a magistrate in criminal cases. Defendant Special Judges’ magistrate duties include making probable cause determinations and bail determinations. Defendant Special Judges make bail determinations in three contexts. First, Defendant Special Judges review and approve arrest warrants. As part of this process, Defendant Special Judges specify conditions of release for the person whose arrest is authorized by each warrant. Second, Defendant Special Judges determine conditions of release for anyone who is arrested without a warrant on a
3 The Tulsa County Sheriff is a final policymaker for Tulsa County’s post-arrest jailing policies and practices. Defendant Regalado is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the state in this capacity, and thus is subject to prospective relief. If the Court, however, agrees that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.
6

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 7 of 34
charge that is not included in Tulsa County’s secured bail schedule. Third, Defendant Special Judges review the monetary amounts that have been imposed according to the secured bail schedule and have the authority and ability to adjust those money bail amounts or impose alternative release conditions. Defendant Special Judges rarely, if ever, alter monetary amounts. In all of these contexts, when making bail determinations, Defendant Special Judges do not conduct any inquiries into or make any findings concerning people’s ability to pay money bail or the necessity of pretrial detention. They do not provide adequate hearings: they do not provide notice of the critical issues at the hearing, an opportunity to be heard or to confront evidence, findings by any legal or evidentiary standard, or an explanation of reasons on the record. They also do not provide counsel before the hearings. Defendant Special Judges are sued in their capacity as Special Judges for declaratory relief only.
21. In addition to those duties, Defendant Special Judge Dawn Moody presides over arraignments. People who are arrested and jailed pretrial and who cannot afford to purchase their release are detained in jail cells until they appear at arraignment six or more days after arrest. Defendant Moody refuses to address conditions of release at arraignment and she does not conduct any inquiry into or make any findings concerning a person’s ability to pay money bail or the necessity of pretrial detention.
22. Defendant William J. Musseman is a district court judge for the District Court for Tulsa County and the presiding judge for Oklahoma’s 14th Judicial District, which encompasses Tulsa County. As presiding judge, Defendant Musseman has general
7

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 8 of 34
administrative, rulemaking, and supervisory authority over the District Court for Tulsa County. Defendant Musseman promulgates the secured money-bail schedule that is used to determine the financial condition of release for almost all people arrested in Tulsa County. Defendant Musseman also promulgates the Local Criminal Rules, which specify the procedures by which bail is set and probable cause determined, the timing and conduct of arraignments, and the appointment of counsel. Defendant Musseman is sued in his capacity as a district court judge for the District Court for Tulsa County and the presiding judge for Oklahoma’s 14th Judicial District.4
Factual Allegations A. The Named Plaintiffs Are in Jail Because They Are Unable to Pay the
Financial Condition Required for Their Release 23. Plaintiff Michael Parga is a 37-year-old man. He lives in Tulsa County. He is employed, but struggles to meet the basic necessities of life. He supports his wife, who is unemployed. 24. Mr. Parga was arrested on Thursday, May 31, 2018, in Sand Springs, a city in Tulsa County, for an alleged felony offense. Upon arrest, he was taken to the Sand Springs jail, where the arresting officer told him that he would have to pay $2,000 to be
4 In 2016, Tulsa County sought the assistance of the Vera Institute of Justice (“Vera”)—a national policy and research organization that partners with local governments to improve their criminal legal processes—to examine drivers of growth and overcrowding at the Tulsa County jail and devise strategies consistent with the County’s public safety goals to reverse that growth. Three of the named Defendants— Sheriff Vic Regaldo, Special Judge Dawn Moody, and District Court Judge William Musseman—along with a number of other Tulsa County leaders and officials participated in the process. Vera concluded that Defendants base pretrial release decisions, whether someone is incarcerated or at liberty while their case is proceeding, largely around money: whether someone can afford the bail amount or not.
8

Case 4:18-cv-00298-CVE-JFJ Document 2 Filed in USDC ND/OK on 06/06/18 Page 9 of 34
released, but he would have to wait until he was transferred to the Tulsa County jail to do so.
25. On Sunday, June 3, 2018, four days after his arrest—during which time he was confined in a jail cell in Sand Springs—Mr. Parga was transferred to the Tulsa County Jail. When he arrived at the Tulsa County Jail, a Tulsa County Sheriff’s Officer told him that he would have to pay $2,000 to get out of jail. No one asked him if he could afford to pay that amount.
26. Mr. Parga cannot afford to pay for his release. Therefore, he will remain in jail at least until his first appearance before a judicial officer, which is scheduled for June 11, 2018, 11 days after his arrest. Mr. Parga fears that he will lose his job and his home if he is forced to remain in jail until his first appearance.
27. Plaintiff Richard Feltz is a 48-year-old man. He lives in Tulsa County. He is currently unemployed.
28. Mr. Feltz was arrested on Saturday, June 2, 2018, for an alleged felony offense. Upon arrest, he was taken to the Tulsa County Sheriff’s Office, where a Tulsa County Sheriff’s Officer mistakenly told him that he would have to pay $75,000 to be released from jail.
29. Mr. Feltz was transferred to the Tulsa County Jail a few hours later. At the jail, a Tulsa County Sheriff’s officer told him that he would have to pay $50,000 to be released from jail. No one asked him if he could afford to pay that amount.
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30. Mr. Feltz cannot afford to purchase his release from jail. Therefore, he will remain in jail at least until his first appearance before a judicial officer, which is scheduled for June 11, 2018, 9 days after his arrest.
31. Plaintiff Tara O’Donley is a 34-year-old woman. She is currently homeless and has no stable income.
32. Ms. O’Donley was arrested on June 4, 2018, for an alleged misdemeanor offense. When she was brought to the Tulsa County Jail, a Sheriff’s Officer told her that she had to pay $500 to be released. No one asked her whether she could pay that amount.
33. Ms. O’Donley cannot afford to pay for her release. Therefore, she will remain in jail at least until her first appearance before a judicial officer, which is scheduled for June 11, 2018, a week after her arrest.
34. Plaintiff Christopher Wood is a 48-year-old man. He lives in Tulsa County. He works occasionally as a handyman, and when he was arrested he had only $20. He has no other savings and does not have anyone in his life who can afford to get him out of jail.
35. Mr. Wood was arrested for a misdemeanor charge on June 4, 2018. When he was brought to the Tulsa County Jail, a Sheriff’s Officer told him that he would have to pay $1,000 to be released.
36. Mr. Wood cannot pay that amount of money. Therefore, he will remain in jail at least until his first appearance before a judicial officer, which is scheduled for June 11, 2018, a week after his arrest.
B. Defendants’ Wealth-Based Detention Scheme Detains People Who Cannot Afford to Pay and Releases People Who Can
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37. Defendants, as a matter of policy and practice, impose secured financial conditions of release on almost all people arrested in Tulsa County on misdemeanor and felony offenses, usually in reliance on a chart of predetermined dollar amounts that they refer to as a “schedule.”
38. Under this system, people who are arrested and brought to the Tulsa County Jail are released immediately by Tulsa County Sheriff’s deputies if they can afford to pay the monetary amounts that correspond to their booking charges, or if they can afford the premiums and fees required by for-profit bail-bond companies to secure the full moneybail amounts.
39. Some charges are not covered by the money-bail schedule. For these charges, the Special Judges impose money-bail amounts when they make probable cause determinations. The Special Judges have no information about, and conduct no inquiry into, a person’s ability to pay when they impose money-bail amounts on people arrested on charges not covered by the money-bail schedule. They do not consider non-financial alternative conditions of release.
40. Those who cannot access enough money to pay the amounts required by either the bail schedule or the Special Judges are jailed.
41. They remain in custody at least until their first court appearances, arraignments, which do not occur until at least six days after arrest.
42. During that period, they are not provided counsel.
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43. Most people who are detained because they cannot afford to pay the amounts required by either the bail schedule or the Special Judges cannot afford private counsel and thus are not are not represented by counsel during their arraignments.
44. Clerks from the district attorney’s office and public defender’s office attend every arraignment, but no attorneys representing either office appear.
45. The Defendant Special Judge presiding over arraignments refuses to hear arguments concerning conditions of release at the arraignments.
46. People who are deemed indigent, based on “paupers’ affidavits” completed prior to their arraignments, are formally appointed public defenders at their arraignments. But indigent arrested people are not permitted to meet with their lawyers from the public defender’s office until after their arraignments have concluded.
47. People detained solely because of their inability to pay have no opportunity at the first appearance to raise any legal or factual challenges to their wealth-based pretrial detention.
48. Written bail-reduction motions filed by counsel are the only mechanism for challenging pretrial detention.
49. Appointed counsel’s first opportunity to file a motion challenging the secured money-bail condition is after she has met with her client following the conclusion of the first court appearance at which she is appointed, which is a week into her client’s detention.
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50. A written motion challenging secured money-bail conditions of release, once prepared by counsel, routinely takes at least 48 hours to be docketed and heard by a judge.
51. That means that people who cannot afford to either pay the money Defendants demand for their release or hire an attorney are detained without any opportunity to contest their detentions for a minimum of eight days after arrest.
52. As a result of Defendants’ policies and practices, presumptively innocent people are jailed for a minimum of eight days solely because they cannot afford to make monetary payments or hire counsel, while arrested people with access to money are released immediately.
a. Arrest and Initial Money-Bail Setting 53. When a person is arrested in Tulsa County, the person is brought to the Tulsa County Jail and “booked” by an intake officer. 54. For almost everyone arrested, what happens next is determined by Tulsa County’s secured money-bail schedule. 55. The secured money-bail schedule is promulgated by Defendant Musseman. 56. The schedule is a list of offenses and dollar amounts. It predetermines secured financial conditions of release for all but a select few offenses for which individualized conditions of release must be determined by a judge. 57. For anyone arrested without a warrant for an offense covered by the bail schedule, an intake officer, who is employed by the Tulsa County Sheriff’s Office, consults
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the money-bail schedule to determine how much money is required for the immediate release of the booked individual.
58. If a person has been arrested on a warrant, the warrant specifies bail conditions, which are set by Defendant Special Judges. For warrants on charges covered by the bail schedule, Defendant Special Judges exclusively use secured financial conditions of release, and they determine the secured amounts using the schedule.
59. If the schedule covers the arrest charges, regardless of whether arrests are made with or without warrants, Defendants have a policy of “stacking bail” for people whose booking charges include at least one “stacking-eligible” offense. Stacking is the practice of computing a person’s secured financial condition of release by adding the money-bail amounts for each offense on which the person is booked. The person must pay the cumulative amount before being released from jail. The “stacking-eligible” offenses that trigger stacking are determined by administrative directive, issued by Defendant Musseman and subject to amendment at his discretion.
60. If a person has been arrested on a charge covered by the schedule, or on a warrant specifying a money-bail amount, an intake officer tells the person what offense she has been arrested for and “how much it will cost to get out of jail before seeing a judge.”5
5 The Tulsa County Sheriff’s Office’s website contains a video that demonstrates the “inmate booking process” for all people arrested in Tulsa County. See Tulsa County Sheriff’s Office, Booking Process Video, http://tcso.org/resources/inmate-bookings/ (last visited June 6, 2018) (“Sheriff’s Office Video”).
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61. After informing a person of the financial condition of release, the intake officer allows the person to make a phone call to arrange for the payment of money to secure her release.
62. “[I]f they are unable to post a bond, the person will remain in custody until their court date.” She will be forced to exchange her clothing for a jail uniform and housed in the jail, where she will remain for days, weeks, or months. See Sheriff’s Office Video.
63. “[I]f the person is able to pay their bond they will be allowed to be bonded out by a certified Tulsa County certified bondsman,” or by payment of cash bail. “[T]hey are also told their court date,” and allowed to keep their clothes. “[T]heir property is returned to them, and they are free to go.” See id.
64. Working in rotation, Defendant Special Judges review the arrest charges for anyone arrested without a warrant and in detention within 48 hours of arrest. Based on police reports, Defendant Special Judges make probable-cause determinations, review money-bail amounts previously assessed according to the bail schedule, and impose money-bail amounts for those arrested on charges not covered by the bail schedule. Defendant Special Judges carrying out these duties make their bail determinations without inquiring into anyone’s ability to pay or into whether pretrial detention is necessary in each case.
65. Arrested people do not appear before Defendant Special Judges making probable cause determinations and reviewing the bail imposed by schedule. No defense attorneys are present, and there is no opportunity to be heard.
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66. In all cases—whether arrests are made with or without warrants, and whether charges do or do not appear on the secured money-bail schedule—money bail is the default pretrial-release decision-maker. Cash amounts are required of nearly all people who are booked into the jail, except those charged with the most severe offenses, for whom no conditions of release are set.
67. In each case, money bail is required without any evaluation of the individual circumstances of the arrested person, other than the charges on which she has been booked and, sometimes, prior felony convictions and the contents of the police report.
68. Even “low” monetary bail amounts are unaffordable for poor people. Significant percentages of people detained on monetary amounts at the bottom end of the bail schedule are unable to pay their way out of jail.
69. Money bail serves as a detention mechanism not a release mechanism for the indigent.
70. For many people, bail orders therefore operate as de facto detention orders. But these de facto orders of detention are issued and enforced without the substantive findings or procedural safeguards required by federal law before the government may detain a presumptively innocent person: (1) a finding that pretrial detention is necessary because no less restrictive alternatives are available to meet a compelling government interest, and (2) robust procedural safeguards to ensure the accuracy of that substantive finding.
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71. For wealthy people arrested in Tulsa County, money-bail orders operate as orders of release without supervision of any kind no matter how significant the government’s assessment of the risks that the wealthy person poses.
72. But for poor people arrested in Tulsa County, money-bail orders operate as orders of detention even if their release would pose no risk at all and even if simple and less restrictive alternatives exist to mitigate any risk.
73. Defendants routinely issue de facto detention orders without any assessment of the risk a person may pose, and without considering non-monetary bail conditions that might sufficiently mitigate any risks. And they issue these de facto detention orders without any meaningful process, let alone the detailed procedures required by due process, including notice of the critical issues to be decided; the assistance of counsel; the right to present evidence and to confront the evidence offered by the government; application of specific legal and evidentiary standards; and an on-the-record statement of reasons for any decision to detain.
b. Defendants’ Wealth-Based Detention Scheme Is Not Mandated by Oklahoma Law and Is Contrary to Its Purposes
74. These policies and practices enforced in Tulsa County are not required by state law, which instead offers many opportunities for release which are enshrined as a right under the Oklahoma constitution for nearly all people who are arrested.
75. In addition to the federal constitution rights that Defendants’ policies violate, the Oklahoma Constitution guarantees the right to bail to an accused person in a criminal case subject to limited exceptions. Okla Const. art. II, § 8. State law provides that “[e]xcept
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as otherwise provided by law, bail, by sufficient sureties, shall be admitted upon all arrests in criminal cases where the offense is not punishable by death . . . .” Okla. Stat. Ann. tit. 22, § 1101 (A).
76. As a matter of history and practice, “bail” is “a process of conditional release,” meant “to effectuate and maximize release.”6 The same is true under Oklahoma law: “Bail” is a “means of procuring . . . release” while “insuring [a person’s] future attendance in court, and compelling him to remain within the jurisdiction of the court.” Manning v. State ex rel Williams, 120 P.2d 980, 981 (Okla. 1942).
77. “Bail” is not equivalent to “money bail.” Bail conditions can include both financial and non-financial conditions of release. “Money bail” refers to those conditions of release that are financial and describes the practice of requiring a defendant to forfeit money if she does not appear for trial. Money bail can be either secured or unsecured. Secured money bail requires people who are arrested to deposit money before they are released; unsecured money bail allows them to be released without depositing any money but requires them to pay if they fail to appear.
78. In Oklahoma, “the denial of bail is allowed under very limited circumstances,” and only after extensive procedural safeguards have been satisfied. Brill v. Gurich, 965 P.2d 404, 406 (Okla. 1998).
6 “There is ‘bail’—i.e., a process of release—and there is ‘no bail[]’—a process of detention.” U.S. Dep’t of Just. Nat’l Inst. Of Corr., Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (2014), http://www.clebp.org/images/2014-1105_final_bail_fundamentals_september_8,_2014.pdf.
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79. For anyone taken into custody on almost any other offense, Oklahoma law permits Defendants to release the person “on his personal recognizance subject to such conditions as the court or magistrate may reasonably prescribe to assure his appearance when required.” Okla. Stat. Ann. tit. 59, § 1334; see also Okla. Stat. Ann. tit. 22, § 1108.1.
80. A personal recognizance release is “[t]he release of a [person] in a criminal case in which the court takes the [person’s] word that he or she will appear for a scheduled matter or when told to appear. [] This type of release dispenses with the necessity of the person’s posting money or having a surety sign a bond with the court.” BLACK’S LAW DICTIONARY (10th ed. 2014), Westlaw.
81. In lieu of jailing people upon arrest, Oklahoma law permits law enforcement officials to issue citations to people arrested on misdemeanor offenses or violations of city ordinances. See Okla. Stat. Ann. tit. 22, § 209.
82. State law further authorizes Tulsa County to “establish and fund a pretrial program” to facilitate the release of people who have committed all but a handful of serious offenses and, for all other people, allows release with or without secured money bail by order of a judge under any “conditions prescribed by the judge.” 22 Okla. Stat. Ann. § 1105.3.
83. Tulsa County operates and administers a pretrial release program that is run by Tulsa County Court Services. The pretrial release program is one of only two forms of non-financial pretrial release used in Tulsa County, the other being personal recognizance release.
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84. Tulsa County releases fewer than 500 people each year to the Court Services’ pretrial release program. In 2016, 500 people amounted to less than two percent of the 25,704 people admitted into the Tulsa County Jail.
85. Defendants routinely ignore alternative options under state law that would protect federal constitutional rights against wealth-based pretrial detention.
c. Initial Arraignment 86. Once a financial condition of release is imposed, anyone who cannot access the money required for release, and who therefore remains jailed, does not see a judicial officer until the arraignment. 87. Tulsa County District Court rules mandate that the arraignment happen no later than six days after arrest. 88. In practice, arraignments often occur more than six days after arrest. 89. During their six- or more-day detentions, people who cannot afford to pay for their release and cannot afford to hire attorneys are not appointed counsel. 90. Defendant Special Judge Moody usually presides over arraignments. On occasions when Defendant Moody is unavailable to conduct arraignments, one of the other Defendant Special Judges conducts them in her place. Each of the Special Judges follows the same policies and practices in all respects that are material to Plaintiffs’ claims. 91. Arraignments are conducted via video-link. The Special Judge conducts the arraignments from the courtroom, while people in custody appear on screen from the Tulsa County Jail.
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92. Prior to each arraignment, the judge receives “paupers’ affidavits” for the people who are being arraigned. The pauper’s affidavit is designed to elicit a person’s financial information and is meant to be used to determine each person’s eligibility for a public defender.
93. The initial arraignments are rote exercises, and each routinely lasts less than 30 seconds. No counsel is present on either side and there is no opportunity to challenge the secured money-bail conditions previously imposed.
94. If the prosecutor has not made a charging decision by the time of the initial arraignment, the judge either releases the person or postpones the arraignment for about a week.
95. Presumptively innocent people whose arraignments have been postponed and who cannot afford to pay to purchase their liberty are jailed for another week while they wait to be arraigned. They are not assigned counsel until after they are arraigned and so remain unrepresented in the interim unless they can afford to hire their own attorneys.
96. For everyone being arraigned, the Special Judge reads the charges that the prosecutor has chosen to file, enters a plea of not guilty, and assigns a public defender if the judge determines that the person is financially eligible for one.
97. As a matter of policy and practice, Defendant Special Judges refuse to address conditions of release at arraignments. They do not make findings concerning whether any person has the ability to pay the money-bail amounts that have previously
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been set, and do not hear evidence or making findings concerning alternative conditions of release or the necessity of detention.
d. Post-Arraignment Detention 98. The only opportunity for a person to request modification of her conditions of release is by filing a bail-reduction motion, with one of the Special Judges, through her attorney. 99. For anyone who is jailed because she cannot afford to pay for her release, and who cannot afford to hire an attorney, the first opportunity to file a bail-reduction motion comes six or more days after arrest when attorneys are first appointed. 100. Tulsa County District Court policy directs Special Judges not to set a bondreduction hearing fewer than 48 hours after a motion is filed by an attorney. During that waiting period, the arrested person remains confined in jail. 101. The judges hearing such motions refuse, as a matter of routine practice, to make findings concerning ability to pay, alternative conditions or release, or the necessity of pretrial detention. As a result, even if and when a financial condition of release is reduced, often weeks after an arrest, it is frequently reduced to amounts that remain unaffordable. C. People Jailed Because They Are Poor Suffer Devastating Consequences 102. People who cannot pay a secured money bail amount to secure their release after arrest are significantly more likely to be convicted of a crime—and more likely to be convicted of a more serious crime—than people arrested on the same charges but able to
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pay to secure their release.7 Even one day of pretrial detention notably increases a person’s likelihood of conviction.8 And detention until disposition of a case is the single greatest predictor of criminal conviction.9
103. Being detained pretrial for any length of time decreases a person’s plea bargaining power and increases the likelihood of a plea to time served, even if the person is innocent. Anyone detained at the time of a plea offer faces enormous pressure to plead guilty just to get out of jail.
104. Jailing people after arrest hampers their ability to prepare their defenses for trial. For example, a jailed person without counsel cannot preserve and gather surveillance video that may disappear within hours or days of an alleged crime. A jailed person without counsel cannot take witness statements, and witnesses become more difficult to find each day after arrest. And jailed people, even once they are appointed counsel after a week of incarceration, cannot effectively meet with that counsel and prepare the defense, including by assisting the attorney in finding evidence and witnesses or building a mitigation case that would support community-based or treatment-based alternatives at sentencing.
105. Pretrial detention of any length also has devastating personal consequences: Even one day in jail can “imperil [a person’s] job, interrupt his source of income, and
7 Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 20-21, 27 (2017), https://www.princeton.edu/~wdobbie/files/bail.pdf.
8 Mary T. Philips, New York City Crim., Just. Agency, Inc., Pretrial Detention and Case Outcomes, Part I: Nonfelony Cases, 26 (2007), http://www.nycja.org/lwdcms/docview.php?module=reports&module_id=669&doc_name=doc.
9 Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, Investigating the Impact of Pretrial Detention on Sentencing Outcomes, 10-11 (2013), http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF_Report_state-sentencing_FNL.pdf.
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impair his family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Because of the havoc that just days in jail can cause, even those released after an initial period of detention are less likely to mount defenses to their cases, and are more likely to miss court dates, violate terms of release, and otherwise suffer worse outcomes in their criminal cases.
106. Even a few days in jail significantly increases the risk of job loss, eviction from housing or homeless shelter, exposure to trauma in custody, and broken family connections, especially for people with very young children.
107. A large body of empirical evidence shows that “low risk” people who are jailed for just two or three days after arrest because they cannot pay money bail are much more likely to commit crimes in the future and to not appear in court in the future because of the de-stabilizing effects of even short periods in jail.
Class Action Allegations 108. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 109. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge the Defendants’ unlawful wealth-based post-arrest detention scheme. 110. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.
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111. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
112. The Plaintiffs propose one class seeking declaratory and injunctive relief: All people who are or will be detained in the Tulsa County Jail because they are unable to pay a secured financial condition of release.
a. Numerosity (Fed. R. Civ. P. 23(a)(1)) 113. Every person arrested in Tulsa County who is not lawfully preventatively detained is subjected to the Defendants’ wealth-based detention scheme in which arrested people either pay for their liberty or, regardless of their ability to pay or personal circumstances, remain confined in a jail cell. 114. There are hundreds of people subject to these policies at any given time. 115. Sherriff’s Department records show that on June 6, 2018, 1,665 people were detained in the Tulsa County Jail. A majority of them were held pretrial, on money bail amounts, and none or almost none of them were detained under explicit detention orders, issued according to the procedures required by Oklahoma law for orders of detention. Most of them were, and still are, in jail on de facto orders of pretrial detention: money-bail orders entered without following any of the procedures required for valid orders of detention. They would be released immediately if they were not impoverished. 116. Joinder is impracticable because the class is both too numerous and too fluid for the Court to feasibly hear their independent claims.
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117. Joinder is also impracticable because the members of the class are too poor to hire lawyers to bring independent claims.
b. Commonality (Fed. R. Civ. P. 23(a)(2)) 118. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief declaring that the Defendants’ policies, practices, and procedures violate the rights of the Class members and mandating the Defendants to change their policies, practices, and procedures so that the constitutional rights of the Class members will be protected in the future. 119. These common legal and factual questions arise from one central scheme and set of policies and practices: the Defendants’ wealth-based post-arrest detention process. The Defendants operate this scheme openly and in materially the same manner every day. The material components of the scheme do not vary from Class member to Class member, and the resolution of these legal and factual issues will determine whether the members of the class are entitled to the constitutional relief that they seek. 120. Among the most important common questions of fact are:
 Whether Defendants have a policy and practice of determining the amount of money necessary to secure post-arrest release without inquiry into ability to pay;
 Whether Defendants implement their post-arrest detention scheme without consideration of ability to pay, without findings as to ability to pay, and without consideration of non-financial conditions;
 Whether Defendants require that pre-determined amounts of money be paid upfront before they will release a person from jail; and
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 How long arrested people must wait, in jail and without the assistance of counsel, after arrest before they have an opportunity to raise their inability to pay for their release.
121. Among the most important common question of law are:
 Whether the Defendants’ wealth-based post-arrest detention scheme, which requires that arrested people pay money upfront to be released and which does not consider ability to pay or non-financial conditions of release, violates the Fourteenth Amendment’s Due Process and Equal Protection clauses;
 Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantive findings, legal standards, and procedures required for issuing and enforcing a transparent order of preventive detention; and
 Whether delaying appointment of counsel for at least a week after detaining a person pursuant to an unaffordable secured financial condition of release and until after the initial arraignment violates the Sixth Amendment’s Right to Counsel Clause.
c. Typicality (Fed. R. Civ. P. 23(a)(3))
122. The named Plaintiffs’ claims are typical of the claims of the other members
of the Class, and the named Plaintiffs have the same interests in this case as all other
members of the Class. Each of them suffers the same injuries because Defendants refuse
to comply with basic constitutional requirements: The named Plaintiffs and all of the Class
members are or will be confined in jail because they cannot or will not be able to afford to
pay the Defendants’ secured financial condition of release. They also cannot and will not
be able to afford retained counsel, and they have not been, and will not be, appointed
counsel until they have been detained for at least a week, and until after their arraignment
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is over. The answer to whether the Defendants’ policies and practices are unconstitutional will determine the claims of the named Plaintiffs and every other Class member.
d. Adequacy (Fed. R. Civ. P. 23(a)(4)) 123. The named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class members. The named Plaintiffs are members of the class, and their interests do not conflict with those of the other class members. 124. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights. 125. Plaintiffs are represented by attorneys from Civil Rights Corps and Still She Rises, who have experience in litigating class actions and complex civil rights matters in federal court and knowledge of both the details of the Defendants’ scheme and the relevant constitutional and statutory law. 126. The efforts of Class counsel have so far included investigation of Defendants’ money-based pretrial detention system, interviews of jail inmates and attorneys practicing in the area, consultation with local and national experts, and research regarding the legality of Defendants’ secured money-bail regime. 127. Class counsel have studied post-arrest detention systems in other cities and counties in order to investigate the wide array of lawful options in practice for government entities.
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128. Class counsel also have experience litigating similar challenges in other jurisdictions and years of experience litigating class actions and other complex and important cases in federal courts.
129. As a result, counsel have undertaken significant efforts toward becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures that do, can, and should govern it. The interests of the members of the Class will be fairly and adequately protected by the named Plaintiffs and their attorneys.
e. Injunctive or Declaratory Relief (Fed. R. Civ. P. 23(b)(2)) 130. Class action status is appropriate because the Defendants, through the policies, practices, and procedures that make up their post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all class members. Defendants have created and applied a simple scheme of wealth-based post-arrest detention and release: Defendants release those who can pay and detain those who cannot. They do so without offering any process or providing counsel to challenge the lawfulness of impecunious people’s detention or the necessity and effectiveness of the money-bail orders underlying their detention. 131. The Class therefore seeks declaratory and injunctive relief to enjoin the Defendants from continuing in the future to detain people who are arrested and cannot afford to pay to secure their release. Because the putative Class challenges the Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply
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perforce to every member of the Class, Rule 23(b)(2) certification is appropriate and necessary.
Claims for Relief Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights Against Wealth-Based Detention by Jailing Them Because They Cannot Afford A Monetary Payment.
132. Plaintiffs incorporate by reference the allegations in paragraphs 1–130. 133. The Fourteenth Amendment’s Due Process and Equal Protection clauses have long prohibited jailing people solely because of their inability to make monetary payments. Separately, Plaintiffs have a fundamental right to pretrial liberty. Neither the right against wealth-based detention nor the right to pretrial liberty may be infringed unless the government demonstrates that detention is necessary. Defendants violate Plaintiffs’ rights by placing and keeping them in jail because they cannot afford to pay monetary bail amounts required without inquiry into and findings concerning ability to pay and without consideration of and findings concerning alternative conditions of release and the necessity of wealth-based pretrial detention. Count Two: Defendants Violate Plaintiffs’ Right to Pretrial Liberty by Jailing Them Without Procedural Due Process. 134. Plaintiffs incorporates by reference the allegations in paragraphs 1–132. 135. The Due Process Clause requires the government, before depriving anyone of the fundamental right to pretrial liberty, to provide notice of the critical issues to be decided at the hearing. The person must be represented by counsel and have the opportunity to present and confront evidence and to be heard concerning the issue of pretrial release or
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detention. Any transparent or de facto order of pretrial detention must be accompanied by findings on the record by clear and convincing evidence explaining why no combination of conditions could sufficiently serve the government’s compelling interests.
136. Defendants violate Plaintiffs’ procedural due process rights by depriving them of their fundamental right to pretrial liberty without providing these necessary safeguards to ensure the accuracy of the substantive finding of necessity.
Count Three: Defendants Violate Plaintiffs’ Sixth Amendment Right to Counsel by Not Providing Them with Counsel Adequate to Challenge Their Lengthy Wealth-Based Pretrial Detention.
137. Plaintiffs incorporate by reference the allegations in paragraphs 1–135. 138. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel at each post-attachment critical stage of the criminal process. The bail hearings to which Plaintiffs are entitled are post-attachment critical stages for which counsel must be provided. 139. Plaintiffs’ right to counsel attaches once they have been stripped of their liberty by virtue of the charges against them and appear before a judicial officer to be informed of the charges lodged against them and have bail set or reviewed. 140. Bail orders that result in pretrial detention prejudice both Plaintiffs’ immediate liberty interests and the ultimate outcomes of their cases. And they constitutionally may be issued only following robust adversarial hearings.
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141. Defendants violate the Sixth Amendment by imposing de facto orders of detention, and detaining Plaintiffs pursuant to these orders, without providing counsel to assist at required pretrial detention hearings.
142. Defendants further violate Plaintiffs’ Right to Counsel by delaying the appointment of counsel for six days or more. Every day that Plaintiffs are jailed increases the likelihood that their cases will be resolved against them, regardless of the strength of the evidence against them. Without counsel, Plaintiffs have no meaningful ability to file bail-reduction motions, the only avenue that Defendants offer for obtaining release from pre-trial detention and avoiding its prejudicial effects. The Sixth Amendment requires that Defendants appoint counsel for Plaintiffs who are detained under de facto detention orders and are too poor to hire lawyers, so that they can meaningfully challenge their prejudicial detentions and so avoid the prejudice of their unlawful pretrial detentions.
Request for Relief 143. WHEREFORE, Plaintiffs and the other Class members request that this Court issue the following relief:
a. An order and judgment preliminarily and permanently enjoining Defendants Tulsa County, Sheriff Regalado, and Judge Musseman from using secured financial conditions of release to detain Plaintiffs and class members without ensuring an inquiry into and findings concerning a person’s ability to pay, without consideration of and findings concerning alternatives, without findings concerning the necessity of detention, and without appointing counsel to assist at bail hearings and meaningfully challenge pretrial detention;
b. A declaration that the Defendants violate Plaintiffs’ and class members’ constitutional rights by requiring secured financial conditions of release without inquiry into ability to pay and by issuing and enforcing de facto
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orders of wealth-based pretrial detention without consideration of alternatives and without findings that such detention is necessary to serve a compelling interest;
c. A declaration and permanent injunction that the Defendants violate Plaintiffs’ and class members’ right to procedural due process under the Fourteenth Amendment by depriving people who are arrested of speedy, individualized release hearings with notice, counsel, the opportunity to be heard and to confront evidence, and findings on the record that the government met its burden to demonstrate by clear and convincing evidence that no alternative condition or combination of conditions would be sufficient to serve its compelling interests;
d. A declaration that the Defendants violate Plaintiffs’ and class members’ right to counsel under the Sixth Amendment by failing to provide counsel to indigent people at an individualized bail determination hearing;
e. An order certifying the class defined above;
f. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
g. Any other relief this Court deems just and proper.

Dated: June 6, 2018

Respectfully Submitted,

/s/ Ruth Hamilton Ruth Hamilton Hayley Horowitz* (pro hac vice application forthcoming) Still She Rises, Tulsa 567 E. 36th Street North Tulsa, OK 74106 ruthh@stillsherises.org hayleyh@stillsherises.org 918-392-0874
* Admitted to practice only in New York

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/s/ Charles Gerstein Charles Gerstein D.C. Bar No. 1033346 (pro hac vice application forthcoming) Alec Karakatsanis D.C. Bar No. 999294 (pro hac vice Application forthcoming) A. Dami Animashaun** NY Bar No. 5552849 (pro hac vice Application forthcoming) Civil Rights Corps 910 17th Street NW, Suite 200 Washington, DC 20006 202-670-4809 charlie@civilrightscorps.org alec@civilrightscorps.org dami@civilrightscorps.org * *Admitted to practice in New York. Not admitted in the District of Columbia; practice limited pursuant to D.C. App. R. 49(c)(8), with supervision by Premal Dharia and Alec Karakatsanis, members of the D.C. Bar
Attorneys for Plaintiffs
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 Case 4:18-cv-00298-CVE-JFJ Document 32 Filed in USDC ND/OK on 10/22/18 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

1)Michael Parga, 2) Richard Feltz, 3) O’Donley, and 4) Christopher Wood,

Tara

) ) )

on behalf of themselves and all others )

similarly situated, Plaintiffs,

) ) )

)

vs.

) Case No.18-CV-00298-CVE-JFJ

)

1)Board of County Commissioners of the

) )

FIRST AMENDED CLASS

County of Tulsa; 2) Vic Regaldo, Tulsa ) ACTION COMPLAINT

County Sheriff, in his official capacity; 3)

) )

Terry H. Bitting, 4) Tammy Bruce, 5) )

Martha Rupp Carter,6) Stephen R. Clark, )

7) Theresa Dreiling, 8) Owen Evens, 9)

) )

James W. Keeley, 10) Deborah Ludi

)

Leitch, 11) J. Anthony Miller, 12) Dawn )

Moody, 13) Millie Otey, 14) Kirsten Pace, 15) April Seibert, 16) Clifford Smith, and

) ) )

17) Sarah Smith, in their capacity as Tulsa )

County Special Judges; 18)William Musseman, in his capacity as Tulsa

County

) ) )

District Court Judge,

)

)

Defendants.

) )

Introduction 1. In 1980, Tulsa County concluded that “it violated a defendant’s 14th Amendment rights to be held in jail if they were too poor to post bail.”1

1

Tulsa

County

Court

Services,

https://www.tulsacounty.org/Tulsacounty/dynamic.aspx?id=642 (last visited, June 4, 2018).

1

History,

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2. In 2018, hundreds of people are detained in the Tulsa County Jail every day solely because they cannot afford to purchase their liberty.
3. Named Plaintiffs are currently confined in Tulsa County jail cells solely because they do not have enough money to purchase their pretrial release. They are jailed pursuant to Tulsa County’s wealth-based detention scheme, which jails people who are unable to meet secured financial conditions of release. No official has conducted any inquiry into any Plaintiffs’ ability to pay or made any inquiry into or findings concerning alternative conditions of pretrial release or the necessity of pretrial detention. Because they cannot access the payments Defendants require for their release, the presumptively innocent Plaintiffs will be detained in the Tulsa County Jail for days, weeks, or months.
4. On behalf of themselves and all others similarly situated, the named Plaintiffs seek declaratory and injunctive relief against the Defendants. After arresting a person, Defendants require secured financial conditions of release, almost always according to a predetermined chart of offenses and corresponding dollar amounts. They do not provide any process for assessing a person’s ability to pay or determining the necessity of imposing monetary conditions of release in any individual case. People who are arrested and are unable to pay preset cash deposits to secure their release must remain in jail cells for six or more days before an arraignment, which is the first appearance in front of a judicial officer. Those who cannot afford private counsel are not appointed counsel during the initial period of wealth-based detention, and no lawyer appears with them at arraignment. Defendants refuse to address conditions of release at arraignments.
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5. Defendants’ routine practice of requiring people to pay unattainable amounts of money to secure their release is the equivalent of issuing orders of detention against them, but without any of the substantive findings or procedural safeguards constitutionally required for orders of detention. As a result of Defendants’ policies, people too poor to pay for their release are jailed for days, weeks, or months. This automatic pretrial detention of poor people has devastating consequences: people who are arrested lose their jobs, are evicted from their homes, endure separation from their children and loved ones, and face pressure to plead guilty as soon as possible because that is often the quickest way to terminate their unlawful confinement. Plaintiffs seek an order declaring that this wealthbased detention scheme violates the Sixth and Fourteenth Amendments to the United States Constitution and an order enjoining Defendants from continuing its operation.
Nature of the Action2 6. Defendants have a policy and practice of refusing to release arrested people from custody unless they pay money. The amount of money required is predetermined in almost all cases by an offense-based, secured money-bail “schedule.” Defendants require payment of a generic, predetermined amount without considering a person’s ability to pay or the necessity of imposing secured money bail, and without making the substantive findings or providing the procedural safeguards that the United States Constitution and Oklahoma law require to ensure that pretrial detention is necessary to further a compelling government interest.
2 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
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7. This policy and practice results in the systemic wealth-based detention of arrested people who are too poor to pay financial conditions of release. As a result, the majority of people incarcerated in the Tulsa County Jail are pretrial detainees: More than 62 percent of people incarcerated in the Tulsa County Jail on an average day are awaiting adjudication of state misdemeanor or felony charges. They are presumptively innocent.
8. As a result of the Defendants’ wealth-based pretrial detention policies and practices, as of August 2017, Tulsa County’s pretrial detention rate was 18 percent higher than the statewide rate and 83 percent higher than the national average.
9. Individuals who are living in poverty bear the weight of this systemic illegal detention. Women and people of color, who are more likely to be poor, are most profoundly affected. The disproportionate incarceration of people of color in Tulsa and the unusually high rates of incarceration for women derive in part from Defendants’ decision to automatically condition release on monetary payment.
10. People detained before trial face worse case outcomes than those able to pay for their freedom, including higher rates of conviction and longer sentences. They also endure overwhelming effects on their personal lives—on their families, their employment, and their physical and mental health.
11. Tulsa County’s finances have been burdened by Defendants’ pretrial detention policies. The jail costs taxpayers more than $30 million a year. To fund jail operations and jail expansion, the County imposes two different sales taxes, and provides additional funding.
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Jurisdiction and Venue 12. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 13. Venue in this Court is proper under 28 U.S.C. § 1391.
Parties Plaintiffs
14. Plaintiff Michael Parga is a 37-year-old man. He lives in Tulsa County. 15. Plaintiff Richard Feltz is a 48-year-old man. He lives in Tulsa County. 16. Plaintiff Tara O’Donley is a 34-year-old woman. She is homeless. 17. Plaintiff Christopher Wood is a 48-year-old man. He lives in Tulsa County. Defendants 18. Defendant Board of Commissioners of the County of Tulsa (“Tulsa County Board”) is a municipal corporation organized under the laws of the State of Oklahoma. The Tulsa County Board maintains policies of jailing people who are unable to pay generic money bail amounts, usually predetermined by the County’s bail schedule. The Tulsa County Board also maintains a policy of delaying the appointment of counsel for people who are unable to pay generic money bail amounts and denying counsel at legal proceedings where pretrial release and pretrial detention determinations are made. 19. Defendant Vic Regalado is the Tulsa County Sheriff. The Tulsa County Sheriff is a County official, the head of the Tulsa County Sheriff’s Office, and the keeper of the County Jail. The Tulsa County Sheriff is the final policymaker for the jail in Tulsa
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County. The Sheriff’s Office detains arrested people who cannot pay a predetermined secured money bail prior to any individualized hearing. The Sheriff’s Office continues to detain arrested people who cannot pay a secured money bail amount after an individualized hearing, even though there has been no inquiry into or findings concerning ability to pay, consideration of alternatives conditions of release, or findings concerning the necessity of pretrial detention. Defendant Regalado is sued in his official capacity.3
20. Defendants Terry H. Bitting, Tammy Bruce, Martha Rupp Carter, Stephen R. Clark, Theresa Dreiling, Owen Evens, James W. Keeley, Deborah Ludi Leitch, J. Anthony Miller, Dawn Moody, Millie Otey, Kirsten Pace, April Seibert, Clifford Smith, and Sarah Smith (collectively “Special Judges”) are special judges for the District Court for Tulsa County. Defendant Special Judges are appointed by Tulsa County district court judges. They are authorized by state law to perform the duties of a magistrate in criminal cases. Defendant Special Judges’ magistrate duties include making probable cause determinations and bail determinations. Defendant Special Judges make bail determinations in three contexts. First, Defendant Special Judges review and approve arrest warrants. As part of this process, Defendant Special Judges specify conditions of release for the person whose arrest is authorized by each warrant. Second, Defendant Special Judges determine conditions of release for anyone who is arrested without a warrant on a
3 The Tulsa County Sheriff is a final policymaker for Tulsa County’s post-arrest jailing policies and practices. Defendant Regalado is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the state in this capacity, and thus is subject to prospective relief. If the Court, however, agrees that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.
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charge that is not included in Tulsa County’s secured bail schedule. Third, Defendant Special Judges review the monetary amounts that have been imposed according to the secured bail schedule and have the authority and ability to adjust those money bail amounts or impose alternative release conditions. Defendant Special Judges rarely, if ever, alter monetary amounts. In all of these contexts, when making bail determinations, Defendant Special Judges do not conduct any inquiries into or make any findings concerning people’s ability to pay money bail or the necessity of pretrial detention. They do not provide adequate hearings: they do not provide notice of the critical issues at the hearing, an opportunity to be heard or to confront evidence, findings by any legal or evidentiary standard, or an explanation of reasons on the record. They also do not provide counsel before the hearings. Defendant Special Judges are sued in their capacity as Special Judges for declaratory relief only.
21. In addition to those duties, Defendant Special Judge Dawn Moody presides over arraignments. People who are arrested and jailed pretrial and who cannot afford to purchase their release are detained in jail cells until they appear at arraignment six or more days after arrest. Defendant Moody refuses to address conditions of release at arraignment and she does not conduct any inquiry into or make any findings concerning a person’s ability to pay money bail or the necessity of pretrial detention.
22. Defendant William J. Musseman is a district court judge for the District Court for Tulsa County and the presiding judge for Oklahoma’s 14th Judicial District, which encompasses Tulsa County. As presiding judge, Defendant Musseman has general
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administrative, rulemaking, and supervisory authority over the District Court for Tulsa County. Defendant Musseman promulgates the secured money-bail schedule that is used to determine the financial condition of release for almost all people arrested in Tulsa County. Defendant Musseman also promulgates the Local Criminal Rules, which specify the procedures by which bail is set and probable cause determined, the timing and conduct of arraignments, and the appointment of counsel. Defendant Musseman is sued in his capacity as a district court judge for the District Court for Tulsa County and the presiding judge for Oklahoma’s 14th Judicial District.4
Factual Allegations A. The Named Plaintiffs Are in Jail Because They Are Unable to Pay the
Financial Condition Required for Their Release 23. Plaintiff Michael Parga is a 37-year-old man. He lives in Tulsa County. He is employed, but struggles to meet the basic necessities of life. He supports his wife, who is unemployed. 24. Mr. Parga was arrested on Thursday, May 31, 2018, in Sand Springs, a city in Tulsa County, for an alleged felony offense. Upon arrest, he was taken to the Sand Springs jail, where the arresting officer told him that he would have to pay $2,000 to be
4 In 2016, Tulsa County sought the assistance of the Vera Institute of Justice (“Vera”)—a national policy and research organization that partners with local governments to improve their criminal legal processes—to examine drivers of growth and overcrowding at the Tulsa County jail and devise strategies consistent with the County’s public safety goals to reverse that growth. Three of the named Defendants— Sheriff Vic Regaldo, Special Judge Dawn Moody, and District Court Judge William Musseman—along with a number of other Tulsa County leaders and officials participated in the process. Vera concluded that Defendants base pretrial release decisions, whether someone is incarcerated or at liberty while their case is proceeding, largely around money: whether someone can afford the bail amount or not.
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released, but he would have to wait until he was transferred to the Tulsa County jail to do so.
25. On Sunday, June 3, 2018, four days after his arrest—during which time he was confined in a jail cell in Sand Springs—Mr. Parga was transferred to the Tulsa County Jail. When he arrived at the Tulsa County Jail, a Tulsa County Sheriff’s Officer told him that he would have to pay $2,000 to get out of jail. No one asked him if he could afford to pay that amount.
26. Mr. Parga cannot afford to pay for his release. Therefore, he will remain in jail at least until his first appearance before a judicial officer, which is scheduled for June 11, 2018, 11 days after his arrest. Mr. Parga fears that he will lose his job and his home if he is forced to remain in jail until his first appearance.
27. Plaintiff Richard Feltz is a 48-year-old man. He lives in Tulsa County. He is currently unemployed.
28. Mr. Feltz was arrested on Saturday, June 2, 2018, for an alleged felony offense. Upon arrest, he was taken to the Tulsa County Sheriff’s Office, where a Tulsa County Sheriff’s Officer mistakenly told him that he would have to pay $75,000 to be released from jail.
29. Mr. Feltz was transferred to the Tulsa County Jail a few hours later. At the jail, a Tulsa County Sheriff’s officer told him that he would have to pay $50,000 to be released from jail. No one asked him if he could afford to pay that amount.
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30. Mr. Feltz cannot afford to purchase his release from jail. Therefore, he will remain in jail at least until his first appearance before a judicial officer, which is scheduled for June 11, 2018, 9 days after his arrest.
31. Plaintiff Tara O’Donley is a 34-year-old woman. She is currently homeless and has no stable income.
32. Ms. O’Donley was arrested on June 4, 2018, for an alleged misdemeanor offense. When she was brought to the Tulsa County Jail, a Sheriff’s Officer told her that she had to pay $500 to be released. No one asked her whether she could pay thatamount.
33. Ms. O’Donley cannot afford to pay for her release. Therefore, she will remain in jail at least until her first appearance before a judicial officer, which is scheduled for June 11, 2018, a week after her arrest.
34. Plaintiff Christopher Wood is a 48-year-old man. He lives in Tulsa County. He works occasionally as a handyman, and when he was arrested he had only $20. He has no other savings and does not have anyone in his life who can afford to get him out of jail.
35. Mr. Wood was arrested for a misdemeanor charge on June 4, 2018. When he was brought to the Tulsa County Jail, a Sheriff’s Officer told him that he would have to pay $1,000 to be released.
36. Mr. Wood cannot pay that amount of money. Therefore, he will remain in jail at least until his first appearance before a judicial officer, which is scheduled for June 11, 2018, a week after his arrest.
B. Defendants’ Wealth-Based Detention Scheme Detains People Who Cannot Afford to Pay and Releases People Who Can
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37. Defendants, as a matter of policy and practice, impose secured financial conditions of release on almost all people arrested in Tulsa County on misdemeanor and felony offenses, usually in reliance on a chart of predetermined dollar amounts that they refer to as a “schedule.”
38. Under this system, people who are arrested and brought to the Tulsa County Jail are released immediately by Tulsa County Sheriff’s deputies if they can afford to pay the monetary amounts that correspond to their booking charges, or if they can afford the premiums and fees required by for-profit bail-bond companies to secure the full moneybail amounts.
39. Some charges are not covered by the money-bail schedule. For these charges, the Special Judges impose money-bail amounts when they make probable cause determinations. The Special Judges have no information about, and conduct no inquiry into, a person’s ability to pay when they impose money-bail amounts on people arrested on charges not covered by the money-bail schedule. They do not consider non-financial alternative conditions of release.
40. Those who cannot access enough money to pay the amounts required by either the bail schedule or the Special Judges are jailed.
41. They remain in custody at least until their first court appearances, arraignments, which do not occur until at least six days after arrest.
42. During that period, they are not provided counsel.
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43. Most people who are detained because they cannot afford to pay the amounts required by either the bail schedule or the Special Judges cannot afford private counsel and thus are not are not represented by counsel during their arraignments.
44. Clerks from the district attorney’s office and public defender’s office attend every arraignment, but no attorneys representing either office appear.
45. The Defendant Special Judge presiding over arraignments refuses to hear arguments concerning conditions of release at the arraignments.
46. People who are deemed indigent, based on “paupers’ affidavits” completed prior to their arraignments, are formally appointed public defenders at their arraignments. But indigent arrested people are not permitted to meet with their lawyers from the public defender’s office until after their arraignments have concluded.
47. People detained solely because of their inability to pay have no opportunity at the first appearance to raise any legal or factual challenges to their wealth-based pretrial detention.
48. Written bail-reduction motions filed by counsel are the only mechanism for challenging pretrial detention.
49. Appointed counsel’s first opportunity to file a motion challenging the secured money-bail condition is after she has met with her client following the conclusion of the first court appearance at which she is appointed, which is a week into her client’s detention.
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50. A written motion challenging secured money-bail conditions of release, once prepared by counsel, routinely takes at least 48 hours to be docketed and heard by a judge.
51. That means that people who cannot afford to either pay the money Defendants demand for their release or hire an attorney are detained without any opportunity to contest their detentions for a minimum of eight days after arrest.
52. As a result of Defendants’ policies and practices, presumptively innocent people are jailed for a minimum of eight days solely because they cannot afford to make monetary payments or hire counsel, while arrested people with access to money are released immediately.
a. Arrest and Initial Money-Bail Setting 53. When a person is arrested in Tulsa County, the person is brought to the Tulsa County Jail and “booked” by an intake officer. 54. For almost everyone arrested, what happens next is determined by Tulsa County’s secured money-bail schedule. 55. The secured money-bail schedule is promulgated by Defendant Musseman. 56. The schedule is a list of offenses and dollar amounts. It predetermines secured financial conditions of release for all but a select few offenses for which individualized conditions of release must be determined by a judge. 57. For anyone arrested without a warrant for an offense covered by the bail schedule, an intake officer, who is employed by the Tulsa County Sheriff’s Office, consults
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the money-bail schedule to determine how much money is required for the immediate release of the booked individual.
58. If a person has been arrested on a warrant, the warrant specifies bail conditions, which are set by Defendant Special Judges. For warrants on charges covered by the bail schedule, Defendant Special Judges exclusively use secured financial conditions of release, and they determine the secured amounts using the schedule.
59. If the schedule covers the arrest charges, regardless of whether arrests are made with or without warrants, Defendants have a policy of “stacking bail” for people whose booking charges include at least one “stacking-eligible” offense. Stacking is the practice of computing a person’s secured financial condition of release by adding the money-bail amounts for each offense on which the person is booked. The person must pay the cumulative amount before being released from jail. The “stacking-eligible” offenses that trigger stacking are determined by administrative directive, issued by Defendant Musseman and subject to amendment at his discretion.
60. If a person has been arrested on a charge covered by the schedule, or on a warrant specifying a money-bail amount, an intake officer tells the person what offense she has been arrested for and “how much it will cost to get out of jail before seeing a judge.”5
5 The Tulsa County Sheriff’s Office’s website contains a video that demonstrates the “inmate booking process” for all people arrested in Tulsa County. See Tulsa County Sheriff’s Office, Booking Process Video, http://tcso.org/resources/inmate-bookings/ (last visited June 6, 2018) (“Sheriff’s Office Video”).
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61. After informing a person of the financial condition of release, the intake officer allows the person to make a phone call to arrange for the payment of money to secure her release.
62. “[I]f they are unable to post a bond, the person will remain in custody until their court date.” She will be forced to exchange her clothing for a jail uniform and housed in the jail, where she will remain for days, weeks, or months. See Sheriff’s Office Video.
63. “[I]f the person is able to pay their bond they will be allowed to be bonded out by a certified Tulsa County certified bondsman,” or by payment of cash bail. “[T]hey are also told their court date,” and allowed to keep their clothes. “[T]heir property is returned to them, and they are free to go.” See id.
64. Working in rotation, Defendant Special Judges review the arrest charges for anyone arrested without a warrant and in detention within 48 hours of arrest. Based on police reports, Defendant Special Judges make probable-cause determinations, review money-bail amounts previously assessed according to the bail schedule, and impose money-bail amounts for those arrested on charges not covered by the bail schedule. Defendant Special Judges carrying out these duties make their bail determinations without inquiring into anyone’s ability to pay or into whether pretrial detention is necessary in each case.
65. Arrested people do not appear before Defendant Special Judges making probable cause determinations and reviewing the bail imposed by schedule. No defense attorneys are present, and there is no opportunity to be heard.
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66. In all cases—whether arrests are made with or without warrants, and whether charges do or do not appear on the secured money-bail schedule—money bail is the default pretrial-release decision-maker. Cash amounts are required of nearly all people who are booked into the jail, except those charged with the most severe offenses, for whom no conditions of release are set.
67. In each case, money bail is required without any evaluation of the individual circumstances of the arrested person, other than the charges on which she has been booked and, sometimes, prior felony convictions and the contents of the police report.
68. Even “low” monetary bail amounts are unaffordable for poor people. Significant percentages of people detained on monetary amounts at the bottom end of the bail schedule are unable to pay their way out of jail.
69. Money bail serves as a detention mechanism not a release mechanism for the indigent.
70. For many people, bail orders therefore operate as de facto detention orders. But these de facto orders of detention are issued and enforced without the substantive findings or procedural safeguards required by federal law before the government may detain a presumptively innocent person: (1) a finding that pretrial detention is necessary because no less restrictive alternatives are available to meet a compelling government interest, and (2) robust procedural safeguards to ensure the accuracy of that substantive finding.
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71. For wealthy people arrested in Tulsa County, money-bail orders operate as orders of release without supervision of any kind no matter how significant the government’s assessment of the risks that the wealthy person poses.
72. But for poor people arrested in Tulsa County, money-bail orders operate as orders of detention even if their release would pose no risk at all and even if simple and less restrictive alternatives exist to mitigate any risk.
73. Defendants routinely issue de facto detention orders without any assessment of the risk a person may pose, and without considering non-monetary bail conditions that might sufficiently mitigate any risks. And they issue these de facto detention orders without any meaningful process, let alone the detailed procedures required by due process, including notice of the critical issues to be decided; the assistance of counsel; the right to present evidence and to confront the evidence offered by the government; application of specific legal and evidentiary standards; and an on-the-record statement of reasons for any decision to detain.
b. Defendants’ Wealth-Based Detention Scheme Is Not Mandated by Oklahoma Law and Is Contrary to Its Purposes
74. These policies and practices enforced in Tulsa County are not required by state law, which instead offers many opportunities for release which are enshrined as a right under the Oklahoma constitution for nearly all people who are arrested.
75. In addition to the federal constitution rights that Defendants’ policies violate, the Oklahoma Constitution guarantees the right to bail to an accused person in a criminal case subject to limited exceptions. Okla Const. art. II, § 8. State law provides that “[e]xcept
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as otherwise provided by law, bail, by sufficient sureties, shall be admitted upon all arrests in criminal cases where the offense is not punishable by death ....... ” Okla. Stat. Ann. tit. 22, § 1101 (A).
76. As a matter of history and practice, “bail” is “a process of conditional release,” meant “to effectuate and maximize release.”6 The same is true under Oklahoma law: “Bail” is a “means of procuring . . . release” while “insuring [a person’s] future attendance in court, and compelling him to remain within the jurisdiction of the court.” Manning v. State ex rel Williams, 120 P.2d 980, 981 (Okla. 1942).
77. “Bail” is not equivalent to “money bail.” Bail conditions can include both financial and non-financial conditions of release. “Money bail” refers to those conditions of release that are financial and describes the practice of requiring a defendant to forfeit money if she does not appear for trial. Money bail can be either secured or unsecured. Secured money bail requires people who are arrested to deposit money before they are released; unsecured money bail allows them to be released without depositing any money but requires them to pay if they fail to appear.
78. In Oklahoma, “the denial of bail is allowed under very limited circumstances,” and only after extensive procedural safeguards have been satisfied. Brill v. Gurich, 965 P.2d 404, 406 (Okla. 1998).
6 “There is ‘bail’—i.e., a process of release—and there is ‘no bail[]’—a process of detention.” U.S. Dep’t of Just. Nat’l Inst. Of Corr., Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (2014), http://www.clebp.org/images/2014-1105_final_bail_fundamentals_september_8,_2014.pdf.
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79. For anyone taken into custody on almost any other offense, Oklahoma law permits Defendants to release the person “on his personal recognizance subject to such conditions as the court or magistrate may reasonably prescribe to assure his appearance when required.” Okla. Stat. Ann. tit. 59, § 1334; see also Okla. Stat. Ann. tit. 22, § 1108.1.
80. A personal recognizance release is “[t]he release of a [person] in a criminal case in which the court takes the [person’s] word that he or she will appear for a scheduled matter or when told to appear. [] This type of release dispenses with the necessity of the person’s posting money or having a surety sign a bond with the court.” BLACK’S LAW DICTIONARY (10th ed. 2014), Westlaw.
81. In lieu of jailing people upon arrest, Oklahoma law permits law enforcement officials to issue citations to people arrested on misdemeanor offenses or violations of city ordinances. See Okla. Stat. Ann. tit. 22, § 209.
82. State law further authorizes Tulsa County to “establish and fund a pretrial program” to facilitate the release of people who have committed all but a handful of serious offenses and, for all other people, allows release with or without secured money bail by order of a judge under any “conditions prescribed by the judge.” 22 Okla. Stat. Ann. § 1105.3.
83. The Tulsa County Board operates and administers a pretrial release program that is run by Tulsa County Court Services. The pretrial release program is one of only two forms of non-financial pretrial release used in Tulsa County, the other being personal recognizance release.
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84. Tulsa County releases fewer than 500 people each year to the Court Services’ pretrial release program. In 2016, 500 people amounted to less than two percent of the 25,704 people admitted into the Tulsa County Jail.
85. Defendants routinely ignore alternative options under state law that would protect federal constitutional rights against wealth-based pretrial detention.
c. Initial Arraignment 86. Once a financial condition of release is imposed, anyone who cannot access the money required for release, and who therefore remains jailed, does not see a judicial officer until the arraignment. 87. Tulsa County District Court rules mandate that the arraignment happen no later than six days after arrest. 88. In practice, arraignments often occur more than six days after arrest. 89. During their six- or more-day detentions, people who cannot afford to pay for their release and cannot afford to hire attorneys are not appointed counsel. 90. Defendant Special Judge Moody usually presides over arraignments. On occasions when Defendant Moody is unavailable to conduct arraignments, one of the other Defendant Special Judges conducts them in her place. Each of the Special Judges follows the same policies and practices in all respects that are material to Plaintiffs’ claims. 91. Arraignments are conducted via video-link. The Special Judge conducts the arraignments from the courtroom, while people in custody appear on screen from the Tulsa County Jail.
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92. Prior to each arraignment, the judge receives “paupers’ affidavits” for the people who are being arraigned. The pauper’s affidavit is designed to elicit a person’s financial information and is meant to be used to determine each person’s eligibility for a public defender.
93. The initial arraignments are rote exercises, and each routinely lasts less than 30 seconds. No counsel is present on either side and there is no opportunity to challenge the secured money-bail conditions previously imposed.
94. If the prosecutor has not made a charging decision by the time of the initial arraignment, the judge either releases the person or postpones the arraignment for about a week.
95. Presumptively innocent people whose arraignments have been postponed and who cannot afford to pay to purchase their liberty are jailed for another week while they wait to be arraigned. They are not assigned counsel until after they are arraigned and so remain unrepresented in the interim unless they can afford to hire their own attorneys.
96. For everyone being arraigned, the Special Judge reads the charges that the prosecutor has chosen to file, enters a plea of not guilty, and assigns a public defender if the judge determines that the person is financially eligible for one.
97. As a matter of policy and practice, Defendant Special Judges refuse to address conditions of release at arraignments. They do not make findings concerning whether any person has the ability to pay the money-bail amounts that have previously
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been set, and do not hear evidence or making findings concerning alternative conditions of release or the necessity of detention.
d. Post-Arraignment Detention 98. The only opportunity for a person to request modification of her conditions of release is by filing a bail-reduction motion, with one of the Special Judges, through her attorney. 99. For anyone who is jailed because she cannot afford to pay for her release, and who cannot afford to hire an attorney, the first opportunity to file a bail-reduction motion comes six or more days after arrest when attorneys are first appointed. 100. Tulsa County District Court policy directs Special Judges not to set a bondreduction hearing fewer than 48 hours after a motion is filed by an attorney. During that waiting period, the arrested person remains confined in jail. 101. The judges hearing such motions refuse, as a matter of routine practice, to make findings concerning ability to pay, alternative conditions or release, or the necessity of pretrial detention. As a result, even if and when a financial condition of release is reduced, often weeks after an arrest, it is frequently reduced to amounts that remain unaffordable. C. People Jailed Because They Are Poor Suffer Devastating Consequences 102. People who cannot pay a secured money bail amount to secure their release after arrest are significantly more likely to be convicted of a crime—and more likely to be convicted of a more serious crime—than people arrested on the same charges but able to
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pay to secure their release.7 Even one day of pretrial detention notably increases a person’s likelihood of conviction.8 And detention until disposition of a case is the single greatest predictor of criminal conviction.9
103. Being detained pretrial for any length of time decreases a person’s plea bargaining power and increases the likelihood of a plea to time served, even if the person is innocent. Anyone detained at the time of a plea offer faces enormous pressure to plead guilty just to get out of jail.
104. Jailing people after arrest hampers their ability to prepare their defenses for trial. For example, a jailed person without counsel cannot preserve and gather surveillance video that may disappear within hours or days of an alleged crime. A jailed person without counsel cannot take witness statements, and witnesses become more difficult to find each day after arrest. And jailed people, even once they are appointed counsel after a week of incarceration, cannot effectively meet with that counsel and prepare the defense, including by assisting the attorney in finding evidence and witnesses or building a mitigation case that would support community-based or treatment-based alternatives at sentencing.
105. Pretrial detention of any length also has devastating personal consequences: Even one day in jail can “imperil [a person’s] job, interrupt his source of income, and

7 Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pre-Trial Detention on Conviction,

Future Crime, and Employment: Evidence from Randomly Assigned Judges, 20-21, 27 (2017),

https://www.princeton.edu/~wdobbie/files/bail.pdf.

8 Mary T. Philips, New York City Crim., Just. Agency, Inc., Pretrial Detention and Case Outcomes,

Part

I:

Nonfelony

Cases,

26

(2007),

http://www.nycja.org/lwdcms/doc-

view.php?module=reports&module_id=669&doc_name=doc.

9 Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, Investigating the Impact of

Pretrial Detention on Sentencing Outcomes, 10-11 (2013), http://www.arnoldfoundation.org/wp-

content/uploads/2014/02/LJAF_Report_state-sentencing_FNL.pdf.

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impair his family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Because of the havoc that just days in jail can cause, even those released after an initial period of detention are less likely to mount defenses to their cases, and are more likely to miss court dates, violate terms of release, and otherwise suffer worse outcomes in their criminal cases.
106. Even a few days in jail significantly increases the risk of job loss, eviction from housing or homeless shelter, exposure to trauma in custody, and broken family connections, especially for people with very young children.
107. A large body of empirical evidence shows that “low risk” people who are jailed for just two or three days after arrest because they cannot pay money bail are much more likely to commit crimes in the future and to not appear in court in the future because of the de-stabilizing effects of even short periods in jail.
Class Action Allegations 108. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 109. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge the Defendants’ unlawful wealth-based post-arrest detention scheme. 110. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.
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111. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
112. The Plaintiffs propose one class seeking declaratory and injunctive relief: All people who are or will be detained in the Tulsa County Jail because they are unable to pay a secured financial condition of release.
a. Numerosity (Fed. R. Civ. P. 23(a)(1)) 113. Every person arrested in Tulsa County who is not lawfully preventatively detained is subjected to the Defendants’ wealth-based detention scheme in which arrested people either pay for their liberty or, regardless of their ability to pay or personal circumstances, remain confined in a jail cell. 114. There are hundreds of people subject to these policies at any given time. 115. Sherriff’s Department records show that on June 6, 2018, 1,665 people were detained in the Tulsa County Jail. A majority of them were held pretrial, on money bail amounts, and none or almost none of them were detained under explicit detention orders, issued according to the procedures required by Oklahoma law for orders of detention. Most of them were, and still are, in jail on de facto orders of pretrial detention: money-bail orders entered without following any of the procedures required for valid orders of detention. They would be released immediately if they were not impoverished. 116. Joinder is impracticable because the class is both too numerous and too fluid for the Court to feasibly hear their independent claims.
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117. Joinder is also impracticable because the members of the class are too poor to hire lawyers to bring independent claims.
b. Commonality (Fed. R. Civ. P. 23(a)(2)) 118. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief declaring that the Defendants’ policies, practices, and procedures violate the rights of the Class members and mandating the Defendants to change their policies, practices, and procedures so that the constitutional rights of the Class members will be protected in the future. 119. These common legal and factual questions arise from one central scheme and set of policies and practices: the Defendants’ wealth-based post-arrest detention process. The Defendants operate this scheme openly and in materially the same manner every day. The material components of the scheme do not vary from Class member to Class member, and the resolution of these legal and factual issues will determine whether the members of the class are entitled to the constitutional relief that they seek. 120. Among the most important common questions of fact are:
• Whether Defendants have a policy and practice of determining the amount of money necessary to secure post-arrest release without inquiry into ability to pay;
• Whether Defendants implement their post-arrest detention scheme without consideration of ability to pay, without findings as to ability to pay, and without consideration of non-financial conditions;
• Whether Defendants require that pre-determined amounts of money be paid upfront before they will release a person from jail; and
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• How long arrested people must wait, in jail and without the assistance of counsel, after arrest before they have an opportunity to raise their inability to pay for their release.
121. Among the most important common question of law are:
• Whether the Defendants’ wealth-based post-arrest detention scheme, which requires that arrested people pay money upfront to be released and which does not consider ability to pay or non-financial conditions of release, violates the Fourteenth Amendment’s Due Process and Equal Protection clauses;
• Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantive findings, legal standards, and procedures required for issuing and enforcing a transparent order of preventive detention; and
• Whether delaying appointment of counsel for at least a week after detaining a person pursuant to an unaffordable secured financial condition of release and until after the initial arraignment violates the Sixth Amendment’s Right to Counsel Clause.
c. Typicality (Fed. R. Civ. P. 23(a)(3))
122. The named Plaintiffs’ claims are typical of the claims of the other members
of the Class, and the named Plaintiffs have the same interests in this case as all other
members of the Class. Each of them suffers the same injuries because Defendants refuse
to comply with basic constitutional requirements: The named Plaintiffs and all of the Class
members are or will be confined in jail because they cannot or will not be able to afford to
pay the Defendants’ secured financial condition of release. They also cannot and will not
be able to afford retained counsel, and they have not been, and will not be, appointed
counsel until they have been detained for at least a week, and until after their arraignment
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is over. The answer to whether the Defendants’ policies and practices are unconstitutional will determine the claims of the named Plaintiffs and every other Class member.
d. Adequacy (Fed. R. Civ. P. 23(a)(4)) 123. The named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class members. The named Plaintiffs are members of the class, and their interests do not conflict with those of the other class members. 124. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights. 125. Plaintiffs are represented by attorneys from Civil Rights Corps and Still She Rises, who have experience in litigating class actions and complex civil rights matters in federal court and knowledge of both the details of the Defendants’ scheme and the relevant constitutional and statutory law. 126. The efforts of Class counsel have so far included investigation of Defendants’ money-based pretrial detention system, interviews of jail inmates and attorneys practicing in the area, consultation with local and national experts, and research regarding the legality of Defendants’ secured money-bail regime. 127. Class counsel have studied post-arrest detention systems in other cities and counties in order to investigate the wide array of lawful options in practice for government entities.
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128. Class counsel also have experience litigating similar challenges in other jurisdictions and years of experience litigating class actions and other complex and important cases in federal courts.
129. As a result, counsel have undertaken significant efforts toward becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures that do, can, and should govern it. The interests of the members of the Class will be fairly and adequately protected by the named Plaintiffs and their attorneys.
e. Injunctive or Declaratory Relief (Fed. R. Civ. P. 23(b)(2)) 130. Class action status is appropriate because the Defendants, through the policies, practices, and procedures that make up their post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all class members. Defendants have created and applied a simple scheme of wealth-based post-arrest detention and release: Defendants release those who can pay and detain those who cannot. They do so without offering any process or providing counsel to challenge the lawfulness of impecunious people’s detention or the necessity and effectiveness of the money-bail orders underlying their detention. 131. The Class therefore seeks declaratory and injunctive relief to enjoin the Defendants from continuing in the future to detain people who are arrested and cannot afford to pay to secure their release. Because the putative Class challenges the Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply
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perforce to every member of the Class, Rule 23(b)(2) certification is appropriate and necessary.
Claims for Relief Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights Against Wealth-Based Detention by Jailing Them Because They Cannot Afford A Monetary Payment.
132. Plaintiffs incorporate by reference the allegations in paragraphs 1–130. 133. The Fourteenth Amendment’s Due Process and Equal Protection clauses have long prohibited jailing people solely because of their inability to make monetary payments. Separately, Plaintiffs have a fundamental right to pretrial liberty. Neither the right against wealth-based detention nor the right to pretrial liberty may be infringed unless the government demonstrates that detention is necessary. Defendants violate Plaintiffs’ rights by placing and keeping them in jail because they cannot afford to pay monetary bail amounts required without inquiry into and findings concerning ability to pay and without consideration of and findings concerning alternative conditions of release and the necessity of wealth-based pretrial detention. Count Two: Defendants Violate Plaintiffs’ Right to Pretrial Liberty by Jailing Them Without Procedural Due Process. 134. Plaintiffs incorporates by reference the allegations in paragraphs 1–132. 135. The Due Process Clause requires the government, before depriving anyone of the fundamental right to pretrial liberty, to provide notice of the critical issues to be decided at the hearing. The person must be represented by counsel and have the opportunity to present and confront evidence and to be heard concerning the issue of pretrial release or
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detention. Any transparent or de facto order of pretrial detention must be accompanied by findings on the record by clear and convincing evidence explaining why no combination of conditions could sufficiently serve the government’s compelling interests.
136. Defendants violate Plaintiffs’ procedural due process rights by depriving them of their fundamental right to pretrial liberty without providing these necessary safeguards to ensure the accuracy of the substantive finding of necessity.
Count Three: Defendants Violate Plaintiffs’ Sixth Amendment Right to Counsel by Not Providing Them with Counsel Adequate to Challenge Their Lengthy Wealth-Based Pretrial Detention.
137. Plaintiffs incorporate by reference the allegations in paragraphs 1–135. 138. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel at each post-attachment critical stage of the criminal process. The bail hearings to which Plaintiffs are entitled are post-attachment critical stages for which counsel must be provided. 139. Plaintiffs’ right to counsel attaches once they have been stripped of their liberty by virtue of the charges against them and appear before a judicial officer to be informed of the charges lodged against them and have bail set or reviewed. 140. Bail orders that result in pretrial detention prejudice both Plaintiffs’ immediate liberty interests and the ultimate outcomes of their cases. And they constitutionally may be issued only following robust adversarial hearings.
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141. Defendants violate the Sixth Amendment by imposing de facto orders of detention, and detaining Plaintiffs pursuant to these orders, without providing counsel to assist at required pretrial detention hearings.
142. Defendants further violate Plaintiffs’ Right to Counsel by delaying the appointment of counsel for six days or more. Every day that Plaintiffs are jailed increases the likelihood that their cases will be resolved against them, regardless of the strength of the evidence against them. Without counsel, Plaintiffs have no meaningful ability to file bail-reduction motions, the only avenue that Defendants offer for obtaining release from pre-trial detention and avoiding its prejudicial effects. The Sixth Amendment requires that Defendants appoint counsel for Plaintiffs who are detained under de facto detention orders and are too poor to hire lawyers, so that they can meaningfully challenge their prejudicial detentions and so avoid the prejudice of their unlawful pretrial detentions.
Request for Relief 143. WHEREFORE, Plaintiffs and the other Class members request that this Court issue the following relief:
a. An order and judgment preliminarily and permanently enjoining Defendants the Tulsa County Board, Sheriff Regalado, and Judge Musseman from using secured financial conditions of release to detain Plaintiffs and class members without ensuring an inquiry into and findings concerning a person’s ability to pay, without consideration of and findings concerning alternatives, without findings concerning the necessity of detention, and without appointing counsel to assist at bail hearings and meaningfully challenge pretrial detention;
b. A declaration that the Defendants violate Plaintiffs’ and class members’ constitutional rights by requiring secured financial conditions of release without inquiry into ability to pay and by issuing and enforcing de facto
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orders of wealth-based pretrial detention without consideration of alternatives and without findings that such detention is necessary to serve a compelling interest;
c. A declaration and permanent injunction that the Defendants violate Plaintiffs’ and class members’ right to procedural due process under the Fourteenth Amendment by depriving people who are arrested of speedy, individualized release hearings with notice, counsel, the opportunity to be heard and to confront evidence, and findings on the record that the government met its burden to demonstrate by clear and convincing evidence that no alternative condition or combination of conditions would be sufficient to serve its compelling interests;
d. A declaration that the Defendants violate Plaintiffs’ and class members’ right to counsel under the Sixth Amendment by failing to provide counsel to indigent people at an individualized bail determination hearing;
e. An order certifying the class defined above;
f. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
g. Any other relief this Court deems just and proper.

Dated: October 22, 2018

Respectfully Submitted,

/s/ Hayley Horowitz Ruth Hamilton Hayley Horowitz* (pro hac vice application forthcoming) Still She Rises, Tulsa 567 E. 36th Street North Tulsa, OK 74106 ruthh@stillsherises.org hayleyh@stillsherises.org 918-392-0874
* Admitted to practice only in New York

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/s/ Charles Gerstein Charles Gerstein D.C. Bar No. 1033346 (pro hac vice application forthcoming) Alec Karakatsanis D.C. Bar No. 999294 (pro hac vice Application forthcoming) A. Dami Animashaun** NY Bar No. 5552849 (pro hac vice Application forthcoming) Civil Rights Corps 910 17th Street NW, Suite 200 Washington, DC 20006 202-670-4809 charlie@civilrightscorps.org alec@civilrightscorps.org dami@civilrightscorps.org * *Admitted to practice in New York. Not admitted in the District of Columbia; practice limited pursuant to D.C. App. R. 49(c)(8), with supervision by Premal Dharia and Alec Karakatsanis, members of the D.C. Bar
Attorneys for Plaintiffs
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Certificate of Service I hereby certify that on the 22nd day of October 2018, I caused a copy of the foregoing document to be served on all parties by the Electronic Case Filing System for the United States District Court for the Northern District of Oklahoma.
/s/ Hayley Horowitz Hayley Horowitz

 
 Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MICHAEL PARGA, RICHARD FELTZ,

)

TARA O’DONLEY, AND CHRISTOPHER )

WOOD, on behalf of themselves and all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BOARD OF COUNTY COMMISSIONERS OF )

THE COUNTY OF TULSA; VIC REGALADO, )

Tulsa County Sheriff, in his official capacity; )

TERRY H. BITTING, TAMMY BRUCE,

)

MARTHA RUPP CARTER, STEPHEN R.

)

CLARK, THERESA DREILING, OWEN

)

EVENS, JAMES W. KEELEY, DEBORAH )

LUDI LEITCH, J. ANTHONY MILLER,

)

DAWN MOODY, MILLIE OTEY, KIRSTEN )

PACE, APRIL SEIBERT, CLIFFORD SMITH, )

AND SARAH SMITH, in their capacities as )

Tulsa County Special Judges; AND WILLIAM )

MUSSEMAN, in his capacity as Tulsa County )

District Court Judge,

)

)

Defendants.

)

Case No. 18-CV-0298-CVE-JFJ

OPINION AND ORDER

Now before the Court is the motion to dismiss and brief in support (Dkt. # 24) of defendants

Tulsa County District Judge William Musseman and Tulsa County Special Judges Terry H. Bitting,

Tammy Bruce, Owen Evens, James W. Keeley, J. Anthony Miller, Dawn Moody, Kirsten Pace,

April Seibert, Sarah Smith, Martha Rupp Carter, Stephen R. Clark, Theresa Dreiling, Deborah Ludi

Leitch, Millie Otey, and Clifford Smith.1 On June 6, 2018, plaintiffs filed a class action complaint

1

Defendants Board of County Commissioners of the County of Tulsa and Tulsa County

Sheriff Vic Regalado do not join in the motion to dismiss. Board of County Commissioners

and Regalado each filed an answer to the amended complaint on November 2, 2018. Dkt.

## 38, 39.

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 2 of 12

(Dkt. # 2) and a motion for class certification (Dkt. # 3). On August 8, 2018, defendants Musseman, Bitting, Bruce, Evens, Keeley, Miller, Moody, Pace, Seibert, and S. Smith filed a motion to dismiss the complaint (Dkt. # 24). Plaintiffs filed a response to the motion to dismiss on August 29, 2018 (Dkt. # 25), and moving defendants filed a reply on September 12, 2018 (Dkt. # 26). On October 19, 2018, defendants Carter, Clark, Dreiling, Leitch, Otey, and C. Smith were added to the motion to dismiss as additional moving parties (Dkt. # 31). Plaintiffs filed an amended complaint on October 22, 2018 (Dkt. # 32).2
I. In this putative class action, plaintiffs seek declaratory and injunctive relief3 for alleged violations of their equal protection and due process rights, their right to pretrial liberty, and their Sixth Amendment right to counsel. Id. at 30-33. Plaintiffs’ amended complaint sets out eighty-five numbered paragraphs of factual allegations. Id. at 8-24, ¶¶ 23-107. The vast majority of these allegations are generalized; only fourteen of the eighty-five paragraphs contain factual allegations relating to the four named plaintiffs. Id. at 8-10, ¶¶ 23-36. The Court first reviews plaintiffs’ generalized allegations. Plaintiffs claim that defendants have a policy and practice of imposing secured financial conditions of release on almost all

2

The amended complaint was filed at the Court’s direction to correct the name of defendant

Board of County Commissioners of the County of Tulsa. Dkt. # 33.

3

Plaintiffs expressly state that they sue the special judges for declaratory relief only. Dkt. #

32, at 7, ¶ 20. Therefore, despite the ambiguous phrasing of certain of plaintiffs’ requests

for injunctive relief (e.g., id. at 33, ¶ 143.c), the Court assumes that all requests for injunctive

relief apply to defendants Musseman (in his administrative capacity), Regalado, and Board

of County Commissioners only. In any case, to the extent plaintiffs seek injunctive relief

against the special judges (or against Musseman for judicial acts), such claims are barred

under 42 U.S.C. § 1983, which expressly provides that when a judge is sued in his or her

judicial capacity, as here, “injunctive relief shall not be granted . . . .”

2

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individuals arrested in Tulsa County, usually in reliance on a pre-determined, offense-based bond schedule, which is promulgated by Musseman. Id. at 11, 13. As plaintiffs note, an individual can be arrested with or without an arrest warrant for an offense that is or is not covered by the bond schedule. Id. at 13-14. Plaintiffs allege that when an individual is arrested on a warrant, a special judge determines the conditions of release prior to the individual’s arrest and specifies those conditions in the warrant. Id. at 14. Plaintiffs claim that, for any warrant that lists an offense covered by the bond schedule, the special judge will require secured financial conditions of release and rely on the bond schedule to determine the secured bond amount. Id. Plaintiffs allege that, when an individual is arrested without a warrant for an offense that is not covered by the bond schedule, a special judge imposes a bond amount at the probable cause determination, which takes place within 48 hours of the individual’s arrest. Id. at 15. Plaintiffs allege that, when an individual is arrested without a warrant for an offense that is covered by the bond schedule, an intake officer consults the bond schedule upon booking the individual into jail and informs the individual of the bond amount. Id. Plaintiffs claim that a special judge then reviews that imposed bond amount at the probable cause determination. Id. at 14-15. Plaintiffs allege that the special judges rarely, if ever, alter bond amounts imposed by intake officers. Id. at 7. Plaintiffs claim that, in all cases–whether the arrest is made with or without a warrant, and whether the offense does or does not appear on the bond schedule–special judges make bond determinations without inquiring into the individual’s ability to pay or the necessity of pretrial detention. Id. at 15. Further, plaintiffs allege that, although state law provides two forms of non-financial pretrial release–(1) a pretrial release program, and (2) personal recognizance release–special judges routinely ignore these alternative options. Id. at 19-20.
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Plaintiffs allege that, as a result of these practices, individuals who cannot afford to pay the financial conditions of release must remain in jail for days, weeks, or months–but, in all instances, at least until his or her initial arraignment, which takes place at least six days after arrest. Id. at 2, 5, 11. Plaintiffs allege that, prior to the arraignment, the special judge presiding over the arraignment receives a pauper’s affidavit, which elicits financial information to determine the individual’s eligibility for a public defender. Id. at 21. If the special judge determines the individual to be indigent, he or she will appoint a public defender at the arraignment; however, plaintiffs allege that individuals are not permitted to meet with this appointed counsel until after the arraignment has concluded. Id. at 12. Therefore, plaintiffs allege that these individuals are not appointed counsel prior to the arraignment and that no lawyer appears for them at the arraignment. Id. at 21. Moreover, plaintiffs claim that it is the policy and practice of the special judges to refuse to address conditions of release, or to hear evidence or make findings concerning necessity or ability to pay at the arraignments. Id. Finally, plaintiffs allege that the only opportunity for an individual to challenge the financial conditions of release is by having his or her appointed counsel file a bailreduction motion with a special judge after the arraignment. Id. at 22. However, plaintiffs claim that, as a matter of routine practice, special judges refuse to make findings concerning ability to pay, alternative conditions of release, or necessity of pretrial detention when hearing such motions. Id. Therefore, plaintiffs allege that, even when a special judge reduces the financial conditions of release, the individual still cannot afford to pay the bond amount. Id.
The factual allegations relating to the four named plaintiffs are significantly limited in comparison to plaintiffs’ generalized allegations. Each named plaintiff–Michael Parga, Richard Feltz, Tara O’Donley, and Christopher Wood–alleges that he or she was arrested between May 31,
4

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 5 of 12

2018 and June 4, 2018. Id. at 8-10. Further, each named plaintiff alleges that, after arriving at Tulsa County jail, an officer from the Tulsa County Sheriff’s Office informed him or her of the bond amount.4 Id. Plaintiffs allege that none of the named plaintiffs was asked whether he or she is able to pay the bond amount. Id. Moreover, each named plaintiff alleges that he or she is, in fact, unable to afford the bond amount and that, as a result, each named plaintiff was still in jail as of the filing of the initial complaint on June 6, 2018, and would remain in jail at least until his or her initial arraignment before a judicial officer on June 11, 2018. Id.
According to plaintiff’s response to the motion to dismiss (Dkt. # 25) and defendant Regalado’s answer to the initial complaint (Dkt. # 22), all four named plaintiffs paid their bonds and were released from jail before their initial arraignments took place on June 11, 2018. Specifically, plaintiffs Parga and Feltz paid their bonds through commercial surety companies one and three days, respectively, after the civil complaint was filed in this case. Dkt. # 22, at 5-6. In addition, plaintiffs O’Donley and Wood paid their bonds through non-profit organizations one day after the complaint was filed; thereafter, both O’Donley and Wood failed to appear in court, and, as a result, had warrants issued for their arrests. Id. at 6.
II. In their motion to dismiss (Dkt. # 24), moving defendants assert six bases for dismissal: (1) lack of Article III standing; (2) jurisdictional issues based on federalism and comity; (3) failure to challenge bail requirements through a writ of habeas corpus; (4) failure to state a claim for injunctive relief; (5) failure to state a claim that can be cured through declaratory relief; and (6) judicial

4

Parga, Feltz, O’Donley, and Wood were informed of the following bond amounts,

respectively: $2,000, $50,000, $500, and $1,000. Dkt. # 32, at 9-10.

5

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 6 of 12
immunity. However, in light of the fact that all four named plaintiffs paid their bonds and were released from jail in the days following the filing of the complaint, the Court must first address mootness, a threshold jurisdictional issue which the Court may raise sua sponte. Colorado Off Highway Vehicle Coal. v. U.S. Forest Serv., 357 F.3d 1130, 1133 (10th Cir. 2004).
Under Article III of the U.S. Constitution, federal jurisdiction is limited to certain “cases” and “controversies.” U.S. CONST. art. III, § 2. The mootness doctrine is a corollary to this case-andcontroversy requirement; thus, when an action is moot, the federal court is deprived of subjectmatter jurisdiction over it. Schell v. OXY USA, Inc., 814 F.3d 1107, 1114 (10th Cir. 2016). The mootness doctrine provides that “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71 (2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). A case becomes moot “when a plaintiff no longer suffers ‘actual injury that can be redressed by a favorable judicial decision.’” Rhodes v. Judiscak, 676 F.3d 931, 933 (10th Cir. 2012) (quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)). Here, it is immediately clear that none of the four named plaintiffs continues to suffer an injury that can be redressed by this litigation, as none of them remains detained due to an inability to pay bond. Rather, all four plaintiffs paid their bonds and were released from jail in the few days after the complaint was filed, and before their initial arraignments took place. Further, where, as here, a party seeks equitable relief only, past exposure to allegedly illegal conduct is insufficient to show that a plaintiff has a personal stake in the outcome of the litigation; rather, “the party must ‘demonstrate a good chance of being likewise injured in the future.’” McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (quoting Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir. 1991)). Therefore, the named plaintiffs’ allegations
6

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 7 of 12

that they were previously detained and unable to pay their bonds does not establish a live controversy warranting prospective equitable relief. Moreover, the Court assumes that plaintiffs will “conduct their activities within the law and so avoid [arrest] as well as exposure to the challenged course of conduct said to be followed by [defendants].” O’Shea v. Littleton, 414 U.S. 488, 497 (1974). Therefore, there is no “reasonable expectation” or “demonstrated probability” that these same named plaintiffs will be subjected to new bond amounts.5 Murphy v. Hunt, 455 U.S. 478, 482 (1982). Therefore, the Court finds that the four named plaintiffs’ claims are moot.
The mootness of the named plaintiffs’ claims, however, does not end the Court’s inquiry. Rather, federal courts have identified certain exceptions to the mootness doctrine in the class action context. One exception to the mootness doctrine, as identified by the Supreme Court in Sosna v. Iowa, 419 U.S. 393 (1975), occurs when the named plaintiff’s claim becomes moot after the district court has ruled on the motion for class certification. Id. at 399 (“When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant. We are of the view that this factor significantly affects the mootness determination.”). However, the Supreme Court left open the issue of whether an entire class action is moot when, as here, the named plaintiffs’ claims become moot before the district court rules on a motion for class certification. In addressing the issue, the vast majority of lower federal courts, including the Tenth Circuit, have held that the entire action is moot if the named plaintiffs’ claims become moot any time before a ruling on class certification. See William B. Rubenstein, 1 Newberg on Class Actions § 2:11 n.9 (5th ed.) (compiling case law).

5

The Court assumes that, if a pretrial releasee violates bond conditions and fails to appear (as

two named plaintiffs here did), it is highly unlikely a new bond amount will be set.

7

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 8 of 12

Specifically, in Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134 (10th Cir. 2009), the Tenth Circuit held that, “[a]s a general rule, a suit brought as a class action must be dismissed for mootness when the personal claims of the named plaintiffs are satisfied and no class has been properly certified.”6 Id. at 1138 (quoting Reed v. Heckler, 756 F.2d 779, 785 (10th Cir. 1985)). However, the Tenth Circuit identified three possible situations in which the entire class action may not be moot despite the mooting of the named plaintiff’s claim prior to the district court’s certification decision: (1) when the plaintiff’s claim is capable of repetition, yet evading review; (2) when the plaintiff’s claim is inherently transitory such that the trial court will not have enough time to rule on a motion for class certification before the proposed representative’s individual interest expires; and (3) when the defendant moots the named plaintiff’s claims by making a full offer of judgment before the named plaintiff has a reasonable opportunity to file a motion for class certification. Id. at 1138-39. As discussed, the Court finds that all four named plaintiffs’ claims are moot. Moreover, no class has been certified in this case. Therefore, the general rule adopted by the Tenth Circuit would require this Court to dismiss the entire action as moot, unless one of the three possible exceptions applies. The Court turns to whether any of these three exceptions applies here.

6

One difference between Clark and the present case is that, in Clark, the named plaintiffs had

not yet filed their motion for class certification by the time their claims became moot. In the

present case, the named plaintiffs filed the complaint and the motion for class certification

on the same day. Therefore, even though all named plaintiffs’ claims became moot just one

to three days after the action was initiated, their claims were not moot at the time the motion

for class certification was filed. The Court finds, however, that whether the claims became

moot before or after the motion for class certification was filed is irrelevant to the Court’s

analysis. Rather, the focus of the mootness inquiry is whether the named plaintiff had a live

controversy at the time the class was certified by the Court. This is consistent with the

Supreme Court’s determination that “the fact that a putative class acquires an independent

legal status once it is certified under Rule 23” was “essential to [its] decision[] in Sosna . .

. .” Genesis HealthCare, 569 U.S. at 75.

8

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 9 of 12

The “capable of repetition, yet evading review” exception applies “where the claim may arise again with respect to that plaintiff” or “the litigant faces some likelihood of becoming involved in the same controversy in the future.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980). It applies “only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). In order for the named plaintiffs to become involved in the same controversy in the future, they would need to be arrested again for another offense and then subjected to a bond that they are unable to pay. However, as discussed above, because the Court assumes that plaintiffs will “conduct their activities within the law,” there is no reasonable expectation that these same named plaintiffs will be arrested again. O’Shea, 414 U.S. at 497. Therefore, the Court finds that the “capable of repetition, but evading review” exception to the mootness doctrine does not apply.
The “inherently transitory” exception applies when, due to the nature of the claim, the trial court will not have enough time to rule on a motion for class certification before the proposed representative’s individual interest expires. Sosna, 419 U.S. at 402 n.11. In such instances, the certification “relates back” to the filing of the complaint. Id. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court held that the plaintiffs’ claims challenging pretrial detention conditions7 were “inherently transitory,” because “[i]t [wa]s by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.”

7

The named plaintiffs in Gerstein were members of a class of persons detained without a

probable cause determination. Gerstein, 420 U.S. at 110 n.11. The record before the

Supreme Court did not indicate whether any of the named plaintiffs was still in custody

awaiting trial at the time the district court certified the class. Id.

9

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 10 of 12
Id. at 110 n.11. It is certainly relevant to this inquiry that the claims in Gerstein, like the claims here, involve a challenge to pretrial detention. However, the inquiry does not end there.8 Rather, as the Supreme Court explained in Sosna, “whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.” Sosna, 419 U.S. at 402 n.11. Here, the entire basis of plaintiffs’ claims is that defendants “have a policy and practice of refusing to release arrested people from custody unless they pay money,” and that the putative class members remain detained because “they do not have enough money to purchase their pretrial release.” Dkt. # 32, at 2-3. Moreover, the Court finds it significant that plaintiffs allege that defendants routinely ignore the two forms of non-financial pretrial release available in Tulsa County. Id. at 19. In Gerstein, one of the Supreme Court’s bases for finding the claim to be inherently transitory was that there were numerous ways in which plaintiffs could be released from jail before class certification, including release on recognizance. Gerstein, 420 U.S. at 110 n.11. Here, the crux of plaintiffs’

8

If this Court were to conclude that the present claims challenging pretrial detention are

“inherently transitory” solely because the Supreme Court found the claims in Gerstein to be

inherently transitory, it would be interpreting Gerstein as creating an exception to the

mootness doctrine in all class actions challenging pretrial detention. Such an interpretation

would contradict the Supreme Court’s classification of Gerstein as belonging to a “narrow

class of cases.” Gerstein, 420 U.S. at 110 n.11. Rather, the “inherently transitory” analysis

requires the Court to do more than simply determine that the claims fit into the broad

category of claims challenging pretrial detention.

10

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 11 of 12

claims is that there is no way for them to obtain pretrial release; their only option is to pay the bond amount, which none of the putative class members can afford to do.9 Therefore, the specific claims involved in this case are inextricably intertwined with the allegations that the putative class members are subject to extended and continuous detention with no ability to obtain release. Accordingly, the Court finds that plaintiffs’ claims are not inherently transitory.
Finally, the Court finds that the third possible exception identified by the Tenth Circuit in Clark is inapplicable. First, defendants have not made a full offer of judgment to plaintiffs. Second, the named plaintiffs’ claims were mooted by plaintiffs’ own actions. Third, plaintiffs have already filed their motion for class certification. Therefore, the Court finds that none of the possible exceptions identified by the Tenth Circuit is applicable in this case.
Accordingly, pursuant to the general rule adopted by the Tenth Circuit, the mooting of the named plaintiffs’ claims prior to a ruling on class certification moots the entire class action. Because the Court finds that the entire class action is moot, it need not address the six arguments raised in moving defendants’ motion to dismiss (Dkt. # 24).
IT IS THEREFORE ORDERED that moving defendants’ motion to dismiss (Dkt. # 24) is declared moot.
IT IS FURTHER ORDERED that plaintiffs’ motion for class certification (Dkt. # 3) is declared moot.

9

Based on plaintiffs’ allegations, a significant number of putative class members should

remain in jail at least until their trials take place. The assumption is that anyone who is

released from jail prior to that time would not be a class member because he or she was able

to pay for his or her release. Moreover, plaintiffs do, in fact, allege that at least some of the

putative class members remain in jail for several months.

11

Case 4:18-cv-00298-CVE-JFJ Document 40 Filed in USDC ND/OK on 11/19/18 Page 12 of 12 IT IS FURTHER ORDERED that plaintiffs’ amended complaint (Dkt. # 32) is dismissed
without prejudice as moot. A separate judgment is entered herewith. DATED this 19th day of November, 2018.
12

 
 Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MICHAEL PARGA, et al., on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No. 18-cv-0298-CVE-JFJ

TULSA COUNTY, et al.,

Defendants.

PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AGAINST DEFENDANT TULSA COUNTY SHERIFF

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 2 of 33
TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1 BACKGOUND ............................................................................................................................... 3
I. This Case Has Been Subject to Many Lengthy Delays and Further Delay Risks Class Members’ Health ........................................................................................................................ 3 II. Defendants’ Unconstitutional Pretrial Detention Practices ................................................. 4
A. Booking Decisions Are Based on Wealth .................................................................... 4 B. Bail Reviews Are Conducted Without Considering Ability to Pay or Alternative Conditions ............................................................................................................................... 5 C. Class Members Remain Detained on Unaffordable Bail Amounts and Without Representation Following Bail Reviews............................................................................... 10 ARGUMENT ................................................................................................................................ 11 I. Plaintiff Is Likely to Succeed on the Merits ...................................................................... 11 A. Arrestees’ Detention Absent a Finding of Necessity Violates Their Fundamental Rights to Pretrial Liberty and Against Wealth-Based Detention.......................................... 12 B. The Sheriff May Not Detain Pretrial Detainees Without Procedural Safeguards ...... 17 II. Class Members Will Suffer Irreparable Harm Without a Preliminary Injunction............. 19 III. The Risk to Class Members Absent a Preliminary Injunction Outweighs Any Risk to the Sheriff ....................................................................................................................................... 22 IV. Emergency Relief Is in the Public Interest ........................................................................ 24 CONCLUSION............................................................................................................................. 25
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TABLE OF CONTENTS
Cases Addington v. Texas, 441 U.S. 418 (1979) ..................................................................................... 18 Bandy v. United States, 81 S. Ct. 197 (1960) ............................................................................... 12 Boussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003) ...................................................... 14 Brangan v. Commonwealth, 80 N.E.3d 949 (Mass. 2017) ........................................................... 14 Buffin v. City & Cty. of San Francisco, No. 15-CV-04959-YGR, 2018 WL 424362 (N.D. Cal.
Jan. 16, 2018) ............................................................................................................................ 13 Carlisle v. Desoto Cty., Miss., 2010 WL 3894114 (N.D. Miss. Sept. 30, 2010) .......................... 15 Cobb v. Green, 574 F. Supp. 256 (W.D. Mich. 1983) .................................................................. 19 Concrete Pipe & Prods. v. Constr. Laborers Pension Tr., 508 U.S. 602 (1993) ......................... 19 Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)................................................................. 12 Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256 (10th Cir. 2004) ...... 11 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 19 Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) ............................................................................ 19 Foucha v. Louisiana, 504 U.S. 71 (1992)............................................................................... 12, 18 Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) .......................................................................... 13 Fuentes v. Shevin, 407 U.S. 67, 80 (1972).................................................................................... 19 Gagnon v. Scarpelli, 411 U.S. 778 (1973).................................................................................... 19 Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012) .......................................... 1 Illinois League of Advocates for the Developmentally Disabled v. Illinois Dep’t of Human Servs.,
No. 13 C 1300, 2013 WL 3287145 (N.D. Ill. June 28, 2013) .................................................... 1 In re Humphrey, 19 Cal. App. 5th 1006 (Ct. App. 2018) ............................................................. 18 Jones v. City of Clanton, No. 15-CV-34, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015)........... 22 Kleinbat v. United States, 603 A.2d 861(D.C. 1992) ................................................................... 18 Lake v. Speziale, 580 F. Supp. 1318 (D. Conn. 1984) .................................................................. 19 Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013) .................................... 1 Leisner v. New York Tel. Co., 358 F. Supp. 359 (S.D.N.Y.1973) .................................................. 1 Little v. Jones, 607 F.3d 1245 (10th Cir. 2010) ............................................................................ 11 Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc).................................... 13, 18 Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) ........................................................................... 18 Matthews v. Eldridge, 424 U.S. 319 (1976) ................................................................................. 17
ii

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 4 of 33
Mayer v. City of Chicago, 404 U.S. 189 (1971) ........................................................................... 14 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 990)........................................................................ 24 Morrissey v. Brewer, 408 U.S. 471 (1972) ................................................................................... 19 N.Y. State Nat. Org. for Women v. Terry, 697 F. Supp. 1324 (S.D.N.Y.1988) .............................. 1 Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977) ...................................................................... 12 Reno v. Flores, 507 U.S. 292, 302 (1993) .................................................................................... 12 Santosky v. Kramer, 455 U.S. 745 (1982) .................................................................................... 18 SEC v. Bankers Alliance Corp., No. 95-civ-0428, 1995 WL 317586 (D.D.C. 1995 May 10, 1995)
................................................................................................................................................... 19 Simpson v. Miller, 387 P.3d 1270 (Ariz. 2017) ............................................................................ 13 Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) ........................................................................... 18 Stack v. Boyle, 342 U.S. 1 (1951) ................................................................................................. 14 State v. Brown, 338 P.3d 1276 (N.M. 2014)................................................................................. 14 Swarthout v. Cooke, 562 U.S. 216 (2011) .................................................................................... 17 Tate v. Short, 401 U.S. 395, 397–98 (1971) ................................................................................. 12 United States v. Bogle, 855 F.2d 707 (11th Cir. 1988) ................................................................. 19 United States v. Leathers, 412 F.2d 169 (D.C. Cir. 1969)............................................................ 13 United States v. Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991).................................................. 13 United States v. Salerno, 481 U.S. 739 (1987) ........................................................... 12, 13, 17, 19 Wanatee v. Ault, 120 F. Supp. 2d 784 (N.D. Iowa 2000) ............................................................. 19 Ward v. Village of Monroeville¸409 U.S. 57 (1972)..................................................................... 19 Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................................... 13 Williams v. Farrior, 626 F. Supp. 983 (S.D. Miss. 1986) ...................................................... 13, 14 Williams v. Illinois, 399 U.S. 235 (1970) ..................................................................................... 12 Wolff v. McDonnell, 418 U.S. 539 (1974) .................................................................................... 19 Zablocki v. Redhail, 434 U.S. 374 (1978)..................................................................................... 13 Statutes Okla. Stat. Ann. tit. 22, § 1108.1 .................................................................................................. 15 Okla. Stat. Ann. tit. 22, § 209 ....................................................................................................... 15 Okla. Stat. Ann. tit. 59, § 1334 ..................................................................................................... 15 Other Authorities ABA Standard 10-5.8.................................................................................................................... 18 Anne C. Spaulding, Coronavirus and the Correctional Facility............................................ 20, 24
iii

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 5 of 33
Arnold Foundation, Pretrial Criminal Justice Research Summary (2013) .................................. 24 Arnold Foundation, The Hidden Costs of Pretrial Detention (2013) ........................................... 24
Bail Reform in Cook County: An Examination of General Order 18.8A and Bail in Felony Cases (May 2019)................................................................................................................................ 16
Christina Carrega, Shampoo, watery soap to disinfect: Conditions on Rikers Island during COVID-19 unsafe, some inmate say, ABC News (Mar. 29, 2020) .......................................... 21
Crim. J. Pol. Program, Moving Beyond Money: A Primer on Bail Reform (October 2016) ........ 20 Criminal Justice Reform Information Ctr., Criminal Justice Reform Statistics: Jan. 1 – Jun. 31,
2019 (2009) ............................................................................................................................... 16 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Protect
Yourself ..................................................................................................................................... 21 Ctrs. for Disease Control & Prevention, Morbidity & Mortality Weekly Report: Severe Outcomes
Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, Feb. 12-Mar. 16, 2020..................................................................................................................................... 21 Gabrielle Banks, Sheriff Gonzalez is seeking compassionate release of some inmates at the Harris County Jail, Houston Chronicle (Mar. 19, 2020)............................................................ 2 James Fraser & Matt Wynn, Coronavirus in Oklahoma: spike would leave hospitals without enough beds, The Oklahoman (Mar. 13, 2020) ........................................................................ 25 Jennifer Gonnerman, How Prisons and Jails Can Respond to the Coronavirus, The New Yorker (March 14, 2020), ..................................................................................................................... 24 Jing Cai, et al., Indirect Virus Transmission in Cluster of COVID-19 Cases, Wenzhou, China, 2020, 26 Emerging Infections Diseases 26 (June 2020),.......................................................... 23 Kenji Mizumoto, Estimating the Asympomatic Proportion of 2019 Novel Coronavirus onboard the Princess Cruises Ship, 2020, medRxiv (Feb. 20, 2020), .................................................... 23 Megan T Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, J. of L. Econ., and Organization, Vol. 34, Issue 4 (Nov. 2018).............................. 20 New Jersey Judiciary, 2018 Report to the Governor and the Legislature.................................... 16 Nicole Wetsman, Prisons and jails are vulnerable to COVID-19 outbreaks, The Verge (Mar. 7, 2020) ......................................................................................................................................... 20 Order No. 18-8A of the Cook County Chief Judge ...................................................................... 16 Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 768 (2017) ...................................................................................................... 15, 20 Saint Louis University, “Ticking Time Bomb”: Prisons Unprepared For Flu Pandemic, ScienceDaily (Sept. 15, 2006) .................................................................................................. 20 Sandhya Kajeepeta et al., County Jail Incarceration Rates and County Mortality Rates in the United States, 1987-2016, AJPH (Jan. 2020) ........................................................................... 25 Sean Murphy, Oklahoma Has 1st Coronavirus Death; Test Shortage Persists, U.S. News, (Mar. 19, 2020) ................................................................................................................................... 21
iv

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 6 of 33
See World Health Organization, Director-General Opening Remarks (March 11, 2020).............. 1 Shima Baradaran Baughman, Costs of Pretrial Detention, Boston Univ. L. Rev., Vol.. 97:1
(2017) ........................................................................................................................................ 20 Star-Ledger Editorial Board, Has bail reform been a success? Check the crime numbers, then
decide, Star-Ledger (Dec. 5, 2018) ........................................................................................... 16 Stecklein, State still hasn’t finished COVID-19 prediction models, The Norman Transcript
(March 31, 2020) ........................................................................................................................ 3 Stephen A. Lauer, et al., The Incubation Period of Coronavirus Disease 2019 (COVID-19) From
Publicly Reported Confirmed Case, Ann. Intern. Med. (Mar. 10, 2020).................................. 23 Timothy Williams, et al., “Jails Are Petri Dishes”: Inmates Freed as the Virus Spreads Behind
Bars, The New York Times (Mar. 30, 2020)............................................................................ 21 Tulsa County Sheriff’s Office, Jail Information........................................................................... 21 United States Department of Justice, National Institute of Corrections, Fundamentals of Bail
(2014) ........................................................................................................................................ 24 Washington D.C. Pretrial Services Agency .................................................................................. 16 Washington D.C. Pretrial Services Agency, FY 2019 Release Rates for Pretrial Defendants
within Washington, DC ............................................................................................................ 16 Will Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and
Employment: Evidence from Randomly Assigned Judges, Am. Economic Rev. (2018) .......... 20 Worldometer, Coronavirus Incubation Period,............................................................................ 23 Treatises Moore’s Federal Practice § 23.50 (2d ed.1990).............................................................................. 1 Newberg on Class Actions § 24:83 (4th ed. 2002) ......................................................................... 1
v

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Plaintiff Richard Feltz hereby moves this Court for a Temporary Restraining Order and
Preliminary Injunction against Defendant Sheriff Vic Regalado on behalf all persons who are or
will be detained because they are unable to pay a secured financial condition of release.1
PRELIMINARY STATEMENT
Tulsa County is facing an unprecedented public health disaster, and the county jail is a
catastrophe waiting to happen. As COVID-19 has spread across the globe, hundreds of thousands
of people have been infected and thousands of people have died.2 There is no known cure. When
COVID-19 enters the jail, experts warn, it “could spread like wildfire.”3 Hundreds of class
1 Plaintiff’s Motion for Class Certification remains pending. Plaintiff files this motion on behalf of the putative class members, but for ease of reference describes them as “class members” throughout. Although this is a prototypical case for which the class action vehicle was created, the Court need not rule on the Plaintiff’s class certification motion or formally certify a class in order to issue preliminary injunctive relief. See, Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012) (“[T]here is nothing improper about a preliminary injunction preceding a ruling on class certification.”); Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling . . . .”); N.Y. State Nat. Org. for Women v. Terry, 697 F. Supp. 1324, 1336 (S.D.N.Y.1988) (“[T]he Court acted in the only reasonable manner it could under the circumstances, ruling on the continuation of [the] temporary restraining order and leaving the question of class certification for another day.”); Leisner v. New York Tel. Co., 358 F. Supp. 359, 371 (S.D.N.Y.1973) (“[R]elief as to the class is appropriate at this time even though when the preliminary injunction motion was heard, the class action had not yet been certified.”); Illinois League of Advocates for the Developmentally Disabled v. Illinois Dep’t of Human Servs., No. 13 C 1300, 2013 WL 3287145, at *4 (N.D. Ill. June 28, 2013) (“[T]he class allegations in the . . . Complaint are sufficient to establish Plaintiffs’ standing to seek immediate injunctive relief on behalf of the proposed class.”). 2 The World Health Organization has officially classified the spread of Covid-19 as a global pandemic. See World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themedia-briefing-on-covid-19---11-march-2020. 3 Gabrielle Banks, Sheriff Gonzalez is seeking compassionate release of some inmates at the Harris County Jail, Houston Chronicle (Mar. 19, 2020), https://www.houstonchronicle.com/
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members are in the Tulsa County Jail because they are too poor to pay their assigned money bail; they are presumed innocent, and no judge has found that allowing them to return home poses a risk of danger to the community or will result in their nonappearance. At the time this suit was filed, these circumstances violated class members’ equal protection and due process rights. Now, in the face of a global pandemic, they also threaten class members’ lives.
In ordinary times, Defendants’ daily violation of constitutional principles has immediately devastating consequences: Removing class members from their homes and communities for even a matter of days leads to lost housing and jobs, destabilized families and communities, increased poverty, and negative criminal case outcomes.4 Now, it also contributes to an unprecedented and potentially catastrophic personal and public health risk. As criminal court proceedings are indefinitely delayed in light of the pandemic,5 each class member faces an extended period of unjustified detention, even as the jail promises to become the site of a COVID-19 outbreak. Dozens of people enter and leave the jail every week, housing conditions make necessary hygiene practices and social distancing impossible, and individuals spend substantial time—and eat—in communal spaces. It is thus extremely urgent that no person be unnecessarily and unconstitutionally detained in the Tulsa County Jail during the course of the COVID-19 public health emergency and subjected to the risk of serious illness and death.
The solution is simple: Individuals who are in jail solely because they cannot afford imposed money bail should be released unless and until they are given a due-process-compliant
news/houston-texas/houston/article/harris-county-sheriff-gonzalez-jail-inmate-release15143578.php?utm_campaign=CMS%20Sharing%20Tools%20(Premium)&utm_source=t.co&u tm_medium=referral. 4 See infra nn.76-78 and accompanying text. 5 See ECF No. 151-5 (Ok. Sup. Ct. 2d Emergency COVID-19 Order); Ex. 8 (Tulsa Cnty. Dist. Ct. Emergency COVID-19).
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hearing. There is no time to waste. A recent analysis predicts that the state’s COVID-19 cases will peak in less than three weeks, and that the state will run out of ICU beds by April 11.6 Plaintiff therefore moves for a temporary restraining order and preliminary injunction enjoining Sheriff Regalado from enforcing any secured financial condition of release imposed on a person unless that person has had a swift, due-process-compliant hearing to determine the necessity of detention. Plaintiff asks that this emergency request be heard as expeditiously as possible, before COVID-19 enters the jail and begins to kill class members who are entitled to relief.
BACKGOUND I. This Case Has Been Subject to Many Lengthy Delays and Further Delay Risks Class Members’ Health
Four Named Plaintiffs, including Mr. Feltz, filed this action on June 6, 2018 on behalf of themselves and hundreds of other people detained in the Tulsa County Jail solely because they could not afford to pay money bail. They sought injunctive relief, and they moved for class certification.7 In 22 months, the case has been suspended four times—three times over plaintiffs’ objection. It was stayed twice to allow the parties to pursue settlement8; stayed once to await the outcome of proposed bail reform legislation that failed to pass9; and delayed once when it was dismissed and then reinstated.10 The most recent stay was lifted on March 10, and a motion hearing is set for April 3 to adjudicate Defendants’ motions to quash Plaintiffs’ deposition
6 Stecklein, State still hasn’t finished COVID-19 prediction models, The Norman Transcript (March 31, 2020), https://www.normantranscript.com/oklahoma/news/state-still-hasn-t-finishedcovid-19-prediction-models/article_c744e06b-ac1d-56c7-b0f8-7404cabae64f.html (citing study by the University of Washington’s Institute for Health Metrics and Evaluation). 7 ECF No. 1 (Compl.); ECF No. 3 (Mot. for Class Cert.). See supra n. 1. 8 ECF No. 19 (Defs.’ Req. to Extend time to Answer); ECF No. 118 (Stay Order). 9 ECF No. 61 (Stay Order); ECF No. 64 (Order Lifting Stay), 10 Order Dismissing Case (ECF No. 40); Order Reinstating Case (ECF No. 48).
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notices.11 In the nearly two years since this case was filed—and in the three weeks since the stay was lifted—the world has changed. The jail threatens to become an epicenter of an outbreak that could kill hundreds, if not thousands, of Tulsa residents. The Court and parties cannot sit by as Defendants continue to lock people up, and now expose them to risk of contracting a deadly pathogen, because they cannot afford to pay money. II. Defendants’ Unconstitutional Pretrial Detention Practices
The Tulsa County Jail currently incarcerates over 1,000 people, and the majority are class members: pretrial detainees held on money bail.12 More such persons are arriving daily. No judge has found that their detention serves a valid government interest. All would be immediately released if they had enough money to pay their preset bond amounts.
A. Booking Decisions Are Based on Wealth To determine who will be jailed and who will be released after arrest, the Sheriff
primarily “uses [an] offense-based, secured money-bail schedule,” promulgated by the Tulsa County District Court.13 For the minority of persons arrested on warrants, the Sheriff uses money bail amounts assigned by the judges who approved the warrants.14 In either case, money bail amounts are assigned based on arrestees’ charges,15 without any individualized consideration.
11 ECF No. 149 (Order Lifting Stay). 12 Ex. 6 (Jail Population Report, Apr. 2, 2020). 13 ECF No. 116 (County Defs.’ Mot. for Protective Order Reply) at 4; see also ECF No. 58-1 (Def. Judges’ Rep. to 3d Proposed Stips.), Stips. No. 1, 2, 5, 6, 9; ECF No. 39 (County Defs.’ Answer) ¶¶ 38, 57; ECF No. 116 (County Defs.’ Mot. for Protective Order Reply). 14 ECF No. 32 (First Am. Compl.) ¶ 58. 15 See 51-1 (J. Musseman Aff.) ¶ 2; 51-4 (J. Guten Aff.) ¶ 4; see also Ex. 10 (Tulsa County Preset Bond Schedule); ECF No. 32 (First Am. Compl.) ¶ 58.
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Anyone who pays the predetermined bail amount is released, while anyone who cannot afford to is detained.16 The Tulsa County Sheriff “does not have a policy of collecting financial information from arrestees,” and “does not have a policy of making an inquiry into whether arrestees can afford secured money bail amounts.”17 Instead, the Sheriff detains arrestees on unaffordable money bail, set without consideration of whether a person’s detention is necessary to serve either of the relevant substantial government interests: protecting the public from a specific safety risk or ensuring future appearance from someone who is a flight risk.
B. Bail Reviews Are Conducted Without Considering Ability to Pay or Alternative Conditions Under a Tulsa County District Court Local Rule adopted during the pendency of this
case, anyone detained on unaffordable bail is supposed to appear before a judge on the Court’s “bond docket” within 48 hours of arrest for a bail review.18 Judges overseeing the bond docket routinely impose money bail amounts without (1) hearing evidence of or assessing arrestees’ ability to pay; (2) determining whether the money bail imposed will therefore operate as a de facto detention order; and, if so, (3) hearing evidence and making findings about whether a compelling government interest requires conditions that amount to detention, or a less restrictive condition will suffice. As a result, the Tulsa County Jail is filled with people who cannot afford to post bail, but for whom no judge has ever found that detention is necessary.
16 Ex. 11 (TCSO Policy 19-06) at 6.4(A) (“Inmates are entitled to timely release when they have made bond”); Ex. 12 (TCSO Policy 30.3.2) at III(C)(5) (“If not posting bond, inmates will transition to housing after completing the booking process.”). 17 ECF No 98-5 (Pls.’ and Sheriffs’ 2d Stips), Sips. No. 5, 6. 18 At the time this case was filed, the Court did not routinely provide bail hearings for arrestees. Since then, Defendants have repeatedly adjusted their pretrial detention and bail-setting practices and created a bond docket in response to this lawsuit, but the Court still does not offer dueprocess compliant bail hearings. The bond docket was established in October 2018 by an administrative order, which was superseded by local rule on August 22, 2019. See ECF No. 51-2 (Admin. Order 2018-09); ECF No. 89-1 (Local Cr. R. 2).
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In a typical bond docket hearing, arrestees appear by video from the jail.19 The judge, in the courtroom, reads the charges of arrest based on the police report or warrant affidavit.20 The detainee, represented by appointed counsel solely for purposes of the bond docket, is permitted to present arguments for a reduced bond or personal recognizance release. The judge also considers the allegations in the police report or affidavit in support of the arrest warrant, the person’s criminal history report, information provided by courtroom staff who review electronic court records, and, sometimes, input from local bondsman Rusty Roberts, who attends the docket daily.21 An assistant district attorney sometimes, but infrequently, attends to present argument.22 The defendant does not have access to all of the information considered by the judge.23 If the defendant’s arguments or representations conflict with information provided by other sources, such as the police report or criminal history information, the judge generally accepts the latter as true, without providing an evidentiary basis; evidentiary hearings are never scheduled. 24 Although bail determinations are supposed to be individualized, according to a statutorily mandated review of monthly bail data compiled by the Public Defender, the bail schedule is a predominant consideration of the bond docket judge: “[M]any bond settings on the docket end up
19 ECF No. 89-1 (Local Cr. R. 2). 20 Ex. 3 (Horowitz PI Decl.) ¶ 3. 21 ECF No. 157-5 (J. Guten Decl.) ¶ 7; Ex. 1 (Pub. Def. Jail and Bond Stats., Jul. 2019) at 5 (judge relies heavily on “information in the police report, accepted as true,” and the “defendant’s criminal history”); Ex. 3 (Horowitz PI Decl.) ¶ 3. 22 Ex. 3 (Horowitz PI Decl.) ¶ 4. 23 ECF No. 157-5 (J. Guten Decl.) ¶ 7. In particular, the defendant does not have access to information from the NCIC, a national database of data relating to criminal investigations and proceedings, which is known to be riddled with errors. See, e.g., Michael McFarland, The Human Cost of Computer Errors (Jun. 1, 2012), https://www.scu.edu/ethics/focus-areas/internetethics/resources/the-human-cost-of-computer-errors/; Hannah Gladstein, et al., Blurring the Lines, Migration Policy Institute (Dec. 2005), file:///C:/Users/hhorowitz/Downloads/MPI_ report_Blurring_the_Lines_120805.pdf. 24 Id. ¶¶ 4, 8; see also Ex. 1 (Pub. Def. Jail and Bond Stats., Jul. 2019) at 5 (judge relies heavily on “information in the police report, accepted as true”).
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the same as the bail schedule amount,”25 which the defendant is presumed unable to pay.26 “While a defendant’s ability to pay is considered,” it is not given substantial weight, as “evidenced by the relatively low number of bond reductions that lead to an inmate’s release.”27
The bond docket judge routinely imposes monetary conditions of release without determining or articulating whether the condition will result in the person’s detention and, if so without making evidence-based findings that the person represents a risk of flight or dangerousness that can be addressed only by imprisonment.28 Local Rule 2 explicitly disclaims the judges’ obligation to do so, requiring consideration of factors like the seriousness of the individual’s charge and her appearance history only if she “is claiming to be indigent and not just unable to meet [monetary] conditions of release.”29 Even for indigent defendants, the policy does not require judicial officers to make any particular findings before imposing unaffordable bond that will lead to the person’s detention. The rule instead emphasizes the court’s “sole discretion” to determine “appropriate” bond amounts based on a number of factors.30 In accordance with this written policy, Special Judge David Guten, who has been assigned to preside over the bond docket since February 11, 2019, testified by affidavit that in determining
25 Ex. 1 (Pub. Def. Jail and Bond Stats., Jul. 2019) at 5. 26 ECF No. 51-4 (J. Guten Aff.), ¶ 5. 27 Id. 28 Ex. 3 (Horowitz PI Decl.) ¶ 5. In fact, the Court routinely asks defendants how much they can afford, and then imposes bail amounts greater than the amount stated without finding that detention is necessary. Id. 29 ECF No. 89-1 (Local Cr. R. 2) at 3. The policy to disregard evidence of a defendant’s inability to pay absent a claim of indigency is significant in a jurisdiction where preset bond amounts often reach into the tens and even hundreds of thousands of dollars. See Ex. 10 (Tulsa County Bail Schedule). 30 ECF No. 89-1 (Local Cr. R. 2) at 1, 3.
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conditions of release, his practice is to consider “many . . . factors,” including “[t]he bond
index[,] . . . criminal history and previous instances of failure to appear.”31
The Court’s written records likewise show no indication that the Court considers
evidence of, or makes findings concerning, ability to pay, danger to the community, risk of
nonappearance, or alternatives to detention as a matter of course when imposing monetary bail.
Defendants have produced thousands of pages of dockets reflecting Court’s bond docket
determinations.32 In cases where the Court refuses to reduce a person’s bond from the amount
assigned at arrest, the Court’s only written record is a docket entry that reads: “Bond Reduction
Denied. Bond $[x].”33 Similarly, in cases where bond is reduced from the predetermined amount,
but remains unaffordable, the Court’s practice is to record the reduced bond amount—“Bond
Reduction Granted, Bond Reduced to $[x]”—without any reference to evidence of
dangerousness or risk of flight, or analysis of whether continued detention is necessary.34 The
Court routinely maintains predetermined bails amount without finding that detention is necessary
31 ECF No. 51-4 (J. Guten Aff.), ¶¶ 1, 5. 32 Ex. 3 (Horowitz PI Decl.) at ¶8; See also ECF No. 157-5 (J. Guten Decl.) ¶ 10. 33 Id.; see also, e.g., Ex. 4 (J.E. Bond Docket Record) at 2.This sample court record reflects that the defendant, J.E., remained in jail for six days on unaffordable bail following his bond docket appearance, despite the Court’s failure to find that detention was necessary. Indeed, after six days, J.E. was released without any conditions, after the state failed to file criminal charges on two of J.E.’s arrest charges. The record shows no indication that new evidence was provided about, or new consideration given to, dangerousness or risk of nonappearance. See Ex. 4 at 2. Apparently, the Court decided based solely on the nature of the charges against him, that J.E. was, after all, not dangerous or a flight risk, but it didn’t make that determination until he had been deprived of his liberty for more than a week for no valid reason. Id. 34 Ex. 3 (Horowitz PI Decl.), ¶ 8; see also, e.g., Ex. 5 (C.B. Bond Docket Record) at 2. C.B., like J.E., remained in jail on unaffordable bond after his bond docket appearance, without any record of evidence of dangerousness or risk of nonappearance. His docket sheet likewise confirms the Court’s primary focus on the nature of the charges against the defendant. C.B.’s bond was reduced on one count and maintained on two others, without evidence in the record about his ability to pay the aggregate amount or about the government interest in jailing him pretrial. Ex. 5 at 2.
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even though “there is a presumption that the arrestee [appearing at bond docket] cannot meet the
preset bond and will therefore remain in jail.”35
In many cases, the Sheriff continues to detain people even after the Court has implicitly
acknowledged that they likely do not pose a safety or flight risk. For example, the Court
routinely finds class members might be “good candidates” for release, but does not go on to
identify and impose conditions that would allow for immediate release. 36 Instead, the Court
frequently maintains these class members’ unaffordable bail orders while referring them to Tulsa
County’s Court services’ pretrial release program.37 The program allows for a small number of
defendants to be released without posting bond,38 but a substantial portion of people referred
never obtain release through Court Services,39 and even when they do, their release is delayed by
days.40 The result is that arrestees whose detention the Court has deemed to be likely
unnecessary remain jailed by the Sheriff on unaffordable money bail long past their appearance
on the bond docket.41 Each month, dozens of defendants appear on the bond docket, and come
35 ECF No. 157-5 (J. Guten Decl.) ¶ 5; Ex. 1 (Pub. Def. Jail and Bond Stats., Jul. 2019) at 5 (“[M]any bond settings on the docket end up the same as the bail schedule amount.”). 36 See ECF No. 110-D (Horowitz Decl. in Opp. to Quash Depos.) ¶¶ 2-4; Ex. 3 (Horowitz PI Decl.) at ¶ 6. 37 On two days in September 2019, for instance, the bond docket judge referred to Court Services approximately one-third of all people appearing, explicitly noting that they might be “good candidates” for release. ECF No. 110-D (Horowitz Decl. in Opp. to Quash Depos.) ¶¶ 2-4; Ex. 3 (Horowitz PI Decl.) at ¶ 6. 38 ECF No. 32 (First Am. Compl.) ¶¶ 83, 84. 39 For example, each one of those fourteen people referred to pretrial Court Services over the course of two bond dockets in September 2019, were still in jail, on money bail conditions, two weeks later. ECF No. 110-D (Horowitz Decl. in Opp. to Quash Depos.) ¶¶ 3-4. 40 In July 2019, seventy-one people were released on pretrial supervision, “but the pretrial release process . . . [took] several days to complete, keeping those inmates in jail longer than” if the judge identified and imposed nonmonetary conditions of release at the time of the bond docket. Ex. 2 (Pub. Def. Jail & Bond Stats., Aug. 2019) at 5. 41 These are not the only class members who remain in jail, and who would be released if the Court complied with its obligation to promptly impose release conditions absent evidence of dangerousness or non-appearance necessitating imprisonment. Many defendants spend multiple
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away with an unaffordable money bail condition.42 Because they are too poor to pay, the Sheriff
detains them all, even though none has been found by clear and convincing evidence, following a
due-process-compliant hearing, to pose an irremediable public safety threat or flight risk.
C. Class Members Remain Detained on Unaffordable Bail Amounts and Without Representation Following Bail Reviews
Arrestees detained on money-bail amounts that they cannot pay who have appeared on
bond docket are back in the same position that Named Plaintiffs were in when they filed this
lawsuit: jailed by the Sheriff because they are too poor to pay their bonds. They are
unrepresented by counsel because the public defender’s appointment is solely for the purpose of
bond docket, and they are forced to wait days for their next court appearance and the
appointment of counsel.43 They have no opportunity during that time to challenge their bonds.
days jailed by the Sheriff on money bail after the bond docket, before the court finally considers and imposes conditions allowing for release. In July 2019, 11% of people on bond docket— nearly 50 people—were released through PR, bond, or pretrial more than a week after their arrest. Ex. 2 (Pub. Def. Jail & Bond Stats., Aug. 2019) at 5. In June 2019, 3% of arrestees appearing at bond docket were found eligible for PR release, after having been jailed for more than a week, suffering detention that was ultimately found to have served no governmental interest. Ex. 1 (Pub. Def. Jail & Bond Stats, Jul. 2019). 42 In June and July 2019, more than 800 defendants appeared on bond docket; about 90% of them remained detained more than five days after their appearances. Ex. 1 (Pub. Def. Jail and Bond Stats., Jul. 2019) at 4; Ex. 2 (Pub. Def. Jail and Bond Stats., Aug. 2019) at 4. Among the remaining 10% who eventually secured their release on reduced bond, some remained detained for up to five additional days, indicating that, even among that 10% of persons, money bond was set that the person could not immediately afford to pay. Ex. 1 (Pub. Def. Jail and Bond Stats., Jul. 2019) at 4; Ex. 2 (Pub. Def. Jail and Bond Stats., Aug. 2019) at 4. 43 Local court rules authorize the Sheriff to detains arrestees who cannot afford bail for between six and eight days until their arraignments, or longer during court holidays. See ECF No. 89-1 (Local Crim. R. 1(B)); see also ECF No. 116-1 (Admin. Order adopting Rule 1(B)) (initial appearance occurs up to six days after arrest, but “if the court date falls on a day the Courthouse is scheduled to be closed, the date should be set for the next day the Courthouse is scheduled to open”). In practice, the number of days specified in the local rules represents the minimum amount of time arrestees spend in jail before arraignment. ECF No. 32 (First Am. Compl.) ¶¶ 88. The named plaintiffs, for example, were scheduled for arraignments between seven and eleven days after their arrests. Id. ¶¶ 26, 30, 33, 36; ECF No. 114-2 (Feltz records); ECF No. 114-3 (Parga records); ECF No. 114-4 (Wood records).
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ARGUMENT A preliminary injunction is warranted. All four factors that the court must consider weigh in Plaintiffs’ favor: “(1) a likelihood of success on the merits,” because the Sheriff jails arrestees in violation of equal protection and due process; (2) “a likelihood that the [plaintiff class] will suffer irreparable harm in the absence of preliminary relief,” because their detention under this illegal scheme deprives them of their liberty and their safety during the current global pandemic; (3) “”the balance of equities tips in the movant’s favor,” because ensuring detainees’ access to constitutional procedures causes no harm to the Sheriff; and (4) “the injunction is in the public interest” because the public has no interest in detaining class members without ensuring there is a need to do so, and their continued detention risks causing a viral outbreak that will spread to the community and overwhelm local health resources.44 The Tenth Circuit has “consistently” admonished that “irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.”45 There are few, if any, more dramatic irreversible harms than deprivation of liberty and risk of illness, permanent physical injury, and even death. I. Plaintiff Is Likely to Succeed on the Merits Plaintiffs’ claims will succeed because thousands of arrestees in Tulsa County each year are deprived of their fundamental rights to liberty and equal protection of the law, without the government having shown that such infringement is necessary to serve a compelling interest. Detainees are also deprived of their right to due process because they are detained without any of the safeguards constitutionally required to protect the liberty and equality interests at stake.
44 See Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (stating elements for preliminary injunction). 45 Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (internal quotation marks omitted).
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A. Arrestees’ Detention Absent a Finding of Necessity Violates Their Fundamental Rights to Pretrial Liberty and Against Wealth-Based Detention
When the Sheriff jails arrestees because they cannot afford to pay money bail, he
implicates two fundamental rights. First, due process vests arrestees with a fundamental right to
liberty.46 “In our society liberty is the norm, and detention prior to trial . . . is the carefully
limited exception.”47 Second, equal protection and due process vest arrestees with a fundamental
right against wealth-based detention.48 A system in which “poor arrestees . . . are incarcerated
where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to
pay a secured bond” creates a “basic injustice.”49 The Sheriff may not deprive arrestees of their
right to liberty or their right against wealth-based detention without establishing that doing so is
necessary to serve a compelling interest.50 Plaintiff is entitled to relief if either right is violated
without sufficient justification.
46United States v. Salerno, 481 U.S. 739, 750 (1987) (recognizing the “importance and fundamental nature” of “the individual’s strong interest in liberty”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”); Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010)) ((“[T]he right of an accused to freedom pending trial is inherent in the concept of a liberty interest protected by the due process clause of the Fourteenth Amendment.”) 47 Salerno, 481 U.S. at 755. 48 Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. at 244; Bearden, 461 U.S. at 665; Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (“The incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”); ODonnell v. Harris County, 892 F.3d 147, 161 (5th Cir. 2018). 49 ODonnell, 892 F.3d at 162; see also Bandy v. United States, 81 S. Ct. 197, 197-98 (1960) (Douglas, J., in chambers) (“To continue to demad a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law. . . . Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom?”); Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977) (jailing a person solely due to inability to pay a money bail violates equal protection), reversed in unrelated part, Rainwater, 572 F.2d at 1057. 50 Reno v. Flores, 507 U.S. 292, 302 (1993) (pretrial detention permissible only if it is “narrowly tailored to serve a compelling state interest”); Washington v. Glucksberg, 521 U.S. 702, 721
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With respect to pretrial liberty, the Supreme Court has identified only two compelling
governmental interests that can justify pretrial detention: to guard against a risk of flight, and to
guard against a likelihood that person will be “responsible for dangerous acts in the community
after arrest.”51 But the Sheriff routinely jails arrestees without a judge having found that they
present a risk of flight or a danger to the community, let alone that detention is necessary to
guard against those risks. That detainees are nominally given the option of paying unaffordable
money bond to obtain release does not affect this analysis, because the option is illusory, and the
result—detention without justification—is the same. Every appellate court to consider the
question has held that an order requiring an unattainable financial condition of release is a de
facto order for pretrial detention.52 A person detained under an unaffordable bail condition
suffers a loss of liberty no less than a person detained under an explicit detention order.
(1997) (government may not infringe “‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”); Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (infringement on a fundamental right “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests”); Frazier v. Jordan, 457 F.2d 726, 728 (5th Cir. 1972) (an order to pay a fine or serve time in jail violates equal protection and due process unless it is “necessary to promote a compelling governmental interest”); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th Cir. 2014) (en banc) (applying strict scrutiny to Arizona pretrial detention law because it infringed on the “fundamental” right to pretrial liberty); Buffin v. City & Cty. of San Francisco, No. 15-CV-04959-YGR, 2018 WL 424362, at *8 (N.D. Cal. Jan. 16, 2018) an examination of the Bearden-Tate-Williams line of cases persuades the Court that strict scrutiny applies to plaintiffs’ Due Process and Equal Protection claims.”); 251 F. Supp. 3d at 1156-57 (pretrial liberty infringements must be least restrictive means necessary to promote court appearance and community safety”); Simpson v. Miller, 387 P.3d 1270, 1276-1277 (Ariz. 2017) (“heightened scrutiny” applies where, as in Salerno, the “fundamental” “right to be free from bodily restraint” is implicated), cert. denied sub nom. Arizona v. Martinez, 138 S. Ct. 146 (2017); Williams v. Farrior, 626 F. Supp. 983, 986 (S.D. Miss. 1986) (a pretrial detention scheme must meet “strict judicial scrutiny” because of the fundamental rights at issue). 51 Salerno, 481 U.S. 749, 750. 52 See ODonnell, 892 F.3d at 162; United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir. 1969) (“[T]he setting of bond unreachable because of its amount would be tantamount to setting no conditions at all.”); United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (“[O]nce a court finds itself in this situation—insisting on terms in a “release” order that will cause the
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Independently, under the Due Process and Equal Protection Clauses, the Sheriff must
have a compelling reason to engage in wealth-based detention, i.e., to jail people who cannot
afford pretrial bail while releasing those who can. The government has no legitimate interest in
extracting monetary bail from arrestees separate from its interests in ensuring community safety
and a return to court.53 Therefore, whether the Sheriff’s conduct is analyzed in light of the right
to liberty or the right against wealth-based detention, jailing people who cannot afford bail is
unconstitutional unless (a) every person detained presents a risk of nonappearance or harm to the
community, and (b) either the precise amount of bail imposed or detention is uniquely effective
at mitigating those risks.54 If a person’s “appearance at trial could reasonably be assured by [an]
alternate form of release, pretrial confinement for inability to post money bail would constitute
imposition of an excessive restraint.”55 The Sheriff violates the constitution when he detains
defendant to be detained pending trial—it must satisfy the procedural requirements for a valid detention order[.]”); see also State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014) (“Intentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether.”);Brangan v. Commonwealth, 80 N.E.3d 949, 963 (Mass. 2017) (unattainable money bail “is the functional equivalent of an order for pretrial detention, and the judge’s decision must be evaluated in light of the same due process requirements applicable to such a deprivation of liberty.”). 53 See Stack v. Boyle, 342 U.S. 1, 5 (1951) (“Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant,” and any amount “higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment.”); Mayer v. City of Chicago, 404 U.S. 189, 197 (1971) (state’s “fiscal interest” in legal monetary obligations is “irrelevant” in evaluating constitutionality of government’s treatment of low income criminal defendants); Boussard v. Parish of Orleans, 318 F.3d 644, 651 n.31 (5th Cir. 2003) (“perceived evil” of “lack of funding for the bail=-bond system, rather than the flight risk, or danger to the community, of an arrestee . . . “does not amount to [a] compelling interest”). 54 See Rainwater, 572 F.2d at 1057 (the Constitution requires “meaningful consideration of . . . alternatives” to “incarceration of those who cannot” pay a financial condition of release, and a finding that secured money bail “is necessary to reasonably assure defendant’s presence at trial.” (emphasis added)); 55 Rainwater, 572 F.2d at 1058; id. (if the government’s interest in “appearance at trial could reasonably be assured by … alternate [conditions] of release, pretrial confinement for inability to post money bail” is unconstitutional); Farrior, 626 F. Supp. at 985 (“For the purposes of the
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arrestees who cannot afford bail, without any determination that they present a relevant risk, or
that money bail is the only way to address that risk.
There are ample constitutionally permissible and practically sound alternatives that do
not infringe on fundamental liberties. Money bail is a relatively poor way to achieve the purposes
of bail. Empirical evidence shows no relationship between money bail and either rates of
appearance56 or public safety.57 Alternatives abound. Defendants have received a formal report
from the Vera Institute of Justice, a national criminal justice policy and research organization,
that details alternatives Defendants can employ to ensure that their pretrial detention policies
comport with the Constitution,58 including: using citations in place of arrest and booking for
appropriate misdemeanor charges;59 allowing people to be booked and released with a citation
and a court date;60 ensuring court appearances by means of a court notification system; and
Fourteenth Amendment’s Equal Protection Clause, it is clear that a bail system which allows only monetary bail and does not provide for any meaningful consideration of other possible alternatives for indigent pretrial detainee infringes on both equal protection and due process requirements.”); Carlisle v. Desoto Cty., Miss., 2010 WL 3894114, at *5 (N.D. Miss. Sept. 30, 2010) (holding that because a “compelling state interest” was required for pretrial detention, the plaintiff’s rights were violated if he was jailed without a consideration of non-financial alternatives). 56 Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. Legal Studies 471 (2018) (“We find no evidence that money bail increases the probability of appearance.”). 57 Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 768 (2017) (concluding, after reviewing hundreds of thousands of cases, that detention for even brief periods because of inability to pay money bail led to higher rates of conviction, longer sentences, and a greater likelihood of commission of new crimes in the future); Arpit Gupta et al., supra n.56 (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); Christopher T. Lowenkamp et al., The Hidden Costs of Pretrial Detention 4 (2013) (“The longer low-risk defendants are detained, the more likely they are to have new criminal activity pending trial.”). 58 Ex. 7 (Vera Report to Tulsa County Stakeholders) at 27-28, 39. 59 State law permits law enforcement officers to issue citations in lieu of arrest for state misdemeanors. See Okla. Stat. Ann. tit. 22, § 209. 60 Oklahoma law permits county officials to release the person “on his personal recognizance subject to such conditions as the court or magistrate may reasonably prescribe to assure his
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expanding nonfinancial release options, including release into the community with limited
intervention such as calls or text reminders of upcoming court dates for low-risk defendants, and
oversight by Court Services for higher-risk defendants.
Other jurisdictions release arrestees with similar strategies for promoting court attendance
and public safety, such as court reminders, transportation assistance, flexible court appearances
including evening and weekend sessions, unsecured bonds, reporting obligations, personal
sureties, alcohol monitors, or, in cases of extreme risk, electronic monitoring. Jurisdictions
including Washington, D.C.,61 New Jersey,62 and Cook County, Illinois63 have achieved high
rates of court appearance, reductions in crime rates and new violent offenses, and reduced jail
populations by reducing or entirely eliminating the use of secured monetary bonds and pretrial
detention.
appearance when require.” Okla. Stat. Ann. tit. 59, § 1334; see also Okla. Stat. Ann. tit. 22, § 1108.1. 61 Washington D.C. Pretrial Services Agency, FY 2019 Release Rates for Pretrial Defendants within Washington, DC, available at https://www.psa.gov/sites/default/files/2019%20Release %20Rates%20 for%20DC%20Pretrial%20Defendants.pdf; Washington D.C. Pretrial Services Agency, FY 2021 Congressional Budget at 12, available at https://www.psa.gov/sites/default /files/FY2021%20PSA%20Congressional%20Budget%20Justification_0.pdf. 62 New Jersey Judiciary, 2018 Report to the Governor and the Legislature at 8, available at https://njcourts.gov/courts/assets/criminal/2018cjrannual.pdf?c=dSE; NJ Courts, Criminal Justice Reform Information Ctr., Criminal Justice Reform Statistics: Jan. 1 – Jun. 31, 2019, 6 (2009), https://njcourts.gov/courts/assets/criminal/cjrreport2018.pdf?cacheID=t9KI5Gk; Star-Ledger Editorial Board, Has bail reform been a success? Check the crime numbers, then decide, StarLedger (Dec. 5, 2018), https://www.nj.com/opinion/2018/12/has_bail_reform_been_a_success_ check_the_crime_num.html. 63 See Order No. 18-8A of the Cook County Chief Judge, http://www.cookcountycourt.org/Manage/Division Orders/ViewDivisionOrder/tabid/298/ ArticleId/2562/GENERAL-ORDER-NO-18-8AProcedures-for-Bail-Hearings-and-Pretrial-Release.aspx; Circuit Court of Cook County, Bail Reform in Cook County: An Examination of General Order 18.8A and Bail in Felony Cases (May 2019), available at http://www.cookcountycourt.org/Portals/0/Statistics/Bail%20 Reform/Bail%20Reform%20Report%20FINAL%20-%20%20Published%2005.9.19.pdf (showing that the jail population decreased from 7,443 in September 2017 to 5,799 in December 2018).
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Tulsa County arrestees are entitled to a preliminary injunction against the Sheriff, prohibiting him from infringing on their rights to pretrial liberty and against wealth-based detention absent substantive findings of necessity.
B. The Sheriff May Not Detain Pretrial Detainees Without Procedural Safeguards Class members are additionally, and separately, entitled to an injunction against the
Sheriff to prohibit him from imprisoning them without “constitutionally sufficient” procedures to ensure that the government has an adequate substantive justification for infringing on their liberty and equal protection interests.64 The necessary procedures are determined by application of Matthews v. Eldridge’s three-part balancing test among “the private interest” at issue, “the risk of an erroneous deprivation” absent the additional safeguard, and the state’s interest in not providing it.65 But the court need not start from first principles to determine the procedures necessary in this context; decades of case law make clear what is needed, but not provided in Tulsa County, before class members can be detained.
On-the-Record Findings Confirming Either Ability to Pay, or the Need for Pre-Trial Detention by Clear and Convincing Evidence: Because of the fundamental bodily liberty interest at stake, before the government may detain anyone pretrial, it must establish by “clear and convincing evidence” either a risk of flight or “an identified and articulable threat to an individual in the community” that “no conditions of release can reasonably assure” against.66 The Supreme Court has consistently held that a standard “equal to or greater than ‘clear and convincing’” evidence is required before a person can be taken into custody to avoid a risk of
64 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (procedural due process violated where “there exists a liberty . . . interest of which a person has been deprived,” and “the procedures followed by the State were [not] constitutionally sufficient”). 65 Matthews v. Eldridge, 424 U.S. 319, 335 (1976). 66 Salerno, 481 U.S. at 750.
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dangerousness.67 Lower courts have followed suit, including specifically in the pretrial detention
context.68 Because an order requiring an unattainable financial condition of release is a de facto
order for pretrial detention, the Court must likewise treat all monetary bail orders as detention
orders unless it establishes that the defendant has the ability to pay the financial condition and is
willfully refusing to.69
Notice, Adversarial Hearing, and Findings on the Record within 48 Hours of Arrest: Due
process requires that all required findings be made only after a hearing with the following six
elements: (1) notice of the critical issues to be decided; (2) disclosure of the evidence presented
by the government; (3) an “opportunity to be heard in person and to present witnesses and
documentary evidence; (4) “the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing confrontation)”; (5) a “neutral
and detached” factfinder; and (6) findings and reasons on the record of “the evidence relied
67 Addington v. Texas, 441 U.S. 418 (1979); see also See Foucha, 504 U.S. at 82-83 (state could not confine a mentally ill person where it did not show dangerousness by clear and convincing evidence); Santosky v. Kramer, 455 U.S. 745, 756 (1982) (“This Court has mandated . . . ‘clear and convincing evidence’ . . . when the individual interests at stake . . . are both ‘particularly important’ and ‘more substantial than mere loss of money.”); Cruzan by Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 282–83 (1990) (clear and convincing evidence has been required in deportation proceedings, denaturalization proceedings, civil commitment proceedings, proceedings for the termination of parental rights, cases involving allegations of civil fraud, and ohter civil cases implicating important interests). 68 See, e.g., Lopez-Valenzuela, 770 F.3d at 784-85 (striking down a pretrial detention statute that did not require proof by clear and convincing evidence that detention was necessary); In re Humphrey, 19 Cal. App. 5th 1006, 1037 (Ct. App. 2018) (court may impose monetary bail condition “only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose”); Singh v. Holder, 638 F.3d 1196, 1203, 1204 (9th Cir. 2011) (in immigration context, clear and convincing evidence required for pretrial detention based on flight or dangerousness); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) (same), vacated and remanded on other grounds, 138 S. Ct. 1260 (2018); Kleinbat v. United States, 603 A.2d 861, 868 (D.C. 1992) (“clear and convincing” evidence required to detain someone pretrial based on flight risk); see also ABA Standard 10-5.8 (“clear and convincing” standard applies to bail decisions concerning flight and dangerousness). 69 See supra Part I-A.
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on.”70 These six elements constitute “the minimum requirements of due process” where
arrestees’ bodily liberty is at stake.71 In United States v. Salerno, the Supreme Court upheld the
federal Bail Reform Act only because the Act prohibited issuance of a detention order unless the
arrestee had been provided “a full-blown adversary hearing,” “findings of fact” by “clear and
convincing evidence,” and a “statement of reasons for a decision to detain.”72 The same elements
are required here. These safeguards must be provided at the very latest within 48 hours.73
II. Class Members Will Suffer Irreparable Harm Without a Preliminary Injunction
Any deprivation of constitutional rights is an irreparable harm.74 And an unconstitutional
deprivation of liberty is especially harmful.75 In addition, class members face extraordinary
harms with every day of imprisonment, including long-term lost employment, income, and
housing;76 disrupted families and life-long trauma for adults and children77; and worse case
70 Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). 71 Morrissey v. Brewer, 408 U.S. 471, 489 (1972); see also Turner, 564 U.S. at 447 (requiring “notice to the defendant that ‘ability to pay’ is a critical issue,” the opportunity to be heard, and findings on the record); see also, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“Parties whose rights are to be affected are entitled to be heard.”); Concrete Pipe & Prods. of Cal.. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993) (“[D]ue process requires a ‘neutral and detached judge in the first instance.’” (quoting Ward v. Village of Monroeville¸409 U.S. 57, 61–62 (1972)); Wolff v. McDonnell, 418 U.S. 539, 564–65 (1974) (requiring a statement of reasons for revocation of good-time credits). 72 Salerno, 481 U.S. at 750, 752. 73 ODonnell, 892 F.3d at 161. 74 Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opnion); Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016). 75 United States v. Bogle, 855 F.2d 707, 710–11 (11th Cir. 1988); Wanatee v. Ault, 120 F. Supp. 2d 784, 789 (N.D. Iowa 2000); SEC v. Bankers Alliance Corp., No. 95-civ-0428, 1995 WL 317586, *3 (D.D.C. May 10, 1995); Lake v. Speziale, 580 F. Supp. 1318, 1335 (D. Conn. 1984); Cobb v. Green, 574 F. Supp. 256, 262 (W.D. Mich. 1983). 76 Will Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, Am. Economic Rev., 23 (2018); Shima Baradaran Baughman, Costs of Pretrial Detention, Boston Univ. L. Rev., Vol.. 97:1 (2017), at 5. 77 E.g., Kimberly Howard et al., Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families, Attach Hum Dev. 2011;13(1):5-26.
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outcomes, including pressure to plead guilty.78 Even these usual, devastating harms of
imprisonment, however, pale in comparison to the new trauma of incarceration during the
COVID-19 pandemic.
Class members are now facing imminent risk of illness and death because they are in jail.
Social distancing measures necessary to avoid illness are impossible in a jail that has communal
living, limited access to medical care, and restrictions on inmates’ ability to care for their own
hygiene. Epidemiologists and penological medical experts around the country warn that these
conditions make the jail a “ticking time bomb” for uncontrollable viral spread.79 Once COVID
enters the jail, it will likely spread like wildfire, as it has in other jails around the country.
Despite attempted quarantines, Cook County jail in Chicago went from two diagnoses to over a
hundred, including a dozen employees, in one week; at Rikers Island, in New York City, the
numbers jumped from two positive tests to 253 in twelve days.80
78 Will Dobbie, et al., supra n.76 at 108; Emily Leslie & Nolan G. Pope, The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments, Journal of Law and Economics, Vol. 60, 543 (2017); Arpit Gupta, et al., supra n.56; Megan T Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, J. of L. Econ., and Organization, Vol. 34, Issue 4, 511–542 (Nov. 2018); Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 711 (2017). See also Crim. J. Pol. Program, Moving Beyond Money: A Primer on Bail Reform, 7 (October 2016), cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf. 79 Saint Louis University, “Ticking Time Bomb”: Prisons Unprepared For Flu Pandemic, ScienceDaily (Sept. 15, 2006), https://www.sciencedaily.com/releases/2006/09/060915012301. htm; see also Anne C. Spaulding, Coronavirus and the Correctional Facility, https://www.ncchc. org/filebin/news/COVID_for_CF_Administrators_3.9.2020.pdf (epidemiologist explaining to national correctional staff leadership that jails cannot avoid conditions that cause outbreaks of communicable disease); Nicole Wetsman, Prisons and jails are vulnerable to COVID-19 outbreaks, The Verge (Mar. 7, 2020) https://www.theverge.com/2020/3/7/21167807/ coronavirus-prison-jail-health-outbreak-COVID-19-flu-soap (Tyler Winkelman, Hennepin Healthcare Research Institute in Minneapolis, compares jails to nursing homes and cruise ships); 80 Christina Carrega, Shampoo, watery soap to disinfect: Conditions on Rikers Island during COVID-19 unsafe, some inmate say, ABC News (Mar. 29, 2020) https://abcnews.go.com/Health/ shampoo-watery-soap-disinfect-conditions-rikers-island-covid/story?id=69767859; Timothy Williams, et al., “Jails Are Petri Dishes”: Inmates Freed as the Virus Spreads Behind Bars, The
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Even without any heightened risk factors, inmates face a serious risk of becoming very ill or even dying. Approximately 20% of people infected with COVID-19 are expected to experience life-threatening complications, and between 1% and 3.4% die. Adults over the age of 60 and people who have serious chronic medical conditions like heart disease, diabetes, and lung disease are at greatest risk of death,81 but enormous numbers of younger, healthy people are landing in intensive care units at terrifying rates, with life-threatening complications. As of March 26, nearly half of all patients admitted to an ICU in the United States were under 65 years old, and up to a fifth of 20 to 44 year olds diagnosed with the disease at that time had required hospitalization.82 Tulsa’s first COVID-19 death was that of a man in his 50s.83
Meanwhile, class members are entirely cut off from their families and support networks. On March 16, the Sheriff suspended all visitation to the Tulsa County Jail; 84 communication with people outside the jail is available only via costly video visitation, a luxury that will be unavailable to many class members, who are by and large detained because of their poverty. And given the Tulsa County District Court’s emergency COVID-related measures, class members’ periods of pretrial detention will be dramatically extended as court dockets are entirely
New York Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-prisonsjails.html?action=click&module=Top%20Stories&pgtype=Homepage 81 See Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Protect Yourself, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. 82 See Ctrs. for Disease Control & Prevention, Morbidity & Mortality Weekly Report: Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, Feb. 12-Mar. 16, 2020, https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid= mm6912e2_w#T1_down. 83Sean Murphy, Oklahoma Has 1st Coronavirus Death; Test Shortage Persists, U.S. News, (Mar. 19, 2020) https://www.usnews.com/news/best-states/oklahoma/articles/2020-0319/oklahoma-has-1st-coronavirus-death-test-shortage-persists 84 Tulsa County Sheriff’s Office, Jail Information, https://tcso.org/jail-information/.
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suspended for weeks and months at a time.85 Class members’ extraordinary harms absent emergency relief are unimaginable. III. The Risk to Class Members Absent a Preliminary Injunction Outweighs Any Risk
to the Sheriff Requiring process to ensure that the jail is not filled with people who do not need to be there does not pose any harm to the Sheriff. To the contrary, he will benefit from releasing class members whose detention cannot be justified. The jail will save the cost of unnecessarily feeding and housing class members and providing their medical care.86 More importantly, reducing the jail population at this time will save the lives of both inmates and Sheriff’s Office employees by decreasing the potential damage an outbreak of COVID-19 in the jail will cause. County defendants’ counsel represents that the Sheriff has adopted measures aimed at controlling the virus’s spread—segregating new persons booked into the jail in a “secure pod” for 14 days before introducing them into other areas of the jail, temperature scanning of persons entering the jail, and a negative airflow room in its medical unit for quarantining anyone who tests positive.87 These measures are far from likely to keep the virus out or stop its spread once it arrives. Dozens of people cycle in and out of the jail each day. Persons newly booked into the jail must pass through common spaces before they reach the segregated pod, touching common surfaces and interacting with jail employees. Staff pass in and out daily, and circulate among the population. Temperature scanning will prevent anyone symptomatic from entering the jail, but people infected with COVID-19 are contagious for days, or even weeks before showing
85 See ECF No. 151-5 (Ok. Sup. Ct. 2d Emergency COVID-19 Order); Ex. 8 (Tulsa Cnty. Dist. Ct. Emergency COVID-19). 86 See Jones v. City of Clanton, No. 15-CV-34, 2015 WL 5387219, at *3 (M.D. Ala. Sept. 14, 2015). 87 ECF No. 151 (County Defs.’ Mot. to Continue Hearing), ¶ 16.
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symptoms.88 People who appear healthy and are asymptomatic present one of the greatest risks
for spreading the disease, even if they share a space with others for only a short period of time.89
All it will take for an outbreak in the jail is a single infected, possibly asymptomatic inmate,
arrestee, or officer. In guidance for law enforcement issued on March 30, Governor Kevin Stitt
and Attorney General Mike Hunter warned that, because infected persons “may present no
symptoms . . . decreasing jail populations generally” is “[t]he most obvious proactive step” to
limit jail population exposure.90 In particular, the Governor and Attorney General urge jail
administrators to “[i]denitfy inmates for whom recognizance bond or bond reduction does not
present unwarranted public safety or flight risk.”91 The National Commission on Correctional
88 Researchers estimate that the median incubation period, during which a person shows no symptoms but is contagious, is five days. See Stephen A. Lauer, et al., The Incubation Period of Coronavirus Disease 2019 (COVID-19) From Publicly Reported Confirmed Case, Ann. Intern. Med. (Mar. 10, 2020), https://www.ncbi.nlm.nih.gov/pubmed/32150748. It is not unusual for people to be asymptomatic for two weeks before finally showing symptoms. See Id.. There have been observed incubation periods of up to four weeks. See Worldometer, Coronavirus Incubation Period, https://www. worldometers.info/coronavirus/ coronavirus-incubation-period/ (citing sources). One study of a cruise ship on which the infection spread estimates that nearly eighteen percent of infected people never showed symptoms. See Kenji Mizumoto, Estimating the Asympomatic Proportion of 2019 Novel Coronavirus onboard the Princess Cruises Ship, 2020, medRxiv (Feb. 20, 2020), https://www.medrxiv.org/content/10.1101/2020.02.20.20025866v2?__cf_chl_jschl_tk__=8ee058 ec979441202c9618dd33f0a2b7bb9947b6-1584457439-0-AXxVoCDfOKyjfC3D4BUMFaeZaDl EncKRSVCT9LOb_DKv-Q9J3Tclt4SPvEPzctRE-nWVtDj9LvAtdm_5bksrnTUGfDeLDXuL 259I_kC77QMi-BZzFBk9-qnTD2g1YHlVLJ7QscyPjmt-1LY 89 Researchers studying the outbreak in China found that transmission happens through spread by asymptomatic people; contamination of objects touched by multiple people, which is unavoidable in jail; and virus aerosolization in confined spaces, as in jail. See Jing Cai, et al., Indirect Virus Transmission in Cluster of COVID-19 Cases, Wenzhou, China, 2020, 26 Emerging Infections Diseases 26 (June 2020), https://wwwnc.cdc.gov/eid/article/26/6/200412_article. 90 Ex. 9 (Gov. Still & AG Hunter Guidance for Limiting Covid-19 Exposure in Detention Facilities), at 1. 91 Id. at 2.
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Healthcare and other experts around the country, join the Governor and Attorney General in calling for states to “consider measures other than detention” in light of the COVID-19 threat.92
IV. Emergency Relief Is in the Public Interest A vindication of constitutional rights is always in the public interest.93 Even in ordinary
times, continuing to keep arrestees in jail cells because they are poor has significant negative
consequence for the public interest. It devastates peoples’ lives, stabilities, incomes, families,
and communities unnecessarily. Even just 72 hours in jail after an arrest leads to worse outcomes
for all involved by increasing poverty, hurting an arrestee’s family, and making it more likely that an arrestee will commit crimes in the future.94
Finally, ensuring that no one is unnecessarily detained with a pandemic descending on
Tulsa is an essential public health measure, necessary for the wellbeing not only of inmates and
staff, but the public in general. Increases in a county’s jail incarceration rate are generally
92 Anne Spaulding, supra n.79; Homer Venters, former chief medical officer on Rikers Island, a physician and an epidemiologist, warns: “From the standpoint of responding to this outbreak, one of the most important questions is: How can we have fewer people in these places--in jails and prisons?” See Jennifer Gonnerman, How Prisons and Jails Can Respond to the Coronavirus, The New Yorker (March 14, 2020), https://www.newyorker.com/news/q-and-a/how-prisons-andjails-can-respond-to-the-coronavirus. 93 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 990). 94 See United States Department of Justice, National Institute of Corrections, Fundamentals of Bail, at 28–29 (2014); see also, e.g., Arnold Foundation, The Hidden Costs of Pretrial Detention (2013) at 3, available at: http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF_Report_ hidden-costs_FNL.pdf (studying 153,407 defendants and finding that “when held 2-3 days, low risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary (2013) at 5, available at: http://www.arnoldfoundation.org/sites/default/files /pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf (finding that “low-risk defendants held 2–3 days were 17 percent more likely to commit another crime within two years” and that those detained “4–7 days yielded a 35 percent increase in re-offense rates.”).
24

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 31 of 33
associated with significant increases in county rates of infectious diseases.95 If the disease enters the jail, it will spread within its walls, and then back out to the community through staff and people released from custody, who come and go every day from the jail. It will threaten the lives of hundreds of inmates and staff, and spread out among their countless community contacts. An outbreak in the jail will cause hundreds of cases to occur rapidly at a single time, overwhelming the jail medical unit’s resources and requiring at least 20% of individuals (those with serious or critical cases of COVID) to need treatment at a local hospital with ventilators and other advanced medical machinery. Such a spike is one of public health officials’ greatest fears: rapid spikes in infection will leave Oklahoma, by some estimates, with anywhere between five and fourteen patients for every bed, putting not only COVID patients, but patients requiring care for all conditions, at risk of death.96 Every person detained on unaffordable money bail represents a high risk of becoming an unnecessary vector for the COVID-19 virus when it inevitably penetrates the jail, and one more bed that is thus not available to another sick member of the Tulsa community. The relief that plaintiff requests—an injunction against detaining pretrial detainees on unaffordable bail, absent a showing that detention serves a significant government purpose—is urgently required by class members, all parties, and the general public.
CONCLUSION Emergency action is needed. Class members must not be held in the jail, endangering the lives of others and their own, if their detention cannot be constitutionally justified.
95 Sandhya Kajeepeta et al., County Jail Incarceration Rates and County Mortality Rates in the United States, 1987-2016, AJPH (Jan. 2020), available at https://ajph.aphapublications.org/doi/ 10.2105/AJPH.2019.305413. 96 James Fraser & Matt Wynn, Coronavirus in Oklahoma: spike would leave hospitals without enough beds, The Oklahoman (Mar. 13, 2020), https://oklahoman.com/article/5657388 /coronavirus-in-oklahoma-spike-would-leave-hospitals-without-enough-beds
25

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 32 of 33

Dated: April 3, 2020

_/s/ Hayley Horowitz________
Hayley Horowitz Kristina Saleh STILL SHE RISES, TULSA 567 E. 36th Street North Tulsa, OK 74106 hayleyh@stillsherises.org 918-392-0874
Charles Gerstein* Ryan Downer* Alexandria Twinem* CIVIL RIGHTS CORPS 1601 Connecticut Avenue NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org ryan@civilrightscorps.org alexandria@civilrightscorps.org 202-844-4975
Attorneys for Plaintiffs
*Admitted to practice pro hac vice

26

Case 4:18-cv-00298-CVE-JFJ Document 158 Filed in USDC ND/OK on 04/03/20 Page 33 of 33 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction Against Defendant Tulsa County Sheriff was served on April 3, 2020 via the Northern District of Oklahoma CM-ECF system upon all counsel of record.
/s/ Hayley Horowitz
27

 
 Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

RICHARD FELTZ,1 on behalf of

)

himself and all others similarly situated,2

)

)

Plaintiff,

)

)

v.

)

)

BOARD OF COUNTY COMMISSIONERS OF )

THE COUNTY OF TULSA; VIC REGALADO, )

Tulsa County Sheriff, in his official capacity; )

TERRY H. BITTING, TAMMY BRUCE,

)

MARTHA RUPP CARTER, STEPHEN R.

)

CLARK, THERESA DREILING, OWEN

)

EVENS, JAMES W. KEELEY, DEBORAH )

LUDI LEITCH, J. ANTHONY MILLER,

)

DAWN MOODY, MILLIE OTEY, KIRSTEN )

PACE, APRIL SEIBERT, CLIFFORD SMITH, )

AND SARAH SMITH, in their capacities as )

Tulsa County Special Judges; AND WILLIAM )

LAFORTUNE, in his capacity as Tulsa County )

District Court Judge,3

)

)

Defendants.

)

Case No. 18-CV-0298-CVE-JFJ

1

When the first amended complaint was filed, there were four named plaintiffs. See Dkt. #

32. In an opinion and order dated April 24, 2020, the Court terminated the three named

plaintiffs other than Feltz because one had died, and two were no longer represented by

counsel.

2

Plaintiff filed his motions on behalf of all putative class members. Dkt. # 158, at n.1. The

motion for class certification (Dkt. # 3) is pending. However, the Court need not certify the

class at this point to resolve the present motions. See Gooch v. Life Investors Ins. Co. of

Am., 672 F.3d 402, 433 (6th Cir. 2012) (“[T]here is nothing improper about a preliminary

injunction preceding a ruling on class certification.”); Kansas Health Care Ass’n, Inc. v.

Kansas Dept. of Social and Rehabilitation Svs., 31 F.3d 1536, 1548 (10th Cir. 1994) (“We

therefore affirm the district court’s conclusion that class certification was unnecessary in this

case [in which a preliminary injunction was granted].”).

3

At the time of the amended complaint (Dkt. # 32), Judge Musseman was the presiding judge

of Tulsa County District Court. However, Judge LaFortune became presiding judge on

January 1, 2020, and was automatically substituted for Judge Musseman pursuant to Federal

Rule of Civil Procedure 25(d). Neither party objected to this substitution, and the Court so

ordered.

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 2 of 35
OPINION AND ORDER The issue presented in plaintiff’s motions for preliminary injunction and temporary restraining order (Dkt. ## 158, 159) is whether indigent arrestees who are unable to make bail should be released from jail, particularly now during the new coronavirus (COVID-19) pandemic because of risk of exposure. Courts around the country have been wrestling with this issue and, unfortunately, the Tenth Circuit has yet to address it. It is against this backdrop that the Court analyzes the facts and the preliminary injunctive relief standard to come to a fair result pending a trial on the merits. In many jails, COVID-19 has spread rapidly. In Tulsa, however, there are no confirmed cases of the COVID-19 among inmates at the jail. There have been significant changes in bail processes and at the jail since this lawsuit was filed. A new local criminal rule has been adopted, which defendants allege fixes any alleged constitutional problems with the bail system. The Sheriff has implemented a plan to combat COVID-19, which substantially follows national guidance. The parties dispute whether these new processes are implemented as they are written, and whether they foreclose constitutional scrutiny. Discovery is ongoing, and a motion to dismiss for lack of subject matter jurisdiction (Dkt. # 157) remains outstanding. In light of the progress made in the bail system and the parties involved, namely state and local policymakers, it seems inappropriate for a federal court to interfere with state and local policy at this time. Moreover, the relief plaintiff seeks—a preliminary injunction against the Sheriff—would do nothing to rectify the bail system; that is the province of the Tulsa County District
2

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 3 of 35
Court.4 Thus, the Court will confine its analysis at this juncture to the COVID-19 pandemic, and defers more in-depth consideration of the constitutional challenges to the bail system until a more robust record is developed in discovery.
I. Factual Background The factual record and legal arguments for these motions for preliminary injunctive relief consist of the motions of plaintiff, briefs of the parties, including exhibits attached thereto in the form of affidavits/declarations and other documentary evidence, supplements to the motions, and separately filed declarations (Dkt. ## 158-159, 164, 166-168, 171, 175-181, 186-187, 190). The Court set this matter for oral argument (see Dkt. # 182), and heard oral argument on May 11, 2020. Although the Court is not granting a preliminary injunction for the reasons stated below, the Court hereby enters this opinion and order as its findings of fact and conclusions of law as to risk of COVID-19 only. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1245 (10th Cir. 2001) (“Under Rule 52(a), a district court is required to make findings of fact and conclusions of law at the time it enters a preliminary injunction.”); Fed. R. Civ. P. 52(a) (“In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action.”).

4

Plaintiff argues that the Sheriff can be enjoined from detaining arrestees who cannot afford

bail, because he enforces the policy of the Tulsa County District Court. Dkt. # 187, at 6-19.

While this may be true, the Sheriff can still be held criminally liable for releasing detainees

without a state court order, which tips the balance of equities in the Sheriff’s favor. See III.A

infra. Further, this opinion and order addresses only the risk of COVID-19 in the jail.

Therefore, it is unnecessary at this point for the Court to address plaintiff’s argument that the

Sheriff is a properly named defendant.

3

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 4 of 35

A. Plaintiff’s Legal Challenge to the Bail System Persons arrested in Tulsa County on state misdemeanor or felony charges are usually brought
to the David L. Moss Criminal Justice Center (the jail). After intake, they are assigned a money bail amount, primarily on an offense-based, secured money bail schedule promulgated by the Tulsa County District Court. See Dkt. # 158-10. For the minority of individuals arrested on warrants, the Sheriff uses money bail amounts assigned by the judges who approved the warrants. Those who cannot make bail, because they are unable to afford it, wait in the jail. See Dkt. ## 158-11; 158-12. They first wait for representation from a public defender. They then wait for opportunities to seek release on personal bond with no up-front payment. In this putative class action lawsuit, plaintiff alleges that putative class members are in jail solely because they are unable to pay bail, in violation of the Equal Protection Clause.5 Plaintiff also alleges that, for those who are afforded a hearing, the hearing is not due process compliant. These are the alleged circumstances now. At the time of the amended complaint, however, detainees were allegedly held without bail hearings for six or more days. See Dkt. ## 158-2; 158-4. Also, in cases where bond was reduced from the predetermined amount, but remained unaffordable, the court would record the reduced bond amount without any reference to evidence of dangerousness or risk of flight, or analysis of whether continued detention was necessary. See Dkt. # 158-5. Since the lawsuit was filed, administrative orders were implemented, and then Local Criminal Rule 2 was adopted in August 2019, to ensure that a hearing is scheduled within 48 hours and that factors other than inability to afford bail are considered. Plaintiff argues that Local Criminal Rule 2 is unconstitutional both on its face and as applied. He

5

Plaintiff alleges that the majority of detainees at the jail are putative class members. See Dkt.

# 158, at 10 (citing Dkt. # 158-6).

4

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 5 of 35

argues that it is facially unconstitutional because it is allegedly wealth-based. He argues that it is unconstitutional as applied because findings related to consideration of factors other than wealth are allegedly not made on the record and some detainees are not afforded a hearing.
Since this lawsuit was filed and Local Criminal Rule 2 was adopted, “our nation [has faced] a public health emergency caused by the exponential spread of COVID-19 . . . .” In re Abbott, 954 F.3d 772, 779 (5th Cir. 2020). On March 13, 2020, the President of the United States declared a national state of emergency. Id. (citing Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020)). In Tulsa County alone, as of May 10, 2020, there have been at least 695 confirmed positive cases of COVID-19, and at least 36 people have died. Tulsa World, May 11, 2020, at A1. Local courts were closed, with limited videoconference hearings. See Dkt. # 158-8. In addition, the jail is closed to visitors, including attorneys. However, detainees are able to consult with their attorneys over the phone or through videoconferencing.
The jail holds over 1,000 detainees, and plaintiff argues that “conditions [in light of COVID19] are terrifying.” Dkt. # 168, at 2. There are no confirmed cases of COVID-19 at the jail, other than one clerk employee who had limited access to detainees. Local authorities have worked together to reduce the jail’s population by over 20%, and bookings are down by more than 50%. See Dkt. # 166-1, at 2.6 In addition, defendants point out that the Sheriff has implemented a policy to combat COVID-19, which substantially follows the Centers for Disease Control and Prevention (CDC) guidelines for jails and prisons. However, plaintiff argues that the policy is insufficient because social distancing at the jail is nearly impossible, and when intake detainees are admitted,

6

Plaintiff attached a guidance for law enforcement issued on March 30. Dkt. # 158-9. This

document recommends that consideration be given for release of low-level offenders. Id. at

2. It appears that this guidance was followed.

5

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 6 of 35
they are put in “solitary confinement” (quarantine), which allegedly has negative effects on their mental and physical well being.
After the outbreak of COVID-19 in the general public, plaintiff filed these motions for preliminary injunctive relief (Dkt. ## 158, 159), asking the Court to release putative class members from jail in light of COVID-19. Plaintiff asks for injunctive relief against the Sheriff only. “These motions . . . are not directly about prison conditions or whether public health is best served by releasing which arrestees. They are instead about the process and timing of individualized hearings to determine whether a particular pretrial felony [or misdemeanor] arrestee can be dismissed on a personal bond.” Russell v. Harris Cty., Texas, 2020 WL 1866835, at *1 (S.D. Tex. April 14, 2020). All parties agree that the jail’s population must be reduced, but they disagree on the best way to accomplish this task. “A federal district court asked to wade into polic[ies of] . . . State and County elected officials is in risky territory.” Id. at *2; see also Rizzo v. Goode, 423 U.S. 362, 378 (1976) (“Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.”); R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) (“Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies.”). “And when, as here, these disagreements appear to have been somewhat resolved, at least to the extent necessary to achieve a workable, voluntary process for the safe release of appropriate pretrial, not convicted, arrestees within the present pandemic constraints, that is a powerful reason for a federal court to decline to intervene through the blunt instrument of a [preliminary injunction].” Russell, 2020 WL 1866835, at *2.
6

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 7 of 35
i. Plaintiff’s Claims Prior to the Enactment of Local Criminal Rule 2 The original named plaintiffs were pretrial detainees in the custody of the jail at the time this
lawsuit was filed on June 6, 2018. Dkt. # 2. However, shortly after the lawsuit was filed, named plaintiffs were released upon various terms awaiting trial in their respective criminal proceedings. Feltz, the remaining named plaintiff, was released from detention on June 8, 2018, after posting bond via a private surety, and he went to Florida for 90 days to obtain treatment. However, he filed this action on behalf of similarly situated individuals who have allegedly not received due process compliant bail hearings and are allegedly detained in violation of the Equal Protection Clause.
In his amended complaint (Dkt. # 32), plaintiff challenged the pretrial detention process in place at the time of his arrest in Tulsa County. Plaintiff alleged that he and others similarly situated were indigent and were or are unable to post or pay a money bond after arrest for felony and misdemeanor charges, did not have access to counsel by or before their first court appearance, and were therefore detained without counsel or proper process. Id.
Plaintiff originally sought prospective injunctive relief against all defendants. Specifically, plaintiff sought “[a] declaration and permanent injunction that the [d]efendants violate [p]laintiffs’ and class members’ right to procedural due process under the Fourteenth Amendment by depriving people who are arrested of speedy, individualized release hearings with notice, counsel, the opportunity to be heard and to confront evidence, and findings on the record that the government met its burden to demonstrate by clear and convincing evidence that no alternative condition or combination of conditions would be sufficient to serve its compelling interests.” Id. at 33. Plaintiff also sought declaratory relief against all defendants, generally requesting an order declaring that
7

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 8 of 35
plaintiff’s and putative class members’ Fourteenth Amendment rights are violated through the bail procedure. Id.
Plaintiff alleges that defendants violate: his equal protection and due process rights by jailing putative class members because they cannot afford a monetary payment (count one); his right to pretrial liberty by jailing putative class members without procedural due process (count two); and his right to counsel by not providing putative class members with counsel adequate to challenge their wealth-based pretrial detention (count three). Based on a prior order of this Court (Dkt. # 48), count one remains pending only against Judge Musseman [now Judge LaFortune], the Sheriff, and the Board of County Commissioners of the County of Tulsa; count two remains pending against all defendants; and count three has been dismissed. Injunctive relief remains as an available remedy against Judge Musseman [now Judge LaFortune] in his role as presiding judge. Declaratory relief is the only requested remedy against the special judges. ii. Local Criminal Rule 2
Prior to commencement of this suit, defendants allege, the bail process then in effect was already subject to discussions of modification with community stakeholders, including representatives from the district attorney’s and public defender’s offices and non-profit justice reform groups. These community stakeholders and Judge Musseman were allegedly attempting to create a process that met the concerns of the community stakeholders. Several months after the filing of this lawsuit, a new process was implemented in Tulsa County through Administrative Orders 2018-9 and 2018-10. After the administrative orders were implemented and utilized for a period of time, the administrative orders were repealed after a majority of the district judges and associate judge, pursuant to Local General Rule 17 of the Tulsa County Local Rules, approved and adopted
8

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 9 of 35
Local Criminal Rule 2 on August 22, 2019. Local Criminal Rule 2 expands upon the administrative
orders and states:
Per the authority vested upon the District Court of Tulsa County, State of Oklahoma; and in accordance with the jurisdiction granted by the Oklahoma Legislature over certain misdemeanor and felony criminal matters by [OKLA. STAT. tit. 22, § 1105]; in accordance with the applicable Oklahoma District Court Rules regarding criminal procedure; and all other applicable rules and/or policies adopted by the District Court of Tulsa County, State of Oklahoma, established by [OKLA. STAT. tit. 20, § 23], the Court hereby issues the following Rule regarding a pre-established schedule for bail pursuant to [OKLA. STAT. tit. 22, § 1105.2] and for the initial appearance for persons arrested for certain misdemeanor and felony statutory criminal charges.
I. Rights of bail for persons accused of statutory criminal offenses.
The United States Supreme Court has established the accused is not entitled to bail as a constitutional right. See United States v. Salerno, 481 US 739, 754 (1987) (citing the original source for Eighth Amendment in English Bill of Rights, the majority finds the very language of the Amendment “fails to say all arrests must be bailable”). The accused is protected by both Article II, Sections 8 & 9 of the Constitution of The State of Oklahoma (1988 and 1907) with regard to excessive bail, and the Eighth Amendment, as applied to the States by virtue of the Fourteenth Amendment of the United States Constitution.
The foremost consideration when fixing bail is the probability that the accused, if free, will appear at trial, and the conditions of release are within the sole discretion of the trial court and will not be overturned absent a clear abuse of discretion. Bowman v. State, 585 P.2d 1373 (Okla. Crim. App. 1978), cert. denied 440 U.S. 920 (1979). Some of the other factors considered when establishing bail include the seriousness of the crime charged against the defendant, his or her reputation and his or her financial condition. See Brill v. Gurich, 965 P.2d 404 (Okla. Crim. App. 1998); Rule CR 10.5 of the Local Rules of Tulsa County District Court (2003); Rule1.14, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003).
In accordance with [OKLA. STAT. tit. 22, § 1101], the trial court may only deny bail upon the appropriate findings. See Brill, 965 P.2d at 404 and Art. II, Sec. 8 of the Oklahoma Constitution. The Oklahoma Court of Criminal Appeals has noted that “[b]ail is not to be deemed excessive simply because the particular person charged cannot give the bail required.” Ex Parte McClellan, 97 P. 1019, 1020 (Okla. Crim. App. 1908).
9

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 10 of 35
Pursuant to [OKLA. STAT. tit. 22, §§ 1105 and 1105.2] and Rule 1 of the Local Rules of the Tulsa County District Court, the District Court of Tulsa County, State of Oklahoma, for certain offenses hereby adopts and affirms the written and established bail schedule found in Appendix A to these Rules. The provisions of said Appendix are hereby incorporated by reference to this Rule as if fully set forth herein.
Any party, defendant, accused, or other person required or permitted by law to give or post bail as surety or security in a criminal matter may discharge this requirement by cash, surety, property, or personal recognizance depending upon the conditions of release set forth in the bail schedule.
The purpose of the bail schedule is to permit the posting of bail without a delay associated with the "First Appearance" within 48 hours of being confined to the [jail], as mandated by [OKLA. STAT. tit. 20, § 55]. It is the opinion of the Court that the employ of such a schedule, as authorized by state law, “provides speedy and convenient release for those who have no difficulty in meeting its requirements[.]” Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978).
In particular, this schedule, authorized by [OKLA. STAT. tit. 22, § 1105], shall apply to certain arrests without warrants as permitted by [OKLA. STAT. tit. 22, § 196], or other applicable code. For offenses not listed on the schedule, conditions of release may only be determined after the individualized hearing described below.
II. Scheduling of "First Appearance" for individuals not otherwise capable of posting bail pursuant to the schedule established in accordance with [OKLA. STAT. tit. 22, § 1105].
For those individuals who do not obtain release pursuant to the pre-set bail schedule as outlined above, within forty-eight (48) hours from their arrest, they shall then be brought before the Court for a "first appearance" in accordance with [OKLA. STAT. tit. 22, § 55]. In addition to those obligations established by this Rule, the accused shall be represented by court appointed counsel, if he or she does not have retained counsel for this hearing, for the limited purpose of determining the appropriate conditions of release. At this time the accused will be given the opportunity to object to the bail amount/conditions of release set for him or her.
The staff of the [jail] shall inform the Tulsa County Court staff of any such accused in a timely fashion and shall additionally facilitate his/her appearance via video transmission or teleconference at a time to be set by the Court.
To the extent an accused is claiming to be indigent and not just unable to meet the conditions of release pursuant to the pre-set bail schedule, the Court in exercising its discretion in setting the conditions of release as allowed by law may consider various
10

Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 11 of 35
factors, including but not limited to the seriousness of the charge and criminal and appearance history. To the extent an accused is claiming to be indigent and the charge is not on the pre-set bail schedule, the Court in exercising its discretion in setting the condition of release as allowed by law may consider various factors including but not limited to the seriousness of the charge and criminal and appearance history. Dkt. # 157-4. iii. Conflicting Accounts of the Implementation of Local Criminal Rule 2 Plaintiff’s counsel, Hayley Horowitz, submitted a declaration on April 3, 2020. Dkt. # 158-3. She states that she has periodically attended the bond docket proceedings, approximately a dozen times, and, therefore, has observed over 100 cases. Id. at 2. This is her account: • She states that the jail proceedings are conducted via videoconference at the jail. Id.
at 2. “The judge reads the charges of arrest based on the police report or warrant affidavit. Defendants are represented by counsel for purposes of the hearing. Counsel is permitted to present arguments for reduced bond or PR [personal recognizance] release.” Id. at 1-2. “An assistant district attorney sometimes, but rarely attends to present argument.” Id. at 3. • She states that, “[i]f the defendant’s arguments or representations conflict with information provided by other sources, such as the police report or criminal history information, the judge routinely accepts the latter as true without providing an evidentiary basis.” Id.; see also Dkt. # 158-1. • She states that “[t]he bond docket judge routinely imposes monetary conditions of release without determining or articulating whether the condition will result in the person’s detention and, if so[,] without making evidence-based findings that the
11

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person represents a risk of flight or dangerousness that can be addressed only by imprisonment. Indeed, the Court routinely asks defendants how much they can afford, and then imposes bail amounts greater than the amount stated, without finding that detention is necessary.” Dkt. # 158-3, at 3. • She states that the court will, in many cases, impose monetary bail, sometimes in an amount people had already declared themselves unable to afford, after explicitly or implicitly acknowledging that they likely posed little risk to safety or of flight. Id. • She states that, sometimes, the court does implement alternative conditions to serve the purposes of bail, but also maintains monetary bail conditions that prevent release. Id. at 4. • She provided the Court with non-public dockets, including bond docket proceedings for people arrested without a warrant. Id. She states that the court consistently assigns a monetary bond condition without recording any findings concerning ability to pay or need for detention. Id. She states that the court’s written record rarely, if ever, reflects evidence of ability to pay, dangerousness, or risk of flight, or analyze[s] whether detention is necessary. Id. at 5. Tulsa County Special Judge David Guten also submitted a declaration about the bail proceedings. Dkt. # 167-4. His account differs from Horowitz’s account: • The daily bond dockets are still occurring despite the closure of the courthouse. Id. at 1. • “No person currently being held in pretrial detention is being held ‘because they are poor.’ The rationale for denial of a PR bond and/or imposition of any condition of
12

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release is announced from the bench in open court for the benefit of all participants.” Id. • Conditions of release are set at the time of an arrestee’s appearance on the bond docket based on all relevant factors. Id. • “As an additional post-bond-docket safeguard in light of [COVID-19], the public defender’s office is actively monitoring the jail population and—if they have any concerns—requesting bond modification via email. Attorneys from Still She Rises [plaintiff’s counsel] are also seeking bond modifications via email in an effort to expedite the process. . . The Court is considering each of those informal requests and granting modification where appropriate.. The persons considered for modification informally are not reflected on the daily docket sheets. This informal process does not take the place of or prevent any arrestee from filing a formal bond-modification motion.” Id. at 1-2. In addition, defendants submitted an affidavit of the District Attorney for Tulsa County, Stephen Kunzweiler. Dkt. # 167-5. His account also differs from Horowitz’s account. He states that COVID-19, as well as “all individual factors surrounding a suspect’s case and circumstances, [are] currently being considered when assessing bond.” Id. at 2. Defendants also submitted multiple docket examples, one of which states the reasons for detention. Dkt. # 175-2, at 17. B. Current Circumstances at the Jail Since COVID-19 i. The CDC’s Guidance for Jails The CDC has issued an interim guidance for management of COVID-19 in correctional and detention facilities (the guidance). Dkt. # 171-1. According to the guidance, “[c]orrectional and
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detention facilities can prevent introduction of COVID-19 from the community and reduce

transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained

persons, staff, and visitors (including increasing access to soap and paper towels), intensifying

cleaning/disinfection practices, and implementing social distancing strategies.” Id. at 8. The

guidance states that it “may need to be adapted based on individual facilities’ physical space,

staffing, population, operations, and other resources and conditions.” Id. at 1 (emphasis omitted).

The guidance further states, “[i]f possible, consider quarantining all new intakes for 14 days before

they enter the facility’s general population.” Id. at 14. The guidance contains a recommended verbal

screening:

• Today or in the past 24 hours, have you had any of the following symptoms? • Fever, felt feverish, or had chills? • Cough? • Difficulty breathing?
• In the past 14 days, have you had contact with a person known to be infected with the novel [COVID-19]?

Id. at 26 (emphasis omitted). In addition, the CDC recommends:

• Perform pre-intake screening and temperature checks for all new entrants. Screening

should take place in the sallyport, before beginning the intake process, . . .

• If an individual has symptoms of COVID-19 (fever, cough, shortness of

breath):

•

Require the individual to wear a face mask.

•

Ensure that staff who have direct contact with the symptomatic

individual wear recommended PPE [personal protective equipment].

•

Place the individual under medical isolation (ideally in a room near

the screening location, rather than transporting the ill individual

through the facility), and refer to healthcare staff for further

evaluation. . . .

•

Facilities with onsite healthcare staff should contact their state, local,

tribal, and/or territorial health department to coordinate effective

medical isolation and necessary medical care.

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Id. at 10 (emphasis omitted). The CDC recommends that, if an inmate tests positive for COVID-19, a plan should be in place to transfer that individual to a local hospital. Id. at 23. The CDC recommends “ intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/detained persons and staff, and social distancing measures (increasing distance between individuals).” Id. at 5. The CDC also recommends implementing social distancing strategies. Id. at 8. In sum, the guidance does not recommend that inmates be released from jail; rather, it provides a comprehensive strategy for combating COVID-19 in jails. ii. The Jail’s Procedures for Preventing COVID-19 Spread
According to the affidavit of jail administrator David Parker dated April 9, 2020, beginning in mid-February 2020, he consulted the Oklahoma Department of Corrections’ (DOC) Pandemic Plan for H1N1. See Dkt. # 166-1, at 1. Sheriff Regalado and Parker than created a task force to develop a COVID-19 contingency plan should the virus make its way to Oklahoma. Id. Parker incorporated the World Health Organization’s (WHO’s) and CDC’s guidance into the Tulsa County Sheriff’s Office’s (TCSO’s) COVID-19 response in the jail. Id. The Tulsa City-County Health Department (THD) was an integral partner in supplying TCSO with relevant and needed information concerning the necessary COVID-19 response in the jail. Id. An Emergency Response Plan (COVID-19 Plan) was then drafted, and is continually updated to meet the needs of the fluid nature of the COVID-19 pandemic. Id. From March 9 to April 7, 2020, bookings at the jail are allegedly down by more than 50% and the total jail population has dropped more than 20%. Id. at 2.
TCSO deputies have allegedly been instructed to follow the Oklahoma governor’s best practices for limiting COVID-19 exposure when encountering the public. Dkt. # 166-2, at 1. All
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deputies have been told to limit exposure in the field, wear protective masks and gloves when the situation is warranted, make frequent use of hand washing and hand sanitizer, and maintain social distancing. Id. All deputies have allegedly been told that their patrol vehicles should be cleaned and disinfected twice every shift, and that they should disinfect their duty belt and gear after contact with an individual. Id. All deputies have been told to mask any arrestees displaying symptoms consistent with COVID-19, to keep the windows open during transport, and to arrange for assessment or transport by a trained emergency medical service or emergency medical technician if the arrestee needs medical attention. Id. The Sheriff has implemented mandatory temperature scannings of all persons entering the jail, and has designated specific intake pods to house new persons booked into the jail for 14 days before allowing them into other areas of the jail. Id. at 2; see also Dkt. # 166-3, at 4. In addition to inmates, all employees at the jail are asked a series of COVID-19 screening questions and their temperatures are taken daily. Dkt. # 166-2, at 2. Anyone with a temperature of 100 degrees or above is not permitted entry into the jail. Id. The Tulsa County District Courts, Tulsa County District Attorney’s Office, Tulsa County Public Defender’s Office, TCSO, and other local law enforcement officials are all working together to keep the jail population at a minimum. See Dkt. # 166-12. Visitors, including attorneys, are prohibited from entering the jail. Dkt. # 168-2, at 2.
All incoming inmates at the jail are allegedly given a questionnaire in which they are asked a number of questions, including whether they have been tested for COVID-19, whether they have been quarantined within the last month, whether they have been in close contact with anyone who has or has been tested for COVID-19, whether they have traveled outside of the country within the past two weeks, whether they have traveled by plane within the last month, whether they have been
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in a group of ten or more people within the last two weeks, and whether they have been outside of the state of Oklahoma within the last two weeks. Dkt. # 166-4. In the COVID-19 Plan, jail staff are “continuously trained on adequate housekeeping protocols.” Dkt. # 166-3, at 2. The jail allegedly posts information bulletins, posters, and automatic messages on inmate tablets and kiosks giving reminders to wash hands, use social distancing, and keep living areas clean. Id. Masks have been purchased to be worn by medical staff, employees, and infected inmates in the event that a positive case of COVID-19 is detected within the jail. Id. Gloves are worn by medical staff, employees, and inmate workers throughout the jail to prevent contact with the virus. Id. On March 18, 2020, the DOC suspended receiving inmates from county jails. Dkt. # 166-6. The jail continues to allow telephone calls and video visitation, provides free and confidential video visitation between attorneys and clients, and allows each inmate/detainee one free video visitation each week. Dkt. # 166-1, at 2.
As of March 24, 2020, all new bookings were housed in two intake pods in the jail for a minimum of 14 days prior to relocation. Dkt. # 166-3, at 5. One week later (March 31, 2020), two new pods were prepared as intake units. Id. These housing units are locked down to prevent the potential spread of COVID-19 or any other virus. Id. Outside of the inmates’ cells, movement is isolated to a single detainee. Id. The COVID-19 Plan also provides:
In the event of a confirmed case of COVID-19 within the [jail], the isolation processes within this plan should be followed. The inmate identified as possibly being exposed to a respiratory virus will be isolated in the medical unit in a negative air pressure cell for respiratory isolation. This isolation will occur for a fourteen-day period (or the current CDC guideline). After immediate isolation, the Tulsa Health Department will be notified so that they may evaluate the situation.
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The [jail] has eight negative air pressure cells that are checked daily by medical staff when being used for respiratory isolation, weekly by medical staff when not being used for respiratory isolation, and monthly by the agency’s Life Safety Officer. Should the need for a mass isolation become urgent, pods F17 and F19 have been identified and prepared to house recovering inmates. The jail’s maintenance department has effectively reversed the air flow for these housing units to be negative pressure. This will significantly minimize the airflow to other areas of the facility. Should these housing units be needed for mass isolation, one pod will be used for symptomatic inmates and the other pod will be used for asymptomatic inmates, or one pod for males and the other for females. Id. at 3. iii. Plaintiff’s Experts and Named Witness On April 8, 2020, plaintiff filed a supplement to his motions (Dkt. # 164), with an affidavit of Elizabeth Chiao, M.D. dated April 3, 2020. Dr. Chiao has extensive research interests focusing on HIV-related issues. Dkt. # 164, at 2. Dr. Chiao opined that the risk posed by infectious diseases in jails and prisons is significantly higher than in the community. Id. at 4. She opined that, because people live in close quarters in the jail, social distancing is difficult and inmates are unlikely to comply with local health mandates. Id. at 8. She further opined that, “because people cycle in and out of the jail almost every day, it is virtually impossible to create stable units of people isolating those infected from those who are uninfected, which is necessary to contain infection.” Id. She opined that temperature checks do not work on asymptomatic carriers, “which account for nearly 13% of all transmission, and one negative airflow room for a population of over 1,000 inmates is insufficient to maintain a quarantine.” Id. She stated that, “[b]ased on my experience working on public health and [i]nfectious [d]iseases, and my review of the relevant literature, it is my professional judgment that the jail is dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak . . . .” Id. at 9.
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In his reply (Dkt. # 168), plaintiff proffered a declaration of Fred Rottnek, M.D. dated April 14, 2020. Dkt. # 168-1. Dr. Rottnek opined that “the COVID-19 pandemic has the potential to devastate the lives of both incarcerated individuals and jail personnel in Tulsa, and result in a medical emergency that could overwhelm local medical infrastructure.” Id. at 3. He opined that “there are no steps that administrators can take to ensure that the disease will not enter and spread through the jail and back out to the community.” Id. Dr. Rottnek opined that the jail’s procedures “should strictly follow CDC guidance for mitigating the risk to inmate and staff populations and the general public.” Id. at 3-4. He further opined that, “even if CDC guidelines were strictly followed,” the presence of a jail in a community would continue to increase the risk to all community members. Id. at 4. Dr. Rottnek went on to recommend practices for COVID-19 prevention, and opined that the jail “cannot [implement] and has not” implemented these best practices. Id. at 5. He opined that, although there are no confirmed cases at the jail, it is “more likely that it has already entered the jail.” Id. at 6. He also challenged the questionnaire given to all arrestees when they are first detained in the jail. Id. He opined that the mental health of detainees in “solitary confinement” is ignored. Id. at 10. Dr. Rottnek admitted that “[t]he latest guidance from the CDC suggests that jails and prisons have a long list of hygiene supplies, cleaning supplies, PPE, and medical supplies on hand and available.” Id. However, he opined that, in his experience, jails do not have sufficient PPE for increasing cases of COVID-19. Id. at 11. Dr. Rottnek opined that the COVID-19 Plan places inmates at risk because it compromises their access to healthcare for non-COVID-related conditions. Id. at 12. He opined that a shortage of employees and backup personnel impose a serious risk to the jail. Id. at 13. He concluded that the jail should lower its jail population. Id. at 15.
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Plaintiff also provided a declaration of Ashley Selige dated April 13, 2020, who was in the jail, but has since been released. Dkt. # 168-3, at 2. She states that she was brought to the jail just after her arrest on April 3, 2020. Id. At the jail, she was taken to a room where she waited for several hours. Id. There were “approximately a dozen people” in this room, including a detention officer. Id. No one wore a mask. Id. at 2-3. No one warned her to stay apart from the other detainees. Id. at 3. She did not see anyone clean the chairs, telephones, or any of the other surfaces in the room during the hours she was there. Id. She did not see any cleaning supplies in the room, and she was not offered a mask or gloves. Id. There was nowhere for her to wash her hands other than a single bathroom with one sink and toilet for everyone to share; she did not see soap or paper towels in this bathroom. Id. After she had been waiting in this room for several hours, she was taken to a room to speak with a nurse. Id. She was asked if she was taking any medication, and her temperature was taken. Id. The nurse was wearing gloves but no face mask. Id. She was eventually escorted out of this room and into a hallway, where she was given a jump suit to change into. Id. She stayed in her cell for the next five days. Id. at 4. She was allowed out for solitary “rec” time for one hour during each of the first three days, and a half hour each of her last two days. Id. She was then given a video hearing, and her bail was set at $2,500. Id. She was unable to post the bond amount. Id. During her “rec” time, she was permitted to shower, watch television, launder her clothes, read books that were on a table, or walk around or sit in the common space in the pod. Id. During her time at the jail, she did not see anyone cleaning the shared surfaces or supplies, and no one cleaned her cell. Id. at 5. She was not given gloves or a mask. Id. She alleges that the officers delivering her food were not keeping six feet away from her or the other officers. Id. During her time at the jail, her temperature was taken twice, and the nurse taking her temperature was wearing
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gloves and a mask. Id. at 6. No one gave her medical attention or asked questions about her physical or mental health. Id. She began to have nightmares, feel anxious and depressed, and experienced suicidal thoughts. Id. iv. Plaintiff’s Anonymous Witnesses
In a declaration submitted by Horowitz, she states that she interviewed four anonymous witnesses who prefer to remain unnamed for fear of retaliation. Dkt. # 168-2, at 3-11. In defendant judges’ supplemental response (Dkt. # 175), they speculate as to the identity of the anonymous witnesses in an attempt to rebut their factual allegations, including whether the unnamed witnesses are entitled to bail. Dkt. # 175, at 3-5. Courts typically do not allow “anonymous” witnesses, forcing the opposition to speculate as to their identities or be unable to respond to their factual allegations. Accordingly, the Court will not consider the testimony of these anonymous witnesses. v. Defendants’ Affidavits and Declaration
In the Sheriff’s surreply, he submitted a declaration of William Cooper, D.O. dated April 20, 2020. Dkt. # 171-2. Dr. Cooper is the chief medical officer for Turn Key Health Clinics, LLC (Turn Key), which contracts with the Tulsa County Board of County Commissioners to provide health care services within the jail. Id. at 1. Dr. Cooper states that there are no suspected or confirmed COVID19 cases of detainees at the jail. Id. He strongly disagrees with plaintiff’s characterization of the lack of medical treatment provided at the jail. Id. at 1-2. He states that medical staff will treat the symptoms associated with COVID-19 (e.g., fever, shortness of breath, pain, diarrhea), and “[t]his is the most that any health care provider can do, as there is no known cure for COVID-19.” Id. at 2. He states that, once Turn Key medical staff determines that an inmate may require a higher level of care than the jail is capable of providing, medical staff will recommend that the patient be
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transferred to a local hospital. Id. Turn Key makes arrangements for off-site care and hospitalization for inmates who require hospitalization or care beyond the capabilities available at the jail, including any inmates who test positive for COVID-19 or develop serious symptoms. Id. Further, if a patient shows signs or symptoms of COVID-19, Turn Key has agreements in place with private laboratories to test the patient quickly to confirm or rule out a COVID-19 diagnosis. Id. These test results are typically available in less than 48 hours. Id.
The Sheriff also filed an additional affidavit of Parker dated April 20, 2020. Dkt. # 171-3. He states that there are no suspected or confirmed cases of COVID-19 of detainees at the jail.7 Id. at 1. Three detainees at the jail have been tested for COVID-19, and all three tested negative. Id. He states that social distancing strategies are promoted and regularly practiced in the jail. Id. The booking area has been redesignated to incorporate social distancing guidelines. Id. In addition, posters and kiosk messages remind detainees of the importance of social distancing. Id. Parker provided a photograph of the jail’s booking area, which shows chairs that are either separated from one another, presumably by six feet, or taped off. Dkt. # 171-8. He also provided an example of posters in the jail promoting social distancing, and a screen shot from an inmate kiosk available to all detainees. Dkt. ## 171-9; 171-10. He states that, since April 9, 2020, arrestees have been provided with a surgical mask in pre-booking and are required to wear the mask through the booking process. Dkt. # 171-3, at 2; see also Dkt. # 171-11. In addition, detainees are allegedly instructed how to use and care for the mask. Dkt. # 171-3, at 2.; see also Dkt. # 171-12. He states that soap is provided to all arrestees upon housing to wash their hands. Dkt. # 171-3, at 2. He states that

7

The Sheriff also filed an affidavit of George Brown dated April 20, 2020, the Undersheriff

for Tulsa County, in which he states that there are no suspected or confirmed COVID-19

cases at the jail. Dkt. # 171-4.

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bathrooms with soap and water are available in the booking area for people to wash their hands as desired. Id. He states that the jail stocks cleaning and disinfectant chemicals as well as viral disinfectants for each pod, and these products are readily available in the pod. Id. The jail is also thoroughly sanitized on a daily basis. Dkt. ## 171-7, at 2; 171-6, at 1. He states that washers and dryers, along with automatic scaled soap dispenser integrated into the machines are at no cost, and are available for self-use by all detainees. Dkt. # 171-3, at 2. Daily laundry services are also allegedly provided in the jail. Id. Finally, he states that no “solitary confinement” is implemented in the jail. Id. vi. Sheriff’s Most Recent Declarations
The Sheriff filed an additional declaration of Parker dated May 4, 2020.8 Dkt. # 186. Parker stated that, as of May 4, there are no suspected or confirmed cases of COVID-10 in the jail. Id. at 1. He also stated that the employee who had tested positive for COVID-19 offices outside the housing or pod area of the jail. Id. The employee shared an office space with another jail employee, who has been tested negative for COVID-19. Id. Parker stated that “[n]o close contact with any other TCSO employees or with any inmates has been identified through inquiry or video surveillance. The subject civilian employee maintained social distancing guidelines.” Id. In addition, Parker stated that no other civilian employee has tested positive for COVID-19 as of May 4. Id. Any employee who calls in sick must have a doctor’s release to return to work. Id. at 2. Six inmates had been tested as of May 4, and all tested negative for COVID-19. Id. Parker stated that

8

The Court directed the filing of this declaration in lieu of witness examination at the hearing.

See Dkt. ## 181, 182.

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he was not aware of any detainee who has been denied testing or has asked for testing. Id. The medical provider tests detainees based upon their symptoms. Id.
On May 8, 2020, the Sheriff filed a declaration of George Roberts, assistant jail administrator (Dkt. # 190), in which Roberts stated that there were no changes to the May 4, 2020 Parker declaration, other than that one detainee was tested for COVID-19, and his or her results were negative. Dkt. # 190, at 1.
II. Legal Standard Although plaintiff filed motions for preliminary injunction and temporary restraining order, their motions should be treated as a motion for preliminary injunction. Federal Rule of Civil Procedure 65(a) governs preliminary injunctions; it requires notice and usually requires a hearing. Rule 65(b) governs temporary restraining orders, which may be issued with no notice or hearing. Here, the parties have been involved in this case for two years and defendants were given notice of the motions. Moreover, both sides have fully briefed the motions and have submitted evidence. Therefore, the Court will treat the motions as one for preliminary injunction. “When seeking a preliminary injunction, ‘the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest.’” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (quoting Att'y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)). “In addition, the movant must establish ‘a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.’” Id. (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)).
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The Tenth Circuit has established three disfavored types of preliminary injunctions: “(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005) (internal quotation marks and citation omitted).
Plaintiff’s argument that putative class members are being detained solely due to their inability to pay bail falls within the third category because, were the Court to decide that issue on a motion for preliminary injunction, it would be deciding the entire case while the parties are conducting discovery. See Dkt. # 185. The Court lacks a full record, and the affidavits, declarations, evidence, and arguments are vastly conflicting. Therefore, it would be imprudent for the Court to decide the constitutionality of the bail system at this time. The Court declines to do so, and will rule on the motion based on the risks of COVID-19 at the jail only.
Plaintiff’s argument that COVID-19 warrants a preliminary injunction is a mandatory preliminary injunction and a preliminary injunction that alters the status quo. It is mandatory because it would require the Sheriff to take affirmative action, and it is a preliminary injunction that alters the status quo because it would require the release of presumably many detainees. “A mandatory preliminary injunction—one which requires the nonmoving party to take affirmative action–is an extraordinary remedy and is generally disfavored.” Little, 607 F.3d at 1251 (internal quotation marks omitted). “Before a court may grant such relief, the movant must make a heightened showing of the four factors.” Id. (internal quotation marks omitted). “To obtain a preliminary injunction altering the status quo, as requested here, the movant ‘must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance
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of harms.’” Brooks v. Colo. Dept. of Corrections, 730 Fed. App’x 628, 630-31 (10th Cir. 2018)9 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004)) (emphasis in original).
III. Application of the Preliminary Injunction Factors Plaintiff seeks a preliminary injunction releasing putative class members from a county facility based on COVID-19 risks. As a general matter, it is the function of local policymakers to determine how to address the COVID-19 health and safety issues. The only role of this Court is to address the constitutionality of the jail’s procedures within the confines of the claims in the amended complaint.10 The Court addresses each Little factor. A. Balance of Equities There is relatively little case law on the issue of release based on COVID-19 risk. However, “federal courts that have considered arguments like [plaintiff’s] have indicated that a prisoner is not entitled to release or transfer based solely on generalized COVID-19 fears and speculation.”11 Carter

9

This and all other unpublished decisions cited herein are not precedential, but they may be

cited for their persuasive value. See Fed. R. App. 32.1; 10th Cir. R. 32.1.

10 Plaintiff has identified no constitutional right to be free from COVID-19; he merely refers to “liberty interests.”

11 It is worth noting that some federal courts have released federal inmates for generalized COVID-19 concerns. See, e.g., Savino et al v. Hodgson et al, 20-CV-10617, Dkt. # 55 (D. Mass. April 7, 2020) (electronic order). However, these cases involve federal courts issuing injunctions with regard to federal inmates. See Hope v. Doll, 20-CV-562 (M.D. Penn. April 7, 2020). Here, plaintiff asks the Court for a preliminary injunction against local officials, over an issue in which the Court has no general authority; this is the role of county and city policymakers. See Russell v. Harris Cty., Texas, 2020 WL 1866835, at *9 (S.D. Tex. April 14, 2020) (“This case does not, like many, involve a federal-court challenge to a federal jail or prison facility, on either the conditions of confinement (including medical care) or on the duration of confinement and conditions of pretrial release.”).

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v. Santa Fe Adult Detention Center, 2020 WL 1550888, at *2 (D.N.M. April 1, 2020); see also United States v. Eberhart, 2020 WL 1450745 (N.D. Cal. 2020); Jackson v. Walz, 2020 WL 1442641 (D. Minn. 2020). “Rather, the court must make an individualized determination as to whether COVID-19 concerns present such extraordinary and compelling reasons in a particular case that temporary release or transfer is necessary.” Carter, 2020 WL 1550888, at *2 (citing United States v. Clark, 2020 WL 1446895, at *3 (D. Kan. March 25, 2020)). “[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify [release from jail]. . . .” United States v. Raia, 954 F.3d 594, 595 (3d Cir. 2020); see also United States v. Clark, 2020 WL 1557397, at *4-5 (M.D. La. Apr. 1, 2020) (noting that “[d]efendant cites no authority for the proposition that the fear of contracting a communicable disease warrants a sentence modification” and “there is no evidence before the Court that the BOP’s plan to address the pandemic will not adequately protect inmates”) (emphasis in original).
Plaintiff argues that the risk to putative class members absent a preliminary injunction outweighs any risk to the Sheriff. Dkt. # 158, at 28. He argues that reducing the jail population at this time “will save the lives” of inmates and Sheriff employees by decreasing the potential damage that an outbreak of COVID-19 at the jail would cause. Id. Defendants argue that plaintiff will not be injured, and there is no certified class for whom relief can be granted. Dkt. # 175, at 10.
The Court has already found that the class need not be certified in order to rule on this motion; however, the Court finds that putative class members are not currently facing extraordinary or compelling circumstances because there are no confirmed cases among inmates of COVID-19 at the jail. This does not mean that inmates at the jail could not, in the future, develop COVID-19 during their time in jail. But the procedures for combating COVID-19 are extensive, and there is
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only speculation at this point that COVID-19 will be rampant at the jail. Putative class members do have some interest in release from jail based on fear of a virus, but that interest is less on this record than the public’s interest in deterring future offenses and ensuring that arrestees appear for trial. On balance, the Sheriff will be more greatly harmed by a preliminary injunction because he could be subjected to criminal liability for releasing inmates without approval of the Tulsa County District Court, and he would create danger to the community and risk of flight were he to release arrestees.
In addition, the Court must defer to local policymakers during this time. In the absence of Tenth Circuit precedent, the Court looks to guidance from Fifth Circuit persuasive authority that federal district courts defer to state actions taken in times of emergency, even if they infringe on individual constitutional rights. In re Abbott, 954 F.3d 772, 783 (5th Cir. 2020). In In re Abbott, a federal district court temporarily restrained the Governor of Texas’s executive order GA-09, which postponed non-essential surgeries and procedures until April 21, 2020. Id. at 777. The district court reasoned that the executive order was a total restraint on access to abortions. Id. at 781. The Fifth Circuit reversed, holding that the federal district court ignored the required framework governing emergency public health measures. Id. at 778. The Court noted that, under Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905), “constitutional rights may be reasonably restricted ‘as the safety of the general public may demand.’” Id. (quoting Jacobson, 197 U.S. at 29). “That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.” Id. The court also noted that judicial review is only available:
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if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Id. (quoting Jacobson, 197 U.S. at 31) (emphasis in original). Here, there is no statute involved, merely a plan implemented by local authorities reasonably related to combating a public emergency. The Court concludes that judicial review of the jail’s COVID-19 Plan is not appropriate. The Court finds that plaintiff has not met his heavy burden of showing that the balance of equities strongly favors plaintiff. B. Irreparable Harm Plaintiff makes generalized assertions that COVID-19 is “an unprecedented public health disaster, and the county jail is a catastrophe waiting to happen.” Dkt. # 158, at 7. However, plaintiff fails to show that any individual putative class member is at a high risk of developing COVID-19. Defendants have provided evidence that no detainee, much less a putative class member, has been diagnosed with COVID-19. See Dkt. # 166-10, at 1. The only person diagnosed with COVID-19 at the jail is a clerk who had limited contact with detainees. See Dkt. # 171, at 2. Plaintiff also argues that “solitary confinement” (quarantine) during this COVID-19 pandemic constitutes an irreparable harm.12 Dkt. # 168, at 8-10. However, plaintiff has identified no “right” not to be distanced or quarantined during an international pandemic. See In re Abbott, 954 F.3d at 784 (“The bottom line is this: when faced with a society-threatening epidemic, a state may implement
12 In support of this, plaintiff provides a declaration of Craig W. Haney, Ph. D. Dkt. # 168-7. Dr. Haney states that “it is possible that the extraordinary added stress of social isolation under these especially onerous conditions . . . are so extreme that the[y] will operate to depress prisoners’ immune systems and render them even more vulnerable to [the] COVID19 virus, and less able to combat it if and when they contract it.” Id. at 5. However, this practice of quarantine complies with the CDC’s guidance. 29

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emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’”) (quoting Jacobson, 197 U.S. at 31). Moreover, medical staff at the jail provide medical care and treatment for all inmates for medical and mental health conditions, including those inmates placed in quarantine or isolation. Dkt. # 171-2, at 2.
The procedures that the TCSO has developed to combat COVID-19 are more than adequate to protect individual inmates. Further, they are consistent with the CDC’s guidance. Upon entry into the jail, inmates’ temperatures are taken. Dkt. # 166-2, at 2. This is consistent with the CDC’s guidance that a jail “[p]erform pre-intake screening and temperature checks for all new entrants.” Dkt. # 177-1, at 10. Employees’ temperatures are also taken, and they are required to stay home for at least 14 days if they have a temperature after symptoms were initially present. The jail has designated entire areas for inmates who might test positive for COVID-19. Dkt. # 166-2, at 2. This is consistent with the CDC’s guidance that “an individual [who] has symptoms of COVID-19” should be placed “under medical isolation.” Dkt. # 177-1, at 10. The jail has ordered hand sanitizer for employees and inmates, and has ordered 40,000 bars of soap for inmates. Similarly, the CDC recommends that proper hygiene is essential for combating COVID-19 in jails and detention facilities. See Dkt. # 177-1, at 8. The jail has posted signs, posters, and warnings on tablets explaining the precautions inmates should take to combat COVID-19. Most importantly, if any inmate tests positive for COVID-19, he or she will be immediately quarantined and given medical attention. This is consistent with the CDC’s guidance that, if an inmate tests positive for COVID-19, a plan should be in place to transfer that individual to a local hospital. Id. at 23.
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Plaintiff argues that many of these procedures are ignored, and he provides testimony from a named witness that inmates are still exposed to one another. See Dkt. # 168-3. However, the same is true for the community at large. The City of Tulsa has policies for combating COVID-19 in the general public, but these procedures are not followed absolutely. It is not this Court’s role to mandate that county or city-wide procedures be followed strictly. Plaintiff also seems to imply that the conditions in the jail should be such as to eliminate any possibility that an inmate could contract COVID-19. See Dkt. # 168, at 5. This is impractical, even for the general public. Plaintiff argues that the jail’s COVID-19 Plan and its implementation should mirror the CDC guidance. However, the COVID-19 Plan does follow many aspects of the CDC guidance. Plaintiff argues that the COVID-19 Plan “contradicts or omits many important CDC guidelines . . . .” Dkt. # 168, at 2. However, plaintiff does not meet his burden to show that putative class members would be safer were they to be released into the general public. Even if the COVID-19 Plan fails to follow all CDC guidance in its practical implementation, this Court should defer to the policy of local officials absent a showing that the policy has no real relation to the public health or safety.
Many of plaintiff’s arguments are generalized concerns and speculations about the conditions of the jail. Normally a detainee must exhaust administrative remedies before making a complaint in court. See Peoples v. Gilman, 109 F. App’x. 381, 383 (10th Cir. 2004) (holding that a detainee was required to exhaust administrative remedies because his claim “implicate[d] conditions of confinement and the effects of actions by government officials on the lives of persons confined in prison”). Plaintiff does not claim that putative class members are at a high risk of contracting COVID-19 due to age or illness; his concerns are generalized and speculative. Therefore, the Court
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finds that plaintiff has not met his heavy burden of showing putative class members will likely suffer irreparable harm in the absence of preliminary relief. C. Public’s Interest
The public interest analysis somewhat overlaps with the balance of equities analysis. Plaintiff argues that “vindication of constitutional rights is always in the public interest.” Dkt. # 158, at 30. However, as discussed, the Court declines to rule at this time whether a constitutional right to bail has been or is likely to be violated. Plaintiff further argues that releasing inmates is essential to the well being of not only the individual inmates, but also to the public in general. Id. However, there are no confirmed cases of COVID-19 at the jail among inmates. The Court finds that it is not in the public’s interest to release numerous putative class member inmates into the general population.
The parties disagree as to whether comity requires the Court to defer to the Sheriff’s policy. Defendants argue that federal courts should defer to state courts in matters of sensitive public policy. Dkt. # 175, at 11-12.
In Dixon v. City of St. Louis, 950 F.3d 1052 (8th Cir. 2020), the Eighth Circuit reversed a preliminary injunction issued by a federal district court where the district court did not consider the public’s interest in a preliminary injunction. Id. at 1056. The Missouri Supreme Court, like the Tulsa County District Court, had developed a rule modifying bail hearings. Id. at 1055. The federal district court enjoined the state officials from setting bail without considering less restrictive alternatives, and its only discussion of the new rule was that it was not moot. Id. at 1055-56. The circuit court remanded for consideration of the public’s interest in light of the new rule. Id. at 1056.
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Plaintiff argues that this case is inapposite because, in Dixon, the court did not rule that a preliminary injunction was improper; it held only that the district court should have given more weight to the public interest factor in its analysis in light of the new Missouri Supreme Court rule. Dkt. # 179, at 10. While this is true, plaintiff’s argument on comity is unpersuasive. Local Criminal Rule 2 is a significant improvement upon the prior bail process in Tulsa County District Court. And, although the Court is not ruling on the underlying merits of that new process at this time, it is worth noting that state and county policymakers are working together to implement improvements to that process. “Cooperation and comity, not competition and conflict, are essential to the federal design.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999).
In addition, were the Court to issue a preliminary injunction releasing putative class members, it would be contrary to the public’s interest in ensuring arrestees appear for trial and do not present a risk of committing new offenses. The Court thus finds that plaintiff has not met his heavy burden of showing that the public interest strongly favors granting a preliminary injunction. D. Likelihood of Success on the Merits
As noted above, the Court cannot determine at this time whether plaintiff is likely to succeed on the merits of the bail system claims. The record, at this point, is too conflicting and incomplete. Discovery is ongoing. See Dkt. # 185.
With regard to likelihood of success on the merits, the Sheriff argues that a preliminary injunction would have no effect because he allegedly has no authority to release detainees because they are unable to pay bail. Dkt. # 177, at 17. He argues that, because plaintiff’s claim is based on allegedly unconstitutional judicial procedures employed by the state court judges, and because plaintiff has sued those judges directly, an injunction against the Sheriff is unwarranted. Id. at 24.
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He cites the Tenth Circuit’s opinion in Valdez v. City and County of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989), as authority for this proposition. Dkt. # 177, at 27. In that case, the Tenth Circuit held that “officials performing ministerial acts intimately related to the judicial process . . . must not be called upon to answer for the legality of decisions which they are powerless to control.” Valdez, 878 F.2d at 1289. He also cites Buffin v. City and County of San Francisco, 2016 WL 6025486, at *5 n.3 (N.D. Cal. Oct 14, 2016), which found that, “as a matter of law there is no county policy where the State directs its judges to set a bail schedule, which the Sheriff’s department is required to enforce pursuant to state law.” Id. Thus, the Sheriff argues, injunctive relief against him would be unwarranted.13 Plaintiff counters that “[a]n insistence that state law or policy requires the Sheriff to violate the Constitution is not a defense to [p]laintiff’s claim for injunctive relief, but rather a basis for granting that relief.” Dkt. # 187, at 12 (citing Edwards v. Cofield, 265 F. Supp. 3d 1344, 1346 (M.D. Ala. 2017) (a sheriff “does not enjoy immunity merely because he was following orders. Indeed, . . . Ex Parte Young assumes that the state actor has done nothing more than enforce the law as promulgated by the State.”). Plaintiff also points out that the Court in a prior order (Dkt. # 48) allowed his claims against the Sheriff to proceed. Dkt. # 187, at 18.
Because the Court has found that putative class members are unlikely to suffer irreparable harm based on COVID-19, it need not address these arguments at this time because it is deferring the merits of plaintiff’s underlying claims to a future date. See Dominion Video Satellite, Inc. v.
13 The Sheriff also argues that, were he to release detainees from jail, he could face criminal liability and loss of employment. Dkt. # 177, at 16 (citing OKLA. STAT. tit. 57, § 47 (“The sheriff . . . is hereby required to conform, in all respects, to the rules and directions . . . of the district judge and communicated to him by the proper authority.”); OKLA. STAT. tit. 57, § 55 (stating that, if the Sheriff refuses “to comply with any of the rules and regulations established by the district judge . . . he shall, on conviction thereof, by indictment for each case of such failure or neglect of duty . . . pay . . . a fine . . . .”)). 34

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Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (“In examining these factors, courts have consistently noted that because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.”) (quotation marks and citations omitted).
IV. Conclusion A preliminary injunction is “an extraordinary and drastic remedy.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Plaintiff’s request for a preliminary injunction is strongly disfavored. Plaintiff has not made a the required strong showing of the four Little factors for issuance of a mandatory preliminary injunction or a preliminary injunction that alters the status quo. For these reasons, the Court finds that plaintiff’s motion for a preliminary injunction (Dkt. # 158) should be denied without prejudice. IT IS THEREFORE ORDERED that plaintiff’s motion for a preliminary injunction (Dkt. # 158) is denied without prejudice, and plaintiff’s motion for a temporary restraining order (Dkt. # 159) is moot. DATED this 11th day of May, 2020.
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