Case 4:15-cv-00170-HLM Document 1 Filed 09/08/15 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

________________________________

)

MAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

CIVIL ACTION

Plaintiffs,

)

)

NO. _____DW_____)_-_.___

v.

)

)

JURY TRIAL DEMANDED

CITY OF CALHOUN, GEORGIA, )

)

CLASS ACTION

Defendant.

)

________________________________ )

COMPLAINT

Plaintiff Maurice Walker, on behalf of himself and the class alleged herein,

states as follows for his Complaint:

INTRODUCTION

1. This case is about the City of Calhoun jailing the poor because they

cannot pay a small amount of money.

2. Plaintiff Maurice Walker is a recent arrestee who is currently

imprisoned because he cannot afford to pay the amount of money generically set

by the bail schedule used by the City of Calhoun. In the City of Calhoun, many

people arrested for minor traffic or misdemeanor offenses are released from

custody almost immediately upon payment of money to the City. Those arrestees

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who are too poor to purchase their release remain in jail because of their poverty for up to seven days before a first court appearance.
3. On behalf of the many other arrestees subjected to the City’s moneybased detention scheme, Mr. Walker challenges in this action the use of fixed amounts of secured money bail that results in the detention of only the poorest of those arrested for petty offenses. He seeks a declaration that the City’s conduct is unlawful, and injunctive relief assuring that his rights and the rights of the other class members will not continue to be violated.
NATURE OF THE ACTION1 4. It is the policy and practice of the City of Calhoun to refuse to release traffic and misdemeanor arrestees from jail unless they pay a generically set bond amount. That amount varies for each offense but generally ranges from $90 to $1,000. Because this sum is set by reference to the alleged offense of arrest, no individualized factors are considered, and anyone who cannot afford to pay is held in jail for up to seven days before the City brings its arrestees before the municipal court. 5. Mr. Walker seeks declaratory, injunctive, and compensatory relief.
1 Mr. Walker makes the allegations in this Complaint based on personal knowledge as to matters in which he has had personal involvement and on information and belief as to all other matters.
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JURISDICTION AND VENUE 6. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. 7. Venue in this Court is proper under 28 U.S.C. § 1391.
PARTIES 8. Plaintiff Maurice Walker represents himself and a class of similarly situated people all subject to the City’s money-based post-arrest detention scheme. 9. Defendant City of Calhoun is a municipal corporation organized under the laws of the State of Georgia. It is the seat of Gordon County, Georgia. The City operates the Calhoun Police Department and contracts with the sheriff of Gordon County to hold Calhoun arrestees in the Gordon County Jail.
STATEMENT OF FACTS A. Mr. Walker Is Being Detained Because He Is Indigent. 10. Maurice Walker is a 54-year-old man with a serious mental disorder that renders him disabled. His only income consists of approximately $530 per month in Social Security disability payments, which are sent to and managed by his sister. He lives with his sister and has no property or assets. His most recent
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job was doing masonry work for his brother. He has not been able to work for the past five years.
11. Mr. Walker was arrested on the evening of September 3, 2015, by Calhoun Police Department officers for allegedly being a pedestrian under the influence. See Exhibit A, Declaration of Walker.
12. City police officers brought Mr. Walker to the Gordon County Jail, where he was booked and placed in a holding cell. An officer informed Mr. Walker that he would not be released unless he paid the standard $160 cash bond that the City requires for people charged with being a pedestrian under the influence.
13. Mr. Walker is indigent. He cannot afford to purchase his release from jail. Mr. Walker’s family also cannot afford the $160 required by the City’s bail policy.
14. Mr. Walker has repeatedly asked officers assigned to the Gordon County Jail when he would go to court. He has received three different answers. On information and belief, the City holds weekly court sessions on Mondays, and new arrestees who cannot afford to pay for their release must wait until the following Monday to be seen by a judge. The City did not hold Court on Monday,
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September 7, 2015, as a result of the Labor Day holiday. Therefore, Mr. Walker will appear in court on Monday, September 14, 2015.
15. Mr. Walker is prescribed medication for his mental disorder and must take that medication every day. He spent eight days in the hospital in late August 2015 because he had stopped taking it. As a result of his detention in the Gordon County Jail, Mr. Walker has not been provided with his medication. He is assigned to a single-person cell and is allowed out of his cell for one hour each day.
B. The City’s Policies and Practices Are Causing Mr. Walker’s Detention.
16. Under Georgia law, most arrestees accused of misdemeanors are entitled to pretrial release. O.C.G.A. § 17-6-1(b)(1).
17. Mr. Walker would be released immediately by the City of Calhoun if he or a family member paid the amount set by the City’s bail schedule.
18. The treatment of Mr. Walker and other class members is caused by and is representative of the City’s post-arrest detention policies and practices.
19. As a matter of policy and practice, when the City of Calhoun Police Department makes an arrest for a minor traffic or misdemeanor offense, officers inform the arrestee that the arrestee will be released immediately if he or she pays the bond amount set for each charge of arrest pursuant to an offense-based and pre-
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set bail schedule.2 The arrestee is told that he or she will remain in jail if unable to make that payment.
20. Because Calhoun does not deviate from secured money bail and holds court only once per week, any arrestee too poor to pay the pre-set secured bail could spend as many as seven days in jail prior to a first court appearance.
21. Unlike many other cities, the City of Calhoun does not allow postarrest release on recognizance or with an unsecured bond (in which a person would be released by promising to pay the scheduled amount if the person later does not appear). Instead, City officials require that the payment amount be made up front.
22. After arrest, jail employees inform arrestees of the secured bond amount based on their training and City policies. Many of Calhoun’s minor misdemeanor arrestees are thus released soon after arrest upon payment of the scheduled amount of cash. Some remain detained for varying lengths of time until they or their families are able to borrow sufficient amounts of money or arrange for
2 Because of the common availability of commercial bail bonds, those that remain in the custody of the City of Calhoun are typically those that cannot even afford to pay a third-party bonding agent. The amount charged by a bonding agent is typically 10 to 20 percent of the bond amount, though such agents are free to refuse to pay for the release of an arrestee for any reason or for no reason. Mr. Walker cannot afford such a bond.
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third-party payment. Others, like Mr. Walker, who are too poor even to find anyone to pay the money bond for them, are kept in jail.
23. Each Monday, there are commonly about four to six indigent defendants who were not able to pay enough money to secure their release.
CLASS ACTION ALLEGATIONS 24. Mr. Walker brings this action, on behalf of himself and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 25. A class action is a superior means, and the only practicable means, by which Mr. Walker and other class members can challenge the City’s unlawful detention scheme. 26. This action is brought and may properly be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 27. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 28. Mr. Walker proposes a class seeking declaratory and injunctive relief. The class is defined as follows: All arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation.
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A. The Class Satisfies the Numerosity Requirement under Rule 23(a)(1).
29. Every misdemeanor and ordinance-violation arrestee in Calhoun is presented with the City’s standard choice of paying a set fee or being placed in jail. Arrestees are held in jail for varying lengths of time depending on how long it takes them to make the cash payment that the City requires for their release.
30. Some arrestees are able to pay for release immediately. Others are forced to wait several days until they or family members can make the payment. Others are not able to pay or to find someone else to pay for them.
31. Each week, an average of approximately four to six persons have not been able to pay the secured money bond set by City policy. Those arrestees are still in custody and appear before the Calhoun municipal judge. Thus, the number of future class members numbers in the hundreds.
B. The Class Satisfies the Commonality Requirement under Rule 23(a)(2).
32. 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. Mr. Walker seeks relief mandating the City to change its policies, practices, and procedures so that the constitutional rights of Mr. Walker and the class members will be protected in the future. Entitlement to relief will depend on whether the City’s policies,
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practices, and procedures violate the rights of the class members. 33. These common legal and factual questions arise from one central
scheme and set of policies and practices: the City’s post-arrest detention scheme. The City operates 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 common legal and factual issues will determine whether all of the members of the class are entitled to the constitutional relief that they seek.
34. Among the most important, but not the only, common questions of fact are (a) whether the City of Calhoun has a policy and practice of using fixed offense-based money bail to determine the amount of money necessary to avoid post-arrest detention; (b) whether the City of Calhoun requires that bail amount to be paid up front in order to allow release; (c) what post-arrest procedures the City of Calhoun provides to misdemeanor arrestees, for example, whether Calhoun has any other alternate procedures for promptly releasing indigent people unable to afford a monetary payment.
35. Among the questions of law common to all class members is whether a fixed secured bail procedure setting standard amounts of money required up front to avoid post-arrest detention violates the Fourteenth Amendment’s Due Process
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Clause or Equal Protection Clause. C. The Class Satisfies the Typicality Requirement under Rule 23(a)(3). 36. Mr. Walker’s claims are typical of the claims of the other members of
the class, and he has the same interests in this case as all other members of the class that he represents. Each of them suffers injuries from the failure of the City to comply with basic constitutional provisions: each is confined in jail because of inability to pay the City’s standardized cash bond amount. The answer to whether the City’s bail scheme is unconstitutional will determine the claims of Mr. Walker and every other class member.
37. If Mr. Walker succeeds in the claim that the City’s policies and practices concerning post-arrest detention violate his constitutional rights, that ruling will likewise benefit every other member of the class.
D. The Class Satisfies the Adequacy Requirement under Rule 23(a)(4).
38. Mr. Walker is an adequate representative of the class because his interests in the vindication of the legal claims that he raises are aligned with the interests of the other class members, who each have the same basic constitutional claims. He is a member of the class, and his interests coincide with, and are not antagonistic to, those of the other class members.
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39. 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 in the face of unlawful treatment by their local government.
40. Mr. Walker is represented by attorneys from Equal Justice Under Law and the Southern Center for Human Rights, who have experience litigating complex civil rights matters in federal court and extensive knowledge of both secured bail schedule schemes and the relevant constitutional law.
41. The interests of the members of the class will be fairly and adequately protected by Mr. Walker and his attorneys.
E. Class Certification Is Warranted under Rule 23(b)(2). 42. Class action status is appropriate because the City, through the policies, practices, and procedures that make up its post-arrest detention scheme, has acted in the same unconstitutional manner with respect to all class members. The City of Calhoun has created and applied a simple scheme of post-arrest detention and release: it charges standard secured money amounts for every misdemeanor or ordinance-violation arrestee. The City releases those who can pay and detains those who cannot. The detained arrestees are eventually taken to court the following week for a first appearance, up to seven days after arrest. 43. The class therefore seeks declaratory and injunctive relief to enjoin
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the City from continuing in the future to detain impoverished arrestees who cannot afford cash payments. Because the putative class challenges the City’s scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the class, certification under Rule 23(b)(2) is appropriate and necessary.
44. Injunctive relief compelling the City to comply with these constitutional rights will similarly protect each member of the class from being subjected to the City’s unlawful policies and practices. A declaration and injunction stating that the City cannot use a fixed secured money bail scheme that jails indigent arrestees but frees arrestees with financial means would provide relief to every member of the class. Therefore, declaratory and injunctive relief with respect to the class as a whole is appropriate.
45. Mr. Walker seeks the following relief and hereby demands a jury in this cause for all matters so appropriate:
CLAIM FOR RELIEF Defendant City of Calhoun Violates Plaintiff’s Fourteenth Amendment Rights by Jailing Him Because He Cannot Afford a Monetary Payment Prior to His
First Court Appearance. 46. Mr. Walker incorporates by reference the allegations in paragraphs 1 through 44.
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47. The Fourteenth Amendment’s Due Process and Equal Protection Clauses have long prohibited imprisoning a person for the person’s inability to make a monetary payment. Defendant violates Mr. Walker’s rights by jailing him when he cannot afford to pay the secured bail amount generically set by the City of Calhoun.
REQUEST FOR RELIEF Plaintiff Maurice Walker and the other class members request that this Court issue the following relief: a. Certify this case as a class action brought on behalf of a class defined
as follows: All arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation; b. Enter a declaratory judgment that the City of Calhoun violates Mr. Walker’s and class members’ constitutional rights by jailing them because of their inability to pay a generically set amount of money to secure release after an arrest; c. Enter an order and judgment preliminarily and permanently enjoining the City of Calhoun from enforcing the unconstitutional post-arrest
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money-based detention policies and practices against Mr. Walker and the class of similarly situated people that he represents; d. Enter a judgment compensating Mr. Walker for the damages that he previously suffered as a result of the City of Calhoun’s unconstitutional and unlawful conduct, including damages resulting from his confinement in jail; and e. Enter an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief that this Court deems just and proper.

3 Pending admission pro hac vice.

Respectfully submitted,
/s/ Sarah Geraghty Sarah Geraghty Ga. Bar No. 291393 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar Street, NW Atlanta, GA 30303 (404) 688-1202 (404) 688-9440 (facsimile) sgeraghty@schr.org rprimerano@schr.org
Alec Karakatsanis D.C. Bar No. 9992943
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September 8, 2015

EQUAL JUSTICE UNDER LAW 916 G Street, NW Suite 701 Washington, DC 20001 (202) 681-2409 alec@equaljusticeunderlaw.org
Counsel for Mr. Walker4

4 Counsel hereby certifies that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.
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 Case 4:15-cv-00170-HLM Document 13 Filed 09/10/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

MAURICE WALKER, Plaintiff,
v. CITY OF CALHOUN, GEORGIA,
Defendant.

CIVIL ACTION FILE NO. 4:15-CV-170-HLM

ORDER This case ts before the Court on Plaintiff's Notice of Withdrawal of Request for Temporary Restraining Order, and Motion for Hearing Date and Briefing Schedule on His Motion for Preliminary Injunction [11 ]. 1

1The Court directs Plaintiff's counsel to file any future requests for affirmative relief as separate Motions, rather than including such requests in a Notice or as part of a response brief.

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The Court grants the portion of Plaintiff's Motion that the Court construes as a request for leave to withdraw Plaintiff's Motion for Temporary Restraining Order. The Court denies without prejudice the portion of the Motion that seeks a briefing schedule and a hearing date on the Motion for Preliminary Injunction. The briefing schedule will proceed in accordance with the Local Rules. 2 The Court will schedule a hearing on the Motion for Preliminary Injunction once the briefing process for that Motion is complete and the Court has an opportunity to review the Parties' filings. 3
ACCORDINGLY, the Court GRANTS IN PART AND DENIES WITHOUT PREJUDICE IN PART Plaintiff's Notice
2The complete text of the Local Rules is available via the Court's website: www.gand.uscourts.gov.
3 The Court notes that it already has a heavy criminal and civil trial calendar the rest of September 2015 and for October 2015, as well as several other pre-existing hearings and commitments.
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of Withdrawal of Request for Temporary Restraining Order, and Motion for Hearing Date and Briefing Schedule on his Motion for Preliminary Injunction [11 ]. The Court GRANTS the portion of that document that seeks to withdraw Plaintiff's request for a temporary restraining order [3-1 ]. Plaintiff's alternative request for a preliminary injunction [3-2] remains pending. The C.ourt DENIES WITHOUT PREJUDICE the portion of that document that seeks a hearing date and a briefing schedule on the request for a preliminary injunction. The briefing schedule for that request shall proceed in accordance with the Local Rules--that is, Defendant shall have fourteen days after September 8, 2015, the date on which Plaintiff filed his request, to respond to the request. See N.D. Ga. R. 7.1 B ("Any party opposing a motion shall serve the party's response, responsive memorandum, affidavits, and any other responsive material not later than
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fourteen (14) days after service of the motion, except that in cases of [a] motion for summary judgment the time shall be twenty-one (21) days after service of the motion."). Plaintiff will then have fourteen days after Defendant responds in which to file a reply in support of the request. See N.D. Ga. R. 7.1 C ("When the movant deems it necessary to file a reply brief, the reply must be served not later than fourteen (14) days after service of the responsive pleading."). The Court will set a hearing on the request for a preliminary injunction after the briefing process is complete and after the Court has an opportunity to review the Parties' briefs.
IT IS SO ORDERED, this the day of September, 2015.
UNIT
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 Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

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

Plaintiff,

v.

CIVIL ACTION FILE NO.:

4: 15-CV-0170-HLM

CITY OF CALHOUN, GEORGIA,

Defendant.

ORDER

This case is before the Court on Defendant's Motion to

Dismiss for Failure to State a Claim, or, in the Alternative,

Motion for More Definite Statement ("Motion to Dismiss").

A072A
(Rev.8/8
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I. Background A. Plaintiff's Allegations Plaintiff has sued Defendant, alleging that Defendant
jails "the poor because they cannot pay a small amount of
money." (Compl. (Docket Entry No. 1) ,-i 1.) Plaintiff is a
recent arrestee who is imprisoned because he cannot afford
to pay the money set by Defendant's bail schedule. (kl ,-i
2.) Plaintiff alleges that Defendant releases "many people arrested for minor traffic or misdemeanor offenses . . . almost immediately upon payment of money." (kl) However, those "who are too poor to purchase their release remain in jail because of their poverty for up to seven days before a first court appearance." (kl) Plaintiff "challenges in this action the use of fixed amounts of secured money
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A072A (Rev.8/8
'"

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bail that results in the detention of only the poorest of those arrested for petty offenses," and "seeks a declaration that [Defendant's] conduct is unlawful, and injunctive relief assuring that his rights and the rights of the other class
members will not continue to be violated." (lii. ,-i 3.)
Plaintiff alleges that Defendant has a policy and practice of refusing "to release traffic and misdemeanor arrestees from jail unless they pay a generically set bond amount," which varies by offense but usually ranges from
$90 to $1,000. (Campi. ,-i 4.) According to Plaintiff,
Defendant does not consider individualized factors when setting bonds, and "anyone who cannot afford to pay is held in jail for up to seven days before [Defendant] brings its arrestees before the municipal court." (kl)
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Defendant is a Georgia municipal corporation and is
the seat of Gordon County, Georgia. (Campi. 1l 9.)
Defendant operates the Calhoun Police Department (the "CPD") and contracts with the sheriff of Gordon County to hold its arrestees in the Gordon County Jail (the "Jail"). (kl)
Plaintiff is fifty-four years old and has a serious mental
disorder that causes him to be disabled. (Campi. 1l 10.)
Plaintiff alleges that his only income consists of $530 per month in Social Security disability payments, which his sister receives and manages. (kl) Plaintiff lives with his sister and has no property or assets. (kl) Plaintiff has been unable to work for the past five years. (kl)
On September 3, 2015, the CPD arrested Plaintiff and charged him with being a pedestrian under the influence.
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A072A (Rev.8/8

Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 5 of 22
(Campi. 1J 11.) CPD officers brought Plaintiff to the Jail, where he was booked and placed in a holding cell. (kt. 1J
12.) An officer told Plaintiff "that he would not be released unless he paid the standard $160 cash bond that [Defendant] requires for people charged with being a pedestrian under the influence." (kl)
Plaintiff is indigent and cannot afford to post the bond.
(Compl. 1J 13.) Plaintiffs family cannot afford to post the
bond. (kl) Plaintiff has asked officers at the Jail when he will go to court, and has received three different answers.
(kl 1J 14.) Defendant holds weekly court sessions on
Mondays, and new arrestees who cannot post bond must wait until the following Monday to see the judge. (kl) Defendant did not hold court on September 7, 2015, due to
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A072A (Rev.8/8
"'

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the Labor Day holiday, and Plaintiff will not appear in court until September 14, 2015. (lli.)
Plaintiff has a prescription for medication for his mental disorder and must take the medication every day. (Campi.
1J 15.) In August 2015, Plaintiff spent eight days in the
hospital because he had stopped taking his medication. (lli.) Plaintiff alleges that he has not received his medication while in the Jail, that he is assigned to a singleperson cell, and that he is allowed out of the cell for one hour each day. (kl)
Plaintiff alleges that, under Georgia law, most arrestees who are charged with misdemeanors are entitled to pretrial release. (Campi. 1{ 16.) Plaintiff contends that Defendant would release him immediately if he or a family member
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paid the bond amount. (kl ,-i 17.) According to Plaintiff, his

treatment, and that of other class members, results from

and is representative of Defendant's post-arrest detention

policies and practices. (kl ,-i 18.) Plaintiff alleges that

under Defendant's policy and practice,

when the [CPD] makes an arrest for a minor traffic or misdemeanor offense, officers inform the arrestee that the arrestee will be released immediately if he or she pays the bond amount set for each charge of arrest pursuant to an offensebased and pre-set bail schedule. The arrestee is told that he or she will remain in jail if unable to make that payment.

(kl ,-i 19 (footnote omitted).) According to Plaintiff, those

who remain in Defendant's custody typically cannot afford

to pay a third-party bonding agent the ten to twenty percent

required to obtain a commercial bail bond. (kl at 6 n.2.)

A072A (Rev.8/8

Plaintiff states that he cannot afford such a bond. (kl)
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According to Plaintiff, "[b]ecause [Defendant] does not deviate from secured money bail and holds court only once per week, any arrestee too poor to pay the pre-set secured bail could spend as many as seven days in jail prior to a first
court appearance." (Compl. 11 20.) Plaintiff alleges that
Defendant, unlike many other cities, "does not allow postarrest release on recognizance or with an unsecured bond (in which a person would be released by promising to pay the scheduled amount if the person later does not appear)."
(kl 11 21.) Defendant instead requires payment up front.
(kl) Plaintiff alleges: After arrest, [J]ail employees inform arrestees of the secured bond amount based on their training and [Defendant] policies. Many of [Defendant's] minor misdemeanor arrestees are thus released
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A072A (Rev.8/8

Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 9 of 22
soon after arrest upon payment of the scheduled amount of cash. Some remain detained for varying lengths of time until they or their families are able to borrow sufficient amounts of money or arrange for third-party payment. Others, like [Plaintiff], who are too poor even to find anyone to pay the money bond for them, are kept in jail. (Compl.1J 22.) According to Plaintiff, "[e]ach Monday, there are commonly about four to six indigent defendants who were not able to pay enough money to secure their release." (kl 1J 23.) Plaintiff has brought this action on behalf of a class, alleging that "[a] class action is a superior means, and the only practicable means, by which [Plaintiff] and other class members can challenge [Defendant's] unlawful detention scheme." (Com pl. 1J 25.) Plaintiff proposes a class for declaratory and injunctive relief, defined as "[a]ll arrestees
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A072A (Rev.8/8

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unable to pay for their release who are or will be in the custody of [Defendant] as a result of an arrest involving a
misdemeanor, traffic offense, or ordinance violation." (kl 'if
28.) Plaintiff alleges that the class satisfies the numerosity
requirement. (kl 'if'il 29-31.) Plaintiff further contends that the class satisfies the commonality requirement. (kl 'if'il 32-
35.) Additionally, Plaintiff alleges that the class satisfies the
typicality requirement. (kl 'if'il 36-37.) Plaintiff argues that
he is an adequate representative of the class, that his counsel can adequately represent the class, and that the
class satisfies the adequacy requirement. (kl 'if'il 38-41.)
According to Plaintiff: Class action status is appropriate because [Defendant], through the policies, practices, and procedures that make up its post-arrest detention scheme, has acted in the same unconstitutional
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manner with respect to all class members. [Defendant] has created and applied a simple scheme of post-arrest detention and release: it charges standard secured money amounts for every misdemeanor or ordinance-violation arrestee. [Defendant] releases those who can pay and detains those who cannot. The detained arrestees are eventually taken to court the following week for a first appearance, up to seven days after arrest.

42.)

Plaintiff alleges that Defendant violated his Fourteenth

Amendment rights by jailing him because he cannot afford

to pay the cash bond. (Compl. 46-47.) Plaintiff seeks a

declaratory judgment that Defendant violated his rights, and

those of the class members, "by jailing them because of

their inability to pay a generically set amount of money to

secure release after an arrest" (id. at 13), as well as an

A072A (Rev.8/8
'l\

Order preliminarily and permanently enjoining Defendant
1 1

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from enforcing its post-arrest money-based detention policies against Plaintiff and the class (id. at 13-14), monetary damages (id. at 14), and attorneys' fees and costs (id.).
B. Procedural Background On September 8, 2015, Plaintiff filed this lawsuit. (Docket Entry No. 1.) Plaintiff also filed a Motion for Temporary Restraining Order or, in the Alternative, for Preliminary Injunction (Docket Entry No. 4), and a Motion to Certify Class (Docket Entry No. 10). Plaintiff withdrew his request for a temporary restraining order after Defendant released Plaintiff from jail. (Docket Entry No. 11.) The Court has extended Defendant's deadline to respond to the Motion for Preliminary Injunction through December 2,
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2015, and has extended the deadline for Defendant to respond to the Motion to Certify Class through January 4, 2016. (Order of Oct. 21, 2015 (Docket Entry No. 21 ).)
On November 2, 2015, Defendant filed its Motion to Dismiss. (Docket Entry No. 22.) The briefing process for that Motion is complete, and the Court finds that the matter is ripe for resolution. II. Discussion
A. Motion to Dismiss Defendant complains that "Plaintiff has failed to even conclusorily allege what type of Due Process or Equal Protection claim he intends to assert, and, moreover, has thus failed to show a plausible claim for relief." (Br. Supp. Mot. Dismiss (Docket Entry No. 22-1) at 8.) Defendant also
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argues that "[i]n turn, Plaintiff has not alleged sufficient facts to show that the type of claim he is alleging is plausible." (ld..:. at 9.)
Federal Rule of Civil Procedure 12(b)(6) allows the Court to dismiss a complaint, or portions of a complaint, for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the Court must take the allegations of the complaint as true and must construe those allegations in the light most favorable to the plaintiff. Alvarez v. Attorney Gen. for Fla., 679 F.3d 1257, 1261 (11th Cir. 2012).
Although a court is required to accept well-pleaded facts as true when evaluating a motion to dismiss, it is not required to accept the plaintiff's legal conclusions. Chandler
14
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Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 15 of 22
v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court also does not accept as true "unwarranted deductions of fact or legal conclusions masquerading as facts." Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006) (internal quotation marks and citation omitted).
Finally, the Court may dismiss a complaint if it does not plead "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Simpson v. Sanderson Farms, Inc., 744 F. 3d 702, 708 (11th Cir. 2014) (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a complaint
15
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Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 16 of 22
"requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555. Although factual allegations in a complaint need not be detailed, those allegations "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact)." kl Moreover, "[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Igbal, 556 U.S. at 678. The mere possibility that the defendant might have acted unlawfully is not sufficient to allow a claim
to survive a motion to dismiss. kl Instead, the well-
pleaded allegations of the complaint must move the claim
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Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 17 of 22
"across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
Defendant cannot seriously contend that Plaintiff's allegations fail to state a constitutional violation. To the extent that Defendant makes this argument, the Court rejects it and observes that Plaintiff certainly has set forth sufficient non-conclusory factual allegations to state a claim for relief. Even if Defendant is correct in its contention that Plaintiff should have specified the type of Equal Protection or Due Process claim that Plaintiff intended to assert, any such "deficiency" can be remedied via requiring Plaintiff to provide a more definite statement of his claims. Dismissal is not the appropriate remedy for that alleged deficiency. The Court therefore denies the Motion to Dismiss.
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B. Motion for More Definite Statement Alternatively, Defendant requests that the Court "order Plaintiff to re-plead [his] claim or claims with such specificity-including what type of Equal Protection or Due Process claim he is attempting to allege-so that [Defendant] can provide a responsive pleading." (Br. Supp. Mot. Dismiss at 9.) In support of this argument, Defendant notes that "there are multiple types of claims that can be brought under either the Due Process Clause or the Equal Protection Clause." (.kl at 11.) Federal Rule of Civil Procedure 12(e) provides: A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a
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responsive pleading and must point out the defects complained of and the details desired.

Fed. R. Civ. P. 12(e). "Rule 12(e) motions are greatly

disfavored by the courts. A motion for a more definite

statement is properly made only if a pleading is so vague or

ambiguous that a party is not reasonably able to frame a

responsive pleading." Duracell Inc. v. SW Consultants, Inc.,

126 F.R.D. 571, 576 (N.D. Ga. May 12, 1989) (citations

omitted).

Here, the Court cannot find that Plaintiff's Complaint is

so vague or ambiguous that Defendant cannot reasonably

frame a responsive pleading. On its face, Plaintiff's

Complaint is pleaded with sufficient specificity and clarity to

put Defendant on notice of the claims that Plaintiff asserts,

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and Defendant should be able to frame a responsive
19

Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 20 of 22
pleading. See Reid v. Selma City Sch. Bd., Civil Action No. 13-0379-WS-C, 2013 WL 5295871, at *4 (S.D. Ala. Sept. 19, 2013) (denying a motion for more definite statement where the Complaint, on its face, was "pleaded with sufficient specificity and clarity that defendants are sufficiently on notice of the claims that they are capable of framing a responsive pleading"). Any additional detail that Defendant may want about the specific types of Equal Protection or Due Process claims at issue is readily obtainable through the discovery process, and this information is not necessary to allow Defendant to frame a responsive pleading. See id. (denying a motion for more definite statement and noting that "[a]ny additional detail that defendants might desire about the specific statutes
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Case 4:15-cv-00170-HLM Document 28 Filed 12/02/15 Page 21 of 22
and/or constitutional prov1s1ons at issue can be readily obtained via the discovery process after filing answers" (internal quotation marks and citation omitted)). The Court finds that "a more definite statement is not reasonably necessary to safeguard [Defendant's] interests or facilitate [its] ability to fashion a responsive pleading." ll;l The Court therefore denies Defendant's Motion for More Definite Statement.
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Ill. Conclusion

ACCORDINGLY, the Court DENIES Defendant's

Motion to Dismiss [22].

J

IT IS SO ORDERED, this the i day of December,

2015.

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 Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

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

Plaintiff,

v.

CIVIL ACTION FILE NO.:

4: 15-CV-0170-HLM

CITY OF CALHOUN, GEORGIA,

Defendant.

ORDER

This case is before the Court on Plaintiff's Motion for

Preliminary Injunction [4].

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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 2 of 74
I. Background A. Plaintiff's Allegations Plaintiff has sued Defendant, alleging that Defendant
jails "the poor because they cannot pay a small amount of money." (Campi. (Docket Entry No. 1) 1{ 1.) Plaintiff is a recent arrestee who is imprisoned because he cannot afford
to pay the money set by Defendant's bail schedule. (kL 1J
2.) Plaintiff alleges that Defendant releases "many people arrested for minor traffic or misdemeanor offenses . . . almost immediately upon payment of money." (kL) However, those "who are too poor to purchase their release remain in jail because of their poverty for up to seven days before a first court appearance." (kL) Plaintiff "challenges in this action the use of fixed amounts of secured money
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 3 of 74

bail that results in the detention of only the poorest of those

arrested for petty offenses," and "seeks a declaration that

[Defendant's] conduct is unlawful, and injunctive relief

assuring that his rights and the rights of the other class

members will not continue to be violated."

3.)

Plaintiff alleges that Defendant has a policy and

practice of refusing "to release traffic and misdemeanor

arrestees from jail unless they pay a generically set bond

amount," which varies by offense but usually ranges from

$90 to $1,000. (Campi. 4.) According to Plaintiff,

Defendant does not consider individualized factors when

setting bonds, and "anyone who cannot afford to pay is held

in jail for up to seven days before [Defendant] brings its

arrestees before the municipal court." (kl)

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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 4 of 74
Defendant is a Georgia municipal corporation and is the seat of Gordon County, Georgia. (Compl. 9.) Defendant operates the Calhoun Police Department (the "CPD") and contracts with the sheriff of Gordon County to hold its arrestees in the Gordon County Jail (the "Jail"). (kl)
Plaintiff is fifty-four years old and has a serious mental disorder that causes him to be disabled. (Compl. 10.) Plaintiff alleges that his only income consists of $530 per month in Social Security disability payments, which his sister receives and manages. (kl) Plaintiff lives with his sister and has no property or assets. (kl) Plaintiff has been unable to work for the past five years. (kl)
On September 3, 2015, the CPD arrested Plaintiff and charged him with being a pedestrian under the influence.
4
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 5 of 74
(Com pl. 11.) CPD officers brought Plaintiff to the Jail, where he was booked and placed in a holding cell. (k;L_ 12.) An officer told Plaintiff "that he would not be released unless he paid the standard $160 cash bond that [Defendant] requires for people charged with being a pedestrian under the influence." (k;L_)
Plaintiff is indigent and cannot afford to post the bond. (Com pl. 13.) Plaintiff's family cannot afford to post the bond. (k;L_) Plaintiff has asked officers at the Jail when he will go to court, and has received three different answers. (kl 14.) Defendant holds weekly court sessions on Mondays, and new arrestees who cannot post bond must
wait until the following Monday to see the judge. (ldJ
Defendant did not hold court on September 7, 2015, due to
5
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 6 of 74
the Labor Day holiday, and Plaintiff will not appear in court until September 14, 2015. (lit_)
Plaintiff has a prescription for medication for his mental disorder and must take the medication every day. (Campi.
15.) In August 2015, Plaintiff spent eight days in the hospital because he had stopped taking his medication. (lit_) Plaintiff alleges that he has not received his medication while in the Jail, that he is assigned to a singleperson cell, and that he is allowed out of the cell for one hour each day. (lit_)
Plaintiff alleges that, under Georgia law, most arrestees who are charged with misdemeanors are entitled to pretrial
release. (Campi. 'il 16.) Plaintiff contends that Defendant
would release him immediately if he or a family member
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 7 of 74

paid the bond amount. (kl ,-i 17.) According to Plaintiff, his

treatment, and that of other class members, results from

and is representative of Defendant's post-arrest detention

policies and practices. (kl ,-i 18.) Plaintiff alleges that

under Defendant's policy and practice,

when the [CPD] makes an arrest for a minor traffic or misdemeanor offense, officers inform the arrestee that the arrestee will be released immediately if he or she pays the bond amount set for each charge of arrest pursuant to an offensebased and pre-set bail schedule. The arrestee is told that he or she will remain in jail if unable to make that payment.

(kl ,-i 19 (footnote omitted).) According to Plaintiff, those

who remain in Defendant's custody typically cannot afford

to pay a third-party bonding agent the ten to twenty percent

required to obtain a commercial bail bond. (kl at 6 n.2.)

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Plaintiff states that he cannot afford such a bond. (kl)
7

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 8 of 74
According to Plaintiff, "[b]ecause [Defendant] does not deviate from secured money bail and holds court only once per week, any arrestee too poor to pay the pre-set secured bail could spend as many as seven days in jail prior to a first court appearance." (Campi. 20.) Plaintiff alleges that Defendant, unlike many other cities, "does not allow postarrest release on recognizance or with an unsecured bond (in which a person would be released by promising to pay the scheduled amount if the person later does not appear)."
21.) Defendant instead requires payment up front. (kl)
Plaintiff alleges: After arrest, [J]ail employees inform arrestees of the secured bond amount based on their training and [Defendant] policies. Many of [Defendant's] minor misdemeanor arrestees are thus released
8
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 9 of 74
soon after arrest upon payment of the scheduled amount of cash. Some remain detained for varying lengths of time until they or their families are able to borrow sufficient amounts of money or arrange for third-party payment. Others, like [Plaintiff], who are too poor even to find anyone to pay the money bond for them, are kept in jail.
22.) According to Plaintiff, "[e]ach Monday, there are commonly about four to six indigent defendants who were not able to pay enough money to secure their release."
23.) Plaintiff has brought this action on behalf of a class, alleging that "[a] class action is a superior means, and the only practicable means, by which [Plaintiff] and other class members can challenge [Defendant's] unlawful detention scheme." (Campi. 25.) Plaintiff proposes a class for declaratory and injunctive relief, defined as "[a]ll arrestees
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 10 of 74
unable to pay for their release who are or will be in the custody of [Defendant] as a result of an arrest involving a
misdemeanor, traffic offense, or ordinance violation." (kl 1J
28.) Plaintiff alleges that the class satisfies the numerosity
requirement. (kl 1J1J 29-31.) Plaintiff further contends that the class satisfies the commonality requirement. (kl 1J1J 32-
35.) Additionally, Plaintiff alleges that the class satisfies the
typicality requirement. (kl 1J1l 36-37.) Plaintiff argues that
he is an adequate representative of the class, that his counsel can adequately represent the class, and that the
class satisfies the adequacy requirement. (kl 1J1l 38-41.)
According to Plaintiff: Class action status is appropriate because [Defendant], through the policies, practices, and procedures that make up its post-arrest detention scheme, has acted in the same unconstitutional
10
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 11 of 74

manner with respect to all class members. [Defendant] has created and applied a simple scheme of post-arrest detention and release: it charges standard secured money amounts for every misdemeanor or ordinance-violation arrestee. [Defendant] releases those who can pay and detains those who cannot. The detained arrestees are eventually taken to court the following week for a first appearance, up to seven days after arrest.

(lli_ 42.)

Plaintiff alleges that Defendant violated his Fourteenth

Amendment rights by jailing him because he cannot afford

to pay the cash bond.

46-47.) Plaintiff seeks a

declaratory judgment that Defendant violated his rights, and

those of the class members, "by jailing them because of

their inability to pay a generically set amount of money to

secure release after an arrest" (id. at 13), as well as an

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(Rev.8/8
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Order preliminarily and permanently enjoining Defendant
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 12 of 74
from enforcing its post-arrest money-based detention policies against Plaintiff and the class (id. at 13-14), monetary damages (id. at 14), and attorneys' fees and costs (id.).
B. Plaintiff's Declaration Plaintiff submitted a Declaration. (Campi. Ex. A (Docket Entry No. 1-2).) Plaintiff states that he is fifty-four
years old. (kl ,-J 1.) Plaintiff further states that he was
arrested on September 3, 2015, by the CPD on charges of pedestrian under the influence. (kl ,-J 2.) When Plaintiff arrived at the Jail, he was told that he had to pay a $160
cash bond or he would be kept in jail. (kl ,-J 3.) According
to Plaintiff, he has a major mental health disorder and is disabled, and his only income is $530 per month in Social
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 13 of 74
Security benefits, which his sister receives. (kl ,-J 4.)
Plaintiff has not worked in five years, does not have a driver's license, owns no property, and lives with his sister. (kl) Plaintiff states that he does not know when his court date will be, as he has received three different answers from guards, and notes that he cannot afford to buy his release.
(kl ,-i 5.)
C. Defendant's Materials 1. Affidavit of Samuel Heath Everett
Mr. Everett is a police officer with the City of Calhoun, Georgia's Police Department (the "CPD"). (Aff. of Samuel
Heath Everett (Docket Entry No. 29-1) ,-J 1.) On September
3, 2015, Mr. Everett was dispatched to the area of Experiment Station Road and Georgia State Route 53 Spur
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 14 of 74
to respond to a report of a black male walking in the roadway who appeared to be intoxicated. (lii. ,-} 2.) After reaching that location, Mr. Everett located an individual who matched the description provided, and noted that the individual appeared to be stumbling as he was walking. (lii. ,-} 3.) As Mr. Everett approached the individual, he smelled a strong odor of alcohol. (lii. ,-} 4.) The individual identified himself as Plaintiff. (lii.) Mr. Everett also observed that Plaintiff had slurred speech and red, glassy eyes, which are consistent with intoxication. (lii. ,-} 5.) Mr. Everett arrested Plaintiff and transported him to the Jail, where he was booked and cited for a violation of O.C.G.A. § 40-6-95. (lii. ,-} 6.) Mr. Everett told Plaintiff "that he would need to make contact with someone who could then call the [CPD]
14
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 15 of 74
regarding the process for making bail." (kl 1J 7.) Mr.
Everett did not "advise [Plaintiff] with regard to the amount necessary for bail." (kl)
2. Prisoner Release Authorization Defendant presented a copy of a prisoner release authorization indicating that Plaintiff was directed to be released from the Jail on September 9, 2015. (Prisoner Release Authorization (Docket Entry No. 29-2).)
3. Ticket Information Sheet The ticket information sheet from Plaintiff's arrest indicates that, on September 3, 2015, Plaintiff was charged with being a pedestrian under the influence, in violation of
O.C.G.A. § 40-6-95. (Ticket Information Sheet (Docket
Entry No. 29-3).) The ticket information sheet also reflects
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 16 of 74
that Plaintiff paid a fine in the amount of $160.00, which was
forfeited on October 19, 2015. (ldJ
4. Affidavit of Matthew Chad Silvers Defendant presented the Affidavit of Matthew Chad Silvers, who is employed by the Municipal Court of the City of Calhoun, Georgia as a deputy clerk and as a deputy marshal. (Aff. of Matthew Chad Silvers (Docket Entry No.
29-4) ,-i 1.) Mr. Silvers states that the Calhoun Municipal
Court "allows individuals to post a bond secured by electronic payment for most offenses through an online
service provided by Government Window, LLC." (kl ,-i 2.)
According to Mr. Silvers, the records provided by the on line services indicate that, on October 10, 2015, a $160.00 bond was posted for a ticket belonging to Plaintiff, who was
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 17 of 74
scheduled to appear before the Calhoun Municipal Court on
October 12, 2015. (kl ,-r 3.)
5. Standing Order Defendant also presented a copy of the Calhoun Municipal Court's Standing Order Regarding Pre-Trial Appearance, Establishment of Bonds in Advance of Initial Appearance Pursuant to State Law and Individualized lndigency Determinations (the "Standing Order"). (Standing Order (Docket Entry No. 29-5).) The Standing Order states, in relevant part:
PursuanttoO.C.G.A. § 17-6-1(f)(1), the Court
for the City of Calhoun, Georgia, as a court of inquiry with original jurisdiction acting in the stead of the Superior Court of Gordon County, Georgia, for certain offenses hereby re-adopts and reaffirms the written and established bail schedule attached as Exhibit "A." The provisions of said
17
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 18 of 74

exhibit are hereby incorporated by reference by this standing order 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 depositing cash in
the amount of said bail. O.C.G.A. § 17-6-4(a).
Additionally, an accused may provide his/her driver's license as collateral for any bail as
provided for by O.C.G.A. § 17-6-2.

The purpose is to permit the posting of bail without a delay associated with the "First Appearance" within 48 hours of being confined to the Gordon County Jail, as mandated by Georgia Uniform Superior Court Rule 26.1. 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).

(kl at 3.) The schedule "shall apply to all custodial arrests

permitted by O.C.G.A. §§ 17-4-20 and 17-4-23, or other

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applicable code provisions" for various offenses. (kl at 4.)
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 19 of 74

The Standing Order also contains a prov1s1on

concerning scheduling a First Appearance for individuals

who are not capable of making bail under the bail schedule,

which states:

For those individuals who do not obtain release pursuant to the secured 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 Georgia Uniform Superior Court Rule 26.1. In additional [sic] to those obligations established by the Uniform Rule, the accused shall be represented by court appointed counsel. At this time the accused will be given the opportunity to object to the bail amount set for him or her, including any claim of indigency and the need for appointed legal counsel to assist in their release. The Court shall then determine whether the accused is unable to post a secured bail because he/she is indigent, making an individualized determination based upon the evidence provided.

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The standard for making an individualized determination of indigency shall be that
19

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 20 of 74
established by O.C.G.A. § 36-32-1 (f) and (g), as
defined by O.C.G.A. § 17-2-2(6)(A) regarding an "indigent person" charged with a misdemeanor, violation of probation, or a municipal code offense punishable by imprisonment. These legislative provisions have established an "indigent person" or "indigent defendant" for appointed legal counsel as one "earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person has other resources that might be reasonably used to employ a lawyer without undue hardship on the person or his or her dependents[.]" For purposes of this order, "100 percent of the federal poverty guidelines" shall specifically mean the guidelines published in the Federal Register of January 22, 2015, Volume 80, Number 14 on ppgs 3237, 3238 (a copy of same being attached as Exhibit "B" hereto), and as may be further promulgated and adopted for subsequent years in the Federal Register.
Should the Court find, based upon the evidence then provided that the accused is indigent by said standard, then he/she shall be subject to release on recognizance without making a secured bail in accordance with O.C.G.A. § 176-1 (i). Said individual shall then be provided written notice of the date for the next proceeding
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 21 of 74
or trial. It shall be the responsibility of the accused to notify the Clerk of Municipal Court should he/she have a change of residence or mailing address prior to a[n] adjudication and sentencing to ensure notice of any change in the scheduled proceedings.
In the unlikely event that no hearing can be held within the forty-eight (48) hour time frame established by Georgia Uniform Superior Court Rule 26.1, then the accused shall be released on a recognizance bond in accordance with O.C.G.A. § 17-6-1 (i).
The staff of the Gordon County Jail shall inform the Municipal 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.
(Standing Order at 5-6.) Finally, the Standing Order
provides:
All persons charged with violations of The Code of Calhoun, Georgia who have no outstanding failure to appear arrest warrant from
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 22 of 74
the City of Calhoun, or any other similar governing authority duly established by the Georgia General Assembly or the Constitution of The State of Georgia, shall be released on an unsecured appearance bond in the amount established by the aforementioned bail schedule. The unsecured appearance bond form which shall be used is hereto attached as Exhibit "C," and same 1s incorporated as if fully set forth herein.
(kl at 6-7.)
6. Defendant's City Code
Defendant also presented a copy of its City Code. (City
Code (Docket Entry No. 29-6).) Article VI of Defendant's
City Code governs the municipal court. (City Code Art. VI.)
Section 6-101 creates the municipal court. (kl Art. VI, Sec.
6-101.) Section 6-102 governs chief and associate judges of the municipal court. (kl, Art. VI Sec. 6-102.) Notably,
the mayor and council set the compensation for the
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 23 of 74
municipal court judges, and the judges "shall be appointed by the mayor and council and shall serve at the pleasure of the mayor and council, subject to removal, with or without any stated cause, upon a majority vote by the mayor and counsel." (lil Art. VI, Sec. 6-102(a)(1 ). ) The City Code also sets the qualifications for municipal court judges. (lil Art. VI, Sec. 6-102(a)(2).) Further, under the City Code, the mayor and council may fill vacancies in the office of the chief municipal judge by appointment if the vacancies occur "by reason of death, resignation, removal or other reason." (lil Art. VI, Sec. 6-102(c).) Section 6-103 governs convening the municipal court, and provides that "[t]he court shall sit at a place designated by the mayor and council." (kl, Art. VI Sec. 6-103.) Section 6-104 sets forth the
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 24 of 74
municipal court's jurisdiction, which consists of "violations of
city ordinances" and "[t]he prosecution of traffic offenses as
set forth in O.C.G.A. Title 40," among other things. (kl Art.
VI, Sec. 6-104.) Section 6-105 sets forth the requirements
for the municipal court's ministerial officers, their
attendance, and their duties. (kl Art. VI, Sec. 6-105.)
Section 6-106(a) provides that any person convicted in the
municipal court may petition the Superior Court of Gordon
County for a writ of certiorari. (kl, Art. VI, Sec. 6-106(a).)
Section 6-106(b) states:
Nothing in this section shall prevent a defendant who desires to obtain a writ of certiorari from the judge of the Superior [C]ourt of Gordon County from doing so; provided, however, that the applicant failing to give bond and security may, in the discretion of the municipal court judge, be placed in the city prison or county jail to await the final judgment on the appeal. Nothing in this
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 25 of 74
section shall be construed to prevent any person convicted in the municipal court of a violation of any city ordinance from petitioning for a writ of certiorari directly to the Superior Court in accordance with the provisions of state law in such cases. (kl Art. VI, Sec. 6-106(b).) D. Procedural Background On September 8, 2015, Plaintiff filed this lawsuit. (Docket Entry No. 1.) On that same day, Plaintiff filed a Motion for TRO and Preliminary Injunction. (Docket Entry No. 4.) The Court denied the Motion for TRO without prejudice on September 10, 2015, following Plaintiff's release from confinement, but left the Motion for Preliminary Injunction pending. (Order of Sept. 10, 2015 (Docket Entry No. 13).) The briefing process for the Motion for Preliminary
Injunction is complete.
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In this Circuit, "[a]n evidentiary hearing is required for entry of a preliminary injunction only where facts are bitterly contested and credibility determinations must be made to decide whether injunctive relief should issue." Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1178 (11th Cir. 2002) (internal quotation marks and citations omitted); see also McDonald's Corp. v. Robertson, 147 F.3d 1301, 1313 (11th Cir. 1998) ("[W]here material facts are not in dispute, or where facts in dispute are not material to the preliminary injunction sought, district courts generally need not hold an evidentiary hearing."). The Court finds that material facts are not in dispute, and that no evidentiary hearing on the Motion for Preliminary Injunction
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 27 of 74
is necessary. The Court therefore concludes that the matter is ripe for resolution. II. Motion for Preliminary Injunction
A. Parties' Positions 1. Plaintiff's Initial Brief
Plaintiff argues that Defendant is ignoring "the principle that no person may be kept in jail solely because of her property" by jailing "people solely because they cannot pay a small amount of money to secure their release." (Br. Supp. Mot. Preliminary lnj. (Docket Entry No. 7) at 2.) Plaintiff contends that "[k]eeping the poor in jail because they cannot make a monetary payment violates longstanding and fundamental principles of American law," and Defendant's scheme "has been rejected by the courts
27
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 28 of 74
and by every major panel of legal experts to study the issue
over the past fifty years." (kl) Plaintiff argues that he has
a substantial likelihood of succeeding on the merits of his
claims because Defendant's conduct violates basic
principles of equal protection and due process. (kl at 6-7.)
According to Plaintiff, Defendant's bail policy runs afoul of
Circuit precedent because
it carves out jail for those who cannot afford to pay [Defendant] and freedom for those who can. In no case is an indigent arrestee offered an alternative to posting an immediate payment. [Defendant] has determined that people committing minor misdemeanor offenses are eligible for immediate release after arrest. [Defendant] cannot make exercising that right to freedom contingent solely on the ability to pay arbitrary amounts of cash.
(kl at 13 (citations omitted).) Plaintiff notes that state
courts also have rejected money-based detention schemes.
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(kl at 14-15.) Plaintiff also contends that Defendant has simple alternatives to jailing the poor. (kl at 15-22.)
Plaintiff further argues that he and the class will suffer irreparable harm if the Court does not issue a TRO, based on the deprivation of liberty. (Br. Supp. Mot. Prelim. lnj. at 22-24.) Plaintiff also notes that the public interest supports preventing a violation of constitutional rights. (kl at 24-25.) According to Plaintiff, an injunction will not harm Defendant, which "already offers release to every misdemeanor arrestee-but only if they can pay for it." (kl at 25.) Plaintiff notes that, if the Court issues an injunction:
At worst, [Defendant] would be required to do what other cities and counties in Georgia and throughout the country do every day: release both rich and poor after arrest instead of requiring the poor to sit in jail only because they cannot afford to purchase their release.
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 30 of 74
(kl at 25-26.) Finally, Plaintiff argues that the Court should exercise
its discretion not to require a bond. (Br. Supp. Mot. Prelim. lnj. at 28-31.) Plaintiff notes that Defendant has very little likelihood of suffering any harm, including financial harm, from an improperly-issued injunction. (kl at 29-30.) Plaintiff further states that he and the other Class members are indigent and lack financial resources. (kl at 30.) Finally, Plaintiff argues that he "is overwhelmingly likely to succeed on the merits." (kl at 31.)

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2. Defendant's Response
30

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Defendant filed a response opposing Plaintiff's Motion for TRO. (Resp. Mot. Prelim. lnj. (Docket Entry No. 29).) Defendant notes that "Plaintiff does not provide any facts or any objective standard by which to determine that he is, in fact, 'indigent."' (kl at 4.) Defendant first argues that Plaintiff does not have a substantial likelihood of succeeding on the merits. (kl at 4-12.) Specifically, Defendant contends that Plaintiff's suit, which challenged his continued custody in the Jail, should have been brought as a habeas
petition under 28 U.S.C. § 2254, rather than as a § 1983
action, and that Plaintiff failed to exhaust his state remedies. (kl at 4-7.) Defendant also argues that no offending municipal policy caused Plaintiff's injury, as the Calhoun Municipal Court "is a separate judicial branch serving
31
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 32 of 74
exclusively as the initial court of inquiry." (kl at 7.) Defendant notes that its Mayor and Council simply may appoint or terminate judges, but that only the judges of the Calhoun Municipal Court may establish a bail schedule. (kl at 7-8.) Thus, Defendant contends that its "Mayor and Council have very little ability to effect change as to the alleged 'policy' that Plaintiff complains about." (kl at 8.)
Finally, Defendant argues that Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978), does not hold that secured bail schedules are unconstitutional. (Resp. Mot. Prelim. lnj. at 8-12.) According to Defendant, "Pugh demonstrates that Plaintiff does not possess a substantial likelihood of success on the merits because required constitutional protections are already provided by state law," including
32
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O.C.G.A. § 17-6-1, which "provides for an individualized bail determination in addition to the secure bail schedule." (kl at 9 (emphasis in original).) Defendant argues that "Plaintiff should not be relieved from the requirement of having to attempt to make bail merely upon a bare claim of indigent status." (kl at 9-10 (footnote omitted).) According to Defendant, "the Standing Bail Order provides a process for the Municipal Court to determine whether the accused claiming to be indigent has made 'bona fide efforts to acquire the resources' to obtain pretrial release," and Plaintiff's proposed alternatives "instead seek[] to have all released with an[] '1.0.U.' bond that is not authorized by the Georgia General Assembly or Title 17 of the Official Code of Georgia Annotated." (kl at 12.) Defendant contends
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 34 of 74
that the Standing Order provides adequate due process protections and safeguards. (kl)
Alternatively, Defendant argues that Plaintiff cannot show that he or any class member is likely to suffer irreparable harm absent an injunction. (Resp. Mot. Prelim. lnj. at 12-15.) According to Defendant, Plaintiff put forth no evidence to support his conclusions or to show that irreparable harm will occur to prisoners in jail. (kl at 13-15.) Defendant also notes that the Eleventh Circuit has not held that an alleged constitutional violation will always constitute irreparable harm. (kl at 15.)
Defendant further contends that the balance of harms does not favor Plaintiff. (Resp. Pl.'s Mot. Prelim. lnj. at 1519.) According to Defendant, "[w]hile Plaintiff has cited
34
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 35 of 74
academic studies concerning jail statistics sponsored by organizations with their own agendas, Plaintiff has failed to show how a short incarceration in the [Jail] would lead to any of the 'terrible consequences' alleged." (kl at 16.) Defendant argues that it "is not detaining individuals solely due to their economic status," noting that "[t]he offenses for which individuals are detained are not petty, trivial offenses," and that "[t]he individuals arrested pose a risk or danger to the community and, in some instances, themselves." (kl at 17.) According to Defendant, Plaintiff's threatened injury is moot in light of the Standing Order. (kl at 17-18.) Defendant contends that the alleged violation "is not capable of repetition or causing any alleged injury in the future," and "there can be no reasonable expectation of a
35
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 36 of 74
demonstrated probability that the same alleged controversy will recur." (kl at 18.) Defendant argues that, under those circumstances, "there is no basis for this Court to grant Plaintiff's requests for injunctive relief." (kl) Defendant contends that it, in contrast, will face substantial harm if the Court grants injunctive relief, (kl at 18-19.)
Defendant also argues that Plaintiff cannot show that an injunction would serve the public interest, noting that "[b]ecause the requested injunction by Plaintiff is in contravention to O.C.G.A. § 17-6-1 (f)(1 ), the public interest would be hindered by such an order, rather than supported by it." (Resp. Pl.'s Mot. Prelim. lnj. at 20.) According to Defendant, "Plaintiff woefully neglects to consider the practical effects of implementing a system of unsecured
36
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 37 of 74
bonds and the adverse impact upon [Defendant] and its citizens." (kl)
Defendant also argues that the Court should require Plaintiff to post security for an injunction under Federal Rule of Civil Procedure 65(c). (Resp. Pl.'s Mot. Prelim. lnj. at 2024.) According to Defendant, "in the event that an injunction is improperly issued, [Defendant] will suffer substantial financial harm when required to implement a system of unsecured bonds," and Defendant "will be required to expend funds in sum not yet known to comply with the injunction." (kl at 22.) According to Defendant, the CPD and the Calhoun Municipal Court "will face an endless cycle of arrests on bench warrants, incarceration, and re-release for inability to pay, which will not only flood the
37
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 38 of 74
infrastructure, but also dramatically increase [Defendant's] overhead both for personnel and costs." (kl at 22-23.) Defendant argues that the mere fact that Plaintiff and the potential class members may be indigent will not necessarily excuse them from posting a bond. (kl at 23.) According to Defendant, "the driving force behind this litigation, and numerous other similarly-filed lawsuits around the country, Equal Justice Under Law, is not indigent." (kl) Defendant also argues that a bond is warranted because Plaintiff has not shown a likelihood of succeeding on the merits. (kl)
Finally, Defendant argues that Plaintiff has challenged
the use of a bail schedule, which O.C.G.A. § 17-6-1 (f)(1)
specifically endorses. (Resp. Pl. 's Mot. Prelim. lnj. at 24.)
38
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 39 of 74
According to Defendant, "for Plaintiff to actually win his challenge to [Defendant's] use of a bail schedule, Plaintiff, in reality, will have to ask this Court to find O.C.G.A. § 17-61(f)(1) to be unconstitutional." (kl) Defendant complains that Plaintiff has not added the State of Georgia as a party or given notice to Georgia's Attorney General, which is
required by 28 U.S.C. § 2403(b) and O.C.G.A. § 9-4-7(c). (kl at 24-25.) At a minimum, Defendant contends that
"Georgia's Attorney General should be provided notice and invited to intervene in this case." (kl at 25.)
3. Plaintiff's Reply In his reply, Plaintiff points out that he is challenging Defendant's policies, not the facial constitutionality of
O.C.G.A. § 17-6-1 (f)(1 ). (Reply Supp. Mot. Prelim. lnj.
39
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 40 of 74
(Docket Entry No. 34) at 1.) Plaintiff argues that the fact that Defendant may have adopted new bail procedures in the middle of the case does not moot Plaintiff's claim, particularly where Defendant argues that it did not violate the law. (kl at 3.) Plaintiff also contends that the new bail procedures do not cure the constitutional violation that underlies this case. (kl at 3-5.) Plaintiff notes: "The new policy is unconstitutional in the same way the old one was. Under the new standing order, [Defendant] simply proposes to hold indigent arrestees for two days instead of four or five days. The same constitutional arguments in Plaintiff's prior briefing apply here." (kl at 4.) Plaintiff argues that even if the new policy corrected the constitutional violation, it would not moot this case unless Defendant could show that it is
40
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 41 of 74
absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, and that Defendant cannot make that showing. (kl at 5-7.) According to Plaintiff, Defendant has not shown that the new policy is permanent, Defendant contends that both bail policies are lawful, and Defendant implemented the new policy nearly three months after Plaintiff filed this lawsuit. (kl at 6.)
Plaintiff also contends that he has a substantial likelihood of succeeding on the merits of his claims, as the bail policy violates the rights of indigent arrestees. (Reply Supp. Mot. Prelim. lnj. at 7-11.) Plaintiff notes that although Defendant argues that bail schedules are not categorically unconstitutional and that Georgia has statutory procedures governing setting bail, Plaintiff is not seeking to outlaw bail
41
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 42 of 74
schedules and is not challenging Georgia's bail statutes or procedures. (kl at 9.) Plaintiff observes that "at all times relevant to his complaint, [Plaintiff] was presumed innocent of wrongdoing and thus had no duty to pay a penalty to [Defendant]." (kl) Plaintiff further argues that Defendant's "Response fails to appreciate the significance of depriving a person of liberty or to recognize its heavy burden to justify its detention policy." (kl at 10.) Plaintiff contends that Defendant cannot satisfy its burden, because (1) "[t]he policy applied to misdemeanor arrestees does not serve a 'legitimate and compelling' interest in protecting society or securing attendance at trial because it tests only arrestees' immediate financial resources, not their flight risk or danger to the community" (id. at 11 ); and (2) "the policy is not
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'closely tailored to effectuate' compelling interests, since everyone can be released on bail, no matter how likely they are to abscond or reoffend, as long as they pay a predetermined sum" (id.).
Plaintiff also contends that Defendant is responsible for the bail policy, noting that the municipal court judge acts on behalf of Defendant, as does the police chief who enforces the policy. (Reply Supp. Mot. Prelim. lnj. at 12-17.) Plaintiff points out: "[Defendant's] claim that it does not control the policy fatally undermines its mootness argument. [Defendant] claims that it is merely following the direction of a person whom [Defendant] claims that it cannot control. If [Defendant] cannot control that person, then it cannot ensure that the person will not revert to the old policy
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 44 of 74
tomorrow." (kl at 12 n.10.) According to Plaintiff, under Georgia law, a municipal court is a municipal office of a municipality and acts on behalf of the municipality, not the State. (kl at 13.) Plaintiff points out that Defendant exercises significant powers over the municipal court, and any claim that Defendant has little authority to change that court's bail practices results from Defendant's decision to take a hands-off approach to the municipal court, not from a requirement of Georgia law. (lit. at 13-15.) Plaintiff also notes that, even if the municipal judge is not a policymaker for Defendant in this area, the police chief is the custodian of all Defendant's arrestees and can be enjoined from committing constitutional violations through enforcing the bail policy. (lit. at 15-17.)
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Plaintiff further notes that this is not a case in which Plaintiff seeks habeas relief, as a favorable result would not necessarily cause Plaintiff to be released from prison faster. (Reply Supp. Mot. Prelim. lnj. at 17-20.) As such, Plaintiff argues that he can bring this action under§ 1983 instead of
via a habeas petition. (ldJ
Plaintiff also argues that the relief sought in this case would not require the Court to invalidate O.C.G.A. § 17-61(f)(1) or to ban bail schedules. (Reply Supp. Mot. Prelim. lnj. at 20-21.) As such, Plaintiff contends that the State Attorney General need not be given notice of this action and an opportunity to intervene. (kl)
Plaintiff next contends that he and the putative class members will suffer irreparable harm absent an injunction,
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 46 of 74
as they will suffer unnecessary deprivations of liberty. (Reply Supp. Mot. Prelim. lnj. at 21.) Plaintiff argues that the balance of harms favors him, as Defendant can bring its bail system into compliance with the Constitution without wreaking administrative and procedural havoc. (kl at 2122.) Finally, Plaintiff contends that injunctive relief will serve the public interest by enjoining an unconstitutional policy. (kl at 22.)
Plaintiff also argues that the Court should waive the security bond requirement. (Reply Supp. Mot. Prelim. lnj. at 22-23.) Plaintiff notes that he is indigent and that the Court has discretion to waive bond. (kl at 22.) Plaintiff further notes that the Court may waive a bond where the plaintiff is indigent. (kl at 23.)
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C. Discussion 1. Standard for Obtaining an Injunction
A party seeking a temporary restraining order or preliminary injunction must show: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury unless the injunction is issued; (3) that the threatened injury outweighs the harm the temporary restraining order would inflict on the non-movant; and (4) that the temporary restraining order would not be adverse to the public interest. LSSI Data Corp. v. Comcast Phone, LLC, 696 F.3d 1114, 1119 (11th Cir. 2012). "[A] [temporary restraining order or preliminary injunction] is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of these
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 48 of 74
prerequisites." SunTrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001) (per curiam) (citation omitted). "The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show actual success on the merits instead of a likelihood of success." Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) (internal quotation marks and citation omitted).
2. Substantial Likelihood of Success For the following reasons, the Court finds that Plaintiff has a substantial likelihood of succeeding on the merits of his claims. Certainly, keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible. Tate v. Short, 401
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U.S. 395, 398 (1971 ); Williams v. Illinois, 399 U.S. 235, 24041 (1970); Smith v. Bennett, 365 U.S. 708, 709 (1961 ); Griffin v. Illinois, 351 U.S. 12, 19 (1956). Any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment generally prohibits "punishing a person for his poverty." See Bearden v. Georgia, 461 U.S. 660, 671 (1983). This principle has special implications as it relates to depriving a person of his liberty. Attempting to incarcerate or to continue incarceration of an individual because of the individual's inability to pay a fine or fee is
49
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impermissible. See Tate, 401 U.S. at 397-98 ("Although the instant case involves offenses punishable by fines only, petitioner's imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination since .. . petitioner was subjected to imprisonment solely because of his indigency." (footnote omitted)); Williams, 399 U.S. at 240-41 ("We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court causes we are confronted with an impermissible discrimination that rests on ability to pay."); see also Smith, 365 U.S. at 709 ("We hold that to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his
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liberty is to deny that prisoner the equal protection of the laws."). This is especially true where the individual being detained is a pretrial detainee who has not yet been found guilty of a crime. See Pugh, 572 F.2d at 1056 ("We view such deprivation of liberty of one who is accused but not convicted of crime as presenting a question having broader effects and constitutional implications than would appear from a rule stated solely for the protection of litigants."). 1
The former United States Court of Appeals for the Fifth Circuit has observed that a bond scheme that did not take into account indigency would fail to pass constitutional

A072A (Rev.8/8

10pinions of the United States Court of Appeals for the Fifth Circuit issued prior to October 1, 1981, the date marking the creation of the United States Court of Appeals for the Eleventh Circuit, are binding precedent on this Court. Bonner v. City of Prichard. Ala., 661 F.2d 1206, 1209-11 (11th Cir. 1981) (en bane).
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muster. See Pugh, 572 F.2d at 1057 ("Utilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting[] its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements." (footnote omitted)). 2 Indeed, several recent cases that have addressed the issue have concluded that such a scheme is unconstitutional. Cooper v. City of Dothan, Case No. 1: 15-CV-425-WKW [WO], slip op. at 3-4 (M.D. Ala. June 18, 2015) (finding that a plaintiff

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2The Fifth Circuit described a "master bond schedule" as "a schedule with the amount of a bond specified for each listed offense," which "contemplates that each accused's pretrial money bail is to be set automatically on the basis of the offense charged." Pugh, 572 F.2d at 1057 n.6.
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had a substantial likelihood of success on his challenge to a bond schedule similar to that originally used by Defendant); Pierce v. City of Velda City, Case No. 4: 15-cv570-HEA, slip op. at 1 (E.D. Mo. June 2, 2015) (unpublished). Other courts have indicated that such schemes would be unconstitutional. See United States v. Flowers, 946 F. Supp. 2d 1295, 1301 (M.D. Ala. May 22, 2013) ("It is unconstitutional to keep a defendant in prison longer than the maximum time for her crime merely because she is unable to pay a court-ordered fine, and, similarly, it violates the Constitution's guarantee of equal protection under the laws to convert a fine-only sentence into a prison term based on inability to pay. The Constitution likewise prohibits courts from revoking a term
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of probation for failure to pay a fine or restitution, absent evidence that the probationer's failure to pay was willful. While relative wealth and poverty will inevitably have some effect on the administration of justice, any sentence that subjects a criminal defendant to imprisonment solely because of . . . indigency is constitutionally infirm and cannot stand." (alteration in original) (internal quotation marks and citations omitted)); Williams v. Farrior, 626 F. Supp. 983, 985 (S.D. Miss. Jan. 14, 1986) ("For purposes of the 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 detainees infringes on both equal protection and due process
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requirements."); see also Alabama v. Blake, 642 So. 2d 959, 968 (Ala. 1994) ("Under the scheme established by the Act, a defendant with financial means . . . can obtain immediate release simply by posting bail. However, an indigent defendant charged with a relatively minor misdemeanor who cannot obtain release by cash bail, a bail bond, or property bail, must remain incarcerated for a minimum of three days, and perhaps longer, before being able to obtain judicial public bail. We conclude that, as written, article VI I of the Act violates an indigent defendant's equal protection rights guaranteed by the United States Constitution."); Lee v. Lawson, 357 So. 2d 1019, 1024 (Miss. 1979) ("A consideration of the equal protection and due process rights of indigent pretrial detainees leads us to
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the inescapable conclusion that a bail system based on monetary bail alone would be unconstitutional."). The bail policy under which Plaintiff was arrested clearly is unconstitutional. Further, although the Standing Order attempts to remedy the deficiencies of the earlier bail policy, it simply shortens the amount of time that indigent arrestees are held in jail to forty-eight hours. As discussed above, however, any detention based solely on financial status or ability to pay is impermissible.
Second, contrary to Defendant's arguments, Plaintiff has standing to pursue his claims. To satisfy Article Ill's standing requirements, a plaintiff:
[First] must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second,
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there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(internal quotation marks, alterations, and citations omitted).

"In a claim for prospective relief, ... a plaintiff must show a

real and immediate threat of future harm." Cook v. Bennett,

792 F.3d 1294, 1298 (11th Cir. 2015). Here, Plaintiff was

released after his counsel filed this action, later paid his

fine, and, as such, was not required to appear in court.

The fact that Plaintiff may have been released from jail and

eventually paid his fine does not deprive him of standing.

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When Plaintiff filed this lawsuit, he was detained as a result
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of being financially unable to post bond, and his "injury was at that moment capable of being redressed through injunctive relief." Cnty. of Riverside v. Mclaughlin, 500 U.S. 44, 51 (1991 ). Under those circumstances, Plaintiff clearly has standing to pursue his claim.
Further, the fact that Defendant changed its bail policy after Plaintiff filed this lawsuit does not deprive Plaintiff of standing. Defendant's change to its Standing Order came about voluntarily some time after Plaintiff filed this lawsuit, and there is no guarantee that Defendant will not revert back to its previous bail policy at some point. Further, as previously noted, the Standing Order gives rise to some of the same concerns as the previous bail policy. Given Plaintiff's evidence that he is indigent, it is entirely
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foreseeable that Plaintiff might be subject to arrest and detention in violation of his rights even under the new Standing Order. See Church v. City of Huntsville, 30 F.3d 1332, 1338-39 (11th Cir. 1994) (observing that, in lawsuit that sought to bar a city from harassing or removing the plaintiffs from the city because of the plaintiffs' homeless status, the plaintiffs, who were involuntarily homeless, could not "avoid future exposure to the challenged course of conduct in which the City allegedly engages," and could pursue their claims). As such, Defendant's new Standing Order does not deprive Plaintiff of standing or render this case moot.
Defendant's new Standing Order also does not moot this case. "Generally, a case becomes moot only when it is
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impossible for a court to grant any effectual relief whatever to the prevailing party." Cook, 792 F.3d at 1299 (internal quotation marks and citation omitted). "When a defendant voluntarily ceases the activity that forms the basis of the lawsuit, a federal court does not necessarily lose
jurisdiction." kL "Instead, the party asserting mootness
must show that subsequent events [have] made it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur." kL (alteration in
original) (internal quotation marks and citation omitted). Indeed, "[v]oluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction."
kL (internal quotation marks and citation omitted).
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Admittedly, "[w]hen the government is the defendant, [courts] extend a reasonable presumption that government actors are unlikely to resume illegal activities," and "[t]his presumption is particularly warranted in cases where the government repealed or amended a challenged statute or policy-often a clear indicator of unambiguous termination."
kl at 1299-1300 (internal quotation marks and citation
omitted). Here, however, the changes in the Standing Order "are insufficient to render this case moot ... because it is not absolutely clear that the allegedly wrongful behavior
could not be reasonably expected to recur." kl at 1300
(internal quotation marks and citation omitted). There is no guarantee that Defendant will not return to its former bail policy, and, as previously noted, the new Standing Order
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presents some of the same concerns that arose from the former bail policy. Under those circumstances, the Court finds that Plaintiff's claims are not moot. See Cook, 792 F.3d at 1300 (finding that changes in Florida law and in school districts' policies after filing of a lawsuit did not render the case moot, as a real possibility remained that the districts could implement policies with effects similar to the policies and law at issue in the lawsuit).
Defendant also argues that it has no control over the actions of the Municipal Court, and that it consequently does not control the bail policy. Under Georgia law, however, a "municipal court is a municipal office discharging strictly municipal functions." Ward v. City of Cairo, 276 Ga. 391, 393, 583 S.E.2d 821, 823 (2003). A municipal court is
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thus distinguishable from a superior court or other court of record. See generally City of Lawrenceville v. Davis, 233 Ga. App. 1, 502 S.E.2d 794 (1998). Indeed, under Georgia law, "the governing authority of each municipal corporation within this state having a municipal court, as provided by the Act incorporating the municipal corporation or any amendments thereto, is authorized to appoint a judge of such court," and "[a]ny person appointed as a [municipal court judge] shall possess such qualifications and shall receive such compensation as shall be fixed by the governing authority of the municipal corporation and shall serve at the pleasure of the governing authority." O.C.G.A.
§ 36-32-2(a). Georgia law is quick to point out that this
statute "shall not be construed to require the governing
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Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 64 of 74

authority of any municipal corporation to appoint a judge;

but such governing authority may appoint a judge if, acting

in its sole discretion, the governing authority determines that

such appointment would be in the best interest of the

municipal corporation." O.C.G.A. § 36-32-2(b). A municipal

court is thus a very different creature than a superior court,

which generally would be considered to be a state entity.

Further, given Defendant's own City Code, it is abundantly

clear that Defendant possesses considerable control over the municipal court. 1 In any event, Defendant certainly has

A072A (Rev.8/8

'Article VI of Defendant's City Code governs the municipal court. (City Code Art. VI.) Section 6-101 creates the municipal court. (kl Art. VI, Sec. 6-101.) Section 6-102 governs chief and associate judges of the municipal court. (kl Art. VI, Sec. 6-102.) Notably, the mayor and council set the compensation for the municipal court judges, and the judges "shall be appointed by the mayor and council and shall serve at the pleasure of the mayor and council, subject to removal, with or without any stated cause, upon a majority vote by the mayor and counsel." (kl Art. VI, Sec. 6-
64

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 65 of 74
control over its chief of police, who is the custodian of Defendant's arrestees. See O.C.G.A. § 42-4-1 (b) ("By virtue of their offices, chiefs of police are the jailers of the municipal corporations and have the authority to appoint other jailers, subject to the supervision of the municipal governing authority, as prescribed by law."). The Court therefore rejects this argument.

A072A
(Rev.8/8
..,,

102(a)(1 ).) The City Code also sets the qualifications for municipal court judges. (ill Art. VI, Sec. 6-102(a)(2).) Further, under the City Code, the mayor and council may fill vacancies in the office of the chief municipal judge by appointment if the vacancies occur "by reason of death, resignation, removal or other reason." (ill Art. VI, Sec. 6-102(c).) Section 6-103 governs convening the municipal court, and provides that "[t]he court shall sit at a place designated by the mayor and council." (ill Art. VI, Sec. 6-103.) Section 6-104 sets forth the municipal court's jurisdiction, which consists of "violations of city ordinances" and "[t]he prosecution of traffic offenses as set forth in O.C.G.A. Title 40," among other things. (ill
Art. VI, Sec. 6-104.)
65

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 66 of 74
The Court also finds unpersuasive Defendant's argument that Plaintiff should have brought his challenge in a petition for a writ of habeas corpus. As Plaintiff points out, a successful challenge to this litigation would not necessarily shorten Plaintiff's time in custody. As such, this case need not have been brought in a petition for a writ habeas corpus action, but may properly proceed under § 1983. See Skinner v. Switzer, 562 U.S. 521, 525 (2011) ("Habeas is the exclusive remedy ... for the prisoner who seeks 'immediate or speedier release' from confinement. Where the prisoner's claim would not 'necessarily spell speedier release,' however, suit may be brought under § 1983." (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). Such a result is especially appropriate where, as
66
A072A (Rev.8/8
'"

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 67 of 74
here, a plaintiff seeks prospective injunctive relief. See Edwards v. Balisok, 520 U.S. 641, 648 (1997) (concluding that request for prospective injunctive relief seeking to require prison officials to date-stamp witness statements when received could be brought under§ 1983).
Finally, the Court is not persuaded by Defendant's argument that Plaintiff is challenging a state statute. It is abundantly clear that Plaintiff is not challenging the requirements or provisions of O.C.G.A. § 17-6-1 or bail schedules per se. As such, this argument is misplaced.
In sum, the Court finds that Plaintiff has a substantial likelihood of succeeding on the merits of his claims. This factor therefore counsels in favor of granting injunctive relief.
67
AO 72A (Rev.8/8
.... ,

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 68 of 74
3. Irreparable Harm As previously noted, Plaintiff has suffered an improper loss of liberty by being jailed simply because he could not afford to post money bail. This constitutes irreparable harm. See Rodriguez v. Providence Cmty. Corrs., Inc., Case No. 3: 15-CV-01048, --- F. Supp. 3d ---, ---, 2015 WL 9239821, at *9 (M.D. Tenn. Dec. 17, 2015) (finding that irreparable harm requirement was satsified based on "the unconstitutional liberty deprivation which stems from Defendants' practice of jailing probationers on secured money bonds with[out] an indigency inquiry"). This factor therefore counsels in favor of granting injunctive relief.
4. Balance of Harms
68
A072A (Rev.8/8
..,,

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 69 of 74
The Court further finds that the balance of harms favors Plaintiff. Although Defendant contends that modifying its bail system will create significant administrative and procedural problems and will result in the release of individuals who pose a risk or danger to the community, Defendant fails to acknowledge that its current system of releasing arrestees as soon as they post bond does nothing to address either of those concerns. Any difficulties that Defendant may suffer if the Court grants injunctive relief are not so significant as to outweigh the important constitutional rights at issue. This factor therefore counsels in favor of granting injunctive relief.
5. Public Interest
69
A072A (Rev.8/8
"'

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 70 of 74
The public interest supports preventing the violation of a party's constitutional rights. See Simms, 872 F. Supp. 2d at 105 ("It is always in the public interest to prevent the violation of a party's constitutional rights.") (internal quotation marks and citation omitted); see also Giavani Carandola, Ltd., 303 F.3d at 521 (noting that "upholding constitutional rights surely serves the public interest"). This factor therefore counsels in favor of granting injunctive relief.
6. Bond The Court has discretion to waive the bond requirement. Fed. R. Civ. P. 65(c); City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir.
70
A072A (Rev.8/8
...,,

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 71 of 74
Unit B 1981); Corrigan Dispatch Co. v. Casaguzman, F.A., 569 F.2d 300, 303 (5th Cir. 1978). The Court finds that waiving a bond is appropriate because Plaintiff and the Class members are indigent. See Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977) (noting court may waive bond on grounds of indigence). Although Defendant argues that the organization driving this lawsuit and other similar lawsuits is not indigent, the Court cannot find that requiring the organization driving this lawsuit to pay the bond is warranted. The Court therefore exercises its discretion to waive the bond requirement.
71
A072A (Rev.8/8
..,,

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 72 of 74
7. Summary In sum, the Court finds that Plaintiff has met his burden to obtain a preliminary injunction. The Court therefore grants Plaintiff's Motion for Preliminary Injunction, and orders Defendant to implement post-arrest procedures that comply with the Constitution, and further orders that, unless and until Defendant implements lawful post-arrest procedures, Defendant must release any other misdemeanor arrestees in its custody, or who come into its custody, on their own recognizance or on an unsecured bond in a manner otherwise consistent with state and federal law and with standard booking procedures. Defendant may not continue to keep arrestees in its custody
72
A072A (Rev.8/8

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 73 of 74

for any amount of time solely because the arrestees cannot

afford a secured monetary bond.

Ill. Conclusion

ACCORDINGLY, the Court GRANTS Plaintiff's Motion

for Preliminary Injunction [4].

The Court

ORDERS Defendant to implement post-arrest procedures

that comply with the Constitution, and further ORDERS that,

unless and until Defendant implements lawful post-arrest

procedures, Defendant must release any other

misdemeanor arrestees in its custody, or who come into its

custody, on their own recognizance or on an unsecured

bond in a manner otherwise consistent with state and

federal law and with standard booking procedures.

Defendant may not continue to keep arrestees in its custody

73
A072A (Rev.8/8

Case 4:15-cv-00170-HLM Document 40 Filed 01/28/16 Page 74 of 74
for any amount of time solely because the arrestees cannot afford a secured monetary bond.
IT IS SO ORDERED, this the J_CJay of January, 2016.
74
A072A (Rev.8/8

 
 Case 4:15-cv-00170-HLM Document 53 Filed 03/09/17 Page 1 of 6 Case: 16-10521 Date Filed: 03/09/2017 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10521 ________________________
D.C. Docket No. 4:15-cv-00170-HLM MAURICE WALKER, on behalf of himself and others similarly situated,
Plaintiff - Appellee, versus CITY OF CALHOUN, GA,
Defendant - Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________
(March 9, 2017) Before WILLIAM PRYOR, JORDAN, and BALDOCK,* Circuit Judges. PER CURIAM:
* The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by designation.

Case 4:15-cv-00170-HLM Document 53 Filed 03/09/17 Page 2 of 6 Case: 16-10521 Date Filed: 03/09/2017 Page: 2 of 6
The City of Calhoun appeals the preliminary injunction entered by the district court in favor of Maurice Walker. The parties and amici filed briefs on the propriety of that order. We have considered their arguments, reviewed the record, and now, with the benefit of oral argument, vacate the preliminary injunction entered against the City and remand the case to the district court for further proceedings.
I An officer with the City of Calhoun police department arrested Mr. Walker on September 3, 2015, and charged him with the misdemeanor offense of being a pedestrian under the influence. The charged offense fell within the jurisdiction of the City’s municipal court, which had a standing bail order that set a fixed monetary bail schedule for traffic and misdemeanor offenses. The City released arrestees immediately after booking if they paid the amount corresponding to their offense of arrest, but those who could not pay were held in jail until the next time the municipal court convened (usually the following Monday) for their first appearance.1 After his arrest, Mr. Walker was informed that, under the standing bail order, he would have to pay a $160 cash bond for immediate release from jail. Mr.
1 After the lawsuit was filed, but before the district court ruled on the motion for preliminary injunction, the standing bail order was amended to require a first appearance within 48 hours of arrest. Because we do not reach the merits of the preliminary injunction order, we need not decide whether the new 48-hour period affects Mr. Walker’s claims.
2

Case 4:15-cv-00170-HLM Document 53 Filed 03/09/17 Page 3 of 6 Case: 16-10521 Date Filed: 03/09/2017 Page: 3 of 6
Walker alleges that he not could afford to pay that amount because he is indigent, so the City kept him in jail to await his first appearance. Only then would he have had the opportunity to seek release on recognizance. Mr. Walker filed this action against the City while he was in custody.
In his complaint, Mr. Walker asserts that the City’s bail policy violates equal protection and due process principles by conditioning immediate release from jail on an arrestee’s ability to pay a preset amount of cash without providing alternatives to indigent arrestees. See, e.g., D.E. 1 at ¶ 47. Mr. Walker moved to preliminarily enjoin the City from jailing him and other similarly situated indigent arrestees without offering them release on an unsecured bond or their own recognizance. See D.E. 4 at 1. The district court granted the motion for preliminary injunction without a hearing, see D.E. 40, and this appeal followed.2
II We review a district court’s decision to grant preliminary injunction for abuse of discretion. See United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012). “In so doing, we review the findings of fact of the district court for clear
2 The City noticed for appeal the district court’s orders granting class certification and denying its motion to dismiss. See D.E. 28, 41. In this Court, Mr. Walker filed a motion to dismiss the appeal of those two orders for lack of appellate jurisdiction. That motion was then carried with the case to oral argument. We deny as moot Mr. Walker’s motion to dismiss because the City conceded in its response brief that it is not directly appealing these two orders. See Br. of Appellant at 14 n.46.
3

Case 4:15-cv-00170-HLM Document 53 Filed 03/09/17 Page 4 of 6 Case: 16-10521 Date Filed: 03/09/2017 Page: 4 of 6
error and legal conclusions de novo.” Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir. 2010).
III Regardless of whether, substantively, a district court properly issued a preliminary injunction, see generally GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 788 F.3d 1318, 1322 (11th Cir. 2015) (setting forth the elements of a preliminary injunction), all preliminary injunction orders must comport with Federal Rule of Civil Procedure 65. So, every order granting an injunction must “(A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). Rule 65’s specificity requirements serve important structural and due process functions. See Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th Cir. 1996) (explaining that Rule 65 protects “those who are enjoined by informing them of . . . exactly what conduct is proscribed” and ensures “informed and intelligent appellate review”) (citations and internal quotation marks omitted). To effectuate them, we have repeatedly vacated injunctions containing only “[b]road, nonspecific language that merely enjoins a party to obey the law or comply with an agreement.” Id. (quoting Louis W. Epstein Family P’ship v. Kmart Corp., 13 F.3d 762, 771 (3d Cir. 1994)). Additionally, because an injunction carries the
4

Case 4:15-cv-00170-HLM Document 53 Filed 03/09/17 Page 5 of 6 Case: 16-10521 Date Filed: 03/09/2017 Page: 5 of 6
possibility of contempt, our case law demands that an injunction contain “an
operative command capable of enforcement.” Id. (citations and internal quotation
marks omitted).
In this case, the district court ordered that the City:
implement post-arrest procedures that comply with the Constitution, and . . . that, unless and until [the City] implements lawful post-arrest procedures, [the City] must release any other misdemeanor arrestees in its custody, or who come into its custody, on their own recognizance or on an unsecured bond in a manner otherwise consistent with state and federal law and with standard booking procedures. [The City] may not continue to keep arrestees in its custody for any amount of time solely because the arrestees cannot afford a secured monetary bond.
Order Granting Motion for Preliminary Injunction, D.E. 40, at 73 (Jan. 28,
2016).
This order violates Rule 65. First, requiring the City to “comply with
the Constitution” is the archetypical and unenforceable “obey the law”
injunction. See Int’l Longshoremen’s Ass’n, Local 1291 v. Philadelphia
Marine Trade Ass’n, 389 U.S. 64, 69, 74 (1967) (reversing decree that
ordered party “to comply with [an arbitration award]”). Second, the order
does not contain an operative command capable of enforcement or review.
It requires the City to fashion constitutionally compliant post-arrest
procedures, yet offers no guidance on the minimal standards required by the
Constitution. See Hughey, 78 F.3d at 1531–32 (vacating injunction that
5

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required the defendant to stop discharges in violation of the Clean Water Act, but failed to explain how to do so).
The rest of the order does not save the injunction from these deficiencies. The proscription against detaining misdemeanor arrestees unless the City offers them release on their own recognizance is an alternative means of compliance that is intertwined with the generalized requirement that the City enact lawful post-arrest procedures. Without any guidance, the district court’s order potentially subjects the City to contempt proceedings simply because new post-arrest procedures turn out to be unconstitutional. Rule 65 was meant to prevent such uncertainty. See Russell C. House Transfer & Storage Co. v. United States, 189 F.2d 349, 351 (5th Cir. 1951) (explaining that a court should not enjoin a party in general terms such that the party is subject to contempt proceedings “should at any time in the future [it] commit some new violations, unlike and unrelated to that with which it was originally charged”). Accordingly, we do not believe that, as written, the injunction can stand.
PRELIMINARY INJUNCTION VACATED; AND CASE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
6

Case 4:15-cv-00170-HLM Document 53-1 Filed 03/09/17 Page 1 of 1 Case: 16-10521 Date Filed: 03/09/2017 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

David J. Smith Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
March 09, 2017

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 16-10521-FF Case Style: Maurice Walker v. City of Calhoun, GA District Court Docket No: 4:15-cv-00170-HLM

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
Pursuant to Fed.R.App.P. 39, costs taxed against appellee.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Janet K. Mohler, FF at (404) 335-6178.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
 Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

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

Plaintiff,

V.

CIVIL ACTION FILE NO.:

4:15-CV-0170-HLM

CITY OF CALHOUN, GEORGIA,

Defendant.

ORDER

This case is before the Court on the Court's April 7,

2017, Order [56] and on the Court's own Motion.

AO 72A (Rev.8/8 2)

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 2 of 30
I. Background A. Factual Background The Court incorporates the Background portion of its
January 28, 2016, Order relating to Plaintiffs allegations and Defendanf s materials into this Order as if fully set forth herein. (Order of Jan. 28, 2016 (Docket Entry No. 40) at 225.)
Defendant submitted a second affidavit from Matthew Chad Silvers in opposition to Plaintiffs renewed request for a preliminary injunction. (Second Aff of Matthew Chad Silvers (Docket Entry No. 63).) Mr. Silvers states that, prior to January 28, 2016, the Municipal Court of Calhoun, Georgia (the "Municipal Court") allowed for individuals to be released from pre-trial detention in the Gordon County Jail

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 3 of 30
by posting a secured pre-trial bond, which could be made via the payment of currency, the posting of property, or the employment of a local surety. (Id H 9.) According to Mr. Silvers, during a period of approximately fifteen months immediately before January 28, 2016, the Municipal Court issued twenty-seven bench warrants for individuals who posted one of the forms of the secured pre-trial bonds. (Id 1110 & Ex. E.) After January 28, 2016, when the Court issued its first preliminary injunction Order, "the Municipal Court immediately initiated a policy of having all detained individuals released only on a pre-trial recognizance bond issued." (Id H 11.) Mr. Silvers states that, during a period of approximately fifteen months afterward, the Municipa
AO 72A (Rev.8/8 2)

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 4 of 30
Court issued eighty-five bench warrants for individuals released on recognizance. (Id H 12 & Ex. F.)
Between October 28, 2014, and January 28, 2016, 5,374 cases were docketed in the Municipal Court (Second Silvers Aff. H 13), while 5,559 cases were docketed in the Municipal Court between January 29, 2016, and May 8, 2017 (id T114). Mr. Silvers notes that the Municipal Court issued thirty-four bench warrants for failure to appear for the cases filed between October 28, 2014, and January 28, 2016, and that each of those defendants were released after posting some form of secured bail or bond. (Id I116.) In contrast, the Municipal Court issued eighty-five bench warrants for failure to appear for the cases filed between January 29, 2016, and May 8, 2017, and each of those

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 5 of 30
defendants had been released on his or her own recognizance after initial arrest. (Id H 17.) Mr. Silvers asserts that, after January 28, 2016, "the number of bench warrants issued for individuals who failed to appear before the Municipal Court increased by approximately one hundred and fifty percent (150%) in merely 15 months." (Id 1120.)
Mr. Silvers notes that the Honorable Suzanne Hutchinson Smith serves as the Chief Judge of the Municipal Court, that Judge Smith has served as the Chief Judge ofthe Municipal Court since approximately 1995, and that the position is presently budgeted to pay $2,000 per month. (Second Silvers Aff. H 21.) Judge Smith also serves as a Superior Court Judge for the Cherokee Judicial

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 6 of 30
Circuit, and she has served in that position since April 2014. (Jd TI 22.) Defendant's Mayor and City Council have not appointed another individual to preside over the Municipal Court, and they have never appointed associate judges. (Id TI23.) On the rare occasions when Judge Smith is not available to preside over a regularly-scheduled Municipal Court session, she has appointed either the Probate Judge of Gordon County or Gordon County's County Attorney to serve as Judge pro tempore for that session of court. (Id H 24.) According to Mr. Silvers, "[a]t all times, these individuals abide by all of the policies and procedures established by Judge Smith in her absence." (Id)
Mr. Silvers states that, during the seventeen years that he has worked for the Municipal Court, he has known Judge

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 7 of 30
Smith to "act with complete independence from the Mayor and City Council," and he has "never witnessed any attempt by the governing authority to change the way that the court is administered, or have any input regarding the issue of bail or bond." (Second Silvers Aff. H 25.) According to Mr. Silvers, during the time that he has served as deputy clerk, "only the court staff or the Solicitor have contacted [Judge Smith] directly with regard to any issues or questions regarding inmates and their release, whether pre-trial or post conviction." (Id.)
B. Procedural Background The Court incorporates the procedural background portions of its earlier Orders into this Order and adds only those procedural background facts that are relevant to the
7

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 8 of 30
instant Order. After the United States Court of Appeals for the Eleventh Circuit vacated the Court's Order granting a preliminary injunction in favor of Plaintiff based on lack of specificity and remanded the case to the Court for further proceedings, the Court entered an Order directing the Parties to notify the Court as to how the Parties believed the Court should proceed with this case. (Order of Apr. 7, 2017 (Docket Entry No. 56).) Plaintiff responded by indicating that the Court should simply enter a more specific injunction. (See generally PL's Notice (Docket Entry No. 57).) Defendant filed a response indicating that it disagreed with Plaintiff's proposed approach, and requested time to respond to Plaintiffs Notice. (See generally D e f s Notice (Docket Entry No. 58).) The Court then entered an Order
8
AO 72A (Rev.8/8 2)

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 9 of 30
establishing a briefing schedule. (Order of April 24, 2017 (Docket Entry No. 59).) Defendant filed a response arguing against granting a preliminary injunction, and presented exhibits that included affidavits. Defendant's briefs on appeal, a recording of the oral argument before the Eleventh Circuit, and a number of amici curiae briefs filed on appeal. (Notice of Filing (Docket Entry No. 62) (containing CD of oral arguments); Resp. PL's Renewed Request Prelim. Inj. (Docket Entry No. 64); Notice of Filing (Docket Entry No. 65) (containing amicus curiae briefs).)^ Plaintiff filed a reply disputing the arguments raised by Defendant, and noting that the Court should simply enter a more specific injunction. (See generally Reply Supp. PL's
The Court has reviewed all of the materials presented by Defendant.

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 10 of 30
Notice (Docket Entry No. 66).) The Court finds that the matter is ripe for resolution. II. Discussion
The Court finds that no hearing is necessary, as there are no significant factual disputes or credibility determinations relevant to the request for a preliminary injunction. Cumulus Media. Inc. v. Clear Channel Common's. Inc.. 304 F.3d 1167, 1178 (11th Cir. 2002) (internal quotation marks and citation omitted); McDonald's Corp. V. Robertson. 147 F.3d 1301, 1313 (11th Cir. 1998). The Court also agrees with Plaintiff that the appropriate course of action here is for the Court to issue a more specific injunction that complies with Federal Rule of Civil Procedure 65(d). See S.E.C. v. N. Am. Clearing. Inc.. Case
10

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 11 of 30
No.: 6:08-cv-829-Orl-35KRS, 2013 WL 12173711, at *1-3 (M.D. Fla. Apr. 3, 2013) (entering a more specific injunction after a remand from the Eleventh Circuit due to a failure to comply with Rule 65(d)). The Court reaffirms its previous Order granting Plaintiffs Motion for Preliminary Injunction, and incorporates the Discussion portion of that Order into this Order as if fully set forth herein. (Order of Jan. 28, 2016, at 47-73.)
This is not an opportunity for Defendant to re-litigate the merits of the underlying preliminary injunction Order; however, for Defendant's benefit, the Court will briefly address the arguments Defendant raises in its response. First, the Court again rejects Defendants contention that the Standing Bail Order is not a policy of Defendant for §
11

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 12 of 30
1983 purposes. With all due respect to Defendant, the new evidence presented in Mr. Silver's Second Affidavit simply does not warrant a different conclusion than the Court reached in its January 28,2016, Order. The Court therefore rejects this argument.
Second, the Court rejects Defendant's contention that the Standing Bail Order, as it is presently worded, is constitutional. The Court notes that the Standing Bail Order is certainly an improvement over the policy in effect prior to the Standing Bail Order, and, to that extent, the Standing Bail Order is a step in the right direction. The Standing Bail Order, however, still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond (or to have one posted for them) to be released
12

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 13 of 30
immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing. The Court rejects Defendant's contention that the Standing Bail Order's forty-eight hour waiting period for a bond hearing is constitutional because Gerstein v. Pugh, 420 U.S. 103 (1975), set a presumptively reasonable forty-eight hour probable cause deadline following arrest. See Odonnell v. Harris Cty..Tex.. Civil Action No. H-16-1414, — F. Supp. 3d —, —, 2016 WL 7337549, at *17 (S.D. Tex. Dec. 16, 2016) ("The 48-hour probable-cause-hearing standard . . . is not a safe harbor for the defendants."). The primary issue here is that the Standing Bail Order establishes a mechanism by which non-indigent arrestees may obtain immediate release, while indigent arrestees must wait an additional forty-eight
13

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 14 of 30
hours to have an opportunity to obtain release, simply
because of those arrestees' financial condition. This is
impermissible.^
^Defendant also is concerned about what level of scrutiny applies. Defendant is correct that, generally, an individual's indigence does not make that individual a member of a suspect class. However, case law from the Supreme Court and the Eleventh Circuit "make clear that detention based on wealth is an exception to the general rule that rational basis review applies to wealth-based classifications." Odonnell v. Harris Cty.. Tex.. Civil Action No. H-16-1414, — F. Supp. 3d —, —, 2017 WL 1735456, at *64 (S.D. Tex. Apr. 28, 2017) (collecting cases). Indeed, under Williams v. Illinois. 399 U.S. 235 (1970), Tate v. Short. 401 U.S. 395 (1971), Bearden v. Georgia, 461 U.S. 660 (1983), and Pugh v. Rainwater, 557 F.2d 1189 (Sth Cir. 1977), vacated on other grounds. 572 F.2d. 1053 (5th Cir. 1978) (en banc), "an absolute deprivation of liberty based on wealth creates a suspect classification deserving of heightened scrutiny." Odonnell. 2017 WL 1735456, at *64 (footnote omitted). "At a minimum, heightened scrutiny requires a court to evaluate the government's legitimate interest in a challenged policy or practice and then inquire whether there is a sufficient 'fit' between the government's means and ends." i d at *66. "At a maximum, [c]lassifications created by state action which disadvantage a suspect class or impinge upon the exercise of a fundamental right are subject to strict scrutiny, and will be upheld only when they are precisely tailored to serve a compelling state interest." \± (alteration in original) (internal
14

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The Court also rejects Defendant's contention that

abstention under Younger v. Harris. 401 U.S. 37 (1971),

applies here.

When determining whether

Younger abstention applies, courts ask: (1) whether the

case will interfere with "an ongoing state judicial

proceeding"; (2) whether "the proceedings implicate

important state interests"; and (3) whether there is "an

adequate opportunity in the state proceedings to raise

constitutional challenges." Middlesex Cty. Ethics Comm. v.

Garden State Bar Ass'n. 457 U.S. 423, 432 (1982). As an

quotation marks and citation omitted). Admittedly, "[sjtate and local governments have a compelling interest in assuring the presence at trial of persons charged with a crime." Jd (internal quotation marks, citation, and footnote omitted). Given that Plaintiff bears the "burden to show a likelihood of success on the merits, the court applies the tailoring requirement of intermediate scrutiny." Jd at *67.
15

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initial matter, Plaintiff and the other similarly-situated individuals are not challenging the merits of their prosecutions, but rather, are challenging the legality of their pretrial detention~an issue that cannot be raised in the criminal prosecutions. See Gerstein, 420 U.S. at 108 n.9 (concluding that Younger absention did not apply where the request for an "injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense ofthe criminal prosecution"); Odonnell, 2016 WL 7337549, at *19 ("The plaintiffs challenge the legality of detaining misdemeanor arrestees who are otherwise eligible for release pending trial or guilty plea without timely judicial consideration ofthe inability to pay a
16

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bail bond. Resolving this issue does not affect the merits of subsequent criminal prosecutions. The inability to pay bail cannot be raised as a defense in a subsequent criminal prosecution."). Plaintiff and the other similarly-situated individuals would not have an adequate opportunity to raise their constitutional challenges before the Municipal Court, and Younger abstention consequently does not apply. See Rodriguez v. Providence Cmty. Corrs.. Inc.. 155 F. Supp. 3d 758, 766 (M.D. Tenn. Dec. 17, 2015) ("The harm alleged-that probationers do not receive inquiries into indigency as required by the Fourteenth Amendment-has been inflicted before a probationer could voice any constitutional concerns. This alleged constitutional infirmity could be remedied without affecting the underlying state
17

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court judgments. Accordingly, Younger abstention is inappropriate."). The Court therefore rejects this argument.
Finally, the Court concludes that Defendant's arguments concerning an increase in failures to appear are immaterial. As an initial matter, the Court's January 28, 2016, Order did not require Defendant to release all arrestees on their own recognizance. The Court simply ordered Defendant to "implement post-arrest procedures that comply with the Constitution" or offer indigent arrestees release "on their own recognizance or on an unsecured bond." (Orderof Jan.28, 2016, at73.) Although the Court acknowledges that its lack of specificity may have caused confusion on Defendant's part, the Court did not intend to require Defendant to release each and every arrestee on
18

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 19 of 30

his or her own recognizance. Thus, the increase in arrests for failure to appear does not, in and of itself, affect the propriety of injunctive relief. Indeed, other alternatives exist, including unsecured bonds, in which an arrestee need not pay money in advance but may be released with an obligation to pay the amount listed in the bail schedule if the arrestee fails to appear for his or her scheduled court date.^

AO 72A (Rev.8/8 2)

T h e Court rejects Defendant's contention that Georgia law does not provide for unsecured bonds in misdemeanor cases. O.C.G.A. § 17-6-1 (i) provides that "the term 'bail' shall include the releasing of a person on such person's own recognizance." O.C.G.A. § 17-6-1 (i). Further, Georgia Uniform Municipal Court Rule 18.3 provides that "[bjail may be conditioned upon such other specified and reasonable conditions as the court may consider just and proper." Ga. Unit. Mun. Ct. R. 18.3. Surely, those conditions could include an unsecured bond. Indeed, Defendant's Standing Bail Order already provides that "[a]ll persons charged with violations of the Code of Calhoun, Georgia who have no outstanding failure to appear arrest warrant from the City of Calhoun, or any other similar governing authority duly established by the Georgia General Assembly or the Constitution of the State of Georgia, shall be released on an unsecured appearance bond
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Importantly, nothing in the January 28, 2016, Order
purported to require release of all arrestees on their own
recognizance, as the Order addressed only indigent
arrestees."^ Non-indigent arrestees may still be required to
post bail in accordance with the bail schedule in the
Standing Bail Order Finally, as Plaintiffs point out, even if
Defendant decided to retain secured bonds, it could
distinguish arrestees who are able to pay from indigent
arrestees without requiring anyone to remain in jail for forty-
in the amount established by [the Standing Bail Order's] bail schedule." (Standing Bail Order (Docket Entry No. 29-5) at 6-7.)
Thus, arguments that the Court's January 28, 2016, Order somehow is intended to abolish or undermine the entire system of monetary bail in this country are clearly misplaced. The Court has no problem with monetary bail or with the bail bond industry in general. The Court's concern in this case is for indigent arrestees who cannot afford to post bail or pay a surety a percentage of a bond. Those individuals would not be using the bail bond industry or system even if the Court declined to enter an injunction.
20

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 21 of 30
eight hours prior to a hearing. (Reply Supp. Notice at 11.) During the booking process or shortly after booking, Defendant could require arrestees who claim to be indigent to complete a sworn affidavit, under threat of prosecution for perjury or false statements, attesting to their financial resources and their inability to pay. (Id) Defendant could validly detain any individual who refused to sign the affidavit, and it could require any arrestee with the financial means to do so to post a monetary bond in accordance with the Standing Bail Order. (Id) Defendant's argument concerning an increase in failures to appear after the January 28, 2016, Order does not warrant reconsidering injunctive relief.
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In sum, the Court concludes that none of Defendant's arguments in its response to Plaintiff's Notice warrant denying or reconsidering injunctive relief. The Court will enter another, more specific, preliminary injunction. III. Conclusion
ACCORDINGLY, the Court GRANTS Plaintiff's Motion for Preliminary Injunction [4]. The Court ORDERS AS FOLLOWS:
Defendant shall, unless and until otherwise ordered by this Court, comply with the following:
(1) Defendant is prohibited from detaining indigent misdemeanor or Calhoun Municipal ordinances arrestees who are othenA/ise eligible for release but are unable,
22

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 23 of 30
because of their poverty, to pay a secured or money bail in accordance with the Standing Bail Order.
(2) If an arrestee indicates that he or she is unable to pay a secured or money bail, arresting officers, jail personnel, or Municipal Court staff must, as soon as practicable after booking verify the arrestee's inability to pay a secured or money bail by means of an affidavit sworn before an authorized official. The affidavit must give the arrestee sufficient opportunity to swear to his or her financial conditions, including the arrestee's monthly income and expenses, the value of any assets that the arrestee has, including money in bank accounts, real estate, or automobiles, and the amount of any liabilities that the arrestee may have, such as loans, liens, or other
23

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 24 of 30
obligations, and to the number of individuals living in the arrestee's household. The affidavit also must give the arrestee an opportunity to swear as to the amount of financial security or funds that the arrestee would be able to post or pay up front, from any source, including contributions from family and friends, within twenty-four hours of arrest. Finally, the affidavit shall give the arrestee the opportunity to swear that he or she is indigent, meaning that he or she earns less than 100 percent of the applicable federal poverty guidelines.
(3) The standard for making an individualized determination of indigency is, as set forth in the Standing Bail Order, "that established by O.C.G.A. § 36-32-1 (f) and (g), as defined by O.C.G.A. § 17-[12]-2(6)(A) regarding an
24

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 25 of 30
'indigent person' charged with a misdemeanor, violation of probation, or a municipal code offense punishable by imprisonment." (Standing Bail Order at 5.) Those provisions "have established an 'indigent person' or 'indigent defendant' for appointed legal counsel as one 'earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person has other resources that might be reasonably used to employ a lawyer without undue hardship on the person or his or her dependents!.]'" (\± at 5-6 (alteration in original).) For purposes of this Order, 100 percent of the federal poverty guidelines shall specifically mean the guidelines published in the Federal Register, 82 Fed. Reg. 8831-03, 2017 WL 395763 (Jan. 31,2017), and as may be further promulgated
25

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 26 of 30
and adopted for subsequent years in the Federal Register. For 2017, the poverty guidelines for the forty-eight contiguous States and the District of Columbia are as follows: (1) for a one-person household, $12,060; (2) for a two-person household, $16,240; (3) for a three-person household, $20,420; (4) for a four-person household, $24,600; (5) for a five-person household, $28,780; (6) for a six-person household, $32,960; (7) for a seven-person household, $37,140; (8) for an eight-person household, $41,320.' 82 Fed. Reg. 8831-03, 2017 WL 395963 (Jan. 31,2017).
^For families or households with more than eight persons, $4,180 shall be added for each additional person to determine the poverty guidelines.
26

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 27 of 30
(4) If it appears, from the affidavit sworn by the arrestee, that the arrestee is indigent, according to the above standard, the arrestee shall be subject to release on his or her own recognizance without making a secured bail in accordance with O.C.GA § 17-6-1 (i), or subject to release on an unsecured bond, with an obligation to pay the amount listed in the bail schedule set forth in the Standing Bail Order if the arrestee fails to appear for a scheduled court date. Either the arresting officer or jail personnel, or, if available, the Municipal Court Clerk or the Judge of the Municipal Court, must conduct a review of the affidavit as soon as practicable, or, at the latest, within twenty-four hours after arrest to determine whether the arrestee meets
27

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 28 of 30
the indigency requirement set forth in paragraph (3) and is subject to release.
(5) An arrestee who is released pursuant to paragraph (4) shall be provided with written notice of the date for the next proceeding or trial. The arrestee has the responsibility of notifying the Clerk of the Municipal Court if he or she has a change of residence or mailing address prior to adjudication and sentencing, to ensure notice of any change in the scheduled proceedings. Arrestees who fail to appear for scheduled court proceedings may, of course, be subject to arrest for failure to appear.
(6) As provided in the Standing Bail Order, "[ajll persons charged with violations of The Code of Calhoun, Georgia who have no outstanding failure to appear arrest
28

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 29 of 30
warrant from the City of Calhoun, or any other similar governing authority duly established by the Georgia General Assembly or the Constitution of The State of Georgia, shall be released on an unsecured appearance bond in the amount established by the" bail schedule set forth in the Standing Bail Order. (Standing Bail Order at 6-7.)
(7) Nothing in this Order prohibits Defendant from detaining an arrestee who is intoxicated, underthe influence of drugs, or a danger to himself or herself or others such that said arrestee would not otherwise be eligible for release, until such time as that arrestee becomes eligible for release. Defendant also may detain arrestees who are subject to outstanding active warrants or other holds preventing their release from detention, arrestees who are
29

Case 4:15-cv-00170-HLM Document 68 Filed 06/16/17 Page 30 of 30
subject to detention without bond under state or federal law, and arrestees who refuse to cooperate in determining their indigence. Further, nothing in this Order prohibits Defendant from applying the bail schedule set forth in the Standard Bail Order to arrestees who are financially able to post bond in accordance with that schedule.
IT IS SO ORDERED, this the LL day of June, 2017. SENI0I^UNITa3 STATES DISTRICT JUDGE
30
AO 72A (Rev.8/8 2)

 
 Case 4:15-cv-00170-HLM Document 83 Filed 08/17/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

MAURICE WALKER, Plaintiff,
V.
CITY OF CALHOUN, GEORGIA,
Defendant.

CIVIL ACTION FILE NO. 4:15-CV-170-HLM

ORDER This case is before the Court on Defendant's Motion to Stay Proceedings Until the Pending Motion to Stay is Decided ("Motion to Stay") [74]. I. Background The Court incorporates the background portions of its earlier Orders into this Order as if fully set forth herein, and

Case 4:15-cv-00170-HLM Document 83 Filed 08/17/17 Page 2 of 8
adds only those background facts that are relevant to the instant Motion. On June 16, 2017, the Court entered an Order granting Plaintiff's Motion for Preliminary Injunction. (Order of June 16, 2017 (Docket Entry No. 68).) Defendant promptly filed a Notice of Appeal. (Notice of Appeal (Docket Entry No. 69).)
On August 4, 2017, Defendant filed its Motion to Stay. (Mot. Stay (Docket Entry No. 74).) The briefing process for that Motion is complete, and the Court finds that the matter is ripe for resolution. II. Discussion
Defendant seeks a stay of the proceedings in this Court, including discovery, until the United States Court of Appeals for the Eleventh Circuit issues a ruling on Defendant's pending appeal. (See generally Br. Supp. Mot. Stay (Docket Entry No. 74-1); Reply Supp. Mot. Stay (Docket Entry No.
2

Case 4:15-cv-00170-HLM Document 83 Filed 08/17/17 Page 3 of 8
82).) Importantly, Defendant does not seek to stay the Court's Order granting the preliminary injunction. (Reply Supp. Mot. Stay at 2.) Plaintiff opposes Defendant's Motion, arguing that Defendant fails to meet the standard for staying these proceedings and contending that a stay will prejudice Plaintiff. (See generally Resp. Mot. Stay (Docket Entry No. 79).)
"An appeal from a final iudgment divests the district court from jurisdiction to proceed with matters involved in the appeal." Fairchild Semiconductor Corp. v. Third Dimension (3D) Semiconductor Inc., No. 2009-1168, 2009 WL 790105, at *1 (Fed. Cir. Mar. 25, 2009) (emphasis in original). "A preliminary injunction, i.e., an injunction pendete lite, is an injunction issued pending the ongoing litigation." Jd "Although a district court may not proceed with matters involved with the injunction itself, e.g., it may not amend the
3

Case 4:15-cv-00170-HLM Document 83 Filed 08/17/17 Page 4 of 8
injunction, or nnake findings to support its injunction while the injunction is on appeal, the district court may proceed with the litigation and permit discovery, enter rulings on summary judgment, or hold a trial on the merits." Id (citations omitted).
A court "has discretion to stay the proceedings during the pendency of an appeal, as a proper exercise of control over its docket." Outside the Box Innovations. LLC v. Travel Caddy. Inc., Civil Action No. 1:05-CV-2482-ODE, 2007 WL 7753799, at M (N.D. Ga. Aug. 7, 2007). "The factors the court assesses when considering a motion to stay are substantially similar to those weighed when deciding whether to grant a preliminary injunction, and the movant bears the burden of showing the balance of equities weights heavily in favor of granting the stay." Sonnierv. Crain. 649 F. Supp. 2d 484, 491 (E.D. La. July 30, 2009). "To determine whether to
4

Case 4:15-cv-00170-HLM Document 83 Filed 08/17/17 Page 5 of 8
grant a stay, courts must evaluate: (1) whether [the] stay applicant has made [a] strong showing that he is likely to succeed on [the] merits; (2) whether [the] applicant will be irreparably injured absent [a] stay; (3) whether [the] issuance of [a] stay will substantially injure the other part[y's] interest in the proceeding; and (4) whether granting the stay serves the public interest." \ ± ; see also F.T.C. v. lAB Mktg. Assocs.. LP, 972 F. Supp. 2d 1307, 1311 (S.D. Fla. Sept. 18, 2013) (citing the same factors).
For purposes of this Order, the Court finds that Defendant has made a strong showing that it is likely to succeed on the merits. Although the Court found Defendant's arguments unpersuasive, the Eleventh Circuit may well disagree with this Court. The arguments are viable and present novel and important questions of law for the Eleventh Circuit to resolve.
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The Court also finds that, for purposes of this Order, Defendant has demonstrated that it will suffer irreparable harm absent a stay. It appears that Defendant seeks to challenge the Court's Orders granting a preliminary injunction, granting class certification, and denying Defendant's Motion to Dismiss, or, in the Alternative, for More Definite Statement. (Reply Supp. Mot. Stay at 6.)^ If the Eleventh Circuit disagrees with this Court on the Motion to Dismiss issues or on the class certification issues, the scope of this litigation may change and Defendant will unnecessarily have expended time and money litigating issues that should have been dismissed or engaging in class discovery. Even if the Eleventh Circuit limits Defendant's appeal to the Motion for Preliminary Injunction, the issues on ^ The Court will not attempt to guess whether the Eleventh Circuit will permit Defendant to appeal the Motion to Dismiss or the Motion for Class Certification.
6

Case 4:15-cv-00170-HLM Document 83 Filed 08/17/17 Page 7 of 8
appeal involve legal questions that lie at the center of this litigation. If the Eleventh Circuit disagrees with this Court, then Defendant (and, importantly, the Court) will have expended resources unnecessarily.
The Court also cannot find that Plaintiff will suffer significant prejudice if the Court stays the proceedings in this action pending an appeal of the preliminary injunction. Any delay will not be lengthy, and the Court cannot find that witnesses' memories will grow substantially dimmer during that period. The Court therefore concludes that a stay of the proceedings will not have a substantial adverse effect on Plaintiff.
Finally, granting a stay will not disserve the public interest. The preliminary injunction will remain in place pending appeal to alleviate Plaintiff's concerns of wealthbased detention. Granting a stay will also conserve judicial
7

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resources, as an appeal may impact and narrow the issues that the Court must resolve when addressing the merits of this action.
In sum, the Court concludes that a stay of proceedings pending appeal is warranted. The Court therefore grants the Motion to Stay. III. Conclusion
ACCORDINGLY, the Court GRANTS Defendant's Motion to Stay [74], and STAYS the proceedings in this action pending the resolution of Defendant's appeal. The preliminary injunction issued on June 16, 2017, remains in full force and effect.
IT IS SO ORDERED, this the / 7day of August, 2017.
t
SENIOR^jNITEDt^TATES DI^TfefCT JUDGE
8

 
 Case 4:15-cv-00170-HLM Document 87 Filed 08/22/18 Page 1 of 75 Case: 17-13139 Date Filed: 08/22/2018 Page: 1 of 75
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-13139 ________________________
D.C. Docket No. 4:15-cv-00170-HLM
MAURICE WALKER, on behalf of himself and others similarly situated,
Plaintiff - Appellee, versus CITY OF CALHOUN, GA,
Defendant - Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 22, 2018)

Case 4:15-cv-00170-HLM Document 87 Filed 08/22/18 Page 2 of 75 Case: 17-13139 Date Filed: 08/22/2018 Page: 2 of 75
Before MARTIN, JULIE CARNES, and O’SCANNLAIN,* Circuit Judges. O’SCANNLAIN, Circuit Judge:
We must decide what process the Constitution requires in setting bail for indigent arrestees.
I A When this lawsuit began, Maurice Walker was a 54-year-old unemployed man with a mental health disability, whose income consisted only of $530 in monthly Social Security disability payments. On Thursday, September 3, 2015, Walker was arrested in the City of Calhoun, Georgia by the Calhoun Police Department for being a pedestrian under the influence of alcohol, in violation of Ga. Code Ann. § 40-6-95. A violation of that section of Georgia’s code “is a misdemeanor and is punishable upon conviction by a fine not to exceed $500.00.” The statute does not provide for any possible jail sentence. Walker alleges that, after he was taken to jail, he was told by an officer that “he would not be released unless he paid the standard $160 cash bond” required for those charged with being a pedestrian under the influence. Walker says that
* Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit, sitting by designation.
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neither he nor his family had enough money to post the bond. Walker alleges that while he was jailed, he was not given his necessary mental disorder medication, and he was confined to a single-person cell except for one hour each day.
Walker filed this suit five days after his arrest, while still detained, alleging on behalf of himself and a class of similarly situated indigent arrestees that the City was violating the Fourteenth Amendment of the United States Constitution by “jailing the poor because they cannot pay a small amount of money.” On the day after filing suit Walker was released on a personal-recognizance bond by agreement with the City’s counsel. A bond was subsequently tendered for Walker by one of his attorneys in this matter, and his criminal case was closed on October 20, 2015, by entry of a bond forfeiture.
B Walker alleges that, at the time of his arrest, the City followed a policy of using a secured-money bail schedule with bond amounts based on the fine an arrestee could expect to pay if found guilty, plus applicable fees. Defendants who could afford to deposit the bail amount were released immediately, whereas those who could not pay were held until the next court session on the following nonholiday Monday. In Walker’s case, because the Monday after his arrest was Labor
3

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Day, he would have had to wait eleven days after his arrest to see a judge for a bail hearing.
Shortly after Walker’s suit was filed, the Municipal Court of the City of Calhoun altered the prevailing bail policy by issuing a Standing Bail Order, which adopted a bail schedule for State offenses within the Municipal Court’s jurisdiction, with cash bail set at “amount[s] represent[ing] the expected fine with applicable surcharges . . . should the accused later enter a plea, or be found guilty.” As alternatives to cash bail, the Standing Bail Order recognized an arrestee’s ability to use a driver’s license as collateral or to “make secured bail by property or surety” at an amount “twice that set forth in [the] schedule.”
“For those individuals who do not obtain release pursuant to the secured bail schedule,” the Standing Bail Order provides that they “shall . . . be brought before the [Municipal] Court” within 48 hours from their arrest, shall “be represented by court appointed counsel,” and “will be given the opportunity to object to the bail amount . . . , including any claim of indigency.” The Municipal Court will then “determine whether the accused is unable to post secured bail because he/she is indigent, making an individualized determination based upon the evidence provided.” The Standing Bail Order adopts a standard of indigency as “earning less than 100 percent of the federal poverty guidelines, unless there is evidence that
4

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the person has other resources that might be reasonably used.” If the court finds that the defendant is indigent under that standard, “then he/she shall be subject to release on recognizance without making a secured bail.” If no hearing is held within 48 hours, “then the accused shall be released on a recognizance bond.” Finally, the Standing Bail Order provides that those charged with a violation of the City Code (as opposed to State law) “shall be released on an unsecured bond in the amount established by the . . . bail schedule.”
In summary, the Standing Bail Order envisions three forms of release depending on the type of offense charged and the financial means of the arrestee. First, arrestees charged with State offenses within the Municipal Court’s jurisdiction will be released immediately on a secured bond if they are able and willing to deposit money bail in the amount set by the bail schedule. They can post cash bail themselves or use a commercial surety at twice the amount set by the bail schedule. Second, arrestees charged with State offenses who do not post bail immediately must wait for a bail hearing with court-appointed counsel, to take place within 48 hours from arrest. Those who can prove they are indigent at the hearing will be released on a recognizance bond—meaning no bail amount is set, either secured or unsecured. Third, all arrestees charged with violating City ordinances will be released on unsecured bond, meaning that they need deposit no
5

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collateral immediately but will be assessed the bail schedule amount if they fail subsequently to appear in court.
C 1 Several months after Walker filed suit, and after the Standing Bail Order had gone into effect, the district court entered a preliminary injunction ordering the City “to implement post-arrest procedures that comply with the Constitution.” Walker v. City of Calhoun, Ga. (Walker I), No. 4:15-CV-0170-HLM, 2016 WL 361612, at *14 (N.D. Ga. Jan. 28, 2016). As the legal basis for the injunction, the district court found that “[a]ny bail or bond scheme that mandates payment of prefixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause.” Id. at *10. On the same day it issued the injunction order, the district court certified a class under Federal Rule of Civil Procedure 23, consisting of “[a]ll arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation.”
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2 We vacated such preliminary injunction, holding that it violated Federal Rule of Civil Procedure 65 because it was insufficiently specific. See Walker v. City of Calhoun, Ga. (Walker II), 682 F. App’x 721, 724–25 (11th Cir. 2017) (per curiam) (unpublished). We declined at that time to consider “whether, substantively, [the] district court properly issued a preliminary injunction.” Id. at 724.
3 On remand, the district court again found the City’s bail policy under the Standing Bail Order to be unconstitutional and entered a new preliminary injunction. It reaffirmed its merits rulings from the original preliminary injunction order and found that the Standing Bail Order “still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond . . . to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing.” Walker v. City of Calhoun, Ga. (Walker III), No. 4:15-CV-0170-HLM, 2017 WL 2794064, at *2–3 (N.D. Ga. June 16, 2017). The court enjoined the City “from detaining indigent . . . arrestees who are otherwise eligible for release but are unable, because of their poverty, to pay a secured or money bail.” Id. at *4.
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The order granting the new injunction prescribed an affidavit-based process for making such determination:
If an arrestee indicates that he or she is unable to pay a secured or money bail, arresting officers, jail personnel, or Municipal Court staff must, as soon as practicable after booking verify the arrestee’s inability to pay a secured or money bail by means of an affidavit sworn before an authorized official. Id. Such affidavit must include information about the arrestee’s finances and the opportunity for the arrestee to attest indigency, which the injunction order defines as “less than 100 percent of the applicable federal poverty guidelines.” Id. An official must evaluate the affidavit “within twenty-four hours after arrest.” Id. at *5. Those found indigent “shall be subject to release on . . . recognizance without making secured bail . . . or subject to release on an unsecured bond.” Id.
4 The City timely appealed the new preliminary injunction order,1 as well as the district court’s orders certifying the class and denying the City’s motion to dismiss. The district court stayed further proceedings pending resolution of this appeal, but the injunction “remains in full force and effect.”
1 We have jurisdiction to review an interlocutory order granting a preliminary injunction under 28 U.S.C. § 1292(a)(1).
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II Before reaching the merits of the constitutional issues underlying the preliminary injunction, we must address two threshold challenges that the City raises to the district court’s ability to enjoin the City at all.
A First, the City argues that the district court should have declined to exercise jurisdiction altogether under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 44 (1971), which “restrain[s] courts of equity from interfering with criminal prosecutions.” Younger is “based not on jurisdiction, but on the principles of equity and comity,” and it commands that “‘absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions.’” Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1262–63 (11th Cir. 2004) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 364 (1989)). Abstention, however, has become disfavored in recent Supreme Court decisions. See, e.g., Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–78 (2013) (“Jurisdiction existing, this Court has cautioned, a federal court’s obligation to hear and decide a case is virtually unflagging,” and “only exceptional circumstances . . . justify a federal court’s refusal to decide a case in deference to the States.” (internal quotation marks and alterations omitted)).
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Younger does not readily apply here because Walker is not asking to enjoin any prosecution. Rather, he merely seeks prompt bail determinations for himself and his fellow class members. Gerstein v. Pugh, 420 U.S. 103 (1975), is instructive. There, Florida detainees sought injunctive relief to receive prompt probable cause determinations, and the State argued that Younger should have barred the district court from considering the claim. The Supreme Court disagreed, holding that Younger abstention did not apply because “[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.” Gerstein, 420 U.S. at 108 n.9. So too here.
The City seeks to avoid the import of Gerstein by pointing to case law indicating that in some circumstances Younger abstention will apply even if the district court is not being asked to enjoin a prosecution, where injunctive relief would entail intrusive federal court interference with State prosecutions generally. In O’Shea v. Littleton, for instance, the plaintiffs alleged that a county judge engaged in a host of unconstitutional practices in setting bonds, imposing discriminatory sentences, and setting fees for jury trials. 414 U.S. 488, 491–92 (1974). As the Supreme Court characterized it, the plaintiffs sought “an injunction aimed at controlling or preventing the occurrence of specific events that might take
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place in the course of future state criminal trials,” which amounted to “an ongoing federal audit of state criminal proceedings.” Id. at 500. The Court ruled that such an injunction would be inappropriate under the Younger doctrine because federal courts “should not intervene to establish the basis for future intervention that would be so intrusive and unworkable.” Id; see also Luckey v. Miller, 976 F.2d 673, 677 (11th Cir. 1992) (applying Younger abstention to a suit broadly challenging the adequacy of Georgia’s indigent criminal defense system because, “[a]lthough it is true that Plaintiffs do not seek to . . . restrain any individual prosecution, it is nonetheless clear that [Plaintiffs] intend to restrain every indigent prosecution and contest every indigent conviction until the systemic improvements they seek are in place.”).
But Walker does not ask for the sort of pervasive federal court supervision of State criminal proceedings that was at issue in O’Shea. Instead, as in Gerstein, Walker merely asks for a prompt pretrial determination of a distinct issue, which will not interfere with subsequent prosecution. At the very least, the district court could reasonably find that the relief Walker seeks is not sufficiently intrusive to implicate Younger. Because we review a Younger abstention decision for abuse of discretion, see Hughes, 377 F.3d at 1262, we are satisfied that the district court was not required to abstain.
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B Next, the City argues that it is not responsible for its bail policy and hence cannot be liable for any constitutional violations related to bail under 42 U.S.C. § 1983. The City claims that bail policy is attributable only to the Municipal Court, which it says is independent of the City. The district court disagreed, finding that the Municipal Court acted on behalf of the City and that the City could itself set bail policy directly through its control of its police. See Walker I, 2016 WL 361612, at *13; Walker III, 2017 WL 2794064, at *2 (re-adopting reasoning of Walker I). A municipality is liable under § 1983 where an “‘official policy’ causes a constitutional violation.” Grech v. Clayton County, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). “A plaintiff . . . has two methods by which to establish a [municipality’s] policy: identify either (1) an officially promulgated [] policy or (2) an unofficial custom or practice . . . shown through the repeated acts of a final policymaker for the [municipality].” Id. at 1329. Liability may be established “by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Because we review the grant of a preliminary injunction for
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abuse of discretion, Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002), we can upend the injunction for lack of § 1983 liability only if the district court applied an “incorrect legal standard” or its “factual findings are clearly erroneous.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016).
Here, Georgia law indicates that the City has the authority to set bail policy. In Georgia, a municipality’s authority flows from “the state, manifested in the constitution, state laws, and the municipal charter.” Porter v. City of Atlanta, 384 S.E.2d 631, 632 (Ga. 1989). By statute, Georgia “grants a city the legislative power to adopt ordinances ‘relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the [Georgia] Constitution.’” City of Atlanta v. McKinney, 454 S.E.2d 517, 520 (Ga. 1995) (quoting Ga. Code Ann. § 36-35-3(a)). The City’s municipal charter grants it “all powers of self-government not specifically prohibited by the constitution, the general laws of the State of Georgia, or by this charter, including all powers . . . necessary or desirable to promote or protect the safety . . . security, good order, . . . and general welfare of the city and of its inhabitants.” Charter of Calhoun, Georgia § 1-102(a).
Such broad grant of authority enables the City to regulate bail. In fact, the City already does so. The City requires that, for traffic violations, an “officer,
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upon receiving the written promise of the alleged violator to answer as specified in the citation, shall release such person from custody.” Calhoun Mun. Code § 90-39. Many other municipalities in Georgia act on the same understanding that Georgia law permits them to regulate bail by city ordinance.2 And Georgia’s Uniform Municipal Court Rules, as promulgated by the Supreme Court of Georgia, recognize that “[b]ail in misdemeanor cases shall be set as provided in [State statutes], and as provided by applicable municipal charter or ordinance.” Ga. Unif. Mun. Ct. R. 18.1 (emphasis added).
The City contends that those municipalities (and presumably itself) are acting in contravention of Georgia law, which, by permitting “the judge of any court of inquiry . . . [to] establish a schedule of bails,” Ga. Code Ann. § 17-61(f)(1), implicitly strips municipalities of concurrent authority to set bail policy. But reading the statute’s permissive grant of authority to courts to establish bail schedules as implicitly preempting all municipal regulation of bail is hardly a plausible interpretation. Like the district court, we are unwilling to conclude that Georgia cities setting bail by ordinance are flouting State law or that the Supreme Court of Georgia incorrectly interpreted Georgia law when it promulgated Uniform
2 See, e.g., Albany Mun. Code § 22-164; Doraville Mun. Code § 11-1; Kennesaw Mun. Code § 38-46; Nashville Mun. Code § 17-1; Smyrna Mun. Code § 34-49(a); Stockbridge Mun. Code § 2.20.080.
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Municipal Court Rule 18.1. The district court did not clearly err, then, in finding
that the City could directly regulate bail if it wished to and so may be held
responsible for acquiescing in an unconstitutional policy and practice by its
Municipal Court and its police.3
Based on the plain meaning of Georgia law and the thin factual record
before us at this preliminary stage, we are unpersuaded that the City is immune
from § 1983 liability for the bail policy prevailing within its jurisdiction.4
III
Turning to the merits, the City contends that the district court erred in
finding the Standing Bail Order to be unconstitutional, a conclusion that led to the
district court’s issuance of the injunction now before us. The City argues that we
should vacate this injunction.
3 Although we need not resolve the validity of a secondary basis for liability, we note that there was also significant support for the district court’s finding that the City can set bail policy through its control of its police department. Georgia law provides that, in misdemeanor cases, “constables shall accept bail in such reasonable amount as may be just and fair for any person or persons charged with a misdemeanor.” Ga. Code Ann. § 17-6-2(b); see also Ga. Code Ann. § 42-4-1(b) (“[C]hiefs of police are the jailers of the municipal corporations . . . .”). In this very case, Walker was asked to post bail by the police department many days before he was slated to have any interaction with the Municipal Court. Other Georgia cities seem to agree with the district court that they may empower their police to make bail policy determinations. See, e.g., Jonesboro Mun. Code § 30-18; LaGrange Mun. Code § 5-20-13; Madison Mun. Code § 34-47; Thomaston Mun. Charter § 25; Warner Robins Mun. Code § 15-8.
4 Although the materials with which Walker proposes to supplement the record “will not conclusively resolve” the issue of § 1983 liability, they are helpful to us “in the aid of making an informed decision,” Young v. City of Augusta, Ga. ex rel. DeVaney, 59 F.3d 1160, 1168 (11th Cir. 1995), so his Motion to Supplement the Record (Doc. No. 72) is GRANTED.
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As the party seeking a preliminary injunction, Walker bore the burden of establishing that he has a substantial likelihood of success on the merits.5 Wreal,
840 F.3d at 1247. The validity of the injunction thus turns on whether Walker did
in fact show that he was likely to succeed in establishing that the City’s bail policy
was unconstitutional.
The district court ruled that the City’s bail policy ran afoul of the Fourteenth
Amendment because “[a]ny bail or bond scheme that mandates payment of pre-
fixed amounts for different offenses to obtain pretrial release, without any
consideration of indigence or other factors, violates the Equal Protection Clause.”
Walker I, 2016 WL 361612, at *10. Although the district court considered the
Standing Bail Order to be “a step in the right direction” over the prior policy, it
found that “[t]he Standing Bail Order . . . still violates the Constitution insofar as it
permits individuals who have sufficient resources to post a bond (or to have one
posted for them) to be released immediately, while individuals who do not have
5 A party seeking a preliminary injunction must make four necessary showings: (1) [he] has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Wreal, 840 F.3d at 1247 (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)). Although the parties dispute all four elements, the principal point of dispute is likelihood of success on the merits.
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those resources must wait forty-eight hours for a hearing.” Walker III, 2017 WL
2794064, at *3.
The City argues that the district court applied the wrong legal standard in
two ways: first, by analyzing this case under the Fourteenth Amendment rather
than the Eighth Amendment; and second, by applying too exacting a form of
scrutiny to the City’s bail policy. We consider each challenge in turn.
A
First, the City, and amici supporting it, contend that we should evaluate this
dispute only under the Eighth Amendment, which provides that “[e]xcessive bail shall not be required.”6 U.S. Const. amend. VIII. As they point out, the Supreme
Court has held that, in § 1983 suits, “[t]he validity of the claim must . . . be judged
by reference to the specific constitutional standard which governs that right.”
Graham v. Connor, 490 U.S. 386, 394 (1989). They argue that the right at issue
here is the protection against excessive bail, so the Eighth Amendment standard
applies.
6 The Excessive Bail Clause has never expressly been incorporated by the Supreme Court to apply to the States. Because neither party disputes the point, however, we follow the Supreme Court’s lead in assuming it has been incorporated. See Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (“[T]he Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.”); McDonald v. City of Chicago, 561 U.S. 742, 764 & n.12 (2010) (explaining that the Court has “incorporated almost all of the provisions of the Bill of Rights” and suggesting in a footnote that the “prohibition against excessive bail” was incorporated by Schilb).
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1 If the City is correct that the Eighth Amendment standard governs, not only did the district court commit legal error by instead applying equal protection and due process standards, but the City will be on favorable terrain. In Stack v. Boyle, the Supreme Court explained that “bail set at a figure higher than an amount reasonably calculated to ensure the defendant’s presence at trial is ‘excessive’ under the Eighth Amendment.” United States v. Salerno, 481 U.S. 739, 752 (1987) (internal quotation marks and alterations omitted) (quoting Stack v. Boyle, 342 U.S. 1, 5 (1951)). But the Excessive Bail Clause “says nothing about whether bail shall be available at all,” and it is meant “‘merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.’” Id. at 752, 754 (quoting Carlson v. Landon, 342 U.S. 524, 545 (1952)). In applying that standard, we have implicitly held that bail is not excessive under the Eighth Amendment merely because it is unaffordable. In United States v. James, we considered a case in which the district court set a $2 million cash or surety bond requirement, which the defendants did not have the ability to pay. 674 F.2d 886, 888 (11th Cir. 1982). We rejected their Eighth Amendment challenge to that bail condition, holding that “[t]he basic test for excessive bail is whether the amount is higher than reasonably necessary to assure the accused’s presence at
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trial,” and that “[a]s long as the primary reason in setting bond is to produce the defendant’s presence, the final amount, type, and other conditions of release are within the sound discretion of the releasing authority.” Id. at 891. If such standard applied to this case, Walker would have a difficult time showing that his $160 bail amount was unconstitutional.
2 The district court was correct, however, to evaluate this case under due process and equal protection rubrics rather than the Eighth Amendment. The decisive case is Pugh v. Rainwater, in which the former Fifth Circuit considered en banc whether, “in the case of indigents, equal protection standards require a presumption against money bail.” 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).7 The court “accept[ed] the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Id. at 1056. It recognized that “[r]esolution of the problems concerning pretrial bail requires a delicate balancing of the vital interests of the state with those of the individual,” as the State “has a compelling interest in assuring the presence at trial
7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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of persons charged with crime,” while “individuals remain clothed with a presumption of innocence and with their constitutional guarantees intact.” Id.
Weighing those competing interests, the court observed that “[t]he demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail.” Id. at 1057 (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)). Therefore, “[t]he incarceration of those who cannot” meet a master bond schedule’s requirements, “without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id.
Walker’s claim, and the district court’s mode of analysis, therefore fits squarely within the type of hybrid due process and equal protection claim that Rainwater recognized. Walker’s allegation is precisely that the City is violating the “demands of equal protection of the laws and of due process” by depriving indigent “pre-trial detainees of the rights of other citizens to a greater extent than necessary.” Id. (internal quotation marks omitted). In fact, the contemporary Fifth Circuit recently applied Rainwater in a case similar to Walker’s to reject the defendant’s contention that relief can be accorded only under the Eighth Amendment. See ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018).
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3
We are cognizant that the Supreme Court’s Graham decision “requires that
if a constitutional claim is covered by a specific constitutional provision, such as
the . . . Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due
process.” United States v. Lanier, 520 U.S. 259, 272 n.9 (1997). But Walker’s
claim, like the plaintiffs’ in Rainwater, is different. It challenges not the amount
and conditions of bail per se, but the process by which those terms are set, which
Walker alleges invidiously discriminates against the indigent.
Claims of unlawful discrimination against the indigent in criminal proceedings have a long pedigree in Fourteenth Amendment case law.8 The
Supreme Court synthesized that law in Bearden v. Georgia, which considered
“whether the Fourteenth Amendment prohibits a State from revoking an indigent
defendant’s probation for failure to pay a fine and restitution.” 461 U.S. 660, 661
8 See Griffin v. Illinois, 351 U.S. 12 (1956) (States cannot condition the right to appeal on ability to afford transcript); Williams v. Illinois, 399 U.S. 235, 244 (1970) (“[T]he Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.”); Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” (internal quotation marks omitted)); Frazier v. Jordan, 457 F.2d 726, 726, 728 (5th Cir. 1972) (municipal court may not “constitutionally impose a sentence requiring an indigent defendant to pay a fine forthwith or serve a specified number of days in jail” because “[t]hose with means avoid imprisonment; the indigent cannot escape imprisonment”).
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(1983). The Court explained that “[d]ue process and equal protection principles converge in the Court’s analysis” of cases where defendants are treated differently by wealth, observing that “we generally analyze the fairness of relations between the criminal defendant and the State under the Due Process Clause, while we approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause.” Id. at 665. Applying such principles, the Court held that:
[o]nly if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Id. at 672–73. The sine qua non of a Bearden- or Rainwater-style claim, then, is that the State is treating the indigent and the non-indigent categorically differently. Only someone who can show that the indigent are being treated systematically worse “solely because of [their] lack of financial resources,” id. at 661—and not for some legitimate State interest—will be able to make out such a claim. Those who simply find their own bail conditions too onerous must proceed under the Eighth Amendment’s Excessive Bail Clause unless they can point to a separate due process violation.
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Because Walker’s claim indeed rests on an allegation of categorically worse treatment of the indigent, it falls within the Bearden and Rainwater framework, and the district court was correct to apply those cases’ hybrid analysis of equal protection and due process principles.
B The City further contends that the district court applied the wrong legal standard by imposing too high a level of scrutiny in its equal protection and due process analysis. The City argues that only rational basis review should apply because there is no suspect classification involved or fundamental right at stake. Although somewhat ambiguous about what form of scrutiny it was applying, the district court was clear that it believed some form of heightened scrutiny applied to this case. See Walker III, 2017 WL 2794064, at *3 n.2.
1 The district court acknowledged that “generally, an individual’s indigence does not make that individual a member of a suspect class,” but it contended that “detention based on wealth is an exception to the general rule that rational basis review applies to wealth-based classifications.” Id. (internal quotation marks omitted). In the district court’s view, because the Standing Bail Order treated differently those who could afford immediately to pay the bail schedule amount
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and those who could not, it was subject to heightened scrutiny. See id. at *3 & n.2.
Walker has fully embraced the district court’s reasoning, going so far as to argue
that that the use of a bail schedule is analogous to the City’s imposing “pretrial
detention only for black, female, or Catholic arrestees.”
But such argument runs headlong into Rainwater. There, the court approved
the “[u]tilization of a master bond schedule” without applying any heightened form
of scrutiny. Rainwater, 572 F.2d at 1057. It explained that a bond schedule
“provides speedy and convenient release for those who have no difficulty in
meeting its requirements.” Id. Of course, if the bond schedule provided “speedy”
release to those who could meet its requirements, it necessarily provided less
speedy release to those who could not. Nevertheless, the Rainwater court upheld
the scheme because it gave indigent defendants who could not satisfy the master
bond schedule a constitutionally permissible secondary option: a bail hearing at
which the judge could consider “all relevant factors” when deciding the conditions of release. See id. at 1058.9
9 The dissent does not grapple meaningfully with Rainwater’s explicit approval of bail schedules. The most it does is to argue that the bail system reviewed in Rainwater is different from the City’s because it “subjected indigent and non-indigent arrestees alike to a first appearance.” Dissent at 73. The dissent would thus turn Rainwater on its head. Rainwater endorsed the use of a bail schedule to provide “speedy and convenient release,” but the dissent would transform that endorsement into a requirement that all arrestees be held for a hearing even if they can immediately satisfy the release conditions. That is, to say the least, an odd reading of Rainwater. In any event, the dissent is wrong that Florida’s scheme required all persons to wait
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Rainwater’s conclusion is consistent with Supreme Court case law on how differential treatment by wealth is analyzed under the Equal Protection Clause. The definitive explanation comes from San Antonio Independent School District v. Rodriguez, which considered a wealth-based equal protection challenge to Texas’s system of apportioning school funds based principally on local tax bases. 411 U.S. 1 (1973). Analyzing prior cases, with a focus on Bearden’s antecedents, the Court concluded that instances where wealth-based distinctions were impermissible “shared two distinguishing characteristics: because of their impecunity[, the indigent] were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” Id. at 20 (emphasis added). Mere diminishment of a benefit was insufficient to make out an equal protection claim: “[A]t least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.” Id. at 24.
Other cases bolster the line drawn in Rodriguez between mere diminishment of some benefit and total deprivation based solely on wealth. In Ross v. Moffitt,
for a bail hearing, as it only required such a hearing for those who had not “been previously released in a lawful manner.” In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 81 (Fla. 1972) (Rule 3.130(b)(1)).
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417 U.S. 600, 616 (U.S. 1974), the Court explained that in criminal proceedings involving indigents, “[t]he duty of the State . . . is not to duplicate the legal arsenal that may be privately retained by a criminal defendant . . ., but only to assure the indigent defendant an adequate opportunity to present his claims fairly.” In M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court explained the Bearden line of cases to mean that wealth-based sanctions are impermissible when they are “not merely disproportionate in impact,” but “[r]ather, they are wholly contingent on one’s ability to pay.” Id. at 127. In McGinnis v. Royster, the Supreme Court considered an equal protection challenge to a New York sentencing scheme that gave goodbehavior credit on an equal basis to those who had and had not been bailed before trial, even though those who could not afford pretrial bail had already spent time incarcerated in jail. 410 U.S. 263 (1973). The Court “inquire[d] only whether the challenged distinction rationally furthers some legitimate, articulated state purpose.” Id. at 270 (emphasis added). It upheld the scheme because jails lacked the rehabilitative programs of prisons, which provided “a rational justification”— independent of wealth—“for declining to give good-time credit” for pretrial time served in jail. Id. at 273. Ross, M.L.B, and McGinnis, then, all bolster the principle that differential treatment by wealth is impermissible only where it results in a total deprivation of a benefit because of poverty.
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Under the Standing Bail Order, Walker and other indigents suffer no “absolute deprivation” of the benefit they seek, namely pretrial release. Rather, they must merely wait some appropriate amount of time to receive the same benefit as the more affluent.10 Indeed, after such delay, they arguably receive preferential treatment, in at least one respect, by being released on recognizance without having to provide any security. Such scheme does not trigger heightened scrutiny under the Supreme Court’s equal protection jurisprudence.
Nor do we see how it could. If Walker were correct that wealth should be treated like race, sex, or religion, and that every policy that affects people differently based on ability to pay must be justified under heightened scrutiny, the courts would be flooded with litigation. Innumerable government programs— heretofore considered entirely benign—would be in grave constitutional danger. If the Postal Service wanted to continue to deny express service to those unwilling or unable to pay a fee, it would have to justify that decision under the same standard it would have to meet to justify providing express service only to white patrons. The University of Georgia would be unable to condition matriculation on ability to pay
10 This case is therefore quite factually distinct from ODonnell, in which the government “did not achieve any individualized assessment in setting bail,” and as a result “some amount of upfront payment [was] required for release in the vast majority of cases,” thereby “ensuring that [indigent] arrestees would remain detained.” 892 F.3d at 153–54. The Standing Bail Order lacks such features that could support a conclusion that there is an “absolute deprivation” of pretrial release.
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tuition unless it could meet the same constitutional standard that would allow it to deny admission to Catholics. In Walker’s preferred constitutional world, taxes that are independent of income, such as property taxes or sales taxes, would be the target of perpetual litigation. All that is to say, we do not believe that Bearden or Rainwater announced such radical results with so little fanfare, and we therefore reject Walker’s equal protection theory. The district court was wrong to apply heightened scrutiny under the Equal Protection Clause.
2 As an alternative basis for applying heightened scrutiny, Walker defends the district court on the ground that “the City’s bail system infringes the fundamental right to pretrial liberty.” He argues this is so under the Due Process Clause, pointing to United States v. Salerno, in which the Supreme Court considered the federal Bail Reform Act’s provision for preventative detention of dangerous defendants. 481 U.S. at 741. In Salerno, the Court recognized that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” id. at 755; but it also stated that an arrestee may be incarcerated before trial “if he presents a risk of flight or a danger to witnesses,” id. at 749 (citing Bell v. Wolfish, 441 U.S. 520, 534 (1979)). The Court ultimately permitted preventative detention if the arrestee “pose[s] a threat to the safety of
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individuals or to the community which no condition of release can dispel.” Id. at 755. Walker contends that this form of analysis is tantamount to heightened scrutiny and that it should be applied to his case.
But the Salerno Court’s analysis was much closer to a relatively lenient procedural due process analysis than it was any form of heightened scrutiny. Rather than asking if preventative detention of dangerous defendants served a compelling or important State interest and then demanding relatively narrow tailoring, the Court employed a general due process balancing test between the State’s interest and the detainee’s. See id. at 746–51. The Court’s analysis borrowed heavily from a prior decision, Schall v. Martin, in which the Court upheld preventative detention of likely-to-reoffend juveniles based on an analysis that asked “whether preventative detention . . . is compatible with the ‘fundamental fairness’ required by due process.” 467 U.S. 253, 263 (1984). Answering that question required “[t]wo separate inquiries[:] . . . First, does preventive detention . . . serve a legitimate state objective? And, second, are the procedural safeguards . . . adequate to authorize the pretrial detention?” Id. at 263–64 (citations omitted). That analysis is a far cry from strict—or even intermediate—scrutiny.
Moreover, even if Salerno did embrace a form of heightened scrutiny, we do not believe it applies to this case because the City is not seeking to impose any
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form of preventative detention. Here, Walker himself was released, and the
Standing Bail Order presently guarantees release within 48 hours of arrest to all
indigent defendants in Walker’s shoes. In a future case that raises the question
whether a municipality may detain an indigent defendant because no feasible
release conditions will assure his appearance in court, perhaps Salerno’s
framework might apply.11 But that is not the question before us in this limited
interlocutory appeal.
3
The appropriate level of scrutiny is the point of departure for the dissent, and
its contrary conclusion on that issue is the foundation for the rest of its analysis.
11 There is some force to the City’s contention that such analysis is inextricably linked to the excessiveness of bail conditions and so should be evaluated under the Eighth Amendment. Indeed, the Eighth Amendment was borrowed from a provision of the English Bill of Rights that was itself the culmination of a long process to prevent royal abuses of bail wrongly to deny pretrial liberty. See, e.g., William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 63–66 (1977); see also June Carbone, Seeing through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 529–33 (1983) (noting that the early American experience was to adopt and then further to liberalize British legal principles governing bail); id. at 548–49 (“In England, the colonies, and the early states, bail bonds were set without reference to the financial circumstances of the accused. Lower bonds for the poor were considered to violate, not vindicate, the principle of equal justice.”).
Such history may support reinvigorating the Eighth Amendment as the proper vehicle for evaluating whether a State has imposed impermissible conditions of pretrial release. Cf. LopezValenzuela v. Arpaio, 770 F.3d 772, 805–07 (9th Cir. 2014) (en banc) (O’Scannlain, J., dissenting) (arguing that legislation governing pretrial detention based on flight risk should be evaluated under the Eighth Amendment). In any event, it will be for a future court to decide whether Salerno’s framework or an Eighth Amendment analysis applies when a defendant is eligible for bail but is detained because he cannot provide adequate assurance of his future appearance.
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The dissent would adopt Walker’s theory that any marginal increase in the length of detention attributable to inability to pay bail amounts to invidious discrimination warranting heightened scrutiny. As we have explained, accepting that premise effectively abandons the limitations on wealth-based equal protection claims drawn in Rodriguez and its successors.
The dissent provides a hypothetical that proves how far it would go. It asks us to consider two persons arrested for the same crime under the same circumstances, whose sole difference is the amount of money each has. The dissent says there is an equal protection problem because: “The person who has money pays it and walks away. The indigent can’t pay, so he goes to jail.” Dissent at 57 (emphasis added). But this hypothetical could apply to any government benefit contingent on ability to pay, including all the examples we used above. To illustrate, let’s simply switch out, by substituting the italicized phrases, the dispensation sought by the hypothetical persons:
“The person who has money pays it and gets express postal service. The indigent can’t pay, so he goes with snail mail.”
“The person who has money pays it and matriculates at the state university. The indigent can’t pay, so he stays home.”
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“The person who has money pays it and satisfies his property tax bill. The indigent can’t pay, so he loses his home to a tax foreclosure.”
Any government benefit or dispensation can be framed in artificially narrow fashion to transform a diminishment into total deprivation. The dissent takes the interest identified by Rainwater—the “right to freedom before conviction,” or the “right to bail before trial,” 572 F.2d at 1056–56—and narrows it to something like “the right not to be held a moment longer than a person who can satisfy a bail schedule.” If such narrowing is permissible, then any wealth-based equal protection claim becomes valid so long as the plaintiff frames his interest in a cramped enough style. Under the dissent’s theory, then, the only reason the Rodriguez plaintiffs’ equal protection claim failed was that they challenged overall disparities in school budgets (which was what they actually cared about). If instead they had focused on something smaller and less important—perhaps claiming that differences in school district funding completely deprived them of specialized art classes—then, in the dissent’s world, they would have prevailed. That turns the Equal Protection Clause into a game of word play, a result inconsistent with the thrust of Rodriguez and its successors.
Recognizing its tension with Rodriguez, the dissent suggests that Walker’s claim could fit into a “narrow exception” to the general rule against applying
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heightened scrutiny to wealth-based equal protection arguments. Dissent at 66. But the dissent provides no limiting principle to such an exception. Although it suggests “access to judicial processes in [criminal] cases” as one category of exception, id. (quoting M.L.B., 519 U.S. at 124), it does not explain what judicial proceeding an indigent person cannot access by the terms of the Standing Bail Order. More critically, as just demonstrated, the dissent’s analysis is not amenable to so narrow an exception and would apply to any government action that treats people of different means differently. Disparate treatment based on wealth, in the dissent’s constitutional methodology, would be treated the same as official religious or racial discrimination. The Supreme Court has rejected so radical an application of the Equal Protection Clause, see Rodriguez, 411 U.S. at 24, and we cannot adopt it on the unprincipled ad hoc basis urged by the dissent.
Perhaps the basis for the dissent’s proposed “narrow exception” could be the importance to indigents of being released from jail. But that quickly starts to sound like a claim based on a fundamental liberty interest, and the dissent has disavowed reliance on Walker’s substantive due process argument. See Dissent at 67 n.8. Perhaps that is so as to elide Salerno and Schall. Although the dissent formally relies only on the Equal Protection Clause, however, its tenor reveals that it is motivated by the importance of Walker’s liberty interest, and it persuasively
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describes at length the value of pretrial liberty. See Dissent at 61–62. We do not for a moment doubt the value of freedom from jail. But the Supreme Court in Salerno made clear that the government also has important interests at stake when considering whether to release an accused who may be a flight risk or public danger. Accordingly, it has instructed us to apply a less demanding level of scrutiny than the one necessary to support the dissent’s conclusions. The dissent cannot avoid the Supreme Court’s holding by smuggling a substantive due process claim into the Equal Protection Clause.
C Thus the district court was correct to apply the Bearden/Rainwater style of analysis for cases in which “[d]ue process and equal protection principles converge,” Bearden, 461 U.S. at 665, yet it was wrong to apply heightened scrutiny from traditional equal protection analysis. The confusion is perhaps unsurprising because neither Bearden nor Rainwater is a model of clarity in setting out the standard of analysis to apply. As Bearden puts it, the proper analysis “requires a careful inquiry into such factors as ‘the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose.’” 461 U.S. at 666–67
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(alteration in original) (quoting Williams v. Illinois, 399 U.S. 235, 260 (1970) (Harlan, J., concurring in the result)); accord Rainwater, 572 F.2d at 1056 (“Resolution of the problems concerning pretrial bail requires a delicate balancing of the vital interests of the state with those of the individual.”).
We take Bearden’s quotation of Justice Harlan’s Williams concurrence as a sign that the Bearden Court shared his assessment that these kinds of questions should be evaluated along something akin to a traditional due process rubric. See Williams, 399 U.S. at 260 (Harlan, J., concurring in the result) (“An analysis under due process standards, correctly understood, is . . . more conducive to judicial restraint than an approach couched in slogans and ringing phrases . . . that blur analysis by shifting focus away from the nature of the individual interest affected.”). That makes particular sense in this case because the relief Walker seeks is essentially procedural: a prompt process by which to prove his indigency and to gain release.
In such due process analysis, “[t]he fundamental requirement . . . is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted). Due process “is not a technical conception with a fixed content unrelated to time, place and circumstances,” but rather is “flexible” and “requires analysis of the
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governmental and private interests that are affected.” Id. at 334 (internal quotation marks omitted). The district court should have applied such analysis in evaluating whether the Standing Bail Order comported with the Constitution’s equal protection and due process guarantees.
IV Having established that Bearden and Rainwater command that courts should apply something akin to a procedural due process mode of analysis to claims like Walker’s, it remains to be determined whether the district court acted within its discretion in entering its preliminary injunction. At this stage of litigation, the City seeks to overturn the preliminary injunction in order to maintain the Standing Bail Order, so we must focus our inquiry on the concrete distinctions between the preliminary injunction and the Standing Bail Order. Under the Standing Bail Order, arrestees are guaranteed a hearing within 48 hours of arrest to prove their indigency (with court-appointed counsel) or they will be released. See supra Part I.B. In contrast, the preliminary injunction commands an affidavit-based process for determining indigency within 24 hours of arrest. See supra Part I.C.3. Both procedures agree on the standard for indigency and that those found indigent are to be released on recognizance. There are thus only two real points of dispute. First, whether the City must make an indigency
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determination within 24 hours or 48 hours. Second, whether the City may use a judicial hearing to determine indigency or must use the affidavit-based system required by the preliminary injunction.
A Within what time must the City make an indigency determination? To answer this question, the City asks us not to write on a blank slate but to borrow from Supreme Court precedent on the timing required for a probable cause determination. In County of Riverside v. McLaughlin, the Supreme Court considered what “prompt” meant for providing a constitutionally required prompt probable cause hearing for those arrested without a warrant. 500 U.S. 44, 55 (1991). “Taking into account the competing interests” of the individual and the government, the Court concluded that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement.” Id. at 56 (emphasis added). The McLaughlin Court expressly rejected a 24-hour bright-line limitation suggested by Justice Scalia in dissent. See id. at 57–58. Walker argues that we should not import McLaughlin’s 48-hour presumption into the bail context because that case did not involve differential treatment based on wealth. He contends that any disparate treatment by wealth in granting bail
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must satisfy heightened scrutiny, thereby placing a strict burden on the government to justify its bail policy. That argument fails, however, because, as we explained above, the use of a bail schedule does not trigger heightened scrutiny. Instead, we evaluate the 48-hour window for making bail determinations on its own terms to ensure that it satisfies the due process mode of analysis in Bearden and Rainwater.
We are persuaded that it does. Under McLaughlin, the City can presumptively hold a person for 48 hours before even establishing probable cause—that is, without even proving that it has evidence that he has committed a crime. It stands to reason that that the City can take the same 48 hours to set bail for somebody held with probable cause. Indeed, McLaughlin expressly envisioned that one reason for the 48-hour window is so that probable cause hearings could be combined with “bail hearings and arraignments.” 500 U.S. at 58. For those reasons, the Fifth Circuit in ODonnell recently imported the McLaughlin 48-hour rule to the bail determination context. 892 F.3d at 160–61. The ODonnell court was reviewing an injunction that imposed a 24-hour time limit for a bail determination—identical in that respect to the one we are reviewing—and it rejected such time limit because it worked a “heavy administrative burden” and was therefore “too strict.” Id.
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We agree with the Fifth Circuit; indigency determinations for purposes of
setting bail are presumptively constitutional if made within 48 hours of arrest.12
By failing to honor such presumption and insisting instead on a 24-hour window,
the district court committed legal error and so abused its discretion.13
12 The dissent accuses us of opening a split with the Fifth Circuit’s ODonnell decision. See Dissent at 60 n.5. But it is the dissent’s position that would lead to a split. The ODonnell court expressly adopted the 48-hour requirement of McLaughlin—and, contrary to the dissent’s equal protection analysis, it did so based on a due process analysis. See ODonnell, 892 F.3d at 160. ODonnell held a 24-hour rule too burdensome even though the defendant in that case was Harris County, Texas—home to Houston—which presumably could much more easily provide frequent bail hearings than can the City’s one-judge municipal court.
It is true that, in a separate part of its opinion, the ODonnell court applied heightened scrutiny under the Equal Protection Clause, after concluding that the facts of that case fit into the Rodriguez classification of plaintiffs who suffer an “absolute deprivation of their most basic liberty interests.” Id. at 162. But there, the court had extensive factual findings from the district court, resulting from a lengthy evidentiary hearing, that Harris County did not provide arrestees “any opportunity to submit evidence of relative ability to post bond at the scheduled amount,” id. at 154 (emphasis added), evidence that permitted the Fifth Circuit to conclude that the County acted with a “discriminatory purpose” that “resulted in [indefinite] detainment solely due to a person’s indigency,” id. at 161. Were the facts of this case the same, Walker would have a much stronger argument that indigents in the City face an absolute deprivation on account of wealth that would trigger the Rodriguez exception, but the Standing Bail Order guarantees release to indigents within 48 hours. It therefore accords entirely with ODonnell’s holding that what the Constitution requires is “an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.” Id. at 163. The dissent would demand more and so is inconsistent with ODonnell.
13 We note, however, that we do not consider whether Walker can show that the facts of his particular case (or other class members’) fall outside the McLaughlin safe harbor. The McLaughlin Court made clear that the 48-hour presumption was rebuttable: a probable cause hearing held within 48 hours may nonetheless be unconstitutional “if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.” McLaughlin, 500 U.S. at 56. “Examples of unreasonable delay” include “delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” Id. McLaughlin only provides that jurisdictions which comply with the 48-hour rule “will be immune from systemic challenges.” Id. (emphasis added). That being said, the McLaughlin Court cautioned that, “[i]n evaluating whether the delay in a particular case is unreasonable, . . . courts must allow a substantial degree of flexibility.” Id.
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B
The City also challenges the preliminary injunction’s command to adopt an
affidavit-based process for determining indigency, which overrode the Standing
Bail Order’s system based on judicial bail hearings before the Municipal Court.
Walker defends the injunction by arguing that the City never provided a reason that
a judicial hearing was preferable to the affidavit-based process. He also contends
that the choice of an affidavit-based process was a reasonable option within the
district court’s sound discretion for fashioning equitable relief. Notably, neither
Walker nor the district court’s order provides any legal authority for the
Nor do we decide whether a jurisdiction could adopt a system that allows a longer period of time than 48 hours to make a bail determination, because the City does not seek to take longer than 48 hours. As amicus pointed out at oral argument, the federal system permits a court to delay a bail hearing by three days after an arrestee’s first appearance (plus intervening weekends or holidays) upon the government’s motion. See 18 U.S.C. § 3142(f). And Georgia law allows 72 hours for an officer making an arrest pursuant to a warrant to bring the arrestee before a judicial officer. See Ga. Code Ann. § 17-4-26. Whether such lengths of delay are permissible is not a question before us. We are satisfied that McLaughlin establishes at least a 48-hour presumptive safe harbor for making bail determinations without deciding if that safe harbor extends longer. Because a probable cause determination establishes whether the government has a basis to detain a person at all, see Gerstein, 420 U.S. at 125, the onus on the government to make a probable cause determination promptly must be at least as great as it is to set the conditions of pretrial release. Whether jurisdictions have greater leeway in making bail determinations than probable cause determinations is a question for another case with a more complete factual record. The dispute between the parties over whether the preliminary injunction led to an increase in the non-appearance rate in the City may be relevant to such inquiry, but we need not resolve that dispute to determine that the Standing Bail Order facially passes constitutional muster.
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proposition that the Constitution requires the affidavit-based process in lieu of a judicial hearing.
Indeed, the law cuts the other way and indicates that federal courts should give States wide latitude to fashion procedures for setting bail. Directly on point, the bail rule upheld in Rainwater was based on formal hearings at which judges would consider the arrestee’s financial resources, just as the Standing Bail Order provides. See Rainwater, 572 F.2d at 1055 & n.2 (citing Fla. R. Crim. P. 3.130(b) (1977)); id. at 1058 & n.8.
Even if Rainwater were not dispositive, however, there is no constitutional basis for the district court’s imposition of its preferred method of setting bail. In the context of probable cause determinations, the Supreme Court has “recognized that ‘state systems of criminal procedure vary widely’ in the nature and number of pretrial procedures they provide,” and it has “noted that there is no single ‘preferred’ approach.” McLaughlin, 500 U.S. at 53 (quoting Gerstein, 420 U.S. at 123). The Court explained that “‘flexibility and experimentation by the States’” is “desirable and that each State should settle upon an approach ‘to accord with [the] State’s pretrial procedure viewed as a whole.’” Id. (alteration in original) (quoting Gerstein, 420 U.S. at 123). Respecting that flexibility gives “proper deference to the demands of federalism.” Id. The same logic applies to bail determinations,
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and the district court provided no justification for substituting its preferred policy for the City’s.
Indeed, the City may have had good reasons for preferring a judicial hearing to a purely paper-based process for evaluating indigency. It may reasonably prefer that a judge have the opportunity to probe arrestees’ claims of indigency in open court, where the importance of honesty may more clearly be impressed on the arrestee than would be the case in filling out an affidavit in the jailhouse. In more complex cases, a judicial hearing would allow the court iteratively to examine with the arrestee, his counsel, and the government what conditions of release are reasonable and within the arrestee’s means, thereby tailoring case-specific conditions of release that balance the individual’s pretrial liberty interest with the government’s interest in assuring his subsequent appearance.
Parallel areas of case law support the reasonableness of the Standing Bail Order’s preference for judicial hearings. The Supreme Court’s Eighth Amendment jurisprudence envisions that bail determinations will be made at judicial hearings. See Stack, 342 U.S. at 6 (“If bail in an amount greater than that usually fixed . . . is required . . ., that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved.” (emphasis added)). And in the procedural due process context, “[t]he judicial model of an
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evidentiary hearing” is treated as the most extensive form of process that can be required. Mathews, 424 U.S. at 348; see also Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“[W]ritten submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, . . . written submissions are a wholly unsatisfactory basis for decision.”).
Whatever limits may exist on a jurisdiction’s flexibility to craft procedures for setting bail, it is clear that a judicial hearing with court-appointed counsel is well within the range of constitutionally permissible options. The district court’s unjustified contrary conclusion was legal error and hence an abuse of discretion.
C In sum, Walker failed to make the necessary showing that he is likely to succeed on the merits of his claim that the Standing Bail order is unconstitutional. Neither the 48-hour window for a bail determination nor the use of an adversarial bail hearing in lieu of an affidavit-based process runs afoul of the Constitution. Walker therefore failed to satisfy one of the necessary conditions for a preliminary injunction against the Standing Bail Order, Wreal, 840 F.3d at 1247, and the district court erred in granting it.
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V As a fallback position, Walker further asks us to defer to the “breadth and flexibility” of the district court’s equitable power to cure constitutional violations that arose prior to the issuance of the Standing Bail Order. Brown v. Plata, 563 U.S. 493, 538 (2011) (internal quotation marks omitted). Walker contends that because the City’s original bail policy, in place at the time the litigation was initiated, was plainly unconstitutional, it does not matter that the subsequent Standing Bail Order is entirely constitutional. Instead, Walker argues, the existence of an initial constitutionally defective policy gave the district court equitable discretion to insert into a perfectly constitutional subsequent policy additional conditions nowhere required by the Constitution.
A 1 The City’s leading counter-argument is that, if the Standing Bail Order is constitutional, then Walker’s claim for injunctive relief is entirely moot. The City contends that because a new policy has been promulgated after this litigation began, which supplanted the original policy, the claim against the original policy is now moot, and no relief may follow from it.
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Walker responds that the dispute over the constitutionality over the City’s original bail policy is not moot because, at the conclusion of this litigation, the City may revert to that policy if there is no injunction in place. As noted, early in the litigation, the Municipal Court issued the Standing Bail Order, at which point the City ceased to defend the constitutionality of the original policy. Walker alleges that the City adopted the policy merely to manipulate the district court’s jurisdiction and that the Standing Bail Order may be easily repealed when an injunction is no longer hanging over the City. He rejects an inference that the Municipal Court realized the potential constitutional infirmity of the existing bail policy and acted promptly to rectify it.
The district court agreed with Walker. It concluded that the City’s adoption of the Standing Bail Order did not moot Walker’s suit for injunctive relief against the original bail policy because there was a reasonable expectation that the City might return to its original policy after this litigation ended. See Walker I, 2016 WL 361612, at *12. As the district court put it, the request for injunction relief is not moot because “it is not absolutely clear that the allegedly wrongful behavior
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could not be reasonably expected to recur.” Id. (quoting Cook v. Bennett, 792 F.3d 1294, 1300 (11th Cir. 2015) (internal quotation marks omitted)).14
2 “[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc) (internal quotation marks omitted). A case is therefore moot “only when [the court] ha[s] no reasonable expectation that the challenged practice will resume after the lawsuit is dismissed.” Id. at 1255–56 (internal quotation marks omitted). “[T]he burden of proving mootness generally falls heavily on the party asserting it.” Id. at 1256. When a government voluntarily ceases the challenged action, however, there is a presumption that the government will not later resume the action, so the plaintiff bears the burden of showing that there is “a reasonable expectation” that the government “will reverse course and reenact the allegedly offensive” policy. Id. at 1256. “The key inquiry in this mootness analysis therefore is whether the
14 Whether or not the conceded unconstitutionality of the City’s original bail policy could support an injunction on the merits, “we are required to address” the mootness question first because it is jurisdictional: “if a suit is moot, it cannot present an Article III case or controversy and the federal courts lack subject matter jurisdiction to entertain it.” Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004). “We review the question of mootness de novo.” Id.
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evidence leads [the court] to a reasonable expectation that the City will reverse course and reenact the allegedly offensive” bail policy after this litigation ends. Id.
To determine whether such a reasonable expectation exists, courts look to “three broad factors.” Id. at 1257. First, “whether the change in conduct resulted from substantial deliberation or is merely an attempt to manipulate our jurisdiction.” Id. This requires examining “the timing of the repeal, the procedures used in enacting it, and any explanations independent of this litigation which may have motivated it.” Id. Second, “whether the government’s decision to terminate the challenged conduct was ‘unambiguous’”—i.e., “whether the actions that have been taken to allegedly moot the case reflect a rejection of the challenged conduct that is both permanent and complete.” Id. And, third, “whether the government has consistently maintained its commitment to the new policy or legislative scheme.” Id.
The City’s adoption of the Standing Bail Order is somewhat analogous to the mootness issue presented in Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010). In Harrell, the plaintiff challenged the Florida Bar’s advertising rules and regulations, including the Bar’s specific decision to reject one of the plaintiff’s proposed advertising slogans. Id. at 1249–50. After the lawsuit began, the Bar reversed its earlier decision and approved the slogan without issuing a reasoned
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opinion. Id. at 1252–53. The district court held that the decision approving the slogan mooted the plaintiff’s challenge, but we reversed. Id. at 1253, 1268. For the first mootness factor, we observed that the Bar “acted in secrecy, meeting behind closed doors and, notably, fail[ed] to disclose any basis for its decision.” Id. at 1267. Thus, we had “no idea whether the . . . decision was ‘well-reasoned’ and therefore likely to endure.” Id. And because the Bar had changed its position after litigation had begun, “the circumstances . . . raise[d] a substantial probability that” the Bar had “changed course simply to deprive the court of jurisdiction.” Id. (internal quotation marks omitted). We also concluded that the second factor weighed against the suit’s mootness. Because the Bar’s decision to approve the slogan was unexplained and had been made through an irregular process, we were “unable to say that the [Bar], through its decision, ‘unambiguously terminated’ the challenged application” of its rules. Id. at 1267. Thus, the Bar’s decision was “very much clouded by ambiguity,” and we held that “the governmental presumption” did not apply, and the lawsuit was not moot. Id. at 1268 (citing Troiano v. Supervisor of Elections in Palm Beach Cty., 382 F.3d 1276 (11th Cir. 2004)).
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3 Applying such analysis here, we conclude that Walker’s claim for injunctive relief against the City’s original bail policy is likewise not moot. The first factor— whether the change in conduct resulted from substantial deliberation or is instead an attempt to manipulate jurisdiction—weighs against mootness. While we may doubt that it was the City’s intent to manipulate jurisdiction, as opposed to simply correcting a deficient policy, the fact is that the City has been unnecessarily secretive. The process for adopting the Standing Bail Order is unknown because the City has refused to explain that process. In fact, in response to interrogatories, the City asserted that information about “the process of creating” the Standing Bail Order was protected by “the work-product doctrine and/or attorney-client privilege,” and it refused to divulge any information except to say that the Order was executed by the Chief Judge of the Municipal Court. The second factor also weighs against mootness because the City’s abandonment of its original bail policy is not unambiguous. The City did not change its bail policy through a legislative act, which might well have mooted the original claim. Instead, a single judge issued the Standing Bail Order and, while it is perhaps unlikely, we cannot say that this judge might not revert to the original policy, given the lack of transparency surrounding the issuance of the Standing
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Bail Order. Thus, “it can hardly be said that [the City’s] ‘termination’” of its original bail policy is unambiguous. Harrell, 608 F.3d at 1266–67.
Finally, as to the third factor—whether the government has consistently maintained its commitment to the new policy or legislative scheme—that does not cut strongly either way because only two months after the Standing Bail Order was adopted, the district court stopped its implementation with the first preliminary injunction.
Altogether, Walker presented sufficient evidence for the district court to conclude that his challenge to the original bail policy was not moot. Because the City does not defend the constitutionality of its original bail policy on appeal, we may assume that Walker’s arguments against the City’s original bail policy have a substantial likelihood of success on the merits. Just as the City has not defended its original bail policy on the merits, it also has not shown that the district court abused its discretion when it concluded that the other factors favoring an injunction were met with respect to that original policy. The district court therefore did not err in declaring the original bail policy to be unconstitutional, and it accordingly may enjoin the City’s future use of that policy.
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B But the conclusion that Walker’s claim for injunctive relief against the City’s original bail policy is not moot does not mean that the preliminary injunction against the Standing Bail Order is valid. Even assuming that the City intended to revert to its original policy at the conclusion of this litigation— something that will not occur given the terms of our ruling and remand here—such possibility does not salvage the preliminary injunction. The district court’s rationale for entering the injunction was not that the City was likely to walk back the Standing Bail Order, but rather that the Standing Bail Order was itself unconstitutional “insofar as it permits individuals who have sufficient resources to post a bond . . . to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing.” Walker III, 2017 WL 2794064, at *3. As we have explained, that conclusion was based on legal error by (1) failing to recognize a presumption that a bail determination made within 48 hours is constitutionally valid and (2) wrongly assuming that the Equal Protection Clause forbids jurisdictions from offering comparatively speedier release to those able to meet a bail schedule. Walker essentially asks us to hold that a governmental body that ceases to follow an unconstitutional policy, and that instead promulgates a constitutional
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policy, is nonetheless and forever forced to comply with an even more stringent policy devised by a district court—with conditions found nowhere in the Constitution—merely because it had once followed an unconstitutional policy. It would be absurd to so hold.
“A district court abuses its discretion . . . when it applies the incorrect legal standard.” Wreal, 840 F.3d at 1247. The district court did so here when it issued its preliminary injunction. As a result, the preliminary injunction is infirm regardless of the City’s motivation for the Standing Bail Order.
C In sum, because the City did not establish that Walker’s suit for injunctive relief was moot and because it has effectively conceded that its original bail policy was unconstitutional, the district court may enjoin a return to that original policy. But the district court abused its discretion in also enjoining the entirely constitutional Standing Bail Order, so the preliminary injunction cannot stand.
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VI For the foregoing reasons, the preliminary injunction entered by the district court is VACATED, and the case is REMANDED to the district court for further proceedings consistent with this opinion.15
15 Because we would vacate the preliminary injunction irrespective of whether the district court was correct to certify Walker’s proposed class or whether it properly denied the City’s motion to dismiss, such two orders are not “inextricably intertwined” with the preliminary injunction order, and reviewing them is not “necessary to ensure meaningful review” of the preliminary injunction. Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (internal quotation marks and alterations omitted). We therefore lack pendant appellate jurisdiction over such otherwise unappealable interlocutory orders. Accordingly, Walker’s Motion to Dismiss Appeal in Part (Doc. No. 16) is GRANTED.
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MARTIN, Circuit Judge, concurring in part and dissenting in part1:
Maurice Walker was jailed by the City of Calhoun for six days because he
was too poor to pay his bail. He challenges the City’s practice of jailing people
before trial when they are too poor to make bond, arguing it violates the
constitutional guarantees of due process and equal protection. The Majority rejects
this claim, characterizing the pretrial jailing as “merely wait[ing] some appropriate
amount of time to receive the same benefit as the more affluent.” Maj. Op. at 27.
In this way, the Majority renders it unnecessary to review the City’s practice with
heightened scrutiny. I believe the Majority rewrites this court’s binding precedent in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc),2 which held that
“[t]he incarceration of those who cannot [pay for pretrial release], without
meaningful consideration of other possible alternatives, infringes on both due
process and equal protection requirements.” Id. at 1057. The Majority fails to
recognize this infringement on the rights of indigents, so I dissent.
1 I join the Majority in rejecting the City’s arguments that Younger abstention applied; that the City wasn’t liable for the bail policy under 42 U.S.C. § 1983; and that the Eighth Amendment, not the Fourteenth Amendment, applied to this case. See Maj. Op. Parts II.A, II.B, and III.A.2. I also agree that Mr. Walker’s suit against the City’s original bail policy is not moot and the District Court may enjoin the City from reinstating that policy. See id. Part V.A.3. Last, I join the Majority’s grant of Mr. Walker’s motions to supplement the record and dismiss the appeal in part. See id. at 15 n.4, 53 n.15.
2 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209.
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I. The Supreme Court has repeatedly recognized that wealth-based detention is not permitted by our Constitution. See Williams v. Illinois, 399 U.S. 235, 240–41, 90 S. Ct. 2018, 2022 (1970) (holding that Illinois’s practice of extending a prisoner’s sentence beyond maximum authorized by statute of conviction because of a prisoner’s “involuntary nonpayment of a fine or court costs” is “an impermissible discrimination that rests on ability to pay”); Tate v. Short, 401 U.S. 395, 397–98, 91 S. Ct. 668, 670–71 (1971) (extending Williams to prohibit “jailing an indigent for failing to make immediate payment of any fine”); Bearden v. Georgia, 461 U.S. 660, 672–73, 103 S. Ct. 2064, 2073 (1983) (extending Williams and Tate to hold that a state court can’t revoke probationary sentence for inability to pay fine or restitution without considering “alternate measures of punishment other than imprisonment”). The Bearden line of cases involved criminal penalties imposed after a conviction. In Rainwater, the former Fifth Circuit extended these cases’ “principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible” to “[t]he punitive and heavily burdensome nature of pretrial confinement.” 572 F.2d at 1056. The Majority is right when it says Mr. Walker’s claim “fits squarely” within the Bearden-like cases that raise both due process and equal protection concerns.
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Maj. Op. at 20. But I part ways with the Majority, because I read these cases to support the District Court’s application of heightened scrutiny under the Equal Protection Clause to the City’s bail policy. See id. at 28.
The Majority relies on San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973), in deciding that Mr. Walker cannot make out an equal protection claim warranting heightened scrutiny. But I read Rodriguez to say he can. Rodriguez established the test for whether a wealthbased detention claim is subject to heightened scrutiny under an equal protection framework. The Rodriguez test first asks whether the challenged scheme uses indigency as a classification, examining whether it treats differently a “class [] composed only of persons who were totally unable to pay.” Id. at 20, 22, 93 S. Ct. at 1290. The second question is whether the class has suffered an “absolute deprivation” of a benefit. See id. 20, 93 S. Ct. at 1290.
The Majority never addresses whether the Standing Bail Order discriminates against indigents. See Maj. Op. at 27. I say the Bail Order clearly uses indigency as a classification, and offer this simple example in support. Consider two people, one who has money and the other who does not. They are arrested for the same crime at the same time under the same circumstances. Under the Standing Bail Order, these two would have the identical bail amount, as
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established by the master bail schedule. The person who has money pays it and walks away. The indigent can’t pay, so he goes to jail. This is plainly “imprisonment solely because of indigent status.” Rainwater, 572 F.2d at 1056; accord ODonnell v. Harris Cty., 892 F.3d 147, 162–63 & n.6 (5th Cir. 2018).
The Majority Opinion says this hypothetical shows I would require the government to be involved in all sorts of wealth-based interactions—including intervening to make pricier express mail options available to all postal patrons. See Maj. Op. at 30–34. Not so. Instead I look to the Supreme Court, which has expressly established limiting principles for equal protection claims by indigents. M.L.B. v S.L.J., 519 U.S. 102, 123–24, 117 S.Ct. 555, 567 (1996). In M.L.B., the Court plainly said “[s]tates are not forced by the Constitution to adjust all tolls to account for disparity in material circumstances.” Id. (quotation omitted). It explained that lawsuits seeking “state aid to subsidize [] privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action” are different from those vindicating a person’s right to participate in political processes or to have access to the courts in criminal cases. Id. at 123–25, 117 S. Ct. at 568.
As to Rodriguez’s second question, the Majority relies on the fact that the Standing Bail Order caps an indigent arrestee’s pretrial detention at 48 hours to
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conclude that the detention isn’t an “absolute deprivation.”3 In fact, the Majority
refers to this person’s time in jail as just a “diminishment of a benefit.” Maj. Op.
at 25–27. But this is word play. First, the Majority renames the interest in
“freedom from incarceration” at issue here, as an interest in “access to pretrial
release.” But see ODonnell, 892 F.3d at 162 (identifying the interest as “freedom
from incarceration”). Second, the Majority’s characterization treats 48 hours in jail
as a mere delay or “diminishment” of the benefit of being released, instead of the
deprivation of liberty it surely is.4
In my view, an incarcerated person suffers a complete deprivation of liberty
within the meaning of Rodriguez, whether their jail time lasts two days or two
years. Certainly the Rodriguez Court had no problem concluding there was an
3 The requirement to have a bond hearing within 48 hours is properly considered in determining whether the Standing Bail Order survives scrutiny. However, the Majority relies on the 48-hour time period in deciding whether there was a deprivation in the first place. This approach locks in the Majority’s ultimate holding—that a bail system in which indigents get a hearing within 48 hours survives all systemic due process challenges. Maj. Op. at 37–39.
4 The Majority contends I do not “grapple meaningfully with Rainwater’s explicit approval of bail schedules.” Maj. Op. at 24 n.9. But Rainwater did not approve of bail schedules being used in the way Calhoun’s Standing Bail Order works. Rainwater said, “Utilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” 572 F.2d at 1057. The Majority Opinion emphasizes the first sentence but is blind to what the second sentence plainly says. Calhoun’s Standing Bail Order jails those who cannot pay bail for up to two days before it provides any alternative. The Majority does not appear to believe these two days of incarceration qualify as incarceration, as that term was used by the Court in Rainwater.
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“absolute deprivation” of liberty in Williams and Tate because the challenged state laws “subjected indigents to incarceration simply because of their inability to pay a fine.” Rodriguez, 411 U.S. at 20–22, 93 S. Ct. at 1290. Rainwater also described pretrial confinement as a “deprivation of liberty.” 572 F.2d at 1056. Neither Rodriguez nor Rainwater qualified how long the confinement had to last before it became a deprivation of liberty. See Rodriguez, 411 U.S. at 20–22, 93 S. Ct. at 1290; Rainwater, 572 F.2d at 1056. More recently, the Supreme Court reaffirmed that “[a]ny amount of actual jail time is significant and has exceptionally severe consequences for the incarcerated individual and for society which bears the direct and indirect costs of incarceration.” Rosales-Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897, 1907 (2018) (citation and quotation omitted). And since Rainwater eliminated any distinction between a post-conviction and pre-conviction detention, the precedent that binds us tells us that two days in jail is a deprivation of liberty, whether it happens before or after a person has been convicted. See ODonnell, 892 F.3d at 162 n.6 (“[T]his court in Rainwater concluded that the distinction between post-conviction detention targeting indigents and pretrial detention targeting indigents is one without a difference.”).
I am not alone in this view. In addressing a challenge to the bail policies of Harris County, Texas, the Fifth Circuit looked to Rodriguez in holding that
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“indigent misdemeanor arrestees are unable to pay secured bail, and, as a result,
sustain an absolute deprivation of their most basic liberty interests—freedom from
incarceration.” ODonnell, 892 F.3d at 162. The Fifth Circuit thus held that “[h]eightened scrutiny of the County’s [bail] policy is appropriate.” 5 Id. The
Majority Opinion says this case is “factually distinct” from ODonnell. For
support, it looks to the District Court’s findings about Harris County’s written bail
policies as they existed before the injunction was issued. See Maj. Op. at 27 n.10.
Texas law required individualized assessments in determining bail. ODonnell, 892
F.3d at 153. But the Texas District Judge found Harris County failed to live up to
this law because: “County officials impose[d] the scheduled bail amounts on a
secured basis about 90 percent of the time,” and its officers “were aware that, by
imposing a secured bail on indigent arrestees, they were ensuring that those
arrestees would remain detained.” See id. at 153–54. In Calhoun, Georgia, the
Standing Bail Order sets a secured bail amount for all arrestees, with no
5 ODonnell interpreted Rainwater as I do—that is, extending Williams and Tate to the pretrial context and holding that pretrial detention of indigents solely because of their indigency is a deprivation of liberty and is subject to heightened scrutiny. ODonnell, 892 F.3d at 162 & n.6. The Majority’s contrary interpretation of Rainwater, Maj. Op. at 24–25, thus draws this Court into a circuit split with the Fifth Circuit, based on interpretation of a case that is binding precedent for both courts. Although our Court is not bound to follow the decisions of the Fifth Circuit, we have observed that its interpretation of former Fifth Circuit precedent is entitled to “great weight.” See AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 n.13 (11th Cir. 1986) (noting that a post-split Fifth Circuit decision was “entitled to great weight because it [was] based on cases of the former Fifth Circuit that are binding precedent in this circuit”).
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individualized assessment. And by creating a requirement for a determination of indigency within 48 hours, it implicitly acknowledges that people who are unable to pay for release will be detained under this system. Thus, the only difference between Harris County’s system, as described by the Texas District Judge, and Calhoun’s system, is that the Texas system allowed indigents to be detained for longer than 48 hours. See id. at 154 (noting arrestees “must wait days for their hearings”). Under our precedent, I do not view this factual difference as meaningful.
It seems unremarkable to say that being jailed for 48 hours is more than a mere inconvenience. There are very real consequences for detained indigents. They can lose their jobs. They can lose their homes and transportation. Their family connections can be disrupted. And all this is to say nothing of the emotional and psychological toll a prison stay can have on an indigent person and her family members. See Nick Pinto, The Bail Trap, N.Y. Times Mag. (Aug. 13, 2015), https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html (“‘Most of our clients are people who have crawled their way up from poverty or are in the throes of poverty,’ [Scott] Hechinger says. ‘Our clients work in service-level positions where if you’re gone for a day, you lose your job. People in need of caretaking—the elderly, the young—are left without caretakers. People who live
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in shelters, where if they miss their curfews, they lose their housing. Folks with immigration concerns are quicker to be put on the immigration radar. So when our clients have bail set, they suffer on the inside, they worry about what’s happening on the outside, and when they get out, they come back to a world that’s more difficult than the already difficult situation that they were in before.’”); see also Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 863 (1975) (“Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.”). And these consequences can be just as dire for a two-day jail stay as for a longer one. See Juleyka Lantigua-Williams, Why Poor, Low-Level Offenders Often Plead to Worse Crimes, The Atlantic (July 24, 2016), https://www.theatlantic.com/politics/archive/2016/07/why-pretrial-jail-can-meanpleading-to-worse-crimes/491975/ (“[S]ome of the most damaging effects of pretrial detention can happen really quickly within the first few days or a week. If you lose your job, if you lose your apartment, if you need to find somebody else to take care of your kids, at that point the cost of future incarceration might not be so high . . . [so] [i]t reduces incentive to fight against a plea deal that involves another six months of jail.” (interview with Megan Stevenson)); Samuel R. Wiseman, Pretrial Detention and the Right to be Monitored, 123 Yale L.J. 1344, 1356–57 (2014).
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I am puzzled by the Majority’s conclusion that detained indigents are somehow better off than their free and wealthy counterparts. Maj. Op. at 27. It is true that a person with money will be out-of-pocket whatever funds they paid as bond. But these wealthier bond payers have a choice: they can pay the bond or not. The poor have no choice. I simply reject the idea that people who have the ability to pay bond decide to keep it and go to jail to gain some sort of financial advantage.
Neither do I view the Bearden Court’s single quotation from Justice Harlan’s concurrence in Williams sufficient to support the Majority’s embrace of the due process framework approved of in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). See Maj. Op. at 34–36. First, Bearden began with a reminder that the Supreme Court had “long been sensitive to the treatment of indigents in our criminal justice system.” 461 U.S. at 664, 103 S. Ct. at 2068. And the Bearden Court ultimately reversed rulings of Georgia courts that had resulted in the jailing of a probationer who failed to pay his court ordered fines. Id. at 674, 103 S. Ct. at 2074.
Second, while the Court did reference Justice Harlan’s view that a “due process approach more accurately captures the competing concerns” in this type of analysis, it made clear that cases implicating both due process and equal protection
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concerns “cannot be resolved by resort to easy slogans or pigeonhole analysis” and require a context-specific inquiry. See id. at 666–67, 103 S. Ct. at 2069. If it appears the Bearden Court focused on due process principles as opposed to equal protection, that’s because the particular case before it—challenging the State’s failure to consider an indigent probationer’s reasons for nonpayment of fines and restitution at a probation revocation hearing—rested more naturally on due process concerns than equal protection. Id. at 666 n.8, 103 S. Ct. at 2069 n.8. The Court reasoned that, “in setting or resetting a sentence,” “a defendant’s level of financial resources is a point on a spectrum,” making indigency “a relative term rather than a classification” in that context. Id. However, the Court also explained that “whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants [is analyzed] under the Equal Protection Clause.” Id. at 665, 103 S. Ct. at 2069. Under Calhoun’s Standing Bail Order, bail is established by a predetermined schedule without consideration of the arrestee’s financial resources. Thus, Calhoun does not treat indigency as a “relative term.” Instead, as set out above, only indigents are detained under the Bail Order, because people with money simply pay the preset amount and go home. This means, like with the statute in Williams, the Standing Bail Order “in operative effect exposes only indigents to the risk of imprisonment” and “visit[s]
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different consequences on two categories of persons.” Williams, 399 U.S. at 242,
90 S. Ct. at 2023. This case, therefore, like “[m]ost decisions in this area,” is
properly analyzed under the equal protection framework. See Bearden, 461 U.S. at
665, 103 S. Ct. at 2068–69.
In light of Supreme Court precedent, our sister circuit’s agreement that
Rainwater requires application of heightened scrutiny under the Equal Protection
Clause to claims like Mr. Walker’s, and the significant consequences stemming
from incarceration, the Justice Harlan quote is simply not enough to support the Majority’s due-process-only approach.6
I also reject the Majority’s concern that a flood of litigation will result from
treating wealth “like race, sex, or religion” as a reason not to apply heightened
scrutiny. Maj. Op. at 27–28. First, there will be no flood. The Supreme Court has
already placed limits on bringing equal protection challenges to wealth-based
classifications. Beyond the requirements set out in Rodriguez discussed above, the
6 However, I do not read the Majority Opinion to reject heightened scrutiny for all cases challenging indigency-based jail stays. The outcome of the Majority decision relies entirely on the idea that 48 hours in jail is not an “absolute deprivation” of liberty. See Maj. Op. at 27. The Majority Opinion also explains that it believes ODonnell to be a different case from this one, because Harris County’s practices resulted in longer jail stays despite already-in-place requirements for individualized assessments in determining bail. See Maj. Op. at 27 n.10 & 39 n.12. Thus, even under the Majority’s view, challenges to indigency-based jail stays warrant heightened scrutiny so long as they show that the challenged system, in practice, results in indigents being detained longer than 48 hours. Thus, if Calhoun cannot live up to the procedural safeguards it promises in the Standing Bail Order and detains indigents longer than 48 hours, Mr. Walker will be able to revive his equal protection challenge under a heightened scrutiny review.
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Supreme Court has also said that “fee requirements ordinarily are examined only
for rationality,” except when they implicate the “basic right to participate in
political processes as voters and candidates” and “access to judicial processes in
cases criminal or quasi criminal in nature.” M.L.B., 519 U.S. at 123–24, 117 S. Ct. at 567 (quotation omitted).7 Thus, Mr. Walker’s claim falls into quite a narrow
exception, and recognizing it as such does not portend striking down tuition fees or
express service at the local post office. This Court and the Fifth Circuit have
survived over the forty years since Rainwater was decided without being flooded
with litigation raising wealth-based discrimination claims. And we are only called
upon here to make explicit what was already implicit in Rainwater—namely that
pretrial detention based solely on indigency is subject to heightened scrutiny.
Second, even if our workload increased a bit, “the constitutional imperatives of the
Equal Protection Clause must have priority over the comfortable convenience of
7 The Majority asks how Mr. Walker’s claim fits into M.L.B.’s narrow exception for cases concerning access to judicial processes. Maj. Op. at 32–33. Again, M.L.B. explicitly answers this question. The Court explained that its “decisions concerning access to judicial processes,” including Bearden and its progeny, “reflect both equal protection and due process concerns.” M.L.B., 519 U.S. at 120, 117 S. Ct. at 566. “The equal protection concern relates to the legitimacy of fencing out [individuals] based solely on their inability to pay core costs.” Id. Or said yet another way, “‘[e]qual protection’ emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 2443 (1974). I have already explained how the Standing Bail Order discriminates against indigents, and the Majority has not disputed that. Thus, this case plainly falls into the category of cases concerning access to judicial processes. See M.L.B., 519 U.S. at 120, 117 S. Ct. at 566.
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the status quo.” Williams, 399 U.S. at 245, 90 S. Ct. at 2024. I believe the courts
are up to the task.
In sum, I read Rodriguez (and Bearden for that matter) to require that Mr.
Walker’s claim of wealth-based discrimination be subject to heightened scrutiny
under a traditional equal protection framework. Thus, I would have affirmed the District Court’s analysis.8
II.
In applying heightened scrutiny to Mr. Walker’s claim, I recognize that the
Supreme Court has not made clear whether the level of scrutiny to be applied in
Bearden-like cases is intermediate or strict scrutiny. See, e.g., M.L.B., 519 U.S. at
120–21, 123–24, 117 S. Ct. at 566, 567–68 (acknowledging that “[a] precise
rationale has not been composed” and rejecting review “for rationality” in criminal
or quasi criminal cases “concerning access to judicial processes”). Rainwater is
similarly unclear, though its discussion of “vital” and “compelling” interests and
the need to “delicate[ly] balance[e]” them, seems to me to point toward strict
8 Mr. Walker alternatively challenged the Standing Bail Order under a substantive due process theory, arguing there is a fundamental right to pretrial liberty. See United States v. Salerno, 481 U.S. 739, 749–50, 107 S. Ct. 2095, 2102–03 (1987) (affirming the individual’s “strong interest in liberty,” the State’s “sufficiently weighty” interest in preventing crime, and the “‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial” absent “special circumstances”). Because I would affirm the District Court’s application of heightened scrutiny under the traditional equal protection analysis, I do not address the substantive due process theory.
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scrutiny. See Rainwater, 572 F.2d at 1056. Nevertheless, it is my view that on this
record, the City’s Standing Bail Order cannot survive even under intermediate
scrutiny. The City failed to show that a 48-hour detention of only those who
cannot afford to pay bond is “reasonably necessary to the accomplishment of
legitimate state objectives.” See Bullock v. Carter, 405 U.S. 134, 144, 92 S. Ct.
849, 856 (1972).9
The City of Calhoun says it has the same interest that was identified in
Rainwater. That is the “compelling interest in assuring the presence at trial of
persons charged with crime.” Rainwater, 572 F.2d at 1056. But the City never
explains why or how a 48-hour detention period is “reasonably necessary” to
accomplish this interest. After the 48 hours, everyone who was arrested, but could
9 Over the years, the Supreme Court has given us many formulations of “intermediate scrutiny.” For example, “[a] gender classification fails unless it is substantially related to a sufficiently important governmental interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441, 105 S. Ct. 3249, 3255 (1985). But classifications based on a person’s legitimacy, which is of course beyond that person’s control, “will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest.” Id. (quotation omitted). In Bullock, the Supreme Court subjected Texas’s filing-fee requirement for primary candidates to get on a ballot to “close[] scrutin[y]” and invalidated it as a “denial of equal protection of the laws.” Bullock, 405 U.S. at 144, 149, 92 S. Ct. at 856, 859. In applying heightened scrutiny to this wealth-based discrimination, the Court sought to determine whether the “filing-fee scheme” was “reasonably necessary to the accomplishment of legitimate state objectives.” Id. at 144, 92 S. Ct. at 856; see also Rodriguez, 411 U.S. at 22, 93 S. Ct. at 1290–91 (including Bullock in a list of cases in which the Court invalidated impermissible wealth-based classifications on equal protection grounds). Because M.L.B. also cited to Bullock in discussing the other exception to the rule that “fee requirements are ordinarily examined for rationality,” M.L.B., 519 U.S. at 124 n.14, 117 S. Ct. at 568 n.14, this seems to me to be the most analogous case explicitly setting out the kind of tailoring required between the competing interests. Thus, I use its standard.
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not make bond, is released on personal recognizance bonds (their promises to appear), whether they get a hearing or not. The obvious question comes to mind: if every indigent’s promise to appear is enough to assure his presence at trial after 48 hours passes, why is 48 hours necessary to determine indigency and execute a personal recognizance bond? Wouldn’t 47 work just as well? Forty, perhaps?
The City makes no effort to justify its policy of detaining those who cannot pay for 48 hours, because it says it doesn’t need to. It argues only that capping detentions at 48 hours is “sufficient to immunize the City from a challenge to its process for a determination of indigency.” In making this argument, the City relies on two cases: Gerstein, 420 U.S. 103, 95 S. Ct. 854, and its sequel, County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661 (1991). In Gerstein, the Supreme Court held that “the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to [pretrial] detention.” 420 U.S. at 126, 95 S. Ct. at 869. The opinion defined “timely” as “before or promptly after arrest.” Id. at 125, 95 S. Ct. at 869. Later, in McLaughlin, the Court said “Gerstein struck a balance between competing interests” by requiring a “prompt— not immediate” probable cause determination. McLaughlin, 500 U.S. at 54–55, 111 S. Ct. at 1669. Acknowledging the “everyday problems of processing suspects through an overly burdened criminal justice system,” the Supreme Court said that
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“judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement.” Id. at 55–56, 111 S. Ct. at 1669–70.
According to the City, “this case is to Rainwater what McLaughlin was to Gerstein.” But there are two problems with this argument. First, McLaughlin said hearings “delayed unreasonably” can still violate Gerstein, for example, when the “delay [is] for delay’s sake.” McLaughlin, 500 U.S. at 56, 111 S. Ct. at 1670. Here, the City has given no reason to justify the 48-hour detention period under the Standing Bail Order (not even an argument citing “everyday problems of processing suspects,” see id. at 55, 111 S. Ct. at 1669). As best I can tell, the City is thus asking for 48 hours of “delay for delay’s sake,” which is precisely what McLaughlin forbade.
Second, McLaughlin decided when a probable cause hearing is required by the Fourth Amendment. 500 U.S. at 47, 111 S. Ct. at 1665. Again, this case involves both equal protection and due process concerns. And while a hearing within 48 hours could satisfy the due process concerns, it does not necessarily satisfy the demands of equal protection. For example, consider a bail policy that releases all arrestees after booking, except for female, black, or Catholic arrestees. Those arrestees are detained for 48 hours, given a hearing, and then released.
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Under the City’s theory, McLaughlin immunizes this policy from any challenge
merely because, after all, the female, black, and Catholic arrestees get a hearing
within 48 hours. This is plainly wrong. Equal protection principles require us to
inquire of the City why it needs to treat female, black, and Catholic arrestees
differently from all others and then to examine whether the given reason is
sufficiently tailored to accomplish the City’s legitimate or compelling objective.
So the same goes for wealth-based classifications in the criminal justice system.
The City should have been required to explain why it is “reasonably necessary” to
treat poor people differently from all others by keeping them in jail for 48 hours.
Since Calhoun offered no reason during this appeal, let alone a “legitimate” one,
the Standing Bail Order cannot survive constitutional scrutiny. See Bullock, 405 U.S. at 144, 92 S. Ct. at 856.10
Finally, my view of McLaughlin and the interests at stake is not contrary to
ODonnell. While the Fifth Circuit relied in part on McLaughlin to hold that “the
federal due process right entitles detainees to a hearing within 48 hours,” it did not
10 At oral argument, the City did offer one justification for its 48-hour detention policy: “to get the players to the game”—meaning to get the City’s only municipal judge to the municipal court so she can hold a hearing. Nevertheless, this Court’s longstanding rule is that arguments not briefed to the court and raised for the first time at oral argument are deemed abandoned. See Mesa Air Grp., Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1130–31 (11th Cir. 2009) (refusing to consider the merits of an argument made only at oral argument but not in briefs). This rule seems especially appropriate here, in light of the City’s position in its briefs that it did not need to justify its policy.
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grant immunity from systemic challenges to Harris County like the immunity sought by Calhoun here. See ODonnell, 892 F.3d at 160. Instead, the Fifth Circuit determined that, in light of the evidentiary record, the District Court’s injunction mandating a bail hearing within 24 hours was “too strict” and so extended the time for the hearing to 48 hours. Id. at 160–61 (noting the “heavy administrative burden” on the County as shown by the finding that “20% of detainees do not receive a probable cause hearing within 24 hours despite [a] statutory requirement”). Because Calhoun here offered no justification for its 48-hour period, I would have affirmed the preliminary injunction entered by Judge Murphy in the District Court, as well the 24-hour release requirement he imposed. On remand, the City would have had the opportunity to develop an evidentiary record and make the showing necessary to survive heightened scrutiny.
It seems worthy of mention that the Fifth Circuit’s modified injunction in ODonnell is remarkably similar to what the District Court ordered in this case. The modified injunction required, within 24 hours, a determination of indigency based on affidavits, for those who could not pay the prescheduled bail amounts in a process overseen by “Pretrial Services officers”; release based on an “unsecured personal bond with nonfinancial conditions of release” or “on a secured money bond for which the defendant could pay a commercial surety’s premium”; and for
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those who are not so released, “a hearing within 48 hours of arrest.” Id. at 164–65. This system provided “meaningful consideration of other possible alternatives” concurrently with the utilization of a master bail schedule, as opposed to 48 hours later, and the County justified its need for 48 hours as opposed to 24. For that reason, I believe the Fifth Circuit’s modified injunction appropriately addresses both the equal protection and due process concerns. See Rainwater, 572 F.2d at 1055–56 & n.2, 1058 (mooting a challenge to Florida Supreme Court’s new rule, which subjected indigent and non-indigent arrestees alike to a first appearance hearing where a judge would select from six different kinds of release, including personal recognizance bonds, unsecured bonds, and secured bonds, because the rule did not “suffer such infirmity that its constitutional application is precluded”); see also Bearden, 461 U.S. at 672, 103 S. Ct. at 2073 (requiring courts to consider a probationer’s reasons for failures to pay a fine or restitution and, for those without means to pay, consider “alternate measures of punishment other than imprisonment” before imposing jail time). Nevertheless, the Majority has established that in this Circuit, only due process interests are at stake; only a hearing is necessary; and the hearing must be held within 48 hours.
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III. I believe Mr. Walker has shown a substantial likelihood of success on the merits. See Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). I also believe Mr. Walker can show the other three requirements for getting a preliminary injunction: Jail time is an “irreparable injury” because “it cannot be undone through monetary remedies.” See Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987). And because the City gave no justification for its policy of detaining indigents for 48 hours, the harm to the plaintiff class clearly outweighs any harm to the City. Last, in light of studies showing how bail policies like the City’s contribute to systemic injustices in the criminal justice system and harm poor communities, see, e.g., Brief for Am. Bar Ass’n at 6–21 as Amicus Curiae Supporting Appellee, Walker v. City of Calhoun (No. 17-13139), the public interest clearly weighs in favor of the injunction. In my view, the District Court did not abuse its considerable discretion in granting Mr. Walker’s motion for a preliminary injunction. See Palmer, 287 F.3d at 1329. Finally, to the extent the City challenges the scope of the District Court’s injunction, I would also find no abuse of discretion. See Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S. Ct. 1267, 1276 (1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable
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powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”).
CONCLUSION I read Supreme Court precedent and Rainwater to require a traditional equal protection analysis of the City of Calhoun’s Standing Bail Order, applying heightened scrutiny review. On the record before us, I would have upheld the District Court’s grant of a preliminary injunction to Mr. Walker. I recognize that the City has not yet had a chance to develop an evidentiary record about its need for a 48-hour detention policy for indigents only. For that reason, I would have allowed the City an opportunity to develop that record on remand and seek a different result when this case is considered on the merits.
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 Case 4:15-cv-00170-SCJ Document 132 Filed 11/18/19 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

MAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

Plaintiff,

)

)

v.

)

)

CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:15-CV-170-HLM

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT

The parties jointly move the Court for approval and adoption of a class

action settlement agreement resolving all injunctive claims in this case. For the

reasons discussed in the attached brief in support of this motion, the parties request

that the Court order: (a) preliminary approval of the Class Action Settlement

Agreement attached hereto as Exhibit A; (b) approval of a process for giving notice

to the class; (c) scheduling of a final fairness hearing; and (d) following the final

fairness hearing, final approval of the Class Action Settlement Agreement.

Case 4:15-cv-00170-SCJ Document 132 Filed 11/18/19 Page 2 of 5
CONCLUSION
The Court should (a) preliminarily approve the Class Action Settlement
Agreement; (b) approve the proposed method of giving notice to the class; (c)
schedule a final fairness hearing; and (d) following the fairness hearing, finally
certify the settlement class, finally approve the settlement agreement, and adopt the
settlement agreement by incorporation as the order of the Court.
Respectfully submitted,
/s/ Ryan Primerano Sarah Geraghty Ga. Bar No. 291393 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar Street, NW Atlanta, GA 30303 (404) 688-1202 (404) 688-9440 (fax) sgeraghty@schr.org
Alec Karakatsanis D.C. Bar No. 999294 CIVIL RIGHTS CORPS 910 Seventeenth Street, NW Fifth Floor Washington, DC 20006 (202) 681-2409 alec@civilrightscorps.org
Counsel for Plaintiff
2

Case 4:15-cv-00170-SCJ Document 132 Filed 11/18/19 Page 3 of 5

November 18, 2019

Abby C. Grozine Ga. Bar No. 542723 David F. Root Ga. Bar No. 614125 CARLOCK, STAIR, KINGMA & LOVELL, LLP 191 Peachtree Street, NE Suite 3600 Atlanta, GA 30303 (404) 522-8220 (404) 523-2345 (fax) agrozine@carlockcopeland.com
J. Anderson Davis Ga. Bar No. 211077 A. Franklin Beacham III Ga. Bar No. 043743 Samuel L. Lucas Ga. Bar No. 142305 BRINSON, ASKEW, BERRY, SEIGLER, RICHARDSON & DAVIS, LLP P.O. Box 5007 Rome, GA 30162 (706) 291-8853 (706) 234-3574 (fax) adavis@brinson-askew.com
George C. Govignon Ga. Bar No. 303290 GOVIGNON LAW OFFICE 109 North Wall Street Calhoun, GA 30701 (706) 629-7070 govignonlawoffice@gmail.com
Counsel for Defendant
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CERTIFICATE OF COMPLIANCE I certify that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.

November 18, 2019

/s/ Ryan Primerano

Case 4:15-cv-00170-SCJ Document 132 Filed 11/18/19 Page 5 of 5

CERTIFICATE OF SERVICE I certify that I electronically filed the foregoing using the CM/ECF system, which will send notification of filing to all counsel of record.

November 18, 2019

/s/ Ryan Primerano

Case 4:15-cv-00170-SCJ Document 132-1 Filed 11/18/19 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

MAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

Plaintiff,

)

)

v.

)

)

CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:15-CV-170-HLM

BRIEF IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT
The parties jointly move the Court for approval and adoption of a class

action settlement agreement resolving all injunctive claims in this case. For the

reasons discussed below, the parties request that the Court order: (a) preliminary

approval of the Class Action Settlement Agreement attached hereto as Exhibit A;

(b) approval of a process for giving notice to the class; (c) scheduling of a final

fairness hearing; and (d) following the final fairness hearing, final approval of the

Class Action Settlement Agreement.

Case 4:15-cv-00170-SCJ Document 132-1 Filed 11/18/19 Page 2 of 20
BACKGROUND A. Procedural History On September 8, 2015, Plaintiff Maurice Walker filed this class action challenging the City of Calhoun’s post-arrest bail policy. (Doc. 1 ¶¶ 1-2.) Under the policy in effect at the time of filing, people arrested by the City for alleged misdemeanors and ordinance violations waited in jail up to seven days for a court hearing, and sometimes longer, unless they could deposit cash bail equal to the ultimate fine for their charges. (Doc. 1 ¶¶ 16-23.) As a result, Maurice Walker spent six nights in jail because he could not pay $160, which was the fine amount and the bail amount that the City charged for Walker’s alleged offense of being a “pedestrian under the influence.” (Doc. 1 ¶¶ 10-11.) Upon filing this action, Walker moved for a preliminary injunction against the City’s bail policy. (Doc. 4; Doc. 7.) He argued that the policy violated the principle against wealth-based detention established in cases such as Bearden v. Georgia, 461 U.S. 660, 672-73 (1983), Tate v. Short, 401 U.S. 395, 398 (1971), Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc), and Frazier v. Jordan, 457 F.2d 726, 728-29 (5th Cir. 1972). (See Doc. 7 at 6-15; Doc. 34 at 7-11 & nn.8-9.) After Walker filed his motion, the City’s municipal judge modified the City’s bail policy by providing for, among other things, an indigency hearing
2

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within 48 hours of arrest. (Doc. 29 at 3-4.) On January 28, 2016, the Court entered a 74-page order granting a
preliminary injunction. (Doc. 40.) In a separate order, the Court certified a class consisting of “[a]ll arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation.” (Doc. 41 at 43.)
The City took an interlocutory appeal, and the Eleventh Circuit vacated the injunction order because its operative text failed to meet the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure. Walker v. City of Calhoun, 682 F. App’x 721, 724-25 (11th Cir. 2017).
On remand from the first appeal, the Court entered a revised preliminary injunction with more specific language (Doc. 68). The Court reaffirmed and incorporated the reasoning of its first injunction order (Doc. 68 at 11) and entered an order requiring the City to use an affidavit procedure instead of judicial proceedings to determine indigency, and to make the indigency determination within 24 hours of arrest (Doc. 68 at 22-29). The City took a second interlocutory appeal, and the Eleventh Circuit vacated the injunction on August 22, 2018. Walker v. City of Calhoun, 901 F.3d 1245, 1272 (11th Cir. 2018). The Eleventh Circuit held that “the district court was correct to apply the Bearden/Rainwater
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style of analysis” to Walker’s claims. Id. at 1265. However, it held that the City’s revised policy was constitutional because it provided for an indigency hearing within 48 hours of arrest. Id. at 1272. With respect to the City’s original bail policy, the Eleventh Circuit held that this Court “did not err in declaring the original bail policy to be unconstitutional, and it accordingly may enjoin the City’s future use of that policy.” Id. at 1271.
B. Class Settlement On remand, the parties engaged in good-faith, arm’s length negotiations in an effort to resolve the claims of Walker and the class members without the need for extensive discovery and litigation. To that end, Walker filed an unopposed motion to refer the case to a mediator (Doc. 123; Doc. 128), which the Court granted (Doc. 129). A mediation and settlement conference was set for October 21, 2019 (Doc. 130 at 1), but the parties reached a settlement of all claims in this case prior to the mediation date (see Doc. 131 at 1-2). Under the attached Class Action Settlement Agreement (Ex. A), the City agrees to three substantive policies for the benefit of the class members. First, the City will not return to the bail policies or procedures that were in effect when Plaintiff Maurice Walker was arrested in September 2015.
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Second, the City will provide a copy of the 2019 Standing Bail Order to the Gordon County Sheriff’s Office to ensure that no arrestee under the jurisdiction of the City of Calhoun Municipal Court will be held in jail after arrest pursuant to a secured monetary bond solely because the arrestee cannot afford to pay the bond amount, except for a reasonable amount of time, not to exceed 48 hours, needed to process the arrestee and bring her or him before a neutral decision maker for a hearing on the arrestee’s indigence and alternative release provisions.
Third, the City will incorporate into a resolution for reappointment of the current municipal court judge, and all future municipal judges, a provision requiring that the 2019 Standing Bail Order is followed as the policy of the Calhoun Municipal Court.
By an agreement that was negotiated separately from the Class Action Settlement Agreement, the City agrees to monetary payment to Maurice Walker to resolve his individual damages claims, and an agreed upon award of attorney’s fees for Walker’s counsel.
ARGUMENT The parties request that the Court order: (a) preliminary approval of the Class Action Settlement Agreement on behalf of the certified class; (b) approval of a process for giving notice to the class; (c) scheduling of a final fairness hearing;
5

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and (d) following the final fairness hearing, final approval of the Class Action Settlement Agreement. I. PLAINTIFFS SATISFY THE REQUIREMENTS FOR CLASS
CERTIFICATION UNDER RULE 23. The Court previously certified a class defined as “All arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation.” (Doc. 41 at 43.) For the reasons discussed in the Court’s Order granting class certification, the certified class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure, and Maurice Walker and his counsel are adequate representatives of the class. (Doc. 41 at 20-42.) II. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT AGREEMENT. Under Rule 23(e), the claims of a class “may be settled, voluntarily dismissed, or compromised only with the court's approval.” Fed. R. Civ. P. 23(e). To approve a class settlement, a court must find “that it is fair, reasonable, and adequate” in light of the adequacy of the representation of the class, the manner in which the settlement was negotiated, the adequacy of the relief provided to the class under the agreement, and the fairness of treatment of the class members relative to each other. Fed. R. Civ. P. 23(e)(2). “Determining the fairness of the
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settlement is left to the sound discretion of the trial court.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).
A. The Class Representative and Class Counsel Have Adequately Represented the Class and Negotiated a Proposed Settlement at Arm’s Length and With Sufficient Information to Reach an Effective Settlement.
Rule 23 requires the Court to consider whether “the class representatives and class counsel have adequately represented the class,” Fed. R. Civ. P. 23(e)(2)(A), and whether “the proposal was negotiated at arm’s length,” Fed. R. Civ. P. 23(e)(2)(B). These requirements speak to “‘procedural’ concerns, looking to the conduct of the litigation and of the negotiations leading up to the proposed settlement.” Fed. R. Civ. P. 23 Advisory Comm.’s Note, 2018 amend. The focus should be “on the actual performance of counsel acting on behalf of the class,” including whether class counsel “had an adequate information base” and whether negotiations “were conducted in a manner that would protect and further the class interests.” Id.; see Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005) (“The stage of the proceedings at which a settlement is achieved is evaluated to ensure that Plaintiffs had access to sufficient information to adequately evaluate the merits of the case and weigh the benefits of settlement against further litigation.”).
Here, the parties’ settlement agreement is the product of arm’s-length, 7

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adversarial negotiations between experienced and knowledgeable counsel who have prosecuted and defended this litigation for over four years. The agreement was approved by the class representative, Maurice Walker, based solely on what he perceived to be in the best interest of himself and the absent class members. The process by which the settlement agreement was reached was therefore fair to the class members and free of collusion between the parties. See, e.g., Poertner v. Gillette Co., 618 F. App’x 624, 630 (11th Cir. 2015) (affirming approval of classwide settlement agreement where “the parties settled only after engaging in extensive arms-length negotiations”). In addition, the parties negotiated relief for the class separately from attorney’s fees and Walker’s damages claims, thereby avoiding a conflict of interest.
Before settling the case, the parties did not engage in extensive discovery. However, Walker’s counsel obtained reliable information about the challenged policy through public records requests and other sources, and the material terms of the challenged policy have never been in dispute. Therefore, Walker and his counsel were well positioned to negotiate effective relief on behalf of the class despite limited formal discovery.
B. The Relief Provided for the Class Is Fair and Adequate. The settlement agreement provides adequate substantive relief for the class
8

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members and treats class members equitably. See Fed. R. Civ. P. 23(e)(2)(C)–(D). Factors that must be considered in determining the substantive adequacy of relief include:
(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3). Fed. R. Civ. P. 23(e)(2)(C) (effective Dec. 1, 2018). In addition to the factors enumerated above, decisions under previous versions of Rule 23 require courts to consider “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the anticipated complexity, expense, and duration of litigation; (5) the opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1240 (11th Cir. 2011); see also Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429, 434 (11th Cir. 2012). The relevant factors are discussed below.
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1. Likelihood of success at trial, and associated costs and delay
Maurice Walker claims that the City violated his and the class members’ rights under the United States Constitution by following a policy of detaining indigent arrestees for up to a week, sometimes longer, solely because they could not afford to pay the amounts set by the City’s bail schedule. This Court previously found that “[t]he bail policy under which [Walker] was arrested clearly is unconstitutional” (Doc. 40 at 56), and the Eleventh Circuit did not disturb that conclusion. See Walker v. City of Calhoun, 901 F.3d 1245, 1271 (11th Cir. 2018) (“The district court therefore did not err in declaring the original bail policy to be unconstitutional.”). Walker accordingly has a significant likelihood of success at trial.
On the other hand, the City has raised procedural objections to the Court’s ability to enter prospective relief (Doc. 117 at 8-18) and moved to decertify the class (Doc. 118). Although Walker and his counsel disagree with the City’s arguments (see Doc. 121; Doc. 122), they acknowledge that the process of obtaining rulings on the City’s defenses, as well as the possibility of further appeals from any ruling granting or denying injunctive relief, creates some uncertainty about the ultimate outcome of the case and risks significant delay and expense before a trial on the merits can occur.
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Before a trial could occur in this case, the parties and the Court would need to continue litigating pending motions, complete discovery, address any motions for summary judgment submitted, and litigate numerous pretrial matters. The cost of further litigation would be considerable in terms of time and funds expended.
2. Range of possible recovery “In determining whether a settlement is fair and reasonable, the court must also examine the range of possible damages that plaintiffs could recover at trial and combine this with an analysis of plaintiffs’ likely success at trial to determine if the settlements fall within the range of fair recoveries.” Columbus Drywall & Insulation Inc. v. Masco Corp., 258 F.R.D. 545, 559 (N.D. Ga. 2007). Here, if Walker established the City’s liability at trial, the City likely would be enjoined from reimplementing its original bail policy, and would be required to follow a constitutional policy. Given the Eleventh Circuit’s recent holding that the City’s Standing Bail Order is constitutional, Walker v. City of Calhoun, 901 F.3d 1245, 1272 (11th Cir. 2018), the prospective relief awarded after a trial on the merits likely would amount to an order for the City to follow its Standing Bail Order.
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The parties’ Class Action Settlement Agreement represents a negotiated compromise that provides similar relief to what would have been available following a trial on the merits. Under that agreement, the City will not reinstitute its original bail policy, and will take reasonable steps to adopt the 2019 Standing Bail Order as the City’s policy going forward. Given the uncertainties discussed in the preceding section, the parties submit that the proposed settlement is fair and well within the range of possible recovery at trial. See Ault v. Walt Disney World Co., 692 F.3d 1212, 1218 (11th Cir. 2012) (“If [defendant] prevails at trial, the class will be left with no remedy at all.”).
3. Complexity, expense, and duration of litigation As noted above, litigating this case would be expensive and time consuming. The parties anticipate that further litigation of this case would involve extensive adversarial proceedings and would require a substantial amount of time and effort by the parties as well as the Court. Cf. Melanie K. v. Horton, No. 1:14-CV-710-WSD, 2015 WL 1799808, at *3 (N.D. Ga. Apr. 15, 2015) (granting preliminary approval of settlement partly because “the Parties w[ould] be highly motivated to aggressively litigate this case if a settlement was not approved”). The discovery in this case would be time
12

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and resource intensive, with depositions of numerous witnesses, extensive document production and file review, and contested motions concerning claims of privilege and similar matters. Likewise, a trial on the merits would entail presentation of a significant number of records and witnesses. Approval of the parties’ agreement will avoid the time and expense of further litigation.
4. Anticipated opposition to settlement “In determining whether to certify a settlement class, a court must also examine the degree of opposition to the settlement.” Columbus Drywall, 258 F.R.D. at 560. Where “no notice has been provided to the class members, the Court cannot assess whether there are any objectors.” Id. For that reason, the parties request that the Court address this issue after the notices have been sent to the members of the Class. See id. The parties anticipate no opposition to the Class Action Settlement Agreement.
5. Effectiveness of proposed method of distributing relief Because the Class Action Settlement Agreement requires policy changes that will apply to the class as a whole, the “method of distributing relief to the class” will effectively benefit every member of the class.
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6. Terms of attorney’s fees award Rule 23 requires a district court to assess “the terms of any proposed award of attorney’s fees, including timing of payment.” Fed. R. Civ. P. 23(e)(2)(C)(iii). There are no “rigid limits” on attorney’s fees but “the relief actually delivered to the class can be a significant factor in determining the appropriate fee award.” Fed. R. Civ. P. 23 Advisory Comm.’s Note, 2018 amend. Here, the parties have agreed to an award of $30,000 in attorneys’ fees and costs for Walker’s counsel in lieu of a fee petition under 42 U.S.C. § 1988. This figure represents a fraction of the compensable attorney hours and costs expended by Walker’s counsel in this case and is well within the range of a reasonable fee award.
7. Agreements made in connection with the proposed settlement
Rule 23 requires the parties to file with the Court “a statement identifying any agreement made in connection with” a proposed class settlement. Fed. R. Civ. P. 23(e)(3). Here, the only agreement made in connection with the proposed settlement is the Class Action Settlement Agreement attached hereto as Exhibit A. The parties also negotiated and agreed to an individual damages award of $20,000 to resolve Maurice
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Walker’s individual claims for monetary damages, but the amount of damages award was negotiated separately from the terms of the Class Action Settlement Agreement and did not affect the substantive terms of that agreement.
C. The Proposed Settlement Treats Class Members Equitably Relative to Each Other.
As will be further shown at the fairness hearing, the proposed settlement “treats class members equitably relative to each other,” as is required by Rule 23(e)(2)(D) of the Federal Rules of Civil Procedure. The Class Action Settlement Agreement provides for policies and practices that apply equally to all class members, and thus clearly treats class members equitably relative to each other. III. THE PROPOSED METHOD OF NOTIFYING THE CLASS IS
ADEQUATE. The parties request that the Court approve the proposed notice to the class, attached hereto as Exhibit B, as it meets the requirements of Federal Rule of Civil Procedure 23(c)(2) and 23(e)(1). Due to the fluid nature of the class, personal notice of the agreement is not practicable. Therefore, the parties propose that notice be published for two weeks in the Rome News-Tribune and the Calhoun Times newspapers within 30 days of an order preliminarily approving the Class
15

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Action Settlement Agreement. The parties further propose additional notice by (a) posting copies of the notice in each area of the Gordon County Jail used to book and/or hold City of Calhoun arrestees for 30 days beginning on the date of the Court’s order preliminarily approving the Settlement Agreement; (b) mailing copies of the notice to all City of Calhoun arrestees incarcerated in the Gordon County Jail as of the date of the Court’s order preliminarily approving the Settlement Agreement; and (c) posting an electronic copy of the notice on the website of the Southern Center for Human Rights for 30 days beginning on the date of the Court’s order preliminarily approving the Settlement Agreement. IV. THE COURT SHOULD PRELIMINARILY APPROVE THE
SETTLEMENT, SCHEDULE A FINAL FAIRNESS HEARING, AND, AFTER THE HEARING, GRANT FINAL APPROVAL TO THE PROPOSED SETTLEMENT AGREEMENT. Lastly, the parties request that the Court enter the proposed order of preliminary approval of the class action settlement, attached hereto as Exhibit C. Among other things, the proposed order sets forth the process by which members of the settlement class may communicate any comments or objections to the Court. It also states that the Court will hold a final fairness hearing to determine whether the proposed settlement of the claims in this case is fair, reasonable, and adequate and should finally be approved by the Court.
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CONCLUSION
The Court should (a) preliminarily approve the Class Action Settlement
Agreement; (b) approve the proposed method of giving notice to the class; (c)
schedule a final fairness hearing; and (d) following the fairness hearing, finally
certify the settlement class, finally approve the settlement agreement, and adopt the
settlement agreement by incorporation as the order of the Court.
Respectfully submitted,
/s/ Ryan Primerano Sarah Geraghty Ga. Bar No. 291393 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar Street, NW Atlanta, GA 30303 (404) 688-1202 (404) 688-9440 (facsimile) sgeraghty@schr.org
Alec Karakatsanis D.C. Bar No. 999294 CIVIL RIGHTS CORPS 910 Seventeenth Street, NW Fifth Floor Washington, DC 20006 (202) 681-2409 alec@civilrightscorps.org
Counsel for Plaintiff
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November 18, 2019

Abby C. Grozine Ga. Bar No. 542723 David F. Root Ga. Bar No. 614125 CARLOCK, STAIR, KINGMA & LOVELL, LLP 191 Peachtree Street, NE Suite 3600 Atlanta, GA 30303 (404) 522-8220 (404) 523-2345 (fax) agrozine@carlockcopeland.com
J. Anderson Davis Ga. Bar No. 211077 A. Franklin Beacham III Ga. Bar No. 043743 Samuel L. Lucas Ga. Bar No. 142305 BRINSON, ASKEW, BERRY, SEIGLER, RICHARDSON & DAVIS, LLP P.O. Box 5007 Rome, GA 30162 (706) 291-8853 (706) 234-3574 (fax) adavis@brinson-askew.com
George C. Govignon Ga. Bar No. 303290 GOVIGNON LAW OFFICE 109 North Wall Street Calhoun, GA 30701 (706) 629-7070 govignonlawoffice@gmail.com
Counsel for Defendant
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CERTIFICATE OF COMPLIANCE I certify that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.

November 18, 2019

/s/ Ryan Primerano

Case 4:15-cv-00170-SCJ Document 132-1 Filed 11/18/19 Page 20 of 20

CERTIFICATE OF SERVICE I certify that I served the foregoing using the Court’s CM/ECF system, which will send notification of filing to all counsel of record.

November 18, 2019

/s/ Ryan Primerano

Case 4:15-cv-00170-SCJ Document 132-3 Filed 11/18/19 Page 1 of 7
EXHIBIT B

Case 4:15-cv-00170-SCJ Document 132-3 Filed 11/18/19 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

MAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

Plaintiff,

)

)

v.

)

)

CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:15-CV-170-HLM

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
READ THIS CAREFULLY: YOUR RIGHTS ARE AFFECTED BY THE SETTLEMENT REACHED IN THIS CLASS ACTION.

The United States District Court for the Northern District of Georgia is

considering whether to approve a Class Action Settlement Agreement reached in

Walker v. City of Calhoun, No. 4:15-CV-170-HLM, a case involving bail

procedures for people arrested for offenses prosecuted in the City of Calhoun

Municipal Court. The Settlement Agreement is on behalf of a class of all such

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

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

Case 4:15-cv-00170-SCJ Document 132-3 Filed 11/18/19 Page 3 of 7
offense, or ordinance violation. The Settlement Agreement, if approved, will affect the rights of the class members.
A copy of the Class Action Settlement Agreement is attached to this Notice. Additional copies can be obtained by contacting the Southern Center for Human Rights at the address or telephone number printed below. In short, under the Settlement Agreement, the City agrees to three substantive policies for the benefit of the class members:
1. The City will not return to the former bail policies or procedures that were in effect when named plaintiff Maurice Walker was arrested in September 2015. Under those policies or procedures, individuals arrested by the City of Calhoun for misdemeanors, traffic offenses, or ordinance violations were required to remain in custody until the next regularly scheduled session of the Municipal Court if they were not capable of otherwise posting a secured bail. In November 2015, the Judge of the Municipal Court for the City of Calhoun (“Municipal Court Judge”) adopted a procedure to address the inability of an individual detainee to obtain a release on secured bail due to indigence in a judicial proceeding to occur in no more than 48 hours from the time of custodial arrest. During the pendency of this
2

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litigation, the Municipal Court Judge suspended any form of a secured bail system provided for by state statute beginning on January 28, 2016, when the class was certified and the preliminary order for injunctive relief was entered, and instead instructed all custodial arrestees be released on their own recognizance. To compromise this matter, the Municipal Judge has now issued “the 2019 Standing Bail Order” (“2019 SBO”), which provides that arrestees unable to pay bail will be provided a court hearing within 48 hours of arrest and, if deemed indigent, be released on their own recognizance. Pending approval of the underlying damages suit by the District Court, the Municipal Judge will employ the 2019 SBO starting on Wednesday, January 15, 2020, at 12:00 PM. 2. The City will provide a copy of the 2019 Standing Bail Order to the Gordon County Sheriff’s Office to ensure that no arrestee under the jurisdiction of the City of Calhoun Municipal Court will be held in jail after arrest pursuant to a secured monetary bond solely because the arrestee cannot afford to pay the bond amount, except for a reasonable amount of time, not to exceed 48 hours, needed to process the arrestee
3

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and bring her or him before a neutral decision maker for a hearing on the arrestee’s indigence and alternative release provisions. 3. The City will incorporate into a resolution for reappointment of the current municipal court judge, and all future municipal judges, a provision requiring that the 2019 Standing Bail Order is followed as the policy of the Calhoun Municipal Court. Pursuant to Federal Rule of Civil Procedure 23(h), class counsel will file with the Court a motion for an award of attorney fees in the amount of $30,000. This notice is provided so that you have an opportunity to read the terms of the proposed Settlement Agreement that may affect your rights as a possible member of the injunctive class. The proposed Settlement Agreement, if finally approved by the Court, will adjudicate all claims for injunctive relief concerning the bail policies and procedures challenged in this case. If you have any objections or comments about the proposed Class Action Settlement Agreement, you should write to the Clerk of Court. Your letter must be postmarked by no later than ____________________. You should write if you have a specific objection or comment to the terms of the Settlement Agreement. You can also write if you support the Settlement Agreement.
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Your objections or comments must contain the following: (1) The case name and number: Walker v. City of Calhoun, 4:15-CV-170HLM. (2) The exact provision(s) of the Class Action Settlement Agreement to which you object or which you support. (3) An explanation of why you object to or support the Class Action Settlement Agreement. (4) Your full name and mailing address. You should mail any objections or comments directly to the Court at the following address:
ATTN: Walker Settlement United States Courthouse
600 East First Street Rome, GA 30161-3149 After reviewing your objections or comments, the Court will conduct a hearing on ____________________, to decide whether or not to approve the Class Action Settlement Agreement. If the Judge finds that the proposed Settlement Agreement is fair, adequate, and a reasonable compromise of this case, then the Settlement Agreement will become final. If the Settlement Agreement is not approved by the Court, the Settlement Agreement will be voided, and this case will go to trial. However, if that happens, there is no assurance: (a) that any decision at
5

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trial will be in favor of the class members; (b) that a favorable trial decision, if any, will be as favorable as the Settlement Agreement; or (c) that any such favorable trial decision would be upheld on appeal.
If you have any questions about this notice or the Settlement Agreement, please contact the attorneys for the class at:
ATTN: Walker Settlement Southern Center for Human Rights
83 Poplar Street NW Atlanta, GA 30303
(404) 688-1202
6
7049276v.1

 
 Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

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

)

Plaintiff,

)

)

v.

)

) CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:15-CV-170-HLM

' PRELIMINARY APPROVAL ORDER

The parties have reached a proposed Class Action Settlement Agreement

resolving the claims for injunctive and declaratory relief in this case. (Doc. I 3Z,

Ex, A.) Pursuant to Federal Rule of Civil Procedure 23(e), the parties have jointly

moved the Court to grant: (a) preliminary approval of the Class Action Settlement

Agreement; (b) approval of a process for giving notice to the class; (c) scheduling

of a final fairness hearing; and (d) following the final fairness hearing, final

approval of the settlement agreement.

BACKGROUND

On September 8, 2015, Plaintiff Maurice Walker filed this class action

challenging the City of Calhoun's post-arrest bail policy. (Doc. 1 in 1-2.) Under

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 2 of 18
the policy in effect at the time of filing, people arrested by the City for alleged misdemeanors and ordinance violations waited in jail up to seven days for a court hearing, and sometimes longer, unless they could deposit cash bail equal to the ultimate fine for their charges. (Doc. 1 ¶1116-23.) As a result, Maurice Walker spent six nights in jail because he could not pay $160, which was the fine amount and the bail amount that the City charged for Walker's alleged offense of being a "pedestrian under the influence." (Doc, 1 TT to-11.)
Upon filing this action, Walker moved for a preliminary injunction against the City's bail policy. (Doc. 4; Doc, 7.) He argued that the policy violated the principle against wealth-based detention established in cases such as Bearden v. Georgia, 461 U.S. 660, 672-73 (1983), Tate v. Short, 401 U.S, 395. 398 (1971), Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en bane), and Frazier v. Jordan, 457 F.2d 726. 728-29 (5th Cir. 1972). (See Doc. 7 at 6-15; Doc. 34 at 7-11 & nn.8-9.) After Walker filed his motion, the City's municipal judge modified the City's bail policy by providing for, among other things, an indigency hearing within 48 hours of arrest. (Doc. 29 at 3-4.)
On January 28, 2016, the Court entered a 74-page order granting a preliminary injunction. (Doc. 40.) In a separate order, the Court certified a class consisting of lain arrestees unable to pay for their release who are or will be in
2

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the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation." (Doc. 41 at 43.)
The City took an interlocutory appeal, and the Eleventh Circuit vacated the injunction order because its operative text failed to meet the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure. Walker v. City of Calhoun, 682 F. App'x 721, 724-25 (11th Cir. 2017).
On remand from the first appeal, the Court entered a revised preliminary injunction with more specific language (Doc. 68). The Court reaffirmed and incorporated the reasoning of its first injunction order (Doc. 68 at 11) and entered an order requiring the City to use an affidavit procedure instead of judicial proceedings to determine indigency, and to make the indigency determination within 24 hours of arrest (Doc. 68 at 22-29). The City took a second interlocutory appeal, and the Eleventh Circuit vacated the injunction on August 22, 2018. Walker v. City of Calhoun, 901 F.3d 1245, 1272 (11th Cir. 2018). The Eleventh Circuit held that "the district court was correct to apply the Bearden/Rainwater style of analysis" to Walker's claims. Id. at 1265. However, it held that the City's revised policy was constitutional because it provided for an indigency hearing within 48 hours of arrest. Id. at 1272. With respect to the City's original bail policy, the Eleventh Circuit held that this Court "did not err in declaring the
3

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 4 of 18
original bail policy to be unconstitutional, and it accordingly may enjoin the City's future use of that policy." Id. at 1271. On remand, the parties engaged in good-faith, arm's length negotiations in an effort to resolve the claims of Walker and the class members without the need for extensive discovery and litigation. To that end, Walker filed an unopposed motion to refer the case to a mediator (Doc. 123; Doc. 128), which the Court granted (Doc, 129). A mediation and settlement conference was set for October 21, 2019 (Doc. 130 at 1), but the parties reached a settlement of all claims in this case prior to the mediation date (see Doc. 131 at 1-2).
Under the attached Class Action Settlement Agreement (Ex. A), the City agrees to three substantive policies for the benefit of the class members. First, the City will not return to the bail policies or procedures that were in effect when Plaintiff Maurice Walker was arrested in September 2015.
Second, the City will provide a copy of the 2019 Standing Bail Order to the Gordon County Sheriffs Office to ensure that no arrestee under the jurisdiction of the City of Calhoun Municipal Court will be held in jail after arrest pursuant to a secured monetary bond solely because the arrestee cannot afford to pay the bond amount, except for a reasonable amount of time, not to exceed 48 hours, needed to
4

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 5 of 18
process the arrestee and bring her or him before a neutral decision maker for a hearing on the arrestee's indigence and alternative release provisions.
Third, the City will incorporate into a resolution for reappointment of the current municipal court judge, and all future municipal judges, a provision requiring that the 2019 Standing Bail Order is followed as the policy of the Calhoun Municipal Court.
By an agreement that was negotiated separately from the Class Action Settlement Agreement, the City agrees to monetary payment to Maurice Walker to resolve his individual damages claims, and an agreed upon award of attorney's fees for Walker's counsel.
DISCUSSION I. CLASS CERTIFICATION UNDER RULE 23
On January 28, 2016, the Court certified a class defined as 141 arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation." (Doc. 41 at 43.) The Court's class certification order remains in effect. For the reasons set forth in that order, the Court finds that class certification remains appropriate and that Plaintiff Maurice Walker and his counsel
5

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 6 of 18
remain adequate class representatives for purposes of settling the claims for prospective relief asserted by Walker on behalf of the class. II. PRELIMINARY APPROVAL UNDER RULE 23
Under Rule 23(e), the claims of a proposed class "may be settled, voluntarily dismissed, or compromised only with the court's approval." Fed. R. Civ. P. 23(e). To approve a class settlement, the Court must find "that it is fair, reasonable, and adequate" in light of the adequacy of the representation of the class, the manner in which the settlement was negotiated, the adequacy of the relief provided to the class under the agreement, and the fairness of treatment of the class members relative to each other. Fed. R. Civ. P. 23(e)(2). "Determining the fairness of the settlement is left to the sound discretion of the trial court." Bennett v. Behring Corp., 737 F.2d 982. 986 (11th Cir. 1984).
A. Adequate Representation of the Class, and Informed and Arm'sLength Negotiation
Rule 23 requires the Court to consider whether "the class representatives and class counsel have adequately represented the class," Fed. R. Civ. P. 23(e)(2)(A), and whether "the proposal was negotiated at arm's length," Fed. R. Civ. P. 23(e)(2)(B). These requirements speak to "procedural' concerns, looking to the conduct of the litigation and of the negotiations leading up to the proposed settlement." Fed. R. Civ. P. 23 Advisory Comm.'s Note, 2018 amend. The focus
6

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 7 of 18
should be "on the actual performance of counsel acting on behalf of the class," including whether class counsel "had an adequate information base" and whether negotiations "were conducted in a manner that would protect and further the class interests." Id.; see Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298. 1324 (S.D. Fla. 2005) ("The stage of the proceedings at which a settlement is achieved is evaluated to ensure that Plaintiffs had access to sufficient information to adequately evaluate the merits of the case and weigh the benefits of settlement against further litigation.").
Here, the parties' settlement agreement is the product of arm's-length, adversarial negotiations between experienced and knowledgeable counsel who have prosecuted and defended this litigation for over four years. See, e.g., Poertner v. Gillette Co., 618 F. App'x 624. 630 (11th Cir. 2015) (affirming approval of classwide settlement agreement where "the parties settled only after engaging in extensive arms-length negotiations"). Although the parties did not engage in extensive discovery prior to settlement, the parties represent that Walker's counsel obtained reliable information about the challenged policy through public records requests and other sources, and the material terms of the challenged policy are undisputed. Therefore, Walker and his counsel were well
7

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 8 of 18
positioned to negotiate effective relief on behalf of the class despite limited formal discovery.
Therefore, the Court finds that Walker and his counsel adequately represented the class, and that the Class Action Settlement Agreement is the product of good faith, arm's length negotiations.
B. Fair and Adequate Relief The Court finds, based on the stipulations of the parties and its own independent review of the record, that the Class Action Settlement Agreement provides adequate substantive relief for the class members and treats class members equitably. See Fed. R. Civ. P. 23(e)(2)(C)—(D). Factors that must be considered in determining the substantive adequacy of relief include:
(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney's fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3). Fed. R. Civ. P. 23(e)(2)(C). In addition to the factors enumerated above, decisions under previous versions of Rule 23 require courts to consider "(I) the likelihood of
8

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 9 of 18
success at trial; (2) the range of possible recovery; (3) the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the anticipated complexity, expense, and duration of litigation; (5) the opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved." Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1240 (11th Cir. 2011); see also Nelson v. Mead Johnson & Johnson Co., 484 F. App'x 429. 434 (11th Cir. 2012). The relevant factors are discussed below.
1. Likelihood of success at trial, and associated costs and delay Maurice Walker claims that the City violated his and the class members' rights under the United States Constitution by following a policy of detaining indigent arrestees for up to a week, sometimes longer, solely because they could not afford to pay the amounts set by the City's bail schedule. This Court previously found that "[t]he bail policy under which [Walker] was arrested clearly is unconstitutional" (Doc. 40 at 56), and the Eleventh Circuit did not disturb that conclusion. See Walker v. City of Calhoun, 901 F.3d 1245. 1271 (11th Cir. 2018) ("The district court therefore did not err in declaring the original bail policy to be unconstitutional."). On the other hand, the City has raised procedural objections to the Court's ability to enter prospective relief (1/2Q,_112at8: 18,) and moved to decertify
9

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 10 of 18
the class (Doc. 118). The parties acknowledge that the process of obtaining rulings on the City's defenses, as well as the possibility of further appeals from any ruling granting or denying injunctive relief, creates uncertainty about the ultimate outcome of the case and risks significant delay and expense before a trial on the merits could occur. Before a trial could occur in this case, the parties and the Court would need to continue litigating pending motions, complete discovery, address any motions for summary judgment submitted, and litigate numerous pretrial matters. The cost of further litigation would be considerable in terms of time and funds expended.
The Court finds, based on the stipulations of the parties and its own independent review of the record, that this factor weighs in favor of a finding that the relief provided in the Class Action Settlement Agreement is fair and adequate to class members.
2. Range of possible recovery "In determining whether a settlement is fair and reasonable, the court must also examine the range of possible damages that plaintiffs could recover at trial and combine this with an analysis of plaintiffs' likely success at trial to determine if the settlements fall within the range of fair recoveries." Columbus Drywall & Insulation Inc. v. Masco Corp., 258
10

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 11 of 18
F,R.D. 545, 559 (N.D. Ga. 2007). Here, if Walker established the City's liability at trial, the City likely would be enjoined from reimplementing its original bail policy, and would be required to follow a constitutional policy. Given the Eleventh Circuit's recent holding that the City's Standing Bail Order is constitutional, Walker v. City of Calhoun, 901 F.3d 1245, 1272 (11th Cir. 2018), the prospective relief awarded after a trial on the merits likely would amount to an order for the City to follow its Standing Bail Order.
The parties' Class Action Settlement Agreement provides similar relief to what would have been available following a trial on the merits. Under that agreement, the City will not reinstitute its original bail policy, and will take reasonable steps to adopt the 2019 Standing Bail Order as the City's policy going forward. Given the uncertainties discussed in the preceding section, the proposed settlement is fair and well within the range of possible recovery at trial. See Ault v. Walt Disney World Co., 692 F,3d 1212, 1218 (11th Cir. 2012) ("If [defendant] prevails at trial, the class will be left with no remedy at all.").
The Court finds, based on the stipulations of the parties and its own independent review of the record, that this factor weighs in favor of a finding that
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Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 12 of 18
the relief provided in the Class Action Settlement Agreement is fair and adequate to class members.
3. Complexity, expense, and duration of litigation As noted above, litigating this case would be expensive and time consuming. Further litigation of this case would involve extensive adversarial proceedings and would require a substantial amount of time and effort by the parties as well as the Court. Cf Melanie K v. Horton, No. 1:14-CV-710-WSD, 2015 WL 1799808, at *3 (N.D. Ga. Apr. 15, 2015) (granting preliminary approval of settlement partly because "the Parties w[ould] be highly motivated to aggressively litigate this case if a settlement was not approved"). The discovery in this case would be time and resource intensive, with depositions of numerous witnesses, extensive document production and file review, and contested motions concerning claims of privilege and similar matters. Likewise, a trial on the merits would entail presentation of a significant number of records and witnesses. Approval of the parties' agreement will avoid the time and expense of further litigation. The Court finds, based on the stipulations of the parties and its own independent review of the record, that this factor weighs in favor of a finding that the relief provided in the Settlement Agreement is fair and adequate to class members.
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4. Anticipated opposition to settlement "In determining whether to certify a settlement class, a court must also examine the degree of opposition to the settlement." Columbus Drywall, 258 F.R.D. at 560. Where "no notice has been provided to the class members, the Court cannot assess whether there are any objectors." Id. For that reason, the Court will address this issue after notice has been provided to the members of the Class. See id.
5. Effectiveness of proposed method of distributing relief Because the Class Action Settlement Agreement requires policy changes that will apply to the class as a whole, the "method of distributing relief to the class" will effectively benefit every member of the class. The Court finds, based on the stipulations of the parties and its own independent review of the record, that this factor weighs in favor of a finding that the relief provided in the Settlement Agreement is fair and adequate to class members.
6. Terms of attorney's fees award Rule 23 requires a district court to assess "the terms of any proposed award of attorney's fees, including timing of payment." Fed. R. Civ. P. 23(e)(2)(C)(iii). There are no "rigid limits" on attorney's fees but "the relief actually delivered to
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Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 14 of 18
the class can be a significant factor in determining the appropriate fee award." Fed. R. Civ, P. 23 Advisory Comm.'s Note, 2018 amend.
Here, the parties have agreed to an award of $30,000 in attorneys' fees and costs for Walker's counsel in lieu of a fee petition under 42 U.S.C. § 1988. Based on the Court's experience with this case and similar cases brought in the Rome Division, the Court finds that the parties' agreed fee award of $30,000 is well within the range of a reasonable fee award.
7. Agreements made in connection with the proposed settlement
Rule 23 requires the parties to file with the Court "a statement identifying any agreement made in connection with" a proposed class settlement. Fed. R. Civ. P. 23(e)(3). Here, the parties represent that the only agreement made in connection with the proposed settlement is the Class Action Settlement Agreement. The parties represent that they also negotiated and agreed to an individual damages award of $20,000 to resolve Maurice Walker's individual claims for monetary damages, but the amount of damages award was negotiated separately from the terms of the Class Action Settlement Agreement and did not affect the substantive terms of that agreement. The Court finds, based on the stipulations of the parties and its own independent review of the record, that Walker's agreement concerning
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his damages claims in no way compromises the fairness or adequacy of the Class Action Settlement Agreement.
C. Equitable Treatment of Class Members Relative to Each Other Rule 23(e)(2)(D) of the Federal Rules of Civil Procedure, requires the Court to find that a proposed settlement "treats class members equitably relative to each other." Based on the representations of the parties and its own review of the record, the Court finds that Class Action Settlement Agreement provides for policies and practices that apply equally to all class members, and thus clearly treats class members equitably relative to each other. III. NOTICE TO CLASS MEMBERS AND OPPORTUNITY TO OBJECT OR COMMENT ON SETTLEMENT AGREEMENT Finally, the Court finds that the proposed notice to the class and process for notifying the class and receiving objections to or comments on the Settlement Agreement meet the requirements of Federal Rule of Civil Procedure 23(c)(2) and 23(e)(1). Due to the fluid nature of the class, the Court finds that personal notice of the agreement is not practicable. The Court finds that the parties' proposal of publishing a notice of the settlement for two weeks in the Rome News-Tribune and the Calhoun Times newspapers, and posting copies of the notice in the Gordon County Jail, mailing copies of the notice to City of Calhoun arrestees currently incarcerated in the Gordon County Jail, and posting an electronic copy of the
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notice on the website for the Southern Center for Human Rights, is reasonable and the best notice practicable under the circumstances of this case.
* * * It is therefore ORDERED that the joint motion for preliminary approval (Doc. t3L ) is granted as follows: 1. The Court readopts and reaffirms its order certifying a class defined as "[a]11 arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation." (Doc. 41 at 43.) 2. The Southern Center for Human Rights and Civil Rights Corps are appointed as class counsel to represent the settlement class under Federal Rule of Civil Procedure 23(g).
1 32:2., 3. The proposed Settlement Agreement (Doc. , Ex. A) is preliminarily approved under Federal Rule of Civil Procedure 23(e), with final approval subject to a fairness hearing and review by the Court of any objections to or comments about its terms. 4. Defendants are to provide notice of the proposed Settlement Agreement as further outlined below:
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132-7
a. The parties' proposed notice (Doc. 3 , Ex. B) is approved by

the Court under Rule 23(e), with the following additions: the postmark-by

date shall be pecernbor

, and the final fairness hearing date

shall be javmAavij I to/ 2-

b. Within 30 days of the date of this Order, the parties shall publish the proposed notice as advertisements in the Rome News-Tribune and the Calhoun News newspapers, to run for a period of two weeks.

c. As soon as practicable following the entry of this Order, the parties shall mail copies of the notice to all City of Calhoun arrestees currently incarcerated in the Gordon County Jail as of the date of this Order.

d. For the period beginning on the date this Order is entered, and continuing for 30 days thereafter, the parties shall post copies of the notice (a) in each area of the Gordon County Jail used to book and/or hold City of Calhoun arrestees; and (b) electronically on the website of the Southern Center for Human Rights.

e. By no later than Ncernbtr 3/, 20/q , the Clerk of Court
shall compile all objections or comments received and file them on the docket.

17

Case 4:15-cv-00170-SCJ Document 133 Filed 11/22/19 Page 18 of 18

5. A fairness hearing is set for 2 00 P. M on 1Jivit40_ frJ 1(0 i ZOO ,
at United States Courthouse, 600 East First Street, Rome, GA 30161-3149. At this

hearing, counsel for both parties shall be prepared to respond to any objections

raised and comments made by class members.

DONE, this the 22-'4 day of MOVE rv, 6 (Ai-

, 213 lq .

SENTçbR UNITED AT 'STRICT JUDGE

18

 
 Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 1 of 7 FILED_jri QPEN COUR1 James
By
Deputy Cle

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

IVIAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

Plaintiff,

)

)

v.

)

) CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:15-CV-170-H1M

FINAL APPROVAL ORDER AND JUDGMENT The parties to this matter seek certification of a settlement class and final approval of their proposed class settlement under Fed. R. Civ. P. 23(e). Having conducted a final fairness hearing on February 18, 2020 and having considered the parties' written submissions with respect to class certification, settlement, and notice (Docs. 132-2, 132-3), the Court approves the parties' class action settlement agreement, finding and ordering as follows: 1. On September 8, 2015, Plaintiff Maurice Walker filed this class action
challenging the City of Calhoun's post-arrest bail policy. (Doc. 1 IN 1-2.) Walker
alleged that under the policy in effect at the time of filing, people arrested by the City for alleged misdemeanors and ordinance violations waited in jail up to seven

Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 2 of 7
days for a court hearing, and sometimes longer, unless they could deposit cash bail equal to the ultimate fine for their charges. (Doc. 1 IN 16-23.) The City of Calhoun disputed these allegations. Maurice Walker spent six nights in jail because he could not pay $160, which was the fine amount and the bail amount that the City charged for Walker's alleged offense of being a "pedestrian under the influence." (Doc. 1 ¶11 1 -11.) After two appeals to the Eleventh Circuit of the United States Court of Appeals, the parties reached a resolution. (See Doc. 133 (Preliminary Approval Order providing background).)
2. On November 18, 2019, the parties filed a joint motion for conditional certification of a settlement class, appointment of class counsel, and preliminary approval of a proposed settlement plan. (Doe. 132.)
3. On November 22, 2019, the Court preliminarily approved (Doc. 133) the Settlement Agreement (Doc. 132-2), and notice was thereafter given to all members of the Settlement Class under the terms of the Court order. (See Doc. 133 at 16-17 (describing in detail the steps to be taken to provide notice to class members by mail, email and publication).) Those terms included direct notice to incarcerated people at the Gordon County Jail, publications in the Rome-News Tribune and the Calhoun newspapers, and electronic posting on the website of the Southern Center for Human Rights.
2

Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 3 of 7
4. This Court has jurisdiction over the subject matter of the action and over all parties to the action, including all settlement class members.
5. The Court has read and considered the papers filed in support of the parties' request for final approval of the settlement, including the parties' joint motion, the Settlement Agreement, class action notice, and related documents. The Court has not received any objections from any person regarding the proposed settlement. The Court held a fairness hearing on February 18, 2020, at which time the parties and any potential objectors were afforded the opportunity to be heard in support of or in opposition to the Settlement Agreement.
6, The Court now gives final approval to the Settlement Agreement and finds that the Settlement Agreement is fair, reasonable, and adequate, free of collusion, see Fed. R. Civ. P. 23(e), and in the best interests of the class.
7. This finding is supported by among other things, the complex legal and factual posture of the case, the fact that the Settlement Agreement is the result of arm's length negotiations, and the benefits provided to class members under the Settlement Agreement.
8. The Court readopts and reaffirms its order certifying a class defined as 141 arrestees unable to pay for their release who are or will be in the custody of
3

Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 4 of 7
the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation." (Doc. 41 at 43.)
9. The Court finds that class certification remains appropriate and that Plaintiff Maurice Walker and his counsel remain adequate class representatives for purposes of settling the claims for prospective relief asserted by Walker on behalf of the class.
10. Under Rule 23(g) of the Federal Rules of Civil Procedure, Maurice Walker is hereby appointed as class representative.
11. Under Rule 23(g) of the Federal Rules of Civil Procedure, the following are hereby appointed as class counsel: Sarah Geraghty and Ryan Primerano (Southern Center for Human Rights) and Alec Karakatsanis (Civil Rights Corps).
12. The Court has determined that the notice given to the class, in accordance with the notice plan in the Settlement Agreement and the Court's Order of November 22, 2019 (Doc. 133), fully and accurately informed members of the class of all material elements of the settlement, constituted the best notice practicable under the circumstances, and fully satisfied the requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and applicable law.
4

Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 5 of 7
13. Under the Settlement Agreement, the City agreed to three substantive policies for the benefit of the class members.
a. First, the City of Calhoun Municipal Court will not return to the bail policies or procedures that were in effect when Plaintiff Maurice Walker was arrested in September 2015.
b. Second, the City of Calhoun Municipal Court will provide a copy of the 2019 Standing Bail Order to the Gordon County Sheriffs Office, as the municipality relies upon the jail facilities operated by this law enforcement agency for custody of all pre-trial detainees under the jurisdiction of the City of Calhoun Municipal Court, to ensure that no arrestee under the jurisdiction of the City of Calhoun Municipal Court will be held in jail after arrest pursuant to a secured monetary bond solely because the arrestee cannot afford to pay the bond amount, except for a reasonable amount of time, not to exceed 48 hours, needed to process the arrestee and bring her or him before a neutral decision maker for a hearing on the arrestee's indigence and alternative release provisions.
c. Third, the City of Calhoun will incorporate into a resolution for reappointment of the current Judge of the Municipal Court, and all
5

Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 6 of 7
individuals appointed in the future to serve in this judicial capacity, a provision requiring that the 2019 Standing Bail Order is followed as the policy of the Calhoun Municipal Court. 14. By an agreement that was negotiated separately from the Class Action Settlement Agreement, the City agreed to monetary payment to Maurice Walker to resolve his individual damages claims, and an agreed upon award of attorney's fees for Walker's counsel. 15. The Court approves the payment of $20,000 for Maurice Walker and specifically finds such amount to be reasonable in light of the service performed by Mr. Walker for the settlement class. The Court finds, based on the stipulations of the parties and its own independent review of the record, that Walker's agreement concerning his damages claims in no way compromises the fairness or adequacy of the Class Action Settlement Agreement. 16. The parties have agreed to an award of $30,000 in attorneys' fees and costs for Walker's counsel in lieu of a fee petition under 42 U.S.C. § 1988 Based on the nearly five-year duration of this case and the Court's experience with this case and similar cases brought in the Northern District and Rome Division, the Court finds that the parties' agreed fee award of $30,000 is well within the range of a reasonable fee award.
6

Case 4:15-cv-00170-SCJ Document 138 Filed 02/18/20 Page 7 of 7

17. Plaintiffs' counsel shall file their fee motion under Fed, R. Civ. P.

23(h) within 7 days of the February 18, 2020 final fairness hearing.

18. The Court orders the parties to the Settlement Agreement to perform their obligations thereunder.

19. Within 30 days after the entry of this Order, Defendant shall mail a

check for $20,000 made out to "Maurice Walker" to the Southern Center for

Human Rights. Defendant shall mail payment of attorneys' fees within 30 days of

the Court ruling on Plaintiffs motion for fees.

20. Any objections to the Settlement Agreement are overruled and denied in all respects.

DONE, this the ) S./4day of FebrteetYi

, 02 0

UNITED STATES DIST T JUDGE

7

 
 Case 4:15-cv-00170-SCJ Document 140 Filed 02/25/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

MAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

Plaintiff,

)

)

v.

)

)

CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:15-CV-170-SCJ

ORDER

On February 18, 2020, the Court granted final approval to the parties’ class

settlement and directed Plaintiff to file his motion for attorney’s fees. (Doc. 138.)

Plaintiff’s motion for attorney’s fees is now before the Court. (Doc. 139.)

In accordance with Fed. R. Civ. P. 54(d)(2)(C), the relevant facts pertaining

to this litigation and to Plaintiff’s motion for attorney’s fees are set forth in the

final order issued by this Court. (Doc. 138.) Those facts are incorporated and

adopted in the instant order.

Further, in accordance with Fed. R. Civ. P. 54(d)(2)(C), the Court concludes

as a matter of law that Plaintiff is entitled to the award of fees sought. Under

Federal Rule of Civil Procedure 23(h), in a certified class action, “the court may

Case 4:15-cv-00170-SCJ Document 140 Filed 02/25/20 Page 2 of 2
award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Here, the fees sought by Plaintiff are both authorized by law (for the reasons set forth in Plaintiff’s brief) and agreed to by the parties. As part of the settlement of this matter, the parties have agreed to an award of $30,000 in attorney’s fees for Mr. Walker’s counsel in lieu of a fee petition under 42 U.S.C. § 1988.
Based on the nearly five-year duration of this case and the Court’s experience with this case and similar cases brought in the Northern District and Rome Division, the Court finds that the parties’ agreed fee award of $30,000 is well within the range of a reasonable fee award. The Plaintiff’s motion for attorney’s fees is hereby GRANTED. Defendant shall mail payment of attorney’s fees to class counsel within 30 days of the date of this Order.
SO ORDERED this _2_5_t_h_ day of ___F_e_b_ru_a_r_y___________, 2020.
s/Steve C. Jones UNITED STATES DISTRICT JUDGE

 
 Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

MAURICE WALKER, on behalf of )

himself and others similarly situated, )

)

Plaintiff,

)

)

v.

)

)

CITY OF CALHOUN, GEORGIA, )

)

Defendant.

)

)

Civil Action No. 4:15-cv-170-HLM

CLASS ACTION SETTLEMENT AGREEMENT

Plaintiff Maurice Walker and Defendant City of Calhoun, enter into this Settlement Agreement providing for resolution of all claims for declaratory, injunctive, and other nonmonetary relief asserted on behalf of the class certified in the civil action styled Maurice Walker v. City of Calhoun, Civil Action No. 4:15CV-170-HLM, in the United States District Court for the Northern District of Georgia (the “Lawsuit”), pursuant to the terms and conditions set forth below.
I. INTRODUCTION 1. Plaintiff Maurice Walker (“Walker”) filed the Lawsuit while he was in the custody of the City of Calhoun after an arrest for a misdemeanor, alleging that

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 2 of 15
the City had a policy which unlawfully kept him in the custody of the City because he could not afford to post a cash bond pursuant to an established schedule for the alleged offense.
2. The Lawsuit, a class action for declaratory and injunctive relief, was filed by Walker based on allegations that the City’s money bail policy violated the Fourteenth Amendment to the United States Constitution. The Lawsuit also included a claim for individual damages asserted by Mr. Walker. The City of Calhoun denies liability in this matter. The Plaintiff does not endorse all aspects of the Standing Bail Order (Exhibit A), and in particular disagrees that indigent persons should be subject to up to 48 hours of detention before an inquiry into ability to pay. However, this specific provision of the Standing Bail Order has been deemed to be constitutional by the controlling ruling of the Eleventh Circuit Court of Appeals for the United States in Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir., 2018) (Cert. Denied 139 S.Ct. 1466(Mem) (2019)).
3. The parties agree, however, that a resolution of the claims in the Lawsuit would benefit all parties by avoiding the time and expense of further litigation.
4. The parties have entered into this Settlement Agreement in reliance on the mutual representations contained herein.
2

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 3 of 15
5. In consideration of the mutual promises of the parties set forth below, the undersigned parties agree to a final resolution of all claims for declaratory, injunctive, and other nonmonetary relief related to the Lawsuit.
6. Subject to the Court’s approval under Rule 23(e) of the Federal Rules of Civil Procedure, it is hereby agreed by and between the undersigned as follows:
II. AGREEMENT REGARDING ARRESTEES 7. In consideration of the promises stated herein, the City of Calhoun agrees as follows: 8. The City of Calhoun Municipal Court will not return to the bail policies or procedures that were in effect when Plaintiff Maurice Walker was arrested in September 2015. 9. The City of Calhoun Municipal Court shall include the Gordon County Sheriff’s Office within the present version of Standing Bail Order for 2019, hereto attached as Exhibit “A”, as the municipality relies upon the jail facilities operated by this law enforcement agency for custody of all pre-trial detainees under the jurisdiction of the City of Calhoun Municipal Court, to ensure that no arrestee under the jurisdiction of the City of Calhoun Municipal Court will be held in jail after arrest pursuant to a secured monetary bond solely because the arrestee cannot afford to pay the bond amount, except for a reasonable amount of time, not to exceed 48 hours,
3

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 4 of 15
needed to process the arrestee and bring her or him before a neutral decision maker for a hearing on the arrestee’s indigence and alternative release provisions.
10. The City of Calhoun will incorporate into a resolution for reappointment of the current Judge of Municipal Court, and all individuals appointed in the future to serve in this judicial capacity a provision requiring that the Standing Bail Order attached hereto as Exhibit A is followed as the policy of the Calhoun Municipal Court. See O.C.G.A. § 36-32-2(a).
11. In accordance with Rule 23(e) of the Federal Rules of Civil Procedure, the parties will file a joint motion for preliminary approval of the parties’ proposed settlement of this matter. Therein, the parties will request that the Court order: (a) preliminary approval of the settlement, (b) approval of a process for giving notice to the class, (c) scheduling of a final fairness hearing, and (d) following the final fairness hearing, final approval of the settlement agreement, This Agreement shall become effective on the date that it is approved by the Court in accordance with Rule 23(e) of the Federal Rules of Civil Procedure.
III. FEES, COSTS, AND MONETARY RELIEF 12. Walker’s individual claims for damages, attorneys’ fees, costs, and other monetary relief will be resolved by a separate agreement. The promises expressed in this Settlement Agreement are expressly conditioned on the parties
4

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 5 of 15
reaching a separate agreement disposing of Walker’s claims for damages, attorneys’ fees, costs, and other monetary relief.
5

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 6 of 15

APPROVED AND CONSENTED TO BY:

FOR PLAINTIFF MAURICE WALKER:
~----,- . -
Sarah Geraghty Southern Center for Human Rights 83 Poplar Street, NW Atlanta, Georgia 30303 (404) 688-1202 sgeraghty@schr.org

Alec Karakatsanis Civil Rights Corps 910 Seventeenth Street, NW Fifth Floor Washington, DC 20006 (202) 681-2409 alec@civilrightscorps.org

FOR DEFENDANT CITY OF CALHOUN, GEORGIA:

David F. Root Abby C. Grozine Carlock Copeland & Stair, LLP 191 Peachtree Street NE Suite 3600 Atlanta, GA 30303-1740 (404) 522-8220 droot@carlockcopeland.com
non Go · n n La ffice 109 North Wa Street Calhoun, GA 30701 (706) 629-7070 govignonlawoffice@gmail.com

J. Anderson Davis A. Franklin Beacham III Samuel L. Lucas Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP P.O. Box 5007 Rome, GA 30162 (706) 291-8853 adavis@brinson-askew.com

6

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 7 of 15
EXHIBIT A

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 8 of 15

IN THE MUNICIPAL COURT OF THE CITY OF CALHOUN STATE OF GEORGIA

TO:

ALL MUNICIPAL COURT STAFF

CHIEF OF POLICE, CALHOUN POLICE DEPARTMENT

SHERIFF OF GORDON COUNTY

2019 STANDING ORDER REGARDING PRE-TRIAL APPEARANCE, ESTABLISHMENT OF BONDS IN ADVANCE OF INITIAL APPEARANCE
PURSUANT TO STATE LAW AND INDIVIDUALIZED INDIGENCY DETERMINATIONS
Per the authority vested upon the Municipal Court for the City of Calhoun pursuant to the

Charter of the City of Calhoun, Georgia, as approved by local act of the Georgia General Assembly

on April 8, 1983 (Ga. L. 1983, p. 4710), and as amended by Ord. No. 625A, §2, 12-8-1997 and Ord.

No. 754, § 3, 5-26-2003; and in accordance with the jurisdiction granted by the Georgia General

Assembly over certain statutory misdemeanor and high and aggravated misdemeanor criminal

matters by O.C.G.A. §§ 36-32-1, et seq. and §§ 40-13-20, et seq.; in accordance with local ordinance

violations as set forth in the Code of Calhoun, Georgia; the applicable Georgia Uniform Superior

Court Rules regarding criminal procedure; and all other applicable rules and/or policies adopted by

the Council for Municipal Court Judges for the State of Georgia, established by O.C.G.A. § 36-3240,

the Court hereby issues the following Order regarding a pre-established schedule for secured bail, the

initial appearance for persons arrested for both state statutory criminal charges and local ordinance

violations; and recognizance bond for indigent persons as follows:

I. Rights of bail for persons accused of statutory criminal offenses or municipal ordinance.
The United States Supreme Court has established the accused is not entitled to bail as a

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 1 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 9 of 15

constitutional right. See U.S. v. Salerno, 481 US 739, 754, 107 S. Ct. 2095, 95 L. E. 2d 697 (1987)
(citing the original source for Eighth Amendment in English Bill of Rights, majority finds very
language of the Amendment “fails to say all arrests must be bailable” [emphasis added]). The
accused is protected by both Article I, Section I, Paragraph XVII of the of the Constitution of The
State of Georgia (1983) 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 amount assessed is within the sole discretion of the trial court and will not
be overturned absent a clear abuse of discretion. Myers v. St. Lawrence, 289 Ga. 240, 710 S.E. 2d
557 (2011). The factors considered when establishing a bail include the defendant’s ability to pay
or provide secured bail, the seriousness of the offense, and his/her character and reputation. Dunn
v. Edwards, 275 Ga 458, 569 S.E. 2d 525 (2002); Pullin v. Dorsey, 271 Ga. 882, 525 S.E. 2d 87
(2000).
In accordance with O.C.G.A. § 17-6-1(b)(1) bail and bond decisions shall be controlled
by the following language adopted by the Georgia General Assembly in 2018:
“All offenses not included in subsection (a) of this Code section, inclusive of offenses that are violations of local ordinances, are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail. When determining bail for a person charged with a misdemeanor, courts shall not impose excessive bail and shall impose only the conditions reasonably necessary to ensure such person attends court appearances and to protect the safety of any person or the public given the circumstances of the alleged offense and the totality of circumstances.”

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 2 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 10 of 15

Also, in accordance with O.C.G.A. § 17-6-1(e) bail and bond decisions shall be controlled by the following language adopted by the Georgia General Assembly in 2018:
“(1) A court shall be authorized to release a person on bail if the court finds that the person:
(A) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(B) Poses no significant threat or danger to any person, to the community, or to any property in the community;
(C) Poses no significant risk of committing any felony pending trial; and
(D) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
(2) When determining bail, as soon as possible, the court shall consider:
(A) The accused's financial resources and other assets, including whether any such assets are jointly controlled;
(B) The accused's earnings and other income;
(C) The accused's financial obligations, including obligations to dependents;
(D) The purpose of bail; and
(E) Any other factor the court deems appropriate.” Finally, in accordance with O.C.G.A. § 17-6-1(f)(1) the adoption of a published, pre-
established bail schedule is authorized by the following language adopted by the Georgia General
Assembly in 2018:
“Except as provided in subsection (a) of this Code section or as otherwise provided in this subsection, the judge of any court of inquiry may by written order establish a schedule of bails and unless otherwise ordered by the judge of any court, an accused

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 3 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 11 of 15

shall be released from custody upon posting bail as fixed in the schedule.” The Georgia Supreme Court has noted the absence of any “decision holding that an indigent defendant is entitled to have bail set which he can meet.” Chafin v. Jones, 243 Ga. 267, 253 S.E. 2d 389 (1979).1
II. Statutory authority for an established bond schedule for criminal violations of the Official Code of Georgia. Pursuant to O.C.G.A. § 17-6-1 the Court for the City of Calhoun, Georgia, as a court of
inquiry with original jurisdiction acting in the stead of the Superior Court of Gordon County, Georgia, for certain offenses hereby re-adopts and re-affirms the written and established bail schedule attached as Exhibit “A.” The provisions of said exhibit are hereby incorporated by reference by this standing order 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 depositing cash in the amount of said bail. O.C.G.A. § 17-6-4(a). Additionally, an accused may provide his/her driver’s license as collateral for any bail as provided for by O.C.G.A. § 17-6-2.
The purpose is to permit the posting of bail without a delay associated with the “First Appearance” within 48 hours of being confined to the Gordon County Jail, as mandated by Georgia Uniform Superior Court Rule 26.1. 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

1The Court takes note that this opinion follows after the opinion of the 5th Circuit opinion in Pugh v. Rainwater, 572. F 2d. 1053 (5th Cir. 1978) which has yet to be cited on the same issue by a later or modern opinion of the 11th Circuit Court of Appeals relating to the issue of bail for indigent persons.

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 4 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 12 of 15

in meeting its requirements[.]” Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978). The initial amount on said schedule as indicated by the “highlighted” yellow color represents
the amount necessary for secured bail by payment of same. This amount represents the expected fine with applicable surcharges for all offenses charged as mandated by State Law for disposition should the accused later enter a plea, or be found guilty following a bench trial. Should the accused person seek to make secured bail by property or surety, the amount shall then be twice that as set forth in said schedule to ensure attendance at trial and prevent avoidance of penalty or sanction.
In particular, this schedule, authorized by the Georgia General Assembly, shall apply to all custodial arrests permitted by O.C.G.A. §§ 17-4-20 and 17-4-23, or other applicable code provisions for the following offenses:

(a) Possession of one ounce or less of marijuana in Violation of the Georgia Controlled Substances Act (O.C.G.A. §§ 16-13-30, 16-13-25(2)(P)(i) & (ii) and as sentenced by O.C.G.A. § 16-13-2(b)) pursuant to O.C.G.A. §36-32-6(a);
(b) Transactions in Drug Related Objects (O.C.G.A. § 16-13-32) pursuant to O.C.G.A. § 36-32-6.1:
(c) Operation of Motor Vehicles Without Insurance (O.C.G.A. § 40-6-10) pursuant to O.C.G.A. § 36-32-7;
(d) Operating Motor Vehicle Without Certificate of Emission Inspection (O.C.G.A. § 129-55) pursuant to O.C.G.A. § 36-32-8;
(e) Misdemeanor Theft by Shoplifting (O.C.G.A. § 16-8-14(b)(1)) pursuant to O.C.G.A. § 36-32-9;
(f) Criminal Offenses Involving Alcohol and Any Persons Under 21 Years of Age, Including Possession, Sale, Purchase or Furnishing to Same (O.C.G.A. § 3-323(a)(1) through (5)) pursuant to O.C.G.A. § 36-32-10;
(g) Criminal Trespass (O.C.G.A. § 16-7-21) pursuant to O.C.G.A. § 36-32-10.1;

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 5 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 13 of 15
(a) All Violations of Title 40: Motor Vehicles and Traffic of the Official Code of Georgia Annotated pursuant to O.C.G.A. § 40-13-21;
(b) Operating an Unregistered Vehicle on Public Highway (O.C.G.A. § 40-2-8) pursuant to O.C.G.A. § 40-13-22; and
(c) All other offenses that might otherwise be amended or added to be included by the authority envisioned by O.C.G.A. § 36-32-10.2 as the Georgia General Assembly shall deem applicable.
III. Scheduling of hearing to consider the setting of bond/bail for individuals not otherwise capable of making bail pursuant to the schedule established in accordance with O.C.G.A. §17-61(e) and as approved by the Eleventh Circuit Court of Appeals in Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018) (Cert. Denied, 139 S.Ct. 1446 (Mem) (2019)).
For those individuals who do not obtain release pursuant to the secured 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” for the purposes of bail and bond in accordance with O.C.G.A. § 17-
6-1(e). In additional to those obligations established by the Statute, the accused shall be
represented by court appointed counsel. At this time the accused will be given the opportunity to
object to the bail amount set for him or her by the schedule previously adopted by this Court and as
authorized by O.C.G.A. § 17-6-1(f)(1), including any claim of indigency. The Court
shall then determine whether the accused is unable to post a secured bail because he/she is indigent,
making an individualized determination based upon the evidence provided. The Court shall then
determine, following an evidentiary hearing with the assistance of appointed counsel, whether the
accused is able to pay the secured bail amount, making an individualized determination based upon

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 6 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 14 of 15

the evidence provided. Should the Court find that the accused is able to pay the secured bail amount, or lacks sufficient resources for same, the Court shall reduce its decision to writing as an order of the Court and shall include in its order the facts and circumstances on which it relied in considering the accused’s ability to pay including any alternative release provisions for bond/bail.
The standard for making an individualized determination of indigency shall be that established by O.C.G.A. § 36-32-1(f) and (g), as defined by O.C.G.A. § 17-2-2(6)(A) regarding an “indigent person” charged with a misdemeanor, violation of probation, or a municipal code offense punishable by imprisonment. These legislative provisions have established an “indigent person” or “indigent defendant” for appointed legal counsel as one “earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person has other resources that might be reasonably used to employ a lawyer without undue hardship on the person or his or her dependents[.]” For purposes of this order, “100 percent of the federal poverty guidelines” shall specifically mean the guidelines published in the Federal Register of January 22, 2015, Volume 80, Number 14 on ppgs 3237, 3238 (a copy of same being attached as Exhibit “B” hereto), and as may be further promulgated and adopted for subsequent years in the Federal Register.
Should the Court find, based upon the evidence then provided that the accused is indigent by said standard, then he/she shall be subject to release on recognizance without making a secured bail in accordance with O.C.G.A. § 17-6-1(i). Said individual shall then be provided written notice of the date for the next proceeding or trial. It shall be the responsibility of the accused to notify the Clerk of Municipal Court should he/she have a change of residence or mailing address prior to a adjudication and sentencing to ensure notice of any change in the scheduled proceedings.

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN
STATE OF GEORGIA

Page 7 of 8

Case 4:15-cv-00170-SCJ Document 132-2 Filed 11/18/19 Page 15 of 15
In the unlikely event that no hearing can be held within the forty-eight (48) hour time frame established by Georgia Uniform Superior Court Rule 26.1, then the accused shall be released on a recognizance bond in accordance with O.C.G.A. § 17-6-1(i).
The staff of the Gordon County Jail shall inform the Municipal 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. IV. Ability of any person charged with a violation of The Code of Calhoun, Georgia
(local ordinance violations) not otherwise a misdemeanor offense as defined by statutory law to post unsecured bond. All persons charged with violations of The Code of Calhoun, Georgia who have no outstanding failure to appear arrest warrant from the City of Calhoun, or any other similar governing authority duly established by the Georgia General Assembly or the Constitution of The State of Georgia, shall be released on an unsecured appearance bond in the amount established by the aforementioned bail schedule. The unsecured appearance bond form which shall be used is hereto attached as Exhibit “C,” and same is incorporated as if fully set forth herein. SO ORDERED and DECREED this the ______ day of ______________, 2019.

STANDING ORDER FOR BAIL PROCEDURES AND SCHEDULE MUNICIPAL COURT CITY OF CALHOUN STATE OF GEORGIA
7011133v.1

SUZANNE H. SMITH, CHIEF JUDGE MUNICIPAL COURT CITY OF CALHOUN, GEORGIA STATE OF GEORGIA
Page 8 of 8

 
 4months,CLASS,CLOSED
U.S. District Court Northern District of Georgia (Rome) CIVIL DOCKET FOR CASE #: 4:15−cv−00170−SCJ

Walker v. City of Calhoun, Georgia Assigned to: Judge Steve C. Jones Case in other court: USCA, 16−10521−HH
USCA, 17−13139−GG
USCA, 17−13139−GG Cause: 42:1983 Civil Rights Act
Plaintiff
Maurice Walker on behalf of himself and others similarly situated

Date Filed: 09/08/2015 Date Terminated: 02/18/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alec Karakatsanis Equal Justice Under Law Suite 701 916 G Street, NW Washington, DC 20001 202−681−2409 Email: alec@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Primerano Southern Center for Human Rights 60 Walton Street, NW Atlanta, GA 30303 404−688−1202 Email: rprimerano@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Geraghty Southern Center for Human Rights 60 Walton Street NW Atlanta Atlanta, GA 30303 404−688−1202 Fax: 404−688−9440 Email: sgeraghty@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of Calhoun, Georgia

represented by Abby C. Grozine Carlock Copeland & Stair, LLP − Atl Suite 3600 191 Peachtree Street, NE P.O. Box 56887 Atlanta, GA 30303−1740 404−522−8220 Fax: 404−523−2345 Email: agrozine@carlockcopeland.com ATTORNEY TO BE NOTICED
Ansel Franklin Beacham , III Brinson Askew Berry Siegler Richardson & Davis, LLP P.O. Box 5007

615 West First Street Rome, GA 30162−5007 706−291−8853 Email: fbeacham@brinson−askew.com ATTORNEY TO BE NOTICED
David Frank Root Copeland, Stair, Kingma & Lovell, LLP 191 Peachtree Street NE Suite 3600 Atlanta, GA 30303 404−552−8220 Email: droot@carlockcopeland.com ATTORNEY TO BE NOTICED
George Patrick Govignon Govignon Law Office 109 North Wall St. Calhoun, GA 30701 706−629−7070 Email: govig@aol.com ATTORNEY TO BE NOTICED
Jesse Anderson Davis Brinson Askew Berry Siegler Richardson & Davis, LLP P.O. Box 5007 615 West First Street Rome, GA 30162−5007 706−291−8853 Email: adavis@brinson−askew.com ATTORNEY TO BE NOTICED
Samuel Leslie Lucas Brinson Askew Berry Siegler Richardson & Davis, LLP P.O. Box 5007 615 West First Street Rome, GA 30162−5007 706−291−8853 Email: slucas@brinson−askew.com ATTORNEY TO BE NOTICED

Date Filed 09/08/2015
09/08/2015 09/08/2015 09/08/2015
09/08/2015

# Docket Text
1 COMPLAINT with Jury Demand filed by Maurice Walker. (Filing fee $400 receipt number 113E−6028593) (Attachments: # 1 Civil Cover Sheet, # 2 Exh A)(bjh) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 09/08/2015)
2 Electronic Summons Issued as to City of Calhoun, Georgia. (bjh) (Entered: 09/08/2015)
3 APPLICATION for Admission of Alec Karakatsanis Pro Hac Vice (Application fee $ 150, receipt number 113E−6029437) with Brief In Support by Maurice Walker. (Geraghty, Sarah) (Entered: 09/08/2015)
4 MOTION for Temporary Restraining Order or, in the Alternative, For Preliminary Injunction by Maurice Walker. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Geraghty, Sarah) . Added MOTION for Permanent Injunction on 9/9/2015 (bjh). Modified on 9/9/2015 (bjh). (Entered: 09/08/2015)
5 MOTION for Leave to File Excess Pages with Brief In Support by Maurice Walker. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Geraghty, Sarah) (Entered:

09/08/2015 09/08/2015 09/08/2015 09/09/2015 09/09/2015 09/10/2015 09/10/2015 09/10/2015
09/17/2015 09/17/2015 09/18/2015 09/18/2015 09/25/2015

09/08/2015)
6 ORDER Granting Plaintiff's 5 Motion for Leave to File Excess Pages and Plaintiff is ordered to file his Memorandum. Signed by Judge Harold L. Murphy on 9/8/15. (bjh) (Entered: 09/08/2015)
7 RESPONSE in Support re 4 MOTION for Temporary Restraining Order filed by Maurice Walker. (Geraghty, Sarah) (Entered: 09/08/2015)
8 Certificate of Interested Persons by Maurice Walker. (Geraghty, Sarah) (Entered: 09/08/2015)
9 Clerks Notation re 8 Certificate of Interested Persons signed on 9/9/15 by Judge Harold L. Murphy. (bjh) (Entered: 09/09/2015)
10 MOTION to Certify Class with Brief In Support by Maurice Walker. (Attachments: # 1 Brief in Support of Motion to Certify Class)(Primerano, Ryan) (Entered: 09/09/2015)
11 Notice of Withdrawal of Request for Temporary Restraining Order 4 , and Motion for Hearing Date and Briefing Schedule on His Motion for Preliminary Injunction filed by Maurice Walker. (Attachments: # 1 Proposed Order)(Geraghty, Sarah) Modified on 9/10/2015 to edit text to reflect pdf (bjh). (Entered: 09/10/2015)
12 MOTION for Hearing re 4 MOTION for Preliminary Injunction by Maurice Walker. (filed under same cover as 11 Notice of Withdrawal) (Attachment: # 1 Prop Order)(bjh) (Entered: 09/10/2015)
13 ORDER: the Court GRANTS IN PART AND DENIES WITHOUT PREJUDICE IN PART Plaintiff's Notice of Withdrawal of Request for Temporary Restraining Order,and Motion for Hearing Date and Briefing Schedule on his Motion for Preliminary Injunction 11 . The Court GRANTS the portion of that document that seeks to withdraw Plaintiff's request for a temporary restraining order [3−1]. Plaintiff's alternative request for a preliminary injunction [3−2] remains pending. The Court DENIES WITHOUT PREJUDICE the portion of that document that seeks a hearing date and a briefing schedule on the request for a preliminary injunction. The briefing schedule for that request shall proceed in accordance with the Local Rules−−that is, Defendant shall have fourteen days after September 8, 2015, the date on which Plaintiff filed his request, to respond to the request. See N.D. Ga. R. 7.1 B ("Any party opposing a motion shall serve the party's response, responsive memorandum, affidavits, and any other responsive material not later than fourteen (14) days after service of the motion, except that in cases of [a] motion for summary judgment the time shall be twenty−one (21) days after service of the motion."). Plaintiff will then have fourteen days after Defendant responds in which to file a reply in support of the request. See N.D. Ga. R. 7.1 C ("When the movant deems it necessary to file a reply brief, the reply must be served not later than fourteen (14) days after service of the responsive pleading."). The Court will set a hearing on the request for a preliminary injunction after the briefing process is complete and after the Court has an opportunity to review the Parties' briefs. Signed by Judge Harold L. Murphy on 9/10/15. (bjh) (Entered: 09/10/2015)
APPROVAL by Clerks Office re: 3 APPLICATION for Admission of Alec Karakatsanis Pro Hac Vice (Application fee $ 150, receipt number 113E−6029437). Attorney Alec Karakatsanis added appearing on behalf of Maurice Walker (pb) (Entered: 09/17/2015)
14 Return of Service Executed by Maurice Walker. City of Calhoun, Georgia served on 9/9/2015, answer due 9/30/2015. (Primerano, Ryan) (Entered: 09/17/2015)
15 ORDER Granting 3 Application for Admission Pro Hac Vice of Alec Karakatsanis. Signed by Judge Harold L. Murphy on 9/18/15. (bjh) (Entered: 09/18/2015)
Clerks Certificate of Mailing to Alec Karakatsanis re 15 Order on Application for Admission PHV (bjh) (Entered: 09/18/2015)
16 Consent MOTION for Extension of Time for Defendant to Respond by City of Calhoun, Georgia. (Attachments: # 1 Text of Proposed Order)(Grozine, Abby) . Added MOTION for Extension of Time to File Answer on 9/28/2015 (bjh). (Entered:

09/28/2015
10/12/2015 10/13/2015 10/20/2015 10/21/2015 10/21/2015
11/02/2015 11/03/2015 11/13/2015
11/30/2015 12/01/2015 12/01/2015 12/01/2015 12/02/2015

09/25/2015)
17 ORDER Granting 16 Consent Motion for Extension of Time for Defendant to Answer Complaint until 10/14/15; Granting Motion 16 for Defendant to file a Response to Plaintiff's 4 MOTION for Temporary Restraining Order, MOTION for Permanent Injunction until 11/2/15 and Granting time for Defendant to file a Response to Plaintiff's 10 MOTION to Certify Class until 12/2/15. Signed by Judge Harold L. Murphy on 9/28/15. (bjh) (Entered: 09/28/2015)
18 PROPOSED CONSENT ORDER Extending time to File Answer. (Grozine, Abby) (Entered: 10/12/2015)
19 ORDER TO EXTEND TIME TO ANSWER for Defendant until 10/21/15, approving 18 Proposed Consent Order. Signed by Judge Harold L. Murphy on 10/13/15. (bjh) (Entered: 10/13/2015)
20 Consent MOTION for Extension of Time to Response by City of Calhoun, Georgia. (Attachments: # 1 Proposed Order)(Grozine, Abby) Modified on 10/21/2015 to edit event type (bjh). (Entered: 10/20/2015)
Notification of Docket Correction re 20 MOTION for Extension of Time to Respond. Incorrect event type selected, Clerk made necessary corrections and notified attorney of same. (bjh) (Entered: 10/21/2015)
21 ORDER Granting 20 Third Consent Motion for Extension of Time to Answer/Respond. City of Calhoun, Georgia's Answer due 11/2/2015. The time in which Defendant may respond to Plaintiff's motion for Temporary Restraining Order or, in the Alternative, For Preliminary Injunction is extended up to, and including, December 2, 2015; and the time in which Defendant may respond to Plaintiffs 10 Motion to Certify Class with Brief In Support is extended up to, and including, January 4, 2016. Signed by Judge Harold L. Murphy on 10/21/15. (bjh) (Entered: 10/21/2015)
22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for More Definite Statement with Brief In Support by City of Calhoun, Georgia. (Attachments: # 1 Brief)(Davis, Jesse) (Entered: 11/02/2015)
23 NOTICE of Appearance by David Frank Root on behalf of City of Calhoun, Georgia (Root, David) (Entered: 11/03/2015)
24 RESPONSE in Opposition re 22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for More Definite Statement filed by Maurice Walker. (Attachments: # 1 Exhibit Order, Thompson v. City of Moss Point (S.D. Miss 2015), # 2 Exhibit Order, Varden v. City of Clanton (M.D. Ala. 2015), # 3 Exhibit Order, Pierce v. City of Velda (E.D. Mo. 2015), # 4 Exhibit Order, Cooper v. City of Dothan (M.D. Ala. 2015), # 5 Exhibit U.S. Dep't of Justice, Statement of Interest, Varden v. City of Clanton (M.D. Ala. 2015))(Geraghty, Sarah) (Entered: 11/13/2015)
25 REPLY to Response to Motion re 22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for More Definite Statement filed by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 11/30/2015)
Submission of 22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, or in the alternative, MOTION for More Definite Statement, to District Judge Harold L. Murphy. (bjh) (Entered: 12/01/2015)
26 NOTICE of Appearance by Ansel Franklin Beacham, III on behalf of City of Calhoun, Georgia (Beacham, Ansel) (Entered: 12/01/2015)
27 NOTICE of Appearance by Samuel Leslie Lucas on behalf of City of Calhoun, Georgia (Lucas, Samuel) (Entered: 12/01/2015)
28 ORDER Denying Defendant's 22 Motion to Dismiss for Failure to State a Claim; Denying 22 Motion for More Definite Statement. Signed by Judge Harold L. Murphy on 12/2/15. (bjh) (Entered: 12/02/2015)

12/02/2015
12/09/2015 12/16/2015 12/17/2015 12/18/2015 12/18/2015 12/21/2015 12/23/2015 01/04/2016 01/05/2016 01/12/2016 01/19/2016 01/20/2016 01/28/2016
01/28/2016
02/05/2016

29 RESPONSE re 4 MOTION for Temporary Restraining Order MOTION for Permanent Injunction filed by City of Calhoun, Georgia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Grozine, Abby) (Entered: 12/02/2015)
30 CERTIFICATE OF SERVICE of Plaintiff's Initial Disclosures by Maurice Walker.(Primerano, Ryan) (Entered: 12/09/2015)
31 ANSWER to 1 COMPLAINT by City of Calhoun, Georgia. Discovery ends on 5/16/2016.(Grozine, Abby) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 12/16/2015)
32 MOTION for Leave to File Excess Pages by Maurice Walker. (Attachments: # 1 Text of Proposed Order Granting Leave to File Excess Pages)(Primerano, Ryan) (Entered: 12/17/2015)
33 ORDER Granting Plaintiff's 32 Motion for Leave to Exceed Page Limitation re a Reply Brief in support of his Motion for Preliminary Injunction, not to exceed 25 pages. Signed by Judge Harold L. Murphy on 12/18/15. (bjh) (Entered: 12/18/2015)
34 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Permanent Injunction filed by Maurice Walker. (Primerano, Ryan) (Entered: 12/18/2015)
Submission of 4 MOTION for Temporary Restraining Order, MOTION for Permanent Injunction, to District Judge Harold L. Murphy. (bjh) (Entered: 12/21/2015)
35 CERTIFICATE OF SERVICE of Initial Disclosures by City of Calhoun, Georgia.(Grozine, Abby) (Entered: 12/23/2015)
36 RESPONSE re 10 MOTION to Certify Class filed by City of Calhoun, Georgia. (Lucas, Samuel) (Entered: 01/04/2016)
37 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by Maurice Walker. (Primerano, Ryan) (Entered: 01/05/2016)
38 SCHEDULING ORDER approving 37 Joint Preliminary Report and Discovery Plan. Signed by Judge Harold L. Murphy on 1/12/16. (bjh) (Entered: 01/12/2016)
39 REPLY BRIEF re 10 MOTION to Certify Class filed by Maurice Walker. (Attachments: # 1 Exhibit Online Ticket Payment Page (Maurice Walker), # 2 Exhibit Gordon County Jail Docket)(Geraghty, Sarah) (Entered: 01/19/2016)
Submission of 10 MOTION to Certify Class, to District Judge Harold L. Murphy. (bjh) (Entered: 01/20/2016)
40 VACATED PER ORDER 56 ORDER Granting Plaintiff's 4 Motion for Preliminary Injunction. The Court ORDERS Defendant to implement post−arrest procedures that comply with the Constitution, and further ORDERS that, unless and until Defendant implements lawful post−arrest procedures, Defendant must release any other misdemeanor arrestees in its custody, or who come into its custody, on their own recognizance or on an unsecured bond in a manner otherwise consistent with state and federal law and with standard booking procedures. Defendant may not continue to keep arrestees in its custody for any amount of time solely because the arrestees cannot afford a secured monetary bond. Signed by Judge Harold L. Murphy on 1/28/16. (bjh) Modified on 4/7/2017 (bjh). (Entered: 01/28/2016)
41 ORDER Granting Plaintiff's 10 Motion to Certify Class. The Court CERTIFIES the following class for purposes of pursuing declaratory and injunctive relief: "All arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation." Signed by Judge Harold L. Murphy on 1/28/16. (bjh) (Entered: 01/28/2016)
42 NOTICE OF APPEAL as to 41 Order on Motion to Certify Class, 40 Order on Motion for Permanent Injunction,, 28 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion for More Definite Statement by City of Calhoun, Georgia. Filing fee $ 505, receipt number 113E−6275739. Transcript Order Form due on 2/19/2016 (Grozine, Abby) (Entered: 02/05/2016)

02/05/2016 02/05/2016 02/05/2016 02/09/2016 03/08/2016 03/08/2016
03/28/2016 04/05/2016 04/07/2016 04/08/2016 03/06/2017 03/09/2017
03/09/2017
04/07/2017
04/07/2017 04/07/2017
04/21/2017

43 TRANSCRIPT ORDER FORM re 42 Notice of Appeal,. (Grozine, Abby) (Entered: 02/05/2016)
44 NOTICE Of Filing Appeal Transmission Letter re 42 Notice of Appeal. (bjh) (Entered: 02/05/2016)
45 Transmission of Certified Copy of Notice of Appeal, Order and Docket Sheet to US Court of Appeals re 42 Notice of Appeal. (bjh) (Entered: 02/05/2016)
46 USCA Acknowledgment of 42 Notice of Appeal, filed by City of Calhoun, Georgia. Case Appealed to USCA Case Number 16−10521−HH. (Attachment: # 1 USCA Letter)(bjh) (Entered: 02/09/2016)
TRANSCRIPT ORDER FORM (nothing ordered) re 42 Notice of Appeal. Case Appealed to USCA Case Number 16−10521−HH. Certificate of Readiness due on 3/22/2016. (bjh) (Entered: 03/08/2016)
Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal, 42 Notice of Appeal. Case Appealed to USCA Case Number 16−10521−HH. The entire record on appeal is available electronically. (bjh) (Entered: 03/08/2016)
47 NOTICE of Appearance by George Patrick Govignon on behalf of City of Calhoun, Georgia (Govignon, George) (Entered: 03/28/2016)
48 Notice for Leave of Absence for the following date(s): June 13, 2016 through June 20, 2016 and September 12, 2016 through September 19, 2016, by Ansel Franklin Beacham, III. (smj) (Entered: 04/05/2016)
49 Request for Leave of Absence for the following date(s): June 10, 2016 through June 27, 2016, by Jesse Anderson Davis. (bjh) (Entered: 04/07/2016)
50 Notice for Leave of Absence for the following date(s): June 10, 2016 through June 27, 2016, by Jesse Anderson Davis. (smj) (Entered: 04/08/2016)
51 Notice for Leave of Absence for the following date(s): June 12, 2017 through June 21, 2017, by Ansel Franklin Beacham, III. (smj) (Entered: 03/06/2017)
52 Certified copy of ORDER of USCA re 42 Notice of Appeal, filed by City of Calhoun, Georgia Case Appealed to USCA Case Number 16−10521−HH. Appellee's motion for leave to file a supplemental brief is DENIED. (Attachment: # 1 USCA Letter)(bjh) (Entered: 03/09/2017)
53 USCA Opinion received re 42 Notice of Appeal, filed by City of Calhoun, Georgia. PRELIMINARY INJUNCTION VACATED; AND CASE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Case Appealed to USCA Case Number 16−10521−HH. In accordance with FRAP 41(b), the USCA mandate will issue at a later date. (Attachment: # 1 USCA Letter)(bjh) (Entered: 03/09/2017)
54 Certified copy of JUDGMENT of USCA re ]53] Opinion REMANDING To District Court For Further Proceedings Consistent With The Opinion re 42 Notice of Appeal. Case Appealed to USCA Case Number 16−10521−HH. (Attachment: # 1 USCA Letter)(bjh) (Entered: 04/07/2017)
55 ORDER making the USCA mandate the judgment of this Court re 42 Notice of Appeal. Case Appealed to USCA Case Number 16−10521−HH. Signed by Judge Harold L. Murphy on 4/7/17. (bjh) (Entered: 04/07/2017)
56 ORDER: the Court VACATES the preliminary injunction in this case 40 . The Court DIRECTS the Parties to file a Notice with the Court WITHIN 14 DAYS AFTER THE DATE OF THIS ORDER indicating how the Parties believe the Court should proceed with this case. The Court DIRECTS the Clerk to RE−SUBMIT this case to the Court after the conclusion of the fourteen−day period. Signed by Judge Harold L. Murphy on 4/7/17. (bjh) (Entered: 04/07/2017)
57 NOTICE by Maurice Walker re 56 Order, (Geraghty, Sarah) (Entered: 04/21/2017)

04/21/2017 04/21/2017 04/24/2017
05/04/2017 05/04/2017
05/04/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017
05/26/2017 05/30/2017 05/30/2017

58 NOTICE by City of Calhoun, Georgia re 56 Order, (Davis, Jesse) (Entered: 04/21/2017)
Submission of 56 Order for Parties to file a Notice re how this case should proceed, to District Judge Harold L. Murphy. (bjh) (Entered: 04/21/2017)
59 ORDER the Court FINDS that the Parties have complied with the April 7, 2017, Order. The Court ORDERS that Defendant may file a response to Plaintiff's Notice on or before May 12, 2017. Plaintiff may file a reply in support of the positions set forth in his Notice on or before May 26, 2017. Signed by Judge Harold L. Murphy on 4/24/17. (bjh) (Entered: 04/24/2017)
60 Joint MOTION for Amended Scheduling Order by Maurice Walker. (Attachments # 1 Proposed Order Amending Scheduling Order)(Primerano, Ryan) Modified on 5/4/2017 to edit event type (bjh). (Entered: 05/04/2017)
61 ORDER Granting 60 Joint Motion to Amend Scheduling Order. The discovery period shall commence on May 15, 2017, and end on September 1, 2017. Motions to compel shall be filed on or before September 1, 2017, unless otherwise permitted by court order. Motions for summary judgment shall be filed on or before October 2, 2017, unless otherwise permitted by court order. Daubert motions regarding expert testimony shall be filed no later than the date that the proposed pretrial order is submitted. The parties shall submit a proposed pretrial order within 30 days of the close of discovery, or within 30 days of an order disposing of any motions for summary judgment, whichever is later.In all other respects, the Court's January 12, 2016, scheduling order shall remain ineffect. Signed by Judge Harold L. Murphy on 5/4/17. (bjh) (Entered: 05/04/2017)
Discovery ends on 9/1/2017. (bjh) (Entered: 05/04/2017)
62 NOTICE Of Filing of Manual Filing of Compact Disc of the Audio of the Oral Argument Held Before The Eleventh Circuit Court of Appeals by City of Calhoun, Georgia (Davis, Jesse) (Entered: 05/12/2017)
Remark: Clerk received hand delivered CD re 62 Notice of Filing. (bjh) Modified on 5/12/2017 (bjh). (Entered: 05/12/2017)
63 AFFIDAVIT of Matthew Chad Silvers by City of Calhoun, Georgia. (Davis, Jesse) (Entered: 05/12/2017)
64 RESPONSE re 57 Notice (Other) Plaintiff's Renewed Request For A Preliminary Injunction filed by City of Calhoun, Georgia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Davis, Jesse) (Entered: 05/12/2017)
65 NOTICE Of Filing by City of Calhoun, Georgia of Amici Curiae Briefs Previously Filed with the Eleventh Circuit Court of Appeals (Attachments: # 1 Brief of American Bail Coalition, GA Association Professional Bondsmen, GA Sheriff's Association, # 2 Brief of Georgia Municipal Association, International Municipal Lawyers Association, # 3 Brief of Cities of Alabama, Alabama League of Municipalities, Alabama Municipal Ins Corp, # 4 Brief of The Cato Institute, # 5 Brief of Ctr for Legal & Evidence−Based Practices, # 6 Brief of Pretrial Justice Institute & National Association of Pretrial Services Agencies, # 7 Brief of The Southern Poverty Law Cente4r, # 8 Brief of United States, # 9 Brief of American Bar Association, # 10 Brief of Group of Georgia Lawyers)(Davis, Jesse) (Entered: 05/12/2017)
66 REPLY In Support of 57 Notice Concerning Plaintiff's Position on How the Court Should Proceed, re Defendant's 64 Response filed by Maurice Walker. (Primerano, Ryan) Modified on 5/26/2017 to edit text to reflect pdf (bjh). (Entered: 05/26/2017)
Submission of 59 Order Directing Defendant to file a response to Plaintiff's Notice on or before May 12, 2017; Plaintiff may file a reply in support of the positions set forth in his Notice on or before May 26, 2017, to District Judge Harold L. Murphy. (bjh) (Entered: 05/30/2017)
67 Request for Leave of Absence for the following date(s): June 7−12 2017, June 15−16 2017, June 21−26 2017, July 14−August 2 2017, September 7−11 2017, by Jesse Anderson Davis. (Davis, Jesse) (Entered: 05/30/2017)

06/16/2017

68 VACATED PER ORDER 91 ORDER: the Court GRANTS Plaintiff's Motion for Preliminary Injunction 4 . The Court ORDERS as follows: Defendant shall, unless and until otherwise ordered by this Court, comply with the following: (1) Defendant is prohibited from detaining indigent misdemeanor or Calhoun Municipal ordinances arrestees who are otherwise eligible for release but are unable, because of their poverty, to pay a secured or money bail in accordance with the Standing Bail Order.(2) If an arrestee indicates that he or she is unable to pay a secured or money bail, arresting officers, jail personnel, or Municipal Court staff must, as soon as practicable after booking verify the arrestee's inability to pay a secured or money bail by means of an affidavit sworn before an authorized official. The affidavit must give the arrestee sufficient opportunity to swear to his or her financial conditions, including the arrestee's monthly income and expenses, the value of any assets that the arrestee has, including money in bank accounts, real estate, or automobiles, and the amount of any liabilities that the arrestee may have, such as loans, liens, or other obligations, and to the number of individuals living in the arrestee's household. The affidavit also must give the arrestee an opportunity to swear as to the amount of financial security or funds that the arrestee would be able to post or pay up front, from any source, including contributions from family and friends, within twenty−four hours of arrest. Finally, the affidavit shall give the arrestee the opportunity to swear that he or she is indigent, meaning that he or she earns less than 100 percent of the applicable federal poverty guidelines. (3) The standard for making an individualized determination of indigency is, as set forth in the Standing Bail Order, "that established by O.C.G.A. § 36−32−1 (f) and (g), as defined by O.C.G.A. § 17− 12 −2(6)(A) regarding an 'indigent person' charged with a misdemeanor, violation of probation, or a municipal code offense punishable by imprisonment." (Standing Bail Order at 5.) Those provisions "have established an 'indigent person' or 'indigent defendant' for appointed legal counsel as one 'earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person has other resources that might be reasonably used to employ a lawyer without undue hardship on the person or his or her dependents[.]'" (Id. at 5−6 (alteration in original).) For purposes of this Order, 100 percent of the federal poverty guidelines shall specifically mean the guidelines published in the Federal Register, 82 Fed. Reg. 8831−03, 2017 WL 395763 (Jan. 31,2017), and as may be further promulgated and adopted for subsequent years in the Federal Register. For 2017, the poverty guidelines for the forty−eight contiguous States and the District of Columbia are as follows: (1) for a one−person household, $12,060; (2) for a two−person household, $16,240; (3) for a three−person household, $20,420; (4) for a four−person household, $24,600; (5) for a five−person household, $28,780; (6) for a six−person household, $32,960; (7) for a seven−person household, $37,140; (8) for an eight−person household, $41,320. 82 Fed. Reg. 8831−03, 2017 WL 395963 (Jan. 31,2017). (4) If it appears, from the affidavit sworn by the arrestee, that the arrestee is indigent, according to the above standard, the arrestee shall be subject to release on his or her own recognizance without making a secured bail in accordance with O.C.GA § 17−6−1 (i), or subject to release on an unsecured bond, with an obligation to pay the amount listed in the bail schedule set forth in the Standing Bail Order if the arrestee fails to appear for a scheduled court date. Either the arresting officer or jail personnel, or, if available, the Municipal Court Clerk or the Judge of the Municipal Court, must conduct a review of the affidavit as soon as practicable, or, at the latest, within twenty−four hours after arrest to determine whether the arrestee meets the indigency requirement set forth in paragraph (3) and is subject to release. (5) An arrestee who is released pursuant to paragraph (4) shall be provided with written notice of the date for the next proceeding or trial. The arrestee has the responsibility of notifying the Clerk of the Municipal Court if he or she has a change of residence or mailing address prior to adjudication and sentencing, to ensure notice of any change in the scheduled proceedings. Arrestees who fail to appear for scheduled court proceedings may, of course, be subject to arrest for failure to appear.(6) As provided in the Standing Bail Order, "[a]ll persons charged with violations of The Code of Calhoun, Georgia who have no outstanding failure to appear arrest warrant from the City of Calhoun, or any other similar governing authority duly established by the Georgia General Assembly or the Constitution of The State of Georgia, shall be released on an unsecured appearance bond in the amount established by the" bail schedule set forth in the Standing Bail Order. (Standing Bail Order at 6−7.)(7) Nothing in this Order prohibits Defendant from detaining an arrestee who is intoxicated, under the influence of drugs, or a danger to himself or herself or others such that said arrestee would not otherwise be eligible for release, until such time as that arrestee becomes eligible for release. Defendant also may detain arrestees who are subject to outstanding active warrants or other holds

07/12/2017
07/13/2017 07/13/2017 07/18/2017 07/27/2017 08/04/2017 08/04/2017 08/10/2017
08/10/2017
08/10/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017

preventing their release from detention, arrestees who are subject to detention without bond under state or federal law, and arrestees who refuse to cooperate in determining their indigence. Further, nothing in this Order prohibits Defendant from applying the bail schedule set forth in the Standard Bail Order to arrestees who are financially able to post bond in accordance with that schedule. Signed by Judge Harold L. Murphy on 6/16/17. (bjh) Modified on 9/24/2018 (bjh). (Entered: 06/16/2017)
69 NOTICE OF APPEAL as to 68 Order, 41 Order on Motion to Certify Class, 28 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion for More Definite Statement by City of Calhoun, Georgia. Filing fee $505, receipt number 113E−7261098. Transcript Order Form due on 7/26/2017. (Davis, Jesse) Modified on 7/13/2017 to edit text to delete double text (bjh). (Entered: 07/12/2017)
70 NOTICE Of Filing Appeal Transmission Letter re 69 Notice of Appeal. (bjh) (Entered: 07/13/2017)
71 Transmission of Certified Copy of Notice of Appeal, Judgment, Orders and Docket Sheet to US Court of Appeals re 69 Notice of Appeal. (bjh) (Entered: 07/13/2017)
72 USCA Acknowledgment of 69 Notice of Appeal, filed by City of Calhoun, Georgia. Case Appealed to USCA Case Number 17−13139−GG. (Attachment: # 1 USCA Letter)(bjh) (Entered: 07/18/2017)
TRANSCRIPT ORDER FORM (nothing ordered) re 69 Notice of Appeal. Case Appealed to USCA Case Number 17−13139−GG. Certificate of Readiness due on 8/10/2017. (bjh) (Entered: 07/27/2017)
73 CERTIFICATE OF SERVICE by Maurice Walker.(Primerano, Ryan) (Entered: 08/04/2017)
74 MOTION to Stay Proceedings Until the Pending Appeal is Decided with Brief In Support by City of Calhoun, Georgia. (Attachments: # 1 Brief Brief ISO Motion to Stay)(Grozine, Abby) (Entered: 08/04/2017)
Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal, 69 Notice of Appeal. Case Appealed to USCA Case Number 17−13139−GG. The record on appeal is available electronically with the exception of: One CD re 62 Notice of Manual Filing CD of Audio of Oral Argument Held Before Eleventh Circuit Court of Appeals. (bjh) (Entered: 08/10/2017)
CD forwarded to USCA re one CD re 62 Notice of Filing Manual CD of Audio of Oral Argument Held Before Eleventh Circuit Court of Appeals. Case Appealed to USCA Case Number 17−13139−GG. UPS Tracking No. 1ZXX55860310043324. (bjh) (Entered: 08/10/2017)
75 NOTICE by City of Calhoun, Georgia of Service of Discovery Material (Grozine, Abby) (Entered: 08/10/2017)
76 CERTIFICATE OF SERVICE of Discovery by City of Calhoun, Georgia.(Lucas, Samuel) (Entered: 08/11/2017)
77 Joint MOTION for Extension of Time to Complete Discovery by Maurice Walker. (Attachments: # 1 Text of Proposed Order Extending Discovery Period)(Primerano, Ryan) (Entered: 08/11/2017)
78 Unopposed MOTION for Extension of Time in Which to File Motion to Compel by Maurice Walker. (Attachments: # 1 Text of Proposed Order Granting Extension of Time in Which to File Motion to Compel)(Primerano, Ryan) (Entered: 08/11/2017)
79 RESPONSE in Opposition re 74 MOTION to Stay Proceedings Until the Pending Appeal is Decided filed by Maurice Walker. (Primerano, Ryan) (Entered: 08/11/2017)
80 ORDER Granting 77 Motion for Extension of Time to Amend Scheduling Order. Discovery ends on 11/30/2017. Motions to compel shall be filed on or before November 30, 2017, unless otherwise permitted by court order. Motions for summary judgment shall be filed on or before January 2, 2018, unless otherwise permitted by court order. Daubert motions regarding expert testimony shall be filed no later than the date that the proposed pretrial order is submitted. The parties shall submit a proposed pretrial order within 30 days of the close of discovery, or within 30 days of an order

08/11/2017
08/16/2017 08/17/2017 08/17/2017 03/28/2018 03/30/2018 04/04/2018 08/22/2018
09/20/2018 09/20/2018 09/21/2018 09/24/2018
10/05/2018 10/08/2018 10/09/2018

disposing of any motions for summary judgment, whichever is later. Signed by Judge Harold L. Murphy on 8/11/17. (bjh) (Entered: 08/11/2017)
81 ORDER Granting 78 Motion for Extension of Time to file a Motion to Compel Discovery Responses. Any motion to compel with respect to Plaintiff's First Interrogatories or First Requests for Production shall be due within 14 days after service of the City's supplemental discovery responses. Signed by Judge Harold L. Murphy on 8/11/17. (bjh) (Entered: 08/11/2017)
82 REPLY BRIEF re 74 MOTION to Stay Proceedings Until the Pending Appeal is Decided filed by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 08/16/2017)
Submission of 74 MOTION to Stay Proceedings Until the Pending Appeal is Decided, to District Judge Harold L. Murphy. (bjh) (Entered: 08/17/2017)
83 ORDER Granting 74 Motion to Stay Proceedings in this action pending the resolution of Defendant's appeal. The preliminary injunction issued on June 16, 2017, remains in full force and effect. Signed by Judge Harold L. Murphy on 8/17/17. (bjh) (Entered: 08/17/2017)
84 Certified copy of ORDER of USCA re 69 Notice of Appeal, filed by City of Calhoun, Georgia. Amicus Curiaes' Motion for leave to participate in oral argument on the side of Appellant, City of Calhoun, GA is GRANTED. Case Appealed to USCA Case Number 17−13139−GG. (Attachment: # 1 USCA Letter)(bjh) (Entered: 03/28/2018)
85 Request for Leave of Absence for the following date(s): May 2−6 2018, May 7−11 2018, June 7−9 2018, June 10−25 2018, by Jesse Anderson Davis. (Davis, Jesse) (Entered: 03/30/2018)
86 Request for Leave of Absence for the following date(s): May 16−18 2018, July 5−6 2018, July 23−30 2018, by Ansel Franklin Beacham, III. (Beacham, Ansel) (Entered: 04/04/2018)
87 USCA Opinion received vacating and remanding to the district court for further proceedings re: 69 Notice of Appeal, filed by City of Calhoun, Georgia. In accordance with FRAP 41(b), the USCA mandate will issue at a later date. Case Appealed to 11th Circuit Case Number 17−13139−GG. (Attachments: # 1 Letter)(dob) (Entered: 08/22/2018)
88 Certified copy of MANDATE of USCA re 87 USCA Opinion VACATING and REMANDING to the District Court for further proceedings. Re: 69 Notice of Appeal, filed by City of Calhoun, Georgia. Case Appealed to USCA Case Number 17−13139−GG. (Attachment: # 1 USCA Letter)(bjh) (Entered: 09/20/2018)
89 ORDER that the Mandate of the USCA be and hereby is made the judgment of this Court. Signed by Judge Harold L. Murphy on 9/20/18. (bjh) (Entered: 09/20/2018)
90 Appeal Record Returned: 1 CD re 69 Notice of Appeal. Case Appealed to USCA Case Number 17−13139−GG. (bjh) (Entered: 09/21/2018)
91 ORDER: the Court VACATES the preliminary injunction in this case 68 . The Court DIRECTS the Parties to file a notice with the Court WITHIN 14 DAYS AFTER THE DATE OF THIS ORDER indicating how the Parties believe the Court should proceed with this case. The Court DIRECTS the Clerk to RE−SUBMIT this case to the Courtafter the conclusion of the 14 day period. Signed by Judge Harold L. Murphy on 9/24/18. (bjh) (Entered: 09/24/2018)
92 MOTION for Preliminary Injunction Barring City of Calhoun from Reinstating Original Bail Policy with Brief In Support by Maurice Walker. (Attachments: # 1 Exhibit A: E−mail Describing Original Bail Policy, # 2 Text of Proposed Order Granting Preliminary Injunction)(Primerano, Ryan) (Entered: 10/05/2018)
93 NOTICE by Maurice Walker re 91 Order, (Primerano, Ryan) (Entered: 10/08/2018)
94 ORDER finding that the Parties have complied with the Court's 9/24/2018 Order. The Court Stays this case in its entirety, including discovery and the briefing process relating to Plaintiff's pending Motion for Preliminary Injunction and any ruling on that Motion through and including 11/20/2018, Plaintiff's deadline to file a petition for a writ of certiorari with the Supreme Court. The Court directs counsel for Plaintiff to

11/16/2018 11/26/2018
11/26/2018 12/03/2018 01/23/2019
03/11/2019 04/02/2019 04/02/2019 04/08/2019 04/09/2019 04/09/2019 04/16/2019 04/17/2019

notify the Court concerning the decision whether to seek certiorari review by 11/20/2018. If Plaintiff ceeks certirorari review, the Court will determine whether to say this action pending a ruling on Plaintiff's petition for a writ of certiorari. If Plaintiff elects not to file a petition for a writ of certiorari, the Court extends the time for Defendant to file its response to Plaintiff's Motion for Preliminary Injunction through and including 12/4/2018. If Plaintiff elects not to file a petition for a writ of certiorari, the Court orders the Parties to file an amended, joint scheduling and discovery order by 12/7/2018. Signed by Judge Harold L. Murphy on 10/9/2018. (dob) (Entered: 10/09/2018)
95 NOTICE Concerning Certiorari Proceedings re 94 Order, filed by Maurice Walker. (Primerano, Ryan) Modified on 11/16/2018 to edit text to reflect pdf and provide linkage (bjh). (Entered: 11/16/2018)
96 ORDER: the Court FINDS that Plaintiff has complied with the October 9, 2018, Order. The Court EXTENDS the stay of proceedings in this matter, including all discovery, through the earlier of: (1) the Supreme Court's resolution of Plaintiff's forthcoming petition for a writ of certiorari; or (2) JUNE 28, 2019. The Court DENIES WITHOUT PREJUDICE Plaintiff's pending Motion for Preliminary Injunction 92 . If necessary, Plaintiff may re−file that Motion after the Supreme Court has resolved Plaintiffs forthcoming petition for a writ of certiorari. Finally, the Court DIRECTS counsel for Plaintiff to notify the Court WITHIN 14 DAYS after the Supreme Court issues a decision on Plaintiffs forthcoming petition for a writ of certiorari. Signed by Judge Harold L. Murphy on 11/26/18. (bjh) (Entered: 11/26/2018)
Discovery ends on 6/28/2019. (bjh) (Entered: 11/26/2018)
97 Request for Leave of Absence for the following date(s): February 28, 2019, March 1, 2019, March 4, 2019, March 5, 2019, March 6, 2019, March 7, 2019, March 8, 2019, March 11, 2019, March 12, 2019, March 13, 2019, March 14, 2019, March 15, 2019, by Abby C. Grozine. (Grozine, Abby) (Entered: 12/03/2018)
98 APPEALED TO SUPREME COURT CD EXHIBIT WILL NOT BE RETURNED AT THIS TIMENOTICE TO Jesse Davis COUNSEL OF RECORD for City of Calhoun, Georgia re 62 Notice of Filing (1 CD) regarding RECLAMATION AND DISPOSITION OF UNCLAIMED Audio/Video EXHIBITS pursuant to Local Rule 79.1D. (bjh) Modified on 1/23/2019 (bjh). (Entered: 01/23/2019)
99 Request for Leave of Absence for the following date(s): May 22−26, 2019, June 17−25, 2019, October 2−7, 2019, by Ansel Franklin Beacham, III. (Beacham, Ansel) (Entered: 03/11/2019)
100 NOTICE from Supreme Court re 69 Notice of Appeal, denying the writ of certiorari. (bjh) (Entered: 04/02/2019)
101 ORDER: the Court LIFTS the stay of proceedings in this case. The Court DIRECTS the Parties to file a proposed scheduling order for this case WITHIN 14 DAYS AFTER THE DATE OF THIS ORDER. Signed by Judge Harold L. Murphy on 4/2/19. (bjh) (Entered: 04/02/2019)
102 MOTION for Preliminary Injunction with Brief In Support by Maurice Walker. (Attachments: # 1 Exhibit A: Email Describing Original Bail Policy)(Primerano, Ryan) (Entered: 04/08/2019)
103 ORDER Denying Without Prejudice Plaintiff's 102 Motion for Preliminary Injunction. Signed by Judge Harold L. Murphy on 4/9/19. (bjh) (Entered: 04/09/2019)
104 MOTION for Preliminary Injunction with Brief In Support by Maurice Walker. (Attachments: # 1 Brief in Support of Motion for Preliminary Injunction, # 2 Exhibit A: Email Describing Original Bail Policy)(Primerano, Ryan) (Entered: 04/09/2019)
105 Joint MOTION to Amended Scheduling Order with Brief In Support by Maurice Walker. (Attachments: # 1 Text of Proposed Order regarding scheduling)(Geraghty, Sarah) Modified on 4/17/2019 to edit event type (bjh). (Entered: 04/16/2019)
106 ORDER Granting 105 Joint Motion for an Amended Scheduling Order. The Court assigns this case to a six−month discovery period, which will begin on the date that the Court rules on Plaintiffs Motion for Preliminary Injunction. See Order for details.

04/19/2019 04/22/2019
05/02/2019
05/03/2019 05/15/2019
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07/01/2019
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Signed by Judge Harold L. Murphy on 4/17/19. (bjh) (Entered: 04/17/2019)
107 MOTION for Extension of Time File Response to Plaintiff's Motion for Preliminary Injunction re: 104 MOTION for Preliminary Injunction by City of Calhoun, Georgia. (Attachments: # 1 Text of Proposed Order)(Grozine, Abby) (Entered: 04/19/2019)
108 ORDER Granting 107 Motion for Extension of Time up to and including May 7, 2019 for Defendant City of Calhoun, Georgia, to Respond to Plaintiff's 104 Motion for Preliminary Injunction. Signed by Judge Harold L. Murphy on 4/22/19. (bjh) (Entered: 04/22/2019)
109 SECOND Consent MOTION for Extension of Time to File Response to Plaintiff's 104 MOTION for Preliminary Injunction < by City of Calhoun, Georgia. (Attachments: # 1 Proposed Order)(Grozine, Abby) Modified on 5/3/2019 to edit text to reflect pdf (bjh). (Entered: 05/02/2019)
110 ORDER Granting 109 Second Consent Motion for Extension of Time to Respond to 104 Motion for Preliminary Injunction until 5/17/19. Signed by Judge Harold L. Murphy on 5/3/19. (bjh) (Entered: 05/03/2019)
111 Third MOTION for Extension of Time to Respond to Plaintiff's Motion for Preliminary Injunction re: 104 MOTION for Preliminary Injunction by City of Calhoun, Georgia. (Attachments: # 1 Text of Proposed Order)(Grozine, Abby) (Entered: 05/15/2019)
112 ORDER granting 111 Motion for Extension of Time to Respond re 104 MOTION for Preliminary Injunction up to and including 5/28/2019. Signed by Judge Harold L. Murphy on 5/16/2019. (dob) (Entered: 05/16/2019)
113 Fourth MOTION for Extension of Time To Respond re: 104 MOTION for Preliminary Injunction , 106 Order on Motion for Extension of Time to Complete Discovery, by City of Calhoun, Georgia. (Attachments: # 1 Text of Proposed Order)(Grozine, Abby) (Entered: 05/24/2019)
114 ORDER Granting 113 Fourth Consent Motion for Extension of Time for Defendant to respond to Plaintiff's 104 Motion for Preliminary Injunction up to and including June 28, 2019. Signed by Judge Harold L. Murphy on 5/24/19. (bjh) (Entered: 05/24/2019)
115 AFFIDAVIT of Honorable M. Suzanne Hayes Smith by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 06/28/2019)
116 AFFIDAVIT of Mayor James F. Palmer by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 06/28/2019)
117 RESPONSE in Opposition re 104 MOTION for Preliminary Injunction filed by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 06/28/2019)
118 MOTION Motion to Decertify Class with Brief In Support by City of Calhoun, Georgia. (Attachments: # 1 Brief)(Grozine, Abby) (Entered: 06/28/2019)
119 Consent MOTION for Extension of Time to File Reply in Support of 104 Motion for Preliminary Injunction and Response to 118 MOTION to Decertify Class, by Maurice Walker. (Attachments: # 1 Text of Proposed Order Granting 21−Day Extension of Time)(Primerano, Ryan) Modified on 7/2/2019 to edit text to provide correct linkage (bjh). (Entered: 07/01/2019)
120 ORDER granting 119 Consent Motion for Extension of Time in which Walker may file his reply in support of the 104 motion for preliminary injunction, and response to the 118 MOTION Motion to Decertify Class up to and including August 2, 2019. Signed by Judge Harold L. Murphy on 7/1/19. (jta) (Entered: 07/01/2019)
121 REPLY to Response to Motion re 104 MOTION for Preliminary Injunction filed by Maurice Walker. (Primerano, Ryan) (Entered: 08/02/2019)
122 RESPONSE in Opposition re 118 MOTION Motion to Decertify Class filed by Maurice Walker. (Primerano, Ryan) (Entered: 08/02/2019)
Submission of 104 MOTION for Preliminary Injunction, to District Judge Harold L. Murphy. (bjh) (Entered: 08/05/2019)

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09/06/2019 09/17/2019 10/18/2019 10/18/2019 11/18/2019
11/22/2019
11/22/2019 01/03/2020

123 MOTION for Referral to Mediation with Brief In Support by Maurice Walker. (Attachments: # 1 Brief in Support of Motion for Referral to Mediation)(Primerano, Ryan) (Entered: 08/05/2019)
124 Consent MOTION for Extension of Time for City of Calhoun to Respond by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 08/15/2019)
125 PROPOSED CONSENT ORDER Granting Motion for Extension of Deadlines to Resp to Motion to Dec class and resp to Plaintiff's Motion for Referral to Mediation re: 124 Consent MOTION for Extension of Time for City of Calhoun to Respond . (Grozine, Abby) (Entered: 08/15/2019)
126 ORDER Granting 124 Second Consent Motion for Extension of Time until 8/30/19 for Defendant to Reply to 118 MOTION Motion to Decertify Class. Signed by Judge Harold L. Murphy on 8/15/19. (bjh) (Entered: 08/16/2019)
127 REPLY BRIEF re 118 MOTION Motion to Decertify Class filed by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 08/30/2019)
128 RESPONSE re 123 MOTION for Referral to Mediation filed by City of Calhoun, Georgia. (Grozine, Abby) (Entered: 08/30/2019)
Submission of 118 MOTION Motion to Decertify Class, to District Judge Harold L. Murphy. (bjh) (Entered: 09/04/2019)
129 ORDER: the Court GRANTS Plaintiff's Motion for Referral to Mediation 123 , and it REFERS this case to Chief United Magistrate Judge Alan J. Baverman for selection of, and assignment to, a United States Magistrate Judge for mediation. The Court defers ruling on Plaintiff's Motion for Preliminary Injunction 104 and on Defendant's Motion to Decertify Class 118 pending the outcome of the mediation. Signed by Judge Harold L. Murphy on 9/6/19. (bjh) (Entered: 09/06/2019)
ORDER REFERRING CASE to Magistrate Judge Walter E. Johnson for mediation. (bjh) (Entered: 09/06/2019)
130 ORDER scheduling Mediation. Mediation Hearing set for 10/21/2019 at 10:00 AM in ROME Courtroom 201 before Magistrate Judge Walter E. Johnson. Signed by Magistrate Judge Walter E. Johnson on 9/17/19. (klb) (Entered: 09/17/2019)
Remark − Mediation will not be held. Counsel state case has settled. Settlement documents will be filed within 30 days. (klb) (Entered: 10/18/2019)
131 ORDER denying without prejudice 104 Motion for Preliminary Injunction; denying without prejudice 118 Motion to Decertify Class. Signed by Judge Harold L. Murphy on 10/18/19. (bjh) (Entered: 10/18/2019)
132 Joint MOTION for Preliminary Approval of Class Action Settlement Agreement with Brief In Support by Maurice Walker. (Attachments: # 1 Brief in Support of Joint Motion for Preliminary Approval of Class Action Settlement Agreement, # 2 Exhibit A: Class Action Settlement Agreement, # 3 Exhibit B: Proposed Class Notice, # 4 Exhibit C: Proposed Preliminary Approval Order)(Primerano, Ryan) (Entered: 11/18/2019)
133 PRELIMINARY APPROVAL ORDER Granting 132 Motion for Preliminary Approval of Class Action Settlement Agreement, as outlined in this Order. SEE ORDER FOR DETAILS. By no later than December 3, 2019, the Clerk of Court shall compile all objections or comments received and file them on the docket. A fairness hearing is set for 2:00 P. M on January 16, 2020, at United States Courthouse, 600 East First Street, Rome, GA 30161−3149. At this hearing, counsel for both parties shall be prepared to respond to any objections raised and comments made by class members. Signed by Judge Harold L. Murphy on 11/22/19. (bjh) (Entered: 11/22/2019)
Set Hearing: Fairness Hearing set for 1/16/2020 at 02:00 PM in ROME before Judge Harold L. Murphy. (bjh) (Entered: 11/22/2019)
134 ORDER Canceling Hearing set for 1/16/2020 @ 2:00 pm. The Court will reschedule the hearing at a later date. Signed by Judge Harold L. Murphy on 1/3/20. (bjh) (Entered: 01/03/2020)

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02/18/2020 02/18/2020 02/25/2020 02/25/2020 02/25/2020 03/18/2020

135 ORDER REASSIGNING CASE. Case reassigned to Judge Steve C. Jones for all further proceedings. Judge Harold L. Murphy no longer assigned to case. NOTICE TO ALL COUNSEL OF RECORD: The Judge designation in the civil action number assigned to this case has been changed to 4:15−cv−170−SCJ. Please make note of this change in order to facilitate the docketing of pleadings in this case. Signed by Judge Harold L. Murphy on 1/30/20. (bjh) (Entered: 01/31/2020)
DOCKET ORDER. The fairness hearing previously set for 1/16/2020 per 133 Order is hereby RESET for 2/18/2020 at 02:00 PM. Entered by Judge Steve C. Jones on 2/03/2020. (pdw) (Entered: 02/03/2020)
NOTICE of Hearing: Fairness Hearing set for 2/18/2020 at 02:00 PM in ROME Courtroom 353 before Judge Steve C. Jones. (pdw) (Entered: 02/03/2020)
136 PROPOSED CONSENT ORDER Final Approval of Class Settlement. (Geraghty, Sarah) (Entered: 02/18/2020)
137 Minute Entry for proceedings held before Judge Steve C. Jones: Fairness hearing held regarding approval of final settlement order. No objections were filed and no persons appeared to make objection in open court. Terms accepted, final order filed in open court. (Court Reporter Alicia Bagley)(rjs) (Entered: 02/18/2020)
138 FINAL APPROVAL ORDER AND JUDGMENT. Signed by Judge Steve C. Jones on 2/18/2020. −−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−−(rjs) (Entered: 02/18/2020)
Civil Case Terminated. (rjs) (Entered: 02/18/2020)
139 MOTION for Attorney Fees with Brief In Support by Maurice Walker. (Attachments: # 1 Brief, # 2 Exhibit Geraghty Declaration, # 3 Exhibit Primerano Declaration, # 4 Text of Proposed Order)(Geraghty, Sarah) (Entered: 02/25/2020)
140 ORDER granting 139 Motion for Attorney Fees of $30,000. Defendant shall mail payment of attorney's fees to class counsel within 30 days of the date of this Order. Signed by Judge Steve C. Jones on 2/25/2020. (rjs) (Entered: 02/25/2020)
141 CLERK'S ATTORNEY FEE JUDGMENT. (rjs)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 02/25/2020)
142 STIPULATION of Dismissal by Maurice Walker. (Primerano, Ryan) (Entered: 03/18/2020)

 
 No. 16-10521-HH

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________

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

Plaintiff-Appellee

v.

CITY OF CALHOUN, GEORGIA,

Defendant-Appellant _________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA _________________

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLEE AND URGING AFFIRMANCE
ON THE ISSUE ADDRESSED HEREIN _________________

JOHN A. HORN United States Attorney Northern District of Georgia

VANITA GUPTA Principal Deputy Assistant Attorney General

LISA FOSTER Director, Office for Access to Justice

TOVAH R. CALDERON CHRISTINE H. KU Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 353-9044

Case No. 16-10521-HH
Maurice Walker v. City of Calhoun, Georgia
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rules 26.1-1, 26.1-2, and 26.1-3, Amicus
Curiae United States certifies that, in addition to the persons and entities identified
in the briefs of defendant-appellant, plaintiff-appellee, and all of the amici curiae,
the following persons may have an interest in the outcome of this case:
1. Calderon, Tovah R., United States Department of Justice, Civil Rights Division, counsel for amicus curiae United States;
2. Foster, Lisa, United States Department of Justice, Office for Access to Justice, counsel for amicus curiae United States;
3. Gupta, Vanita, United States Department of Justice, Civil Rights Division, counsel for amicus curiae United States;
4. Horn, John A., United States Attorney, Northern District of Georgia, counsel for amicus curiae United States;
5. Ku, Christine H., United States Department of Justice, Civil Rights Division, counsel for amicus curiae United States.

Date: August 18, 2016

s/ Christine H. Ku CHRISTINE H. KU Attorney
C1 of 1

TABLE OF CONTENTS
PAGE
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
INTEREST OF THE UNITED STATES ..................................................................1
STATEMENT OF THE ISSUE.................................................................................4
STATEMENT OF THE CASE..................................................................................4
1. Overview Of Bail In The United States .................................................4
2. Relevant Facts And Procedural History ...............................................8
SUMMARY OF THE ARGUMENT ......................................................................12
ARGUMENT
A BAIL PRACTICE VIOLATES THE FOURTEENTH AMENDMENT IF, WITHOUT CONSIDERATION OF ABILITY TO PAYAND ALTERNATIVE METHODS OF ASSURING APPEARANCE AT TRIAL, IT RESULTS IN THE PRETRIAL DETENTION OF INDIGENT DEFENDANTS..............13
A. The Fourteenth Amendment Prohibits Incarcerating Individuals Without Meaningful Consideration Of Indigence And Alternative Methods Of Achieving A Legitimate Government Interest ...............................................13
B. Bail Systems That Keep Indigent Defendants In Jail Solely Because They Cannot Pay Bail Result In Unnecessary Pretrial Detention And Impede The Fair Administration Of Justice .................................................21
CONCLUSION ........................................................................................................24

TABLE OF CONTENTS (continued): CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
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TABLE OF CITATIONS

CASES:

PAGE

Allen v. United States, 386 F.2d 634 (D.C. Cir. 1967)..............................................7

Barker v. Wingo, 407 U.S. 514 (1972) .............................................................. 22-23

Barnett v. Hopper, 548 F.2d 550 (5th Cir. 1977) vacated as moot, 439 U.S. 1041 (1978).........................................................16

*Bearden v. Georgia, 461 U.S. 660 (1983)......................................12, 16-17, 20-21

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) ..................19

*Griffin v. Illinois, 351 U.S. 12 (1956) ............................................................. 12-15

Hudson v. Parker, 156 U.S. 277 (1895) ..................................................................22

M.L.B. v. S.L.J., 519 U.S. 102 (1996)......................................................................20

Pierce v. City of Velda City, No. 4:15-cv-570, 2015 WL 10013006 (E.D. Mo. June 3, 2015) .................................................8

*Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc) .............. 5, 13, 19, 22

Smith v. Bennett, 365 U.S. 708 (1961) ....................................................................14

Snow v. Lambert, No. 3:15-cv-567 (M.D. La. Sept. 3, 2015) ...................................8

*Tate v. Short, 401 U.S. 395 (1971) ................................................................. 16, 19

United States v. City of Ferguson, No. 4:16-cv-180 (E.D. Mo. Apr. 19, 2016) .................................................2, 8

United States v. Salerno, 481 U.S. 739 (1987)...........................................4-5, 17-18

Varden v. City of Clanton, No. 2:15-cv-34, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015) .................................... 3, 8, 19

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CASES (continued):

PAGE

Washington v. Davis, 426 U.S. 229 (1976) .............................................................20

*Williams v. Illinois, 399 U.S. 235 (1970) ........................................................ 15-16

STATUTES:

Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997 et seq. .....................................................................................2

18 U.S.C. 3142(c)(2)..................................................................................................7

18 U.S.C. 3142(g) ......................................................................................................7

42 U.S.C. 1983 .........................................................................................................10

42 U.S.C. 14141.........................................................................................................2

Bail Reform Act of 1966, Pub. L. No. 89-465, 80 Stat. 214 ................................. 6-7

Ga. Code Ann. § 17-6-1(b)(1) (West 2014)...............................................................9

LEGISLATIVE HISTORY:

H.R. Rep. No. 98-1121, 98th Cong., 2d Sess. 12 (1984)...........................................7

MISCELLANEOUS:

Andrew D. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am. Crim. L. Rev. 1123 (2005) ..........................................22

ABA Standards for Criminal Justice: Pretrial Release (3d ed. 2007), available at http://www.americanbar.org/publications/criminal_ justice_section_archive/crimjust_standards_pretrialrelease_ blk.html#10-1.1..........................................................................................5, 23

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MISCELLANEOUS (continued):

PAGE

Attorney General Loretta E. Lynch Delivers Remarks at White House Convening on Incarceration and Poverty (Dec. 3, 2015), available at https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynchdelivers-remarks-white-house-convening-incarceration-and...................... 2-3
Department of Justice, Address by Attorney General Robert F. Kennedy, American Bar Association House of Delegates (Aug. 6, 1962), available at http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/ 08-06-1962%20Pro.pdf ...................................................................................6
Justice Department Announces Resources to Assist State and Local Reform of Fine and Fee Practices (Mar. 14, 2016), available at https://www.justice.gov/opa/pr/justice-department-announcesresources-assist-state-and-local-reform-fine-and-fee-practices ......................3
Letter from Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Div., Dep’t of Justice, and Lisa Foster, Director, Office for Access to Justice, to Colleagues (Mar. 14, 2016), available at https://www.justice.gov/crt/file/832461/download......................4
Mary T. Phillips, New York City Criminal Justice Agency, Inc., Bail, Detention, and Felony Case Outcomes, Research Brief No. 18 (2008), available at http://www.nycja.org/lwdcms/docview.php?module=reports&module_id=597&doc_name=doc.................... 22
Open Society Justice Initiative, The Socioeconomic Impact of Pretrial Detention (2001), available at http://www.pretrial.org/ download/research/OSI%20Socioeconomic%20Impact% 20Pretrial%20Detention%202011.pdf ...........................................................23
Ram Subramaniam, et al., Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America (updated July 29, 2015), available at http://archive.vera.org/sites/default/files/ resources/downloads/incarcerations-front-door-report_02.pdf................... 7-8

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MISCELLANEOUS (continued):

PAGE

Richard Williams, Bail or Jail, State Legislatures (May 2012), available at http://www.ncsl.org/research/civil-and-criminaljustice/bail-or-jail.aspx ..................................................................................21
Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004)......................................................................22
Testimony by Attorney General Robert F. Kennedy on Bail Legislation Before the Subcomms. on Constitutional Rights and Improvements in Judicial Machinery of the S. Judiciary Comm. (Aug. 4, 1964) (Testimony by RFK), available at http://www.justice.gov/sites/default /files/ag/legacy/2011/01/20/08-04-1964.pdf. ..................................................6
Todd D. Minton & Zhen Zeng, United States Department of Justice, Bureau of Justice Statistics, Jail Inmates at Midyear 2014, NCJ 248629 (2015), available at http://www.bjs.gov/content/pub/ pdf/jim14.pdf .................................................................................................21

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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________
No. 16-10521-HH
MAURICE WALKER, on behalf of himself and others similarly situated,
Plaintiff-Appellee
v.
CITY OF CALHOUN, GEORGIA,
Defendant-Appellant _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLEE AND URGING AFFIRMANCE
ON THE ISSUE ADDRESSED HEREIN _________________
INTEREST OF THE UNITED STATES
The United States has a strong interest in ensuring that criminal justice
systems, including bail practices within those systems, are fair and
nondiscriminatory. In March 2010, the Department of Justice (Department or
DOJ) established the Office for Access to Justice, whose mission is to help
criminal and civil justice systems efficiently deliver fair and accessible outcomes,
irrespective of wealth and status. The Department also has authority to investigate

- 2 unlawful criminal justice practices, including the problematic use of fines and fees and bond procedures. See, e.g., Consent Decree at 1-2, 83, 86-87 (Doc. 41), United States v. City of Ferguson, No. 4:16-cv-180 (E.D. Mo. Apr. 19, 2016) (consent decree effectuated pursuant to the Department‟s authority under 42 U.S.C. 14141). By encouraging practices that avoid unnecessary and excessive incarceration, the Department strives to reduce the risk of unconstitutional conditions of confinement, which the Attorney General is authorized to address under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997 et seq.
In the context of bail, the Department has promoted practices that do not discriminate against the poor. From the National Symposium on Pretrial Justice, which the Department‟s Office of Justice Programs helped convene in 2011, to the White House and DOJ Convening on the Cycle of Incarceration: Prison, Debt and Bail Practices in 2015, the Department has sought to call attention to the problem of discriminatory bail practices in state and local courts. At the White House convening, Attorney General Lynch discussed discriminatory bail practices, reiterating the Department‟s commitment “[t]o ensur[e] that in the United States

- 3 -
there is indeed no price tag on justice.”1 In addition, the Department‟s Bureau of Justice Assistance funds the National Task Force on Fines, Fees and Bail Practices,
a joint project of the Conference of Chief Justices and the Conference of State Court Administrators, along with a $2.5 million grant program entitled The Price of Justice: Rethinking the Consequences of Justice Fines and Fees.2 Both are
intended to encourage state and local court reforms aimed at ending practices, including bail practices, that unfairly discriminate against the poor. These recent initiatives build upon DOJ‟s efforts since the 1960s to help reform bail practices. See pp. 5-6, infra.
In February 2015, the Department filed a statement of interest (SOI) arguing that bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violates the Fourteenth Amendment. See
U.S. SOI, Varden v. City of Clanton, No. 2:15-cv-34, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015). And in March 2016, the Department issued a Dear Colleague
1 Attorney General Loretta E. Lynch Delivers Remarks at White House Convening on Incarceration and Poverty (Dec. 3, 2015), available at https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-deliversremarks-white-house-convening-incarceration-and.
2 See Justice Department Announces Resources to Assist State and Local Reform of Fine and Fee Practices (Mar. 14, 2016), available at https://www.justice.gov/opa/pr/justice-department-announces-resources-assiststate-and-local-reform-fine-and-fee-practices.

- 4 -
Letter advising state and local courts that due process and equal protection principles require that, among other things, they “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”3
STATEMENT OF THE ISSUE The United States will address the following question only: Whether a bail practice that results in the incarceration of indigent individuals without meaningful consideration of their ability to pay and alternative methods of assuring their appearance at trial violates the Fourteenth Amendment.4
STATEMENT OF THE CASE 1. Overview Of Bail In The United States
“In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Courts have recognized that it is within this limited exception that conditions can be imposed, or in rare circumstances, release can be denied, to
3 Letter from Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Div., Dep‟t of Justice, and Lisa Foster, Director, Office for Access to Justice, to Colleagues 2 (Mar. 14, 2016), available at https://www.justice.gov/crt/file/832461/download.
4 The United States takes no position on the facts of this case or on any other issue raised in appellant‟s brief.

- 5 achieve legitimate goals like preventing the flight of defendants before trial or protecting the public from future danger. See id. at 754-755. Future appearance in court and public safety often can be assured through the imposition of nonmonetary conditions, such as supervised release or reasonable restrictions on activities and movements. See ABA Standards for Criminal Justice: Pretrial Release 10-1.4, 10-5.2 (3d ed. 2007).5 Financial conditions (often referred to simply as “bail”), however, “should be used only when no other conditions will ensure appearance.” Id. 10-1.4(c). This is because “[a] primary function of bail is to safeguard the courts‟ role in adjudicating the guilt or innocence of defendants.” Salerno, 481 U.S. at 753; see also Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc) (recognizing bail‟s limited function “of assuring the presence of [the] defendant”).
Until the reform of the federal bail system in the 1960s, however, pretrial detention was effectively the norm rather than the exception for indigent federal defendants. Federal courts routinely set monetary bail conditions without regard for indigence, and “often the sole consideration in fixing bail [was] the nature of
5 Available at http://www.americanbar.org/publications/criminal_justice_ section_archive/crimjust_standards_pretrialrelease_blk.html#10-1.1.

- 6 -
the crime.”6 In 1962, Attorney General Robert F. Kennedy called national
attention to the “problem of bail,” pointing out that pretrial detention “is directly influenced by how wealthy [a defendant] is.”7 In testifying to Congress about the
problems associated with bail systems that fail to account for indigence, Attorney
General Kennedy told the story of an individual who spent 54 days in jail because
he could not afford the $300 bail amount for a traffic offense for which the
maximum penalty was only five days in jail. See Testimony by RFK 3. Under
Attorney General Kennedy‟s leadership, the Department pressed for expansive
reforms that culminated in the Attorney General‟s National Conference on Bail and
Criminal Justice in 1964 and the Bail Reform Act of 1966, Pub. L. No. 89-465, 80
Stat. 214.
The Bail Reform Act abolished the use of bail conditions that discriminate
against indigent arrestees in the federal system. The Act‟s purpose was to revise
federal bail practices “to assure that all persons, regardless of their financial status,
6 Testimony by Attorney General Robert F. Kennedy on Bail Legislation Before the Subcomms. on Constitutional Rights and Improvements in Judicial Machinery of the S. Judiciary Comm. 2 (Aug. 4, 1964) (Testimony by RFK), available at http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-041964.pdf.
7 Department of Justice, Address by Attorney General Robert F. Kennedy, American Bar Association House of Delegates (Aug. 6, 1962), available at https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-061962%20Pro.pdf.

- 7 -
shall not needlessly be detained pending their appearance * * * when detention serves neither the ends of justice nor the public interest.” Bail Reform Act of 1966 § 2; see also Allen v. United States, 386 F.2d 634, 637 (D.C. Cir. 1967) (Bazelon, J., dissenting) (“It plainly appears from the language and history of the Bail Reform Act that its central purpose was to prevent pretrial detention because of indigency.”). In 1984, the Act was amended to make clear that a “judicial officer may not impose a financial condition that results in the pretrial detention of the person.” 18 U.S.C. 3142(c)(2); see H.R. Rep. No. 98-1121, 98th Cong., 2d Sess. 12 (1984). This express mandate helps ensure that federal courts base pretrial detention decisions on an individualized assessment of dangerousness and risk of flight and that indigent defendants are not detained without meaningful consideration of an individual‟s ability to pay and alternative methods of achieving the government‟s interests. See also 18 U.S.C. 3142(g) (listing factors that judicial officers should consider to “reasonably assure” the appearance of an individual in court and the safety of others).
Many other jurisdictions, however, still maintain bail systems that incarcerate people without regard for indigency.8 But as noted above, the
8 Indeed, the use of monetary bail has increased substantially since 1990. See Ram Subramaniam, et al., Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America 29 (updated July 29, 2015), available at
(continued…)

- 8 Department is working with state and local courts to reform their systems and promote constitutional bail practices. In Varden, after the Department filed its SOI, the parties reached a settlement agreeing to a bail policy that allows for release on an unsecured bond as the norm rather than the exception. See Varden v. City of Clanton, No. 2:15-cv-34, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015); see also Consent Decree, City of Ferguson, supra. Lawsuits challenging bail practices in other local jurisdictions have also been resolved by agreement or court order. See, e.g., Pierce v. City of Velda City, No. 4:15-cv-570, 2015 WL 10013006 (E.D. Mo. June 3, 2015) (adopting a settlement agreeing to a new bail policy and declaring that, under the Equal Protection Clause, no defendant can be held in custody based solely on inability to post a monetary bond); Snow v. Lambert, No. 3:15-cv-567 (M.D. La. Sept. 3, 2015) (accepting a settlement prohibiting use of a secured monetary bond to hold misdemeanor arrestees in jail who cannot afford the bond). 2. Relevant Facts And Procedural History
a. Plaintiff Maurice Walker is a 54-year old man who was arrested by the Calhoun Police Department for being a pedestrian under the influence and was
(…continued) http://archive.vera.org/sites/default/files/resources/downloads/incarcerations-frontdoor-report_02.pdf.

- 9 kept in jail for six nights without making bail. Doc. 29-2, at 1.9 He filed this class action alleging that the City of Calhoun, Georgia, employs an unconstitutional bail practice that imprisons indigent defendants because of their inability to pay fixed bail amounts for misdemeanors, traffic offenses, and ordinance violations. Doc. 1, at 5-7, 13.
According to the complaint, Walker has a serious mental health disability and limited income with no assets. He lives with his sister, who manages his only income of $530 per month of Social Security disability benefits. Doc. 1, at 3. When Walker was arrested on September 3, 2015, he was informed that he would not be released unless he paid the $160 fixed cash bond amount set by the City for the misdemeanor of being a pedestrian under the influence. Georgia law provides that “at no time * * * shall any person charged with a misdemeanor be refused bail.” Ga. Code Ann. § 17-6-1(b)(1) (West 2014). But Walker alleged that, contrary to state law, the City‟s policy and practice was to immediately release individuals arrested for minor traffic or misdemeanor offenses if they can pay preset bond amounts (which vary by offense), but to hold those who cannot afford the bond in jail until their first court appearance. See Doc. 1, at 2; Doc. 29-5, at 910, 12, 15 (Calhoun‟s Bail Schedule). By contrast, Walker contended that many
9 Citations to “Doc. __, at __” are to documents on the district court docket sheet and relevant page numbers.

- 10 other cities provide for release of misdemeanor arrestees on recognizance or unsecured bonds. These forms of security involve promises to appear with penalties for failing to appear in court, such as an added criminal charge or a monetary fine. Doc. 1, at 5-6.
Walker alleged that because he is indigent, and because he could not afford the fixed bail amount, he was kept in jail for several nights to await his court appearance. Doc. 1, at 4-5. When this lawsuit was filed, the City held court only on non-holiday Mondays, and because Walker was arrested on the Thursday before Labor Day, he remained in jail for six days until his counsel could secure his release on his own recognizance. Doc. 29, at 2. During his pretrial detention, Walker claimed that he was unable to take his daily medication, and that he was allowed out of his cell for only one hour each day. Doc. 1, at 5. Walker also alleged that “[e]ach Monday [when court is held], there are commonly about four to six indigent defendants who were not able to pay * * * to secure their release.” Doc. 1, at 7.
On behalf of himself and those similarly situated, Walker sued the City under 42 U.S.C. 1983, alleging that its bail practice violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He sought damages on behalf of himself and declaratory and injunctive relief on behalf of the class. Doc. 1, at 3, 13-14.

- 11 b. On January 28, 2016, the district court granted Walker‟s motion for a preliminary injunction. The court ordered the City to implement constitutional post-arrest procedures and, in the interim, to release any misdemeanor arrestees on their own recognizance or on an unsecured bond. Doc. 40, at 72. The court held, among other things, that there was a substantial likelihood that Walker would succeed on the merits of his claim, because “[a]ny bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause.” Doc. 40, at 49. In reaching this conclusion, the district court reviewed Supreme Court and circuit precedent recognizing that equal protection and due process principles prohibit punishing people for their poverty. The court then determined that this rule was “especially true” for pretrial detainees who had yet to be found guilty of a crime. Doc. 40, at 49-52; see also Doc. 40, at 52-56 (observing that other courts have reached similar conclusions).10
10 The district court also determined that the City‟s new Standing Bail Order, which was adopted after the lawsuit was filed, neither mooted Walker‟s claims nor remedied the constitutional deficiencies in the prior bail policy. Doc. 40, at 56, 59-62. Again, the United States takes no position on these or any other issues in this case that is not addressed herein.

- 12 SUMMARY OF THE ARGUMENT If this Court reaches the issue, it should affirm the district court‟s holding that a bail scheme that mandates payment of fixed amounts to obtain pretrial release, without meaningful consideration of an individual‟s indigence and alternatives that would serve the City‟s interests, violates the Fourteenth Amendment. In a long line of cases beginning with Griffin v. Illinois, 351 U.S. 12 (1956), the Supreme Court has held that denying equal access to justice—including and especially through incarceration—without consideration of ability to pay and possible alternatives to achieve a legitimate governmental interest, violates the Fourteenth Amendment. In these cases, the Court has recognized that the proper analysis reflects both equal protection and due process principles, and has rejected use of the traditional equal protection inquiry. The appropriate inquiry focuses instead on “the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose.” Bearden v. Georgia, 461 U.S. 660, 666-667 (1983) (citation omitted; brackets in original). As the district court recognized, the Supreme Court‟s holdings and analysis apply with special force in the bail context, where deprivations of liberty are at issue and defendants are presumed innocent. Under Bearden and other cases in

- 13 -
Griffin‟s progeny, a bail scheme that imposes financial conditions, without
individualized consideration of ability to pay and whether such conditions are
necessary to assure appearance at trial, violates the Fourteenth Amendment. Thus,
as the former Fifth Circuit acknowledged, while the use of fixed bail schedules
may provide a convenient way to administer pretrial release, incarcerating those
who cannot afford to pay the bail amounts, without meaningful consideration of
alternatives, infringes on equal protection and due process requirements. See Pugh
v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc).
In addition to violating the Fourteenth Amendment, such bail systems result
in the unnecessary incarceration of people and impede the fair administration of
justice for indigent arrestees. Thus, they are not only unconstitutional, but they
also constitute bad public policy.
ARGUMENT
A BAIL PRACTICE VIOLATES THE FOURTEENTH AMENDMENT IF, WITHOUT CONSIDERATION OF ABILITY TO PAY AND
ALTERNATIVE METHODS OF ASSURING APPEARANCE AT TRIAL, IT RESULTS IN THE PRETRIAL DETENTION OF INDIGENT DEFENDANTS
A. The Fourteenth Amendment Prohibits Incarcerating Individuals Without Meaningful Consideration Of Indigence And Alternative Methods Of Achieving A Legitimate Government Interest The Supreme Court has long held that “[t]here can be no equal justice where
the kind of trial a man gets depends on the amount of money he has.” Griffin v.

- 14 Illinois, 351 U.S. 12, 19 (1956) (plurality opinion); accord Smith v. Bennett, 365 U.S. 708, 710 (1961). As explained more fully below, in a long line of cases beginning with Griffin, the Court has repeatedly reaffirmed that denying access to equal justice, without meaningful consideration of indigence and alternative methods of achieving a legitimate government interest, violates the Fourteenth Amendment. Although a jurisdiction has discretion to determine which rights and penalties beyond what the Constitution minimally requires are appropriate to achieve its legitimate interests, the Fourteenth Amendment prohibits a jurisdiction from categorically imposing different criminal consequences—including and especially incarceration—on poor people without accounting for their indigence.
In Griffin, the Court first considered whether a State “may, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, * * * deny adequate appellate review [of a criminal conviction] to the poor while granting such review to all others.” 351 U.S. at 13. The Court held that once a State decides to grant appellate rights, it may not “do so in a way that discriminates against some convicted defendants on account of their poverty.” Id. at 18. The Court therefore found it unconstitutional to deny indigent criminal defendants appellate review by effectively requiring them to furnish appellate courts with a trial transcript, which cost money, before they could appeal their convictions. See id. at 18-19. In holding that “[d]estitute defendants must be afforded as adequate

- 15 appellate review as defendants who have money enough to buy transcripts,” id. at 19, the Court declined to hold that the State “must purchase a stenographer‟s transcript in every case where a defendant cannot buy it,” id. at 20. Instead, it held that the State “may find other means of affording adequate and effective appellate review to indigent defendants.” Ibid.
In a line of cases building on Griffin, the Supreme Court has held that incarcerating individuals solely because of their inability to pay a fine or fee, without regard for indigence and a meaningful consideration of alternative methods of achieving the government‟s interests, effectively denies equal protection to one class of people within the criminal justice system while also offending due process principles. In Williams v. Illinois, 399 U.S. 235, 244 (1970), for example, the Court struck down a practice of incarcerating an indigent individual beyond the statutory maximum term because he could not pay the fine and court costs to which he had been sentenced. The Court held that “once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” Id. at 241-242. The Court made clear, however, that “[t]he State is not powerless to enforce judgments against those financially unable to pay a fine.” Id. at 244. On the contrary, nothing in the

- 16 -
Court‟s holding “limits the power of the sentencing judge to impose alternative sanctions” under state law.” Id. at 245.
Similarly, in Tate v. Short, 401 U.S. 395, 398 (1971), the Court held that incarcerating an indigent individual convicted of fines-only offenses to “satisfy” his outstanding fines constituted unconstitutional discrimination because it “subjected [him] to imprisonment solely because of his indigency.” Id. at 397-398. The Court explained that the scheme in Tate suffered from the same constitutional defect as that in Williams, and again emphasized that there “other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines.” Id. at 399.11
And in Bearden v. Georgia, 461 U.S. 660 (1983), the Court held that the Fourteenth Amendment prohibits a State from revoking an indigent defendant‟s probation for failure to pay a fine and restitution “without determining that [the defendant] had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.” Id. at 661-662. Such treatment of indigent defendants would amount to “little more than punishing a person for his poverty.” Id. at 662.
11 See also Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977) (relying on Williams and Tate to hold that “[t]o imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws”), vacated as moot, 439 U.S. 1041 (1978).

- 17 The Bearden Court further explained that, because “[d]ue process and equal protection principles converge in the Court‟s analysis in these cases,” 461 U.S. at 665, the traditional equal protection framework that usually requires analysis under a particular level of scrutiny does not apply. Because “indigency in this context is a relative term rather than a classification, fitting the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.” Id. at 666 n.8 (internal quotation marks omitted). “Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis.” Id. at 666. Instead, the relevant analysis “requires a careful inquiry into such factors as the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose.” Id. at 666-667 (citation and internal quotation marks omitted; brackets in original). Although Bearden and other cases in Griffin‟s progeny have arisen in the sentencing and post-conviction contexts, their holdings apply with equal, if not greater, force in the bail context. Indeed, defendants who have not been found guilty have an especially “strong interest in liberty.” United States v. Salerno, 481 U.S. 739, 750, 755 (1987). Because of that liberty interest, pretrial release should be the norm, and pretrial detention “the carefully limited exception.” Ibid. To be

- 18 sure, in certain circumstances, such as when a court finds that a defendant poses a threat to others or presents a flight risk, this fundamentally important right may be circumscribed on a case-by-case basis. See, e.g., id. at 750-751, 754-755. If a court finds that no other conditions may reasonably assure an individual‟s appearance at trial, financial conditions may be constitutionally imposed—but “bail must be set by a court at a sum designed to ensure that goal, and no more.” Id. at 754 (emphasis added). Although the imposition of bail in such circumstances may result in a person‟s incarceration, the deprivation of liberty in such circumstances is not based solely on inability to pay.
But fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence. Under such bail schemes, arrestees who can afford to pay the fixed bail amount are promptly released whenever they are able to access sufficient funds for payment, even if they are likely to miss their assigned court date or pose a danger to others. Conversely, the use of such schedules effectively denies pretrial release to those who cannot afford to pay the fixed bail amount, even if they pose no flight risk, and even if alternative methods of assuring appearance (such as an unsecured bond or supervised release) could be imposed. Such individuals are unnecessarily kept in jail until their court

- 19 -
appearance often for even minor offenses, such as a traffic or ordinance violation, including violations that are not punishable by incarceration.
As the former Fifth Circuit recognized in an en banc decision, while “[u]tilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements,” the “incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc).12 Although the court in Pugh found moot plaintiffs‟ claim challenging the use of monetary bail to incarcerate defendants pretrial without meaningful consideration of alternatives, it acknowledged “that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Id. at 1056 (citing Williams, supra; Tate, supra); see also Varden, supra, at *2 (concluding that “[t]he Fourteenth Amendment prohibits punishing a person for his poverty, and this includes deprivations of liberty based on the inability to pay fixed-sum bail amounts”—a principle that “applies with special force” to pretrial defendants (internal citation and quotation marks omitted)). In fact, where fixed bail
12 Decisions of the former Fifth Circuit rendered before October 1, 1981, serve as binding precedent of the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

- 20 schedules are used without meaningful consideration of alternatives that account for inability to pay, indigent arrestees seeking bail are faced with precisely the same type of “illusory choice” that the Supreme Court has recognized “works an invidious discrimination.” Williams, 399 U.S. at 242.
Although fixed bail schedules appear to be neutral on their face, the Supreme Court has explained that policies that impose sanctions on only indigent individuals are not neutral in their operation. Thus, contrary to the City‟s argument (Appellant‟s Br. 45-46), its policies do not fall outside the Fourteenth Amendment‟s prohibition of disparate treatment. The City relies on Washington v. Davis, 426 U.S. 229, 244-245 (1976), which held that, absent evidence of a discriminatory purpose, a facially neutral law with a racially discriminatory effect does not violate equal protection. But the Supreme Court has rejected this argument with respect to policies that implicate due process concerns and discriminate against the indigent in the sanctions imposed, explaining that, because such policies “expose[] only indigents” to an additional sanction, they are “not merely disproportionate in impact. Rather, they are wholly contingent on one‟s ability to pay, and thus „visi[t] different consequences on two categories of persons[]‟; they apply to all indigents and do not reach anyone outside that class.” M.L.B. v. S.L.J., 519 U.S. 102, 127 (1996) (internal citation omitted; second brackets in original); see also Bearden, 461 U.S. at 664 (applying “Griffin‟s

- 21 -
principle of „equal justice‟” post-Washington v. Davis to prohibit revocations of
probation without inquiring into ability to pay and consideration of alternatives);
Williams, 399 U.S. at 242 (“Here the Illinois statutes as applied to Williams works
an invidious discrimination solely because he is unable to pay the fine.”).
In sum, under Bearden and other cases in Griffin‟s progeny, a jurisdiction
may not use a bail system that incarcerates indigent individuals without meaningful
consideration of their indigence and alternative methods of assuring their
appearance at trial.
B. Bail Systems That Keep Indigent Defendants In Jail Solely Because They Cannot Pay Bail Result In Unnecessary Pretrial Detention And Impede The Fair Administration Of Justice Bail practices that do not account for indigence result in the unnecessary
incarceration of numerous individuals who are presumed innocent. Of the more
than 730,000 individuals incarcerated in local jails nationwide in 2011, for
example, about 60% were pretrial detainees (a rate unchanged since 2005), and most of them were accused of nonviolent offenses.13 Unnecessary pretrial
detention significantly burdens the limited resources of taxpayers and state and
13 See Richard Williams, Bail or Jail, State Legislatures (May 2012), available at http://www.ncsl.org/research/civil-and-criminal-justice/bail-orjail.aspx; see also Todd D. Minton & Zhen Zeng, United States Department of Justice, Bureau of Justice Statistics, Jail Inmates at Midyear 2014, NCJ 248629, at 1, 3 (2015), available at http://www.bjs.gov/content/pub/pdf/jim14.pdf.

- 22 -
local governments. It also creates additional problems as jails become overcrowded.
The repercussions of unnecessary pretrial detention that disproportionately affect indigent individuals can reverberate in other parts of the criminal justice process and impede the fair administration of justice. The “traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” Pugh, 572 F.2d at 1056-1057 (en banc) (citing Hudson v. Parker, 156 U.S. 277, 285 (1895)). But incarceration could hinder a defendant‟s “ability to gather evidence, contact witnesses, or otherwise prepare his defense.” Barker v. Wingo, 407 U.S. 514, 533 (1972). Excessive pretrial detention could also induce the innocent to plead guilty for a speedier release or result in a detention period that exceeds the expected sentence.14 And because “[m]ost jails offer little or no recreational or rehabilitative programs,” pretrial detention is not likely to reduce recidivism. Ibid.
14 See, e.g., Andrew D. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am. Crim. L. Rev. 1123, 1154 (2005); Mary T. Phillips, New York City Criminal Justice Agency, Inc., Bail, Detention, and Felony Case Outcomes, Research Brief No. 18, at 7 (2008), available at http://www.nycja.org/ lwdcms/doc-view.php?module=reports&module_id=597&doc_name=doc; Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2492 (2004).

- 23 Pretrial incarceration also “often means loss of a job; it disrupts family life; and it enforces idleness.” Barker, 407 U.S. at 532; see also ABA Standards for Criminal Justice: Pretrial Release 10-1.1 (“Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.”).15 This impact may be exacerbated for indigent individuals who, as a consequence of their poverty, are already in vulnerable situations.16 In short, bail practices that fail to account for indigence are not only unconstitutional, but also conflict with sound public policy considerations.
15 Available at http://www.americanbar.org/publications/criminal_justice_ section_archive/crimjust_standards_pretrialrelease_blk.html#10-1.1.
16 See Open Society Justice Initiative, The Socioeconomic Impact of Pretrial Detention 27-32 (2001) (examining the costs to pretrial detainees and their families as measured by income, employment, education, incarceration-related expenses, and long-term effects), available at http://www.pretrial.org/download/ research/OSI%20Socioeconomic%20Impact%20Pretrial%20Detention% 202011.pdf.

- 24 CONCLUSION If this Court reaches the issue presented herein, the Court should affirm the district court‟s holding that a bail scheme violates the Fourteenth Amendment if, without a court‟s meaningful consideration of ability to pay and alternative methods of assuring appearance at trial, it results in the detention of indigent defendants pretrial.

JOHN A. HORN United States Attorney Northern District of Georgia
LISA FOSTER Director, Office for Access to Justice

Respectfully submitted,
VANITA GUPTA Principal Deputy Assistant Attorney General
s/ Christine H. Ku TOVAH R. CALDERON CHRISTINE H. KU Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 353-9044

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Federal Rules of Appellate Procedure 29 and 32(a)(7), because: This brief contains 4491 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5), and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6), because: This brief has been prepared in a proportionally spaced typeface using Word 2010 in 14-point Times New Roman font.
s/ Christine H. Ku CHRISTINE H. KU Attorney
Date: August 18, 2016

CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2016, I electronically filed the foregoing
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING
PLAINTIFF-APPELLEE AND URGING AFFIRMANCE ON THE ISSUE
ADDRESSED HEREIN with the Clerk of the Court for the United States Court of
Appeals for the Eleventh Circuit by using the appellate CM/ECF system.
I certify that all participants in this case who are registered CM/ECF users
will be served by the appellate CM/ECF system.
I further certify that on August 18, 2016, I will cause seven paper copies of
this brief to be sent to the Clerk of the Court for the United States Court of Appeals
for the Eleventh Circuit by certified U.S. mail, postage prepaid and will cause one
paper copy of the same to be mailed to the following counsel by certified U.S.
mail, postage prepaid:
Bradley Williams Cornett Ford Howard & Cornett, PC 140 S 9th ST Gadsden, AL 35902
Lorelei Lein Alabama League of Municipalities 535 Adams Ave Montgomery, AL 36104-4333
s/ Christine H. Ku CHRISTINE H. KU Attorney