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Phil Telfeyan California Bar No. 258270 Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW South Building — Suite 900 Washington, D.C. 20004 (202) 505-2058 ptelfeyan@equaljusticeunderlaw.org Attorney for Plaintiffs Riana Buffin and Crystal Patterson

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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RIANA BUFFIN and CRYSTAL

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PATTERSON, et al.,

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Plaintiffs,

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v.

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THE CITY AND COUNTY OF SAN

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FRANCISCO and THE STATE OF

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CALIFORNIA,

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Defendants.

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___________________________________ )

Case No. 15-CV-4959 (Class Action)

CLASS ACTION COMPLAINT

Introduction

This case is about San Francisco’s wealth-based pretrial detention scheme, which

operates to jail some of San Francisco’s poorest residents solely because they cannot pay an

arbitrary amount of money. Named Plaintiffs Riana Buffin and Crystal Patterson were arrested

within the past 48 hours and are currently imprisoned in the county jail solely because they are

too poor to pay the amount of money generically set by the fixed “bail schedule” used by San

Francisco.

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In San Francisco, arrestees face two different outcomes depending on their wealth status.

Wealthy arrestees purchase their freedom by paying an arbitrary amount set by the bail schedule.

Poor arrestees must languish behind bars until the resolution of their case, simply because they

cannot afford to pay a pre-determined sum of money. In Defendants’ wealth-based detention

scheme, the sole criterion determining whether a pretrial arrestee walks free or sits in jail is the

amount of money she has.

On behalf of the many other arrestees subjected to the Defendants’ unlawful and ongoing

wealth-based detention scheme, the named Plaintiffs in this action challenges the use of a generic

“bail schedule” that operates to detain poor arrestees while letting rich arrestees free.

Defendants’ wealth-based detention scheme has no place in a system that promises equal justice

under law, and it violates the Due Process and Equal Protection Clauses of the Constitution.

By and through their attorneys and on behalf of themselves and all others similarly

situated, the named Plaintiffs seek in this civil action the vindication of their fundamental rights,

injunctive relief assuring that their rights and the rights of the other Class members will not

continue to be violated, and a declaration that Defendants’ wealth-based detention practices are

unlawful.

Nature of the Action1

1. It is the policy and practice of the City and County of San Francisco to refuse to

release arrestees from jail unless they pay a generic and arbitrary “bond” amount. That amount

is determined by a fixed “bail schedule” set by San Francisco under direction of state law.

Because this sum is set generically 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 at least two days

1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.

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— and often longer — before any court appearance. Plaintiffs seek declaratory and injunctive relief.
Jurisdiction and Venue 2. 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 pursuant to 28 U.S.C. §§ 1331 and 1343. 3. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Intradistrict Assignment 4. Assignment to the San Francisco Division is proper pursuant to Civil L.R. 3-2(c). The events giving rise to this claim arise in the County of San Francisco.
Parties 5. Named Plaintiff Riana Buffin is a 19-year-old resident of Oakland. She lives with her mother, whose only source of income is disability payments, and her three younger brothers. Her two youngest brothers, ages 9 and 10, suffer from disabilities. She represents herself as an individual and represents a Class of similarly situated people subjected to Defendants’ wealthbased detention scheme. 6. Named Plaintiff Crystal Patterson is a 29-year-old resident of San Francisco. She lives with and is the primary caregiver for her grandmother. Her mother is unemployed and homeless. She represents herself as an individual and represents a Class of similarly situated people subjected to Defendants’ wealth-based detention scheme. 7. Defendant City and County of San Francisco is a municipal corporation organized under the laws of the State of California. The City and County operates the San Francisco Sheriff’s Department, county jail, and the Superior Court. The City and County enacts and

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executes its bail schedule as directed under the laws of the State of California. See Exhibit 1, San Francisco Bail Schedule.
8. Defendant State of California requires the City and County of San Francisco to enact a fixed bail schedule, thereby creating a wealth-based pretrial detention scheme. See Cal. Pen. Code § 1269b. The State of California gives Plaintiffs a constitutional right to release pending trial, but conditions their release on their ability to afford a specified bail amount, thus tying their pretrial freedom to their wealth-status.
Factual Background A. The Named Plaintiffs’ Arrests
9. Riana Buffin is a 19-year-old resident of Oakland. 10. Ms. Buffin was arrested by San Francisco police on October 26, 2015. She was charged with grand theft of personal property and conspiracy. 11. Ms. Buffin was taken to jail and told that she would be released if she paid $30,000. She was told that she would be kept in jail unless she paid $30,000. See Exhibit 2, Declaration of Riana Buffin. 12. Ms. Buffin is indigent. She survives on the income she makes working at the Oakland airport for $10.25 per hour. She lives with her mother, who has been diagnosed with disabilities and receives disability payments. She is also a caretaker for her three younger brothers, two of whom suffer from severe disabilities. 13. Ms. Buffin was not told when she would be brought to court and has not been brought to court for an initial appearance. Pursuant to Defendants’ policy, Ms. Buffin may not be brought to court until 72 hours after her arrest, or even longer if she is rebooked. 14. Crystal Patterson is a twenty-nine year old resident of San Francisco.

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15. Ms. Patterson was arrested by San Francisco police on October 27, 2015. She was charged with assault with force causing great bodily injury.
16. Ms. Patterson was taken to jail and told that she would be released if she paid $150,000. She was told that she would be kept in jail unless she paid $150,000. See Exhibit 3, Declaration of Crystal Patterson.
17. Ms. Patterson is indigent. She survives on the income she makes doing in-home care services for $12.50 per hour. She lives with her grandmother, who is unemployed. Because her mother is homeless and unemployed, Ms. Patterson is the primary caregiver for her grandmother, and her income goes to supporting her and her grandmother’s basic necessities of life.
18. Ms. Patterson was not told when she would be brought to court and has not been brought to court for an initial appearance. Pursuant to Defendants’ policy, Ms. Patterson may not be brought to court until 72 hours after her arrest, or even longer if she is rebooked. B. Defendants’ Policies and Practices
19. The named Plaintiffs would be released from jail immediately if they paid the amount of cash generically set by Defendants’ bail schedule.
20. The treatment of the named Plaintiffs and other Class members is caused by and is representative of Defendants’ wealth-based pretrial detention policies and practices.
21. As a matter of policy and practice, when the San Francisco Sheriff’s Department books a new arrestee at the county jail, county employees inform the arrestee at booking that she will be released from jail immediately if she pays money set by a fixed schedule. Exhibit 1, Bail Schedule. The arrestee is told that she will remain in jail if she is not able to make that payment.

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22. Those arrestees too poor to purchase their freedom are, as a matter of policy, detained for two-to-five days without ever having appeared in court. An arrestee’s first appearance in county court occurs at least two business days after arrest, not including weekends and holidays.
23. After an arrest, San Francisco does not deviate from its bail schedule. 24. In San Francisco, approximately 18,000 individuals are booked in county jail every year. At any given time, approximately 85% of county jail inmates are being detained pretrial. 25. On a typical day, approximately 50 new arrestees are locked in the county jail. Although they have not yet been proven guilty of the crime for which they have been arrested, there are more than 100 individuals at any given time who are being detained solely because they cannot afford money bail. 26. Approximately 90% of pretrial detainees are held due to probation revocation proceedings, imposition of a suspended sentence, or violation of terms of release. Even discounting this percentage, more than 1,800 individuals are detained annually solely due to their wealth-status. Such individuals would not be jailed were it not for Defendants’ wealth-based pretrial detention scheme. 27. Wealthy arrestees in San Francisco can purchase immediate release by providing 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 the named Plaintiffs, who are too poor even to find anyone to pay the money bond for them, are kept in jail until the resolution of their case.

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28. Defendants have numerous reasonable alternatives to wealth-based detention that would maximize public safety and court appearances. Many of Defendants’ less restrictive alternatives are currently used for individuals released pending trial. For example, San Francisco currently utilizes electronic monitoring and SCRAM bracelets (for alcohol testing), among other conditions of release, when necessary to guard against a particular risk. Under San Francisco’s supervised pretrial release program, individuals released pending trial can be required to report in-person daily, take substance abuse programs and classes, attend twelve-step programs for drug and alcohol (such as Alcoholics Anonymous or Narcotics Anonymous), batterer intervention programs, receive counseling, and take prescribed medication. San Francisco also has courtaccountable homeless services and can operate its Navigator Program, which gives rides to court appearances for those unable to transport themselves. Courts can also impose other conditions to protect public safety, such as stay-away orders or home detention.
29. Many poor arrestees are promised under the laws of the State of California that they have a right to pretrial release, but this promise is purely hypothetical, and Defendants condition that right on an arrestee’s wealth status; only those who can afford the arbitrary bail amount are permitted release.
Class Action Allegations 30. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 31. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge the Defendants’ unlawful wealthbased detention scheme.

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32. This action is brought and may properly be maintained as a Class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.
33. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
34. The Plaintiffs propose one Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: all arrestees unable to pay for their release pursuant to Defendants’ fixed bail schedule who are or who will become in the custody of the City and County of San Francisco. A. Numerosity — Fed. R. Civ. P. 23(a)(1)
35. The San Francisco County Jail detains approximately 18,000 individuals annually. Of those, approximately 85% are detained pretrial. Each arrestee is presented with San Francisco’s standard cash bond choice of pay or jail. Arrestees are held in jail for varying lengths of time depending on how long it takes them to make the cash payment that San Francisco requires for their release.
36. Some arrestees are able to pay for release immediately. Others are forced to wait several days (or longer) until they or family members can make the payment. Others are not able to pay or to find someone else to pay for them, and they are held in the county jail pursuant to Defendants’ wealth-based detention scheme.
37. The number of current and future arrestees subjected to this policy — if it is not enjoined — is well into the hundreds. B. Commonality — Fed. R. Civ. P. 23(a)(2)
38. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief concerning

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whether Defendants’ policies, practices, and procedures violate the rights of the Class members
and relief mandating Defendants to change their policies, practices, and procedures so that the
constitutional rights of the Class members will be protected in the future.
39. These common legal and factual questions arise from one central scheme and set
of policies and practices: Defendants’ wealth-based detention schedule. Defendants operate this
scheme openly and in materially the same manner every day. The material components of the
scheme do not vary from Class member to Class member, and the resolution of these legal and
factual issues will determine whether all of the members of the class are entitled to the
constitutional relief that they seek.
Among the most important, but not the only, common questions of fact are:
 Whether San Francisco has a policy and practice of using a fixed “bail schedule” to determine the amount of money necessary to secure post-arrest release;
 Whether San Francisco requires that scheduled amount of money to be paid up front before it will release a person from jail;
 What standard post-arrest procedures San Francisco performs on new arrestees.
40. Among the most important common question of law are:
 Whether a fixed “bail schedule” setting standard amounts required up front to avoid post-arrest detention violates the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
 Whether Defendants’ scheme detaining indigent arrestees solely based on their inability to pay an arbitrary amount of money violates the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
C. Typicality — Fed. R. Civ. P. 23(a)(3)
41. The named Plaintiffs’ claims are typical of the claims of the other members of the
Class, and they have the same interests in this case as all other members of the Class that they
represent. Each of them suffers injuries from the failure of the City to comply with the basic
constitutional provisions: they are each confined in jail because they could not afford to pay the
City’s fixed cash bond amount. The answer to whether the City’s scheme of policies and

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practices is unconstitutional will determine the claims of the named Plaintiffs and every other Class member.
42. If the named Plaintiffs succeed in the claim that Defendants’ policies and practices concerning wealth-based detention violate their constitutional rights, that ruling will likewise benefit every other member of the Class. D. Adequacy — Fed. R. Civ. P. 23(a)(4)
43. The named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class members, who each have the same basic constitutional claims. They are a member of the Class, and their interests coincide with, and are not antagonistic to, those of the other Class members.
44. 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 their unlawful treatment by their local government.
45. Plaintiffs are represented by attorneys from Equal Justice Under Law, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
46. The combined efforts of Class counsel have so far included extensive investigation into fixed money bail schemes over a period of months, including numerous interviews with witnesses, court employees, jail inmates, families, attorneys practicing in municipal courts throughout the region, community members, statewide experts in the

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functioning of state and local courts, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
47. Class counsel has a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities in order to investigate the wide array of lawful options in practice for municipalities.
48. As a result, counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ scheme and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel has also developed relationships with many of the individuals and families most victimized by Defendants’ practices. The interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys. E. Rule 23(b)(2)
49. Class action status is appropriate because Defendants — through the policies, practices, and procedures that make up their wealth-based detention scheme — have acted in the same unconstitutional manner with respect to all class members. Defendants have created and applied a simple scheme of wealth-based detention and release: wealthy arrestees can purchase their immediate release, while poorer arrestees must remain in jail. San Francisco releases those who can pay and detains those who cannot.
50. The Class therefore seeks declaratory and injunctive relief to enjoin San Francisco from continuing in the future to detain impoverished arrestees who cannot afford cash payments. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class,

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Rule 23(b)(2) certification is appropriate and necessary. 51. Injunctive relief compelling Defendants to comply with these constitutional rights
will similarly protect each member of the Class from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot use a fixed cash “bail schedule” 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.
52. Plaintiffs seek the following relief and hereby demand a jury in this cause for all matters so appropriate.
Claims for Relief Count One: Defendant City and County of San Francisco Violates Plaintiffs’ Rights by Jailing Them Because They Cannot Afford a Monetary Payment Prior to a First Court Appearance
53. Plaintiffs incorporate by reference the allegations in paragraphs 1–52. 54. The Fourteenth Amendment’s Due Process and Equal Protection Clauses have long prohibited imprisoning a person because of the person’s inability to make a monetary payment. Defendant San Francisco violates Plaintiffs’ fundamental rights by placing and keeping them in jail solely because they cannot afford to pay the amount of cash set by the generic fixed bail “schedule” used by San Francisco. Count Two: Defendant State of California Violates Plaintiffs’ Rights by Requiring Defendant City and County of San Francisco to Condition Pretrial Release on Monetary Payment Prior to a First Court Appearance 55. Plaintiffs incorporate by reference the allegations in paragraphs 1–54. 56. The Fourteenth Amendment’s Due Process and Equal Protection Clauses have long prohibited imprisoning a person because of the person’s inability to make a monetary

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payment. Defendant State of California violates Plaintiffs’ rights by requiring Defendant City
and County of San Francisco to adopt a bail schedule that results in detaining them solely
because they cannot afford to pay an arbitrary amount of money.
Request for Relief
WHEREFORE, Plaintiffs and the other Class members request that this Court issue the
following relief:
a. A declaratory judgment that Defendants violate the named Plaintiffs’ and Class members’ constitutional rights by jailing them and keeping them in jail solely because they cannot pay a generically set amount of money to secure release after an arrest;
b. An order and judgment preliminarily and permanently enjoining Defendants from enforcing their unconstitutional wealth-based post-arrest detention policies and practices against the named Plaintiffs and the Class of similarly situated people that they represent;
c. A judgment individually compensating the individual named Plaintiffs for the damages that they suffered as a result of Defendants’ unconstitutional and unlawful conduct, including damages resulting from her confinement in jail;
d. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.
Respectfully submitted,
/s/ Phil Telfeyan Phil Telfeyan (California Bar No. 258270) Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW South Building — Suite 900 Washington, D.C. 20004 (202) 505-2058 ptelfeyan@equaljusticeunderlaw.org
/s/ Katherine Hubbard Katherine Hubbard (California Bar No. 302729) Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW South Building — Suite 900 Washington, D.C. 20004 (319) 325-2788 khubbard@equaljusticeunderlaw.org Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court Northern District of California

10 RIANA BUFFIN, et al.,

Case No. 15-cv-04959-YGR

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Plaintiffs,

ORDER ON PENDING MOTIONS

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v.

Re: Dkt. Nos. 2, 7, 20, 26, 41

13 CITY AND COUNTY OF SAN FRANCISCO, et al.,

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Defendants.

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Plaintiffs Riana Buffin and Crystal Patterson (collectively, “plaintiffs”), on behalf of

17 themselves and all others similarly situated, bring this civil rights action against defendants City

18 and County of San Francisco (the “City”) and the State of California (the “State”) (collectively,

19 “defendants”) for claims arising from their post-arrest detention at the City’s jail. Plaintiffs bring

20 claims under 42 U.S.C. section 1983 against for violation of their Fourteenth Amendment equal

21 protection and due process rights, specifically (1) against the City for jailing them because they

22 cannot afford monetary bail prior to a first court appearance, and (2) against the State for requiring

23 the City to condition pretrial release on monetary payment prior to a first court appearance. Based

24 thereon, plaintiffs seek two forms of relief on behalf of themselves and putative class members: (i)

25 declaratory judgment that defendants violate their rights under the Fourteenth Amendment; and (ii)

26 injunctive relief prohibiting defendants from enforcing their unconstitutional detention policies

27 against all class members. The named plaintiffs additionally seek (iii) monetary damages from the

28 City and (iv) attorney fees.

United States District Court Northern District of California

1

Plaintiff Riana Buffin was arrested on October 26, 2015 for grand theft from a department

2 store. (Compl. ¶ 10.) Her bail was set at $30,000. (Id. ¶ 11.) Late in the evening of October 28,

3 2015, plaintiff Buffin was released from jail and the case against her was dismissed. (Dkt. No. 22,

4 “Ramirez Decl.” ¶ 8.) With respect to plaintiff Crystal Patterson, she was arrested on October 27,

5 2015 for assault with force causing great bodily injury. (Compl. ¶ 15.) Her bail was set at

6 $150,000. (Id. ¶ 16.) On October 28, 2015, plaintiff Patterson posted bail and was released the

7 same day. (Ramirez Decl. ¶ 9.) Following her release, plaintiff Patterson was discharged and no

8 charges were formally filed against her. (Dkt. No. 30-1 ¶ 17.) The instant action was filed on

9 October 28, 2015, following plaintiffs’ arrests, and while they were being held by the City. The

10 complaint makes no allegation that the bail amounts for plaintiffs were made other than in

11 conformance with the City’s bail schedule.

12

Currently pending before the Court is the State’s motion to dismiss pursuant to Rule

13 12(b)(6), arguing that the complaint should be dismissed because (A) the State is entitled to

14 sovereign immunity under the Eleventh Amendment, and (B) Younger abstention applies and the

15 Court should not consider any of plaintiffs’ claims. (Dkt. No. 20.) The City joined in the State’s

16 motion to dismiss on Younger grounds, and has also moved pursuant to Rule 12(e) for a more

17 definite statement of plaintiffs’ claims and requests for relief. (Dkt. No. 26.)

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Plaintiffs’ motion for preliminary injunction (Dkt. No. 2) and motion for class certification

19 (Dkt. No. 7) are also pending before the Court. Finally, California Bail Agents Association filed a

20 motion to intervene in the proceedings. (Dkt. No. 41.)

21

For the reasons stated on the record on January 26, 2016, and for the reasons highlighted

22 below, the Court rules on the parties’ pending motions as follows:

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 The State’s motion to dismiss is GRANTED on grounds of sovereign immunity and

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DENIED with respect to Younger abstention. (Dkt. No. 20)

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 The City’s joinder in the State’s motion to dismiss on Younger grounds is DENIED

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and the motion for more definite statement is GRANTED. (Dkt. No. 26)

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 Plaintiffs’ motion for preliminary injunction is DENIED WITHOUT PREJUDICE.

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(Dkt. No. 2)

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United States District Court Northern District of California

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 Plaintiffs’ motion to certify class is DENIED WITHOUT PREJUDICE. (Dkt. No. 7)

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 Proposed intervenor California Bail Agents Association’s motion to intervene is

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DENIED AS PREMATURE. (Dkt. No. 41)

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I.

THE STATE’S MOTION TO DISMISS

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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in

6 the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). “Dismissal can be

7 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

8 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

9 All allegations of material fact are taken as true and construed in the light most favorable to the

10 plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To survive a motion

11 to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

12 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

13 Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

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A. Sovereign Immunity

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The State moves for dismissal on the grounds that Eleventh Amendment sovereign

16 immunity bars the claims against it. “The Eleventh Amendment erects a general bar against federal

17 lawsuits brought against a state.” Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128,

18 1133 (9th Cir. 2012) (quoting Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003)). Sovereign

19 immunity does not preclude “actions for prospective declaratory relief or injunctive relief against

20 state officers in their official capacities for their alleged violations of federal law.” Id. at 1134.

21 Here, however, plaintiffs have not named any state officers.

22

In opposition to the State’s motion, plaintiffs state that the case may proceed against the

23 City in the absence of the State as a defendant. The Court reads this as an implicit concession that

24 sovereign immunity applies here, and plaintiffs conceded the same at oral argument. Accordingly,

25 the Court GRANTS the State’s motion to dismiss on sovereign immunity grounds.

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B. Younger Abstention

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Defendants argue that the Court should decline to intervene in ongoing state criminal

28 proceedings and dismiss the entire action, applying the abstention doctrine announced by the

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United States District Court Northern District of California

1 Supreme Court in Younger v. Harris, 401 U.S. 37, 45 (1971). Younger abstention applies if

2 defendants establish three conditions are met: (1) state judicial proceedings are ongoing; (2) the

3 proceedings implicate important state interests; and (3) the state proceedings provide an adequate

4 opportunity to litigate the plaintiff’s federal constitutional claims. Middlesex Cnty. Ethics Comm. v.

5 Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Kenneally v. Lungren, 967 F.2d 329, 331 (9th

6 Cir. 1992). Plaintiffs oppose, principally on grounds that defendants have not established the first

7 condition is met, i.e. that “the state court proceedings were ongoing as of the time the federal action

8 was filed.” Canatella v. State of California, 304 F.3d 843, 850 (9th Cir. 2002). The Court agrees.

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Defendants contend the first condition is met here because plaintiffs were arrested, in

10 custody, and had been offered bail when they filed the instant action. In opposition, plaintiffs argue

11 that named plaintiffs were not formally charged and thus there never subject to an ongoing state

12 proceeding. See Kirby v. Illinois, 406 U.S. 682, 689 (1972) (for purposes of a defendant’s right to

13 counsel, “the initiation of adversary judicial criminal proceedings” occurs at or after “formal

14 charge, preliminary hearing, indictment, information, or arraignment”). Although neither party has

15 been able to provide the Court with a case addressing Younger on identical facts (as defendants

16 imply is necessary), plaintiffs’ authority is squarely on point. The Court concludes that binding

17 Supreme Court and Ninth Circuit authority, persuasive authority, as well as the spirit of Younger all

18 counsel against abstention in these circumstances.

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The Ninth Circuit’s holding in Agriesti v. MGM Grand Hotels, Inc., persuades. 53 F.3d

20 1000, 1002 (9th Cir. 2002). In Agriesti, the “[p]laintiffs were arrested, handcuffed, taken to jail,

21 and booked. They were released the same day and never brought before a magistrate.” Id. at 1001.

22 At the time plaintiffs in Agriesti filed their federal lawsuit, the district attorney had not filed charges

23 against them. On those facts, the Ninth Circuit held that “[a]bestention was improper in this case

24 because there were no ongoing state judicial proceedings.” Id. Younger abstention simply could

25 not apply because, critically, “the arrests and the issuance of the citations were executive, not

26 judicial acts.” Id. at 1002 (noting that the “Supreme Court was clear in New Orleans Pub. Serv.,

27 Inc. v. New Orleans that Younger abstention is permissible only in deference to state proceedings

28 that are ‘judicial in nature’”) (internal citation omitted). While the Agriesti plaintiffs had been

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1 arrested and issued misdemeanor citations by police officers, neither act was “judicial in nature” as

2 the Ninth Circuit recognized is required for Younger abstention. Id. The Court finds that plaintiffs

3 were only arrested and booked but never arraigned, and so they were only subject to “executive, not

4 judicial acts” when the instant complaint was filed. Id.

5

Defendants’ attempts to distinguish Agriesti do not compel a contrary result. Defendants

6 argue that because plaintiffs here were arrested on felony, not misdemeanor charges, the logic of

7 Agriesti is inapplicable. Defendants provide no material distinction between the executive act of

8 arrest on a misdemeanor charge and the executive act of arrest on a felony charge. In both Agriesti

9 and the instant action, the federal plaintiffs were arrested and released without any formal charge

10 decision against them by the district attorney, were never arraigned, and were never brought before

11 a state judge. Thus, like in Agriesti, plaintiffs here were not subjected to any judicial acts when

12 their federal complaint was filed. The relevant inquiry coming out of Agriesti is whether state 13 judicial proceedings were ongoing, not whether plaintiff was arrested on a felony charge.1

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Defendants further argue that Agriesti is distinguishable because Nevada law precluded the

15 use of a habeas petition to afford relief,2 whereas plaintiffs here could have filed a habeas petition.

16 In that regard, defendants argue that the Ninth Circuit’s holding in Agriesti was premised on the

17 notion that plaintiffs had no collateral state proceeding available to them. Defendants even go so

18 far as to claim that the requirement of an ongoing state proceeding is merely a pragmatic, not

19 literal, requirement. This is not the law. In Agriesti, the Ninth Circuit unequivocally held that

20 “Younger abstention does, in fact, depend on the ‘technicality’ of ongoing judicial proceedings,”

21

22

1 Indeed, Younger abstention is not limited to ongoing state criminal judicial proceedings

and can be invoked in the context of ongoing civil proceedings. See Penzoil Co. v. Texaco, Inc.,

23 481 U.S. 1, 11 (1987) (application of Younger abstention mandated “not only when the pending

state proceedings are criminal, but also when certain civil proceedings are pending, if the State's 24 interests in the proceeding are so important that exercise of the federal judicial power would

25 disregard the comity between the States and the National Government”).

26

2 At the hearing on these motions, plaintiffs argued that Nevada law did, in fact, allow for

27 the Agriesti plaintiffs to file a habeas petition. The Court need not resolve this question of state law. The Ninth Circuit did not mention the availability (or lack thereof) of habeas relief in making

28 its decision. Moreover, the court made clear in Agriesti that there must be ongoing judicial

proceedings, not merely the potential for plaintiffs to initiate the same through habeas proceedings.

5

United States District Court Northern District of California

1 foreclosing defendants’ argument. Id. at 1002 (emphasis in original). Defendants’ attempts to 2 distinguish Agriesti fail.3

3

Having failed to distinguish Agriesti, defendants contend that the Second Circuit’s

4 reasoning in Wallace v. Kern compels the Court find an ongoing state judicial proceeding. 520

5 F.2d 400 (2d Cir. 1975). The plaintiffs in Wallace were all currently facing criminal charges, or

6 had been convicted thereof, through state prosecutions. Id. at 401 (“This action was

7 commenced…as a class action pro se by a group of inmates awaiting trial or sentencing”). The

8 Second Circuit’s application of Younger to a federal complaint filed by a group of criminal

9 defendants currently awaiting trial or sentencing does not support defendants’ position. For the

10 reasons discussed, supra, the Court finds that plaintiffs were not subject to ongoing judicial

11 proceedings by operation of arrest. See Agriesti, 53 F.3d at 1001-02.

12

Finally, defendants argue that “the key question is whether there was an ‘adequate state

13 forum’ for a party to raise his or her federal claim.” (Dkt. No. 49 at 5:17-18.) This argument

14 conflates Younger’s first and third requirements. The Court declines defendants’ invitation to

15 essentially ignore the first condition that state judicial proceedings be ongoing. The lack of an

16 ongoing state judicial proceeding when plaintiffs filed the instant lawsuit is fatal to defendants’

17 efforts to prove that any such proceeding could be adequate. Because there were no ongoing state

18 judicial proceedings against plaintiffs when this case was filed, there is no reason for this Court to

19 abstain in the interest of comity.

20

Younger abstention is rooted in the concern that federal courts should not intervene in state

21 proceedings “to permit state courts to try state cases free from interference by federal courts.”

22 Younger, 401 U.S. at 43. Here, the state chose not to charge or prosecute plaintiffs, counseling

23 against abstention. “Supreme Court precedent tells us that comity is the main reason for federal

24

3 Defendants’ reliance on Moore v. Sims, 442 U.S. 415, 420-21 (1979), for the same

25 proposition is similarly flawed. Moore does not lend support to defendants’ argument that “courts

have held that the availability of habeas corpus…triggers abstention principles” (Dkt. No. 49 at 4:1-

26 2). In Moore, a plethora of ongoing state proceedings were instituted before and ongoing when the

27 federal complaint was filed, including: custody proceedings, a suit for emergency protection, a state habeas petition, a suit affecting the parent-child relationship, and a temporary restraining order.

28 Not so here. Unlike in Moore, there were no ongoing state proceedings at the time of the instant

complaint.

6

United States District Court Northern District of California

1 court restraint in the face of ongoing state judicial proceedings….” Gilbertson v. Albright, 381 F.3d

2 965, 975 (9th Cir. 2004). The Supreme Court has recognized that this significant equitable

3 consideration is immaterial in certain circumstances:

4

the relevant principles of equity, comity, and federalism ‘have little

5

force in the absence of a pending state proceeding.’ When no state

6

criminal proceeding is pending at the time the federal complaint is

filed, federal intervention does not result in duplicative legal

7

proceedings or disruption of the state criminal justice system; nor can

federal intervention, in that circumstance, be interpreted as reflecting

8

negatively upon the state court's ability to enforce constitutional

9

principles.

10 Steffel v. Thompson, 415 U.S. 452, 462 (1974) (J. Rehnquist, concurring) (internal citation omitted)

11 (quoting Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 509 (1972)); see Gerstein v. Pugh, 420

12 U.S. 103, n. 9, 11 (1975) (a claim that “could not be raised in defense of the criminal prosecution,”

13 was not barred by the “equitable restrictions on federal intervention in state prosecutions” under

14 Younger because otherwise, these violations would be “capable of repetition yet evading review”);

15 Middlesex, 457 U.S. 423, n. 14 (distinguishing Steffel, “in which there was no ongoing state

16 proceeding to serve as a vehicle for vindicating the constitutional rights of the federal plaintiff”).

17

Defendants’ authority applying Younger abstention to federal constitutional challenges

18 brought by post-arraignment criminal defendants does not persuade. See Leach v. Santa Clara

19 Cnty. Bd. of Supervisors, 1995 WL 7935, at *4 (N.D.Cal. Jan. 4, 1995) (although plaintiff was no

20 longer a pretrial detainee, he was challenging an ongoing state criminal proceeding insofar as he

21 could raise his claims in the state criminal appellate process); Lazarus, 2010 WL 1006572;

22 Robinson v. Sniff, 2009 WL 1037716 (C.D.Cal. April 17, 2009) (abstaining from plaintiff’s habeas

23 corpus petition); Peterson v. Contra Costa Cnty. Superior Ct., 2004 WL 443457 (N.D.Cal. March

24 2, 2004) (abstaining from plaintiff’s § 1983 action); Goldsmith v. Lewis & Clark Cnty., 2014 WL

25 825166 (D.Mont. March 3, 2014) (same); Mounkes v. Conklin, 922 F. Supp. 1501, 1511-13

26 (D.Kan. 1996) (holding that § 1983 challenge to state bail bond was barred by Younger); Mudd v.

27 Busse, 437 F. Supp. 505, 509-14 (N.D.Ind. 1977) (holding that class action challenge to state bail

28 process under § 1983 is barred by Younger); Hernandez v. Carbone, 567 F. Supp. 2d 320, 332

7

United States District Court Northern District of California

1 (D.Conn. 2008) (abstaining under Younger, noting that “the relief [plaintiff] seeks—forbidding

2 state courts to impose money bail or a surety bond whenever the defendant is indigent and

3 monitoring the state courts to ensure that minorities are not disfavored in the setting of bail – would

4 intrude substantially into pending and future criminal cases” ).

5

Having failed to establish the first condition for Younger abstention, the Court need not

6 proceed further in the analysis. Defendants’ motion to dismiss on this basis is DENIED.

7

II. THE CITY’S MOTION FOR MORE DEFINITE STATEMENT

8

The City moves for a more definite statement under Rule 12(e), arguing that the complaint

9 is “in key respects, fundamentally unclear, and the City is entitled to know what Plaintiffs’ claim is

10 before it should be required to respond to it.” (Dkt. No. 26 at 3:3-5.) The Court agrees.

11

Rule 12(e) allows a party to move for a more definite statement before filing a responsive

12 pleading where the original pleading “is so vague or ambiguous that the party cannot reasonably

13 prepare a response.” Fed. R. Civ. P. 12(e). “Rule 12(e) motions are disfavored and rarely granted.”

14 Castaneda v. Burger King Corp., 597 F.Supp.2d 1035, 1045 (N.D. Cal. 2009) (citing Cellars v.

15 Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999)). “The rule is aimed at

16 unintelligibility rather than lack of detail and is only appropriate when the defendants cannot

17 understand the substance of the claim asserted.” Id. (citing Beery v. Hitachi Home Elecs., Inc., 157

18 F.R.D. 477, 480 (C.D. Cal. 1993)).

19

An order requiring a more definite statement is appropriate here. Based on plaintiffs’

20 complaint, the Court is unable to identify the precise legal challenge being made by plaintiffs as

21 well as the relief they seek against the City. Critically, plaintiffs have not specified whether they

22 challenge statewide law imposing a duty on superior court judges to “prepare, adopt, and annually

23 revise a uniform countywide schedule of bail,” Cal. Penal Code § 1269b(c), or whether they

24 challenge the City’s application of this state law. The City cannot be expected to frame a response

25 to a complaint that does not clearly state the legal basis for its claim. See Hall v. Apartment Inv. &

26 Mgmt. Co., 2008 WL 4415053, at *3 (N.D.Cal. Sept. 26, 2008) (granting Rule 12(e) motion is

27 “appropriate where it is not clear from the complaint what the legal nature of the claim is”); Stevens

28 v. Nkwo-Okere, 2013 WL 4565187, at *3 (N.D.Cal. Aug. 27, 2013) (granting Rule 12(e) motion

8

United States District Court Northern District of California

1 where “plaintiffs’ allegations [were] highly conclusory and exceedingly vague,” leaving the court

2 unable to “properly evaluate” whether defendant’s asserted immunity applied).

3

The complaint is also impermissibly vague and facially insufficient in other key respects.

4 For example, the Court is unable to determine the precise relief plaintiffs request it grant, especially

5 now that the State has been dismissed. Nor is it clear that such relief may be afforded by the City.

6 The terms of bail and other conditions of pre-trial release are determined by superior courts – not

7 the City – under California law. See, e.g., Cal. Penal Code § 1269b(c); Galen v. Cty. of Los

8 Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (noting that California has a “comprehensive statutory

9 scheme” regulating bail determinations). Plaintiffs have not made any allegation that would allow

10 the Court to order a transfer of decision-making authority from the superior courts to the City.

11 Thus, if plaintiffs seek an Order directing the City to implement new pretrial release procedures,

12 plaintiffs have failed to allege what those procedures are, on what authority the Court may order

13 them, and under what authority the City may implement them.

14

The complaint also misconstrues and misstates the relationship between the City on the one

15 hand, and the San Francisco Superior Court on the other. (Compl. ¶ 7.) Contrary to plaintiffs’

16 assertion, the City does not exude any control over the Superior Court. (Id.) The Superior Court is

17 not a local agency, but rather it is an agency of the State. Greater Los Angeles Council on

18 Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) (the court’s “geographical location

19 within any particular county cannot change the fact that the court derives its power from the State

20 and is ultimately regulated by the State); Cal. Const. art. 6 §§ 1,5. Similarly, the complaint

21 conflates the two entities in several allegations. (See, e.g., id. ¶¶ 7, 8, 28.)

22

These analytical, legal, and factual gaps in plaintiffs’ allegations and requests for relief

23 render the complaint unintelligible. Plaintiffs’ inability to articulate their legal theory at the

24 January 26th hearing underscores the point. Consequently, the Court GRANTS the City’s motion

25 for a more definite statement.

26

III. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

27

Next, the Court DENIES WITHOUT PREJUDICE plaintiffs’ motion for preliminary injunction.

28 The Court is unable to substantively address the motion absent a clearly articulated legal theory in

9

United States District Court Northern District of California

1 their complaint. The Court must first be assured that the complaint articulates with sufficient

2 clarity the relief sought against the City, the authority on which the Court may order such relief,

3 and the authority under which defendants may afford the relief.

4

IV. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

5

The Court is similarly unable to resolve plaintiffs’ motion for class certification at this stage

6 and DENIES the same WITHOUT PREJUDICE. The Court cannot determine whether “injunctive

7 relief or corresponding declaratory relief is appropriate respecting the class as a whole” without

8 understanding the relief sought by plaintiffs. Fed.R.Civ.P. 23(b)(2).

9

V. CALIFORNIA BAIL AGENTS ASSOCIATION’S MOTION TO INTERVENE

10

The California Bail Agents Association (“CBAA”) moves to intervene in this action under

11 Rule 24. Their request is premature for two reasons. First, CBAA posits that “the Court’s decision

12 on intervention will be made after challenges to Plaintiff’s pleadings are heard,” so that any

13 responsive pleading CBAA files will be to an amended complaint. (Dkt. No. 41 at 9) (emphasis in

14 original.) Accordingly, as CBAA concedes, the merits of CBAA’s request are appropriately

15 assessed after plaintiffs have amended the complaint to make its claims clear. Only once the Court

16 understands the relief plaintiffs seek in this case, and the defenses the City and CBAA intend to

17 raise in response thereto, can intervention be sufficiently addressed.

18

Second, CBAA premises its intervention on the notion that its entire industry could be

19 destroyed; a proposition that relies on two sentences in plaintiffs’ proposed order for preliminary

20 injunction. However, pursuant to today’s rulings, that motion has been denied without prejudice.

21 Thus, whether plaintiffs intend to challenge California’s bail laws in a way that would implicate

22 CBAA’s asserted interests remains unsettled. For these reasons, CBAA’s motion is DENIED AS

23 PREMATURE.

24

VI. CONCLUSION

25

Based upon the foregoing, and for the reasons stated on the record on January 26, 2016, the

26 Court rules on the pending motions as follows:

27

 The State’s motion to dismiss is GRANTED on grounds of sovereign immunity and

28

DENIED with respect to Younger abstention. (Dkt. No. 20)

10

United States District Court Northern District of California

1

 The City’s joinder in the State’s motion to dismiss on Younger grounds is DENIED

2

and the motion for more definite statement is GRANTED. (Dkt. No. 26)

3

 Plaintiffs’ motion for preliminary injunction is DENIED WITHOUT PREJUDICE.

4

(Dkt. No. 2)

5

 Plaintiffs’ motion to certify class is DENIED WITHOUT PREJUDICE. (Dkt. No. 7)

6

 Proposed intervenor California Bail Agents Association’s motion to intervene is

7

DENIED AS PREMATURE. (Dkt. No. 41)

8

Plaintiffs shall file an amended complaint no later than February 25, 2016.

9

IT IS SO ORDERED.

10

This Order terminates Docket Numbers 2, 7, 20, 26, 41.

11 Date: February 1, 2016

12

_______________________________________

13

YVONNE GONZALEZ ROGERS

14

UNITED STATES DISTRICT COURT JUDGE

15

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18

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20

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 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
RIANA BUFFIN, ET AL., 7
Plaintiffs, 8
v. 9
CITY AND COUNTY OF SAN FRANCISCO, ET 10 AL.,

11

Defendants.

Case No. 15-cv-04959-YGR
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND SETTING TELECONFERENCE Re: Dkt. No. 2

United States District Court Northern District of California

12

On October 28, 2015, plaintiffs filed their complaint and motion for a temporary

13 restraining order and preliminary injunction. (Dkt. Nos. 1, 2.) Later that day, plaintiffs filed a

14 class certification motion, set for hearing on December 8, 2015. (Dkt. Nos. 7, 12.) Defendants

15 were served with the complaint and motion for a temporary restraining order and preliminary

16 injunction yesterday. Having reviewed the papers submitted, the Court DENIES the motion for a

17 temporary restraining order and SETS a teleconference to establish a briefing schedule on the

18 motion for a preliminary injunction.

19

Plaintiff Rianna Buffin was arrested on October 26, 2015 and charged with grand theft of

20 personal property and conspiracy. (Dkt. No. 1 (“Complaint”) ¶¶ 9-10.) She could have secured

21 pretrial release with a $30,000 bail payment pursuant to San Francisco’s bail schedule, but is 22 purportedly unable to afford the payment. (Id. ¶ 11.) Plaintiff Crystal Patterson was arrested on 23 October 27, 2015 and charged with assault with force causing great bodily injury. (Id. ¶ 15.) Her 24 pretrial release bail was set at $150,000 pursuant to the schedule, an amount she is also allegedly 25 unable to pay. (Id. ¶ 16.) Both defendants were expected to be brought before a judge within 72 26 hours of arrest. (Id. ¶ 13.) Thus, they may have already been released from custody. The motion 27 seeks to enjoin defendants from holding plaintiffs and those similarly situated in jail without 28 offering release on unsecured bond or recognizance where they are unable to pay the applicable

1 bail amounts. (Dkt. No. 2 at 24.)

2

Requests for temporary restraining orders are governed by the same general standards that

3 govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co.,

4 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240

5 F.3d 832, 839 n. 7 (9th Cir. 2001). A preliminary injunction is an “extraordinary and drastic

United States District Court Northern District of California

6 remedy” that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008)

7 (internal citations omitted). Whether seeking a temporary restraining order or a preliminary

8 injunction, a plaintiff must establish four factors: (1) that she is likely to succeed on the merits; (2)

9 that she is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance

10 of equities tips in her favor; and (4) that an injunction is in the public interest. Winter v. Natural

11 Resources Defense Council. Inc., 555 U.S. 7, 20 (2008).

12

As a preliminary matter, the Court notes that the instant motion seeks affirmative relief—

13 namely, the immediate release, prior to a hearing or a response by defendants, of not only the

14 named plaintiffs but of a large number of individuals from pretrial custody without imposition of

15 the typical bail requirement. “Ex parte temporary restraining orders are no doubt necessary in

certain circumstances, but under federal law they should be restricted to serving their underlying 16
purpose of preserving the status quo and preventing irreparable harm just so long as is necessary 17
to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 18
439 (1974) (citations omitted); see also Stanley v. Univ. of S. California, 13 F.3d 1313, 1320 (9th 19
Cir. 1994) (noting mandatory injunctions, which go “beyond simply maintaining the status quo,” 20
are “particularly disfavored” and requests therefor should be denied “unless the facts and law 21
clearly favor” the movant) (internal quotations and citations omitted); Sosa v. Lantz, 660 F. Supp. 22
2d 283, 290 (D. Conn. 2009) (denying motion for temporary restraining order seeking “affirmative 23
relief changing the status quo” where prisoner sought a larger cell and a non-Muslim cellmate) 24
(emphasis in original). While the Court takes no position on the underlying merits of the claims, 25
plaintiffs have failed to establish at this juncture that a temporary restraining order is in the public 26
interest and granting it as requested would constitute a significant departure from the status quo.
27 The Court finds that, despite any intervening harm to plaintiffs, the equities favor maintaining the
28

2

1 status quo pending a response from defendants. Moreover, the allegations of the complaint

2 suggest named plaintiffs may have already been released from custody.

3

Therefore, the Court SETS a teleconference for Monday, November 2, 2015 to set a

4 briefing schedule on the motion for a preliminary injunction. Counsel for plaintiffs shall meet and

5 confer with defense counsel and agree upon a time for the call. Plaintiffs shall inform the Court of

6 the agreed upon time and dial-in number through the Courtroom Deputy.

7

IT IS SO ORDERED.

8 Dated: October 30, 2015

9

______________________________________

YVONNE GONZALEZ ROGERS

10

UNITED STATES DISTRICT COURT JUDGE

11

United States District Court Northern District of California

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28 3

 
 Case 4:15-cv-04959-YGR Document 71 Filed 05/27/16 Page 1 of 21

1 Phil Telfeyan (CA Bar No. 258270)

2 Katherine Hubbard (CA Bar No. 302729)

3 Attorneys, Equal Justice Under Law

4 601 Pennsylvania Avenue NW

5 South Building — Suite 900

6 Washington, D.C. 20004

7 (202) 505-2058

8 ptelfeyan@equaljusticeunderlaw.org

9 khubbard@equaljusticeunderlaw.org

10 Attorneys for Plaintiffs Riana Buffin and Crystal Patterson

11

12

THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

15

)

16 RIANA BUFFIN and CRYSTAL

)

17 PATTERSON, on behalf of themselves and )

18 others similarly situated,

)

19

)

20

Plaintiffs,

)

21

)

Case No. 15-CV-4959 (YGR)

22

v.

)

(Class Action)

23

)

24 THE CITY AND COUNTY OF SAN

)

25 FRANCISCO, VICKI HENNESSY in her )

26 official capacity as the San Francisco

)

27 Sheriff, and KAMALA HARRIS in her )

28 official capacity as the California Attorney )

29 General,

)

30

)

31

Defendants.

)

32 ____________________________________)

33

34

THIRD AMENDED CLASS ACTION COMPLAINT

35

Introduction

36

1. This case is about the City and County of San Francisco keeping some of its

37 poorest residents in jail because of their inability to make a monetary payment. Named Plaintiffs

38 Riana Buffin and Crystal Patterson are indigent arrestees who were kept in the county jail solely

39 because they were too poor to pay the amount of money that the San Francisco Sheriff’s

40 Department demanded for their release.

Third Amended Class Action Complaint

15-CV-4959

1

Case 4:15-cv-04959-YGR Document 71 Filed 05/27/16 Page 2 of 21

1

2. In San Francisco, arrestees face two different outcomes depending on their wealth

2 status. If Ms. Buffin and Ms. Patterson had been rich enough to pay $30,000 and $150,000

3 respectively — like many wealthier people accused of the same offenses — they could have

4 walked out of their jail cells immediately under San Francisco’s pay-for-freedom pretrial justice

5 system. Because the only criterion standing between Plaintiffs and freedom was their ability to

6 make a monetary payment, San Francisco operates a wealth-based detention scheme.

7

3. On behalf of the many other arrestees subjected to Defendants’ unlawful wealth-

8 based detention scheme, the named Plaintiffs in this action challenge the use of money bail to

9 detain poor arrestees while letting rich arrestees free. Defendants’ wealth-based detention

10 scheme violates the Equal Protection and Due Process Clauses of the United States Constitution

11 because it ties pretrial freedom to the ability to make a monetary payment, thus making freedom

12 dependent on wealth-status.

13

4. By and through their attorneys and on behalf of themselves and all others

14 similarly situated, the named Plaintiffs seek the vindication of their fundamental rights,

15 injunctive relief preventing future wealth-based detention of all Class Members, and a

16 declaration that any state statutory or constitutional provisions that require the use of secured

17 money bail to detain any person without an inquiry into ability to pay are unconstitutional.

18 Defendants cannot use money bail to detain any person solely because she is unable to make a

19 monetary payment.

20

Nature of the Action1

21

5. It is the policy and practice of the City and County of San Francisco and Sheriff

22 Vicki Hennessy to refuse to release arrestees from jail unless they pay their money bail amount.

1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.

Third Amended Class Action Complaint

15-CV-4959

2

Case 4:15-cv-04959-YGR Document 71 Filed 05/27/16 Page 3 of 21

1 Additionally, the Sheriff and the Attorney General enforce unconstitutional state laws that

2 require the use of money bail to detain individuals without an inquiry into their ability to pay.

3 Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ wealth-based detention

4 scheme and requiring that pretrial release or detention decisions be based on factors other than

5 wealth-status.

6

Jurisdiction and Venue

7

6. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201,

8 et seq., and the Fourteenth Amendment to the United States Constitution. This Court has

9 jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

10

7. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.

11

Intradistrict Assignment

12

8. Assignment to the San Francisco Division is proper pursuant to Civil L.R. 3-2(c).

13 The events giving rise to this claim arise in the County of San Francisco.

14

Parties

15

9. Named Plaintiff Riana Buffin is a 19-year-old resident of Oakland. See generally

16 Ex. 1, Buffin Decl. She lives with her mother, whose only source of income is disability

17 payments, and her three younger brothers. Along with her mother, her two youngest brothers,

18 ages 9 and 10, have severe disabilities. She represents herself as an individual and represents a

19 Class of similarly situated people subjected to Defendants’ wealth-based detention scheme.

20

10. Named Plaintiff Crystal Patterson is a 29-year-old resident of San Francisco. See

21 generally Ex. 2, Patterson Decl. She lives with and is the primary caregiver for her grandmother.

22 Her mother is unemployed and is experiencing homelessness. She represents herself as an

23 individual and represents a Class of similarly situated people subjected to Defendants’ wealth-

Third Amended Class Action Complaint

15-CV-4959

3

Case 4:15-cv-04959-YGR Document 71 Filed 05/27/16 Page 4 of 21

1 based detention scheme.

2

11. Defendant City and County of San Francisco is a local government entity

3 organized under the laws of the State of California. The San Francisco Sheriff’s Department is a

4 division of San Francisco and operates the San Francisco County Jail.

5

12. Defendant Vicki Hennessy, in her official capacity as San Francisco Sheriff, is an

6 official of Defendant City and County of San Francisco in her role as jailor and with regard to

7 release and detention decisions and San Francisco’s release/detention policy.

8

13. The Sheriff has charge of and is the sole and exclusive authority to keep the

9 county jail and the prisoners in it. Cal. Gov’t Code § 26605; San Francisco Charter § 6.105. The

10 Sheriff’s Department detains inmates at the county jail and is authorized to issue and sign orders

11 of release for pretrial detainees. See Cal. Pen. Code § 1269b(a).

12

14. The Sheriff’s Department is headed by the San Francisco Sheriff, who is an

13 officer of San Francisco. The officers and employees of the Sheriff’s Department are authorized

14 to accept money bail, order the release of an arrestee, and set a time for an arrestee’s appearance

15 in state court. The Sheriff’s Department, by policy and practice, detains arrestees too poor to

16 afford their bail amount.

17

15. The Custody Division of the San Francisco Sheriff’s Department is charged with

18 the operations of all six of San Francisco’s County Jails, the Hospital Ward, the Classification

19 Unit, and the various Jail Programs.

20

16. The Sheriff is the final policymaker for Defendant City and County of San

21 Francisco with regard to release and detention decisions and San Francisco’s release/detention

22 policy.

23

17. Under the Supremacy Clause, the United States Constitution is the supreme law

Third Amended Class Action Complaint

15-CV-4959

4

Case 4:15-cv-04959-YGR Document 71 Filed 05/27/16 Page 5 of 21

1 of the land. All government officials must uphold the Equal Protection and Due Process Clauses

2 of the Fourteenth Amendment, regardless of contrary instructions from state officials, local

3 officials, state law, local law, or state judges. Additionally, upon taking office, the San Francisco

4 Sheriff swears an oath to support and defend the Constitution of the United States.

5

18. State law requires the use of secured money bail after arrest, but state law does

6 not expressly bind the decision-making authority of the Sheriff and Sheriff’s Department with

7 regard to release and detention decisions. The Sheriff enforces the law requiring use of secured

8 money bail after arrest, and San Francisco has a policy and practice of detaining individuals

9 based on their inability to make a monetary payment.

10

19. San Francisco is responsible for its application of its policies, including its release

11 and detention policies.

12

20. Defendant San Francisco is liable for its unconstitutional policies and practices —

13 including the policies and practices of its officers and divisions — even if they are consistent

14 with state law and even if they are consistent with orders of state judges.

15

21. Under Ex parte Young, 209 U.S. 123 (1908), the Sheriff in her official capacity

16 can be enjoined from enforcing any unconstitutional state laws. Any statutes requiring or

17 permitting wealth-based detention without an inquiry into an individual’s ability to make a

18 monetary payment are unconstitutional.

19

22. Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the City and County

20 of San Francisco and the Sheriff are liable for their unconstitutional policies and practices. Any

21 wealth-based detention practices lacking an inquiry into an individual’s ability to make a

22 monetary payment are unconstitutional.

23

23. Defendant Kamala Harris is the California Attorney General and the chief law

Third Amended Class Action Complaint

15-CV-4959

5

Case 4:15-cv-04959-YGR Document 71 Filed 05/27/16 Page 6 of 21

1 enforcement officer in California. She is charged with the enforcement of California’s laws,

2 including provisions of the Penal Code. In her official capacity as the California Attorney

3 General, she requires the Sheriff to impose bail pursuant to a bail schedule, thereby creating a

4 wealth-based detention scheme. See Cal. Pen. Code § 1269b.

5

24. The Attorney General has direct supervision over every county sheriff in the state.

6 Cal. Const. Art. V, § 13; Cal. Gov’t Code § 12560. Several statutory provisions give the

7 Attorney General specific supervisory powers over sheriffs. See, e.g., Cal. Gov’t Code §§

8 12524, 12560, 12561.

9

25. The Attorney General also has direct supervision over county district attorneys

10 and may assist the district attorney or take full charge of any investigation or prosecution. See

11 Cal. Gov’t Code § 12550. The Attorney General has a duty to prosecute violations of law

12 whenever, in her opinion, “any law of the State is not being adequately enforced in any county.”

13 Cal Const. Art. V, § 13. Criminal violations of the bail law can be prosecuted either by county

14 district attorneys or by the Attorney General herself.

15

26. Under Ex parte Young, the Attorney General in her official capacity can be

16 enjoined from enforcing any unconstitutional state laws. Any statutes requiring or permitting

17 wealth-based detention without an inquiry into an individual’s ability to make a monetary

18 payment are unconstitutional.

19

Factual Allegations

20 A. The Named Plaintiffs Were Held in Jail by the Sheriff and the City and County of

21 San Francisco Because They Were Unable to Pay Their Money Bail Amount

22

23

27. Ms. Buffin was arrested by San Francisco police on October 26, 2015. She was

24 accused of grand theft of personal property and conspiracy.

25

28. Ms. Buffin was taken to jail and told that she would be released if she paid

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1 $30,000. She was told that she would be kept in jail unless she paid $30,000. See Ex. 1, Buffin

2 Decl. at ¶ 3.

3

29. Ms. Buffin is indigent. She survived on the income she made working at the

4 Oakland airport for approximately $10.25 per hour. Id. at ¶ 5. She lives with her mother, who

5 has a disability and receives disability payments. Id. at ¶ 4. She is also a caretaker for her three

6 younger brothers, two of whom have severe disabilities. Id.

7

30. Because of her indigence, Ms. Buffin was unable to pay her money bail amount.

8 Id. at ¶ 6.

9

31. Ms. Buffin was not told when she would be brought to court and was never

10 brought to court for an initial appearance. See Ex. 3, Boudin Decl. at ¶ 14. After approximately

11 46 hours in jail, she was discharged when the District Attorney’s Office decided not to file

12 formal charges against her.

13

32. Due to her detention, Ms. Buffin lost her job at the Oakland airport. Id. at ¶ 16.

14

33. Ms. Patterson was arrested by San Francisco police on October 27, 2015. She

15 was accused of assault with force causing great bodily injury. Ex. 2, Patterson Decl. at ¶ 2.

16

34. Ms. Patterson was taken to jail and told that she would be released if she paid

17 $150,000. She was told that she would be kept in jail unless she paid $150,000. Id. at ¶ 3.

18

35. Ms. Patterson is indigent. She survives on the income she makes doing in-home

19 care services for approximately $12.50 per hour. Id. at ¶ 5. She lives with her grandmother, who

20 is unemployed. Id. at ¶ 4. Because her mother is unemployed and is experiencing homelessness,

21 Ms. Patterson is the primary caregiver for her grandmother, and her income goes to supporting

22 her and her grandmother’s basic necessities of life. Id.

23

36. Due to her indigence, Ms. Patterson was unable to pay her money bail amount.

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1 Id. at ¶ 6.

2

37. Ms. Patterson was not told when she would be brought to court and was never

3 brought to court for an initial appearance. Ex. 3, Boudin Decl. at ¶ 18. Desperate to get home to

4 take care of her aging grandmother, Ms. Patterson was able to convince relatives to pay 1%

5 ($1,500) of her bail amount to a private bail bond company. Ms. Patterson (and a co-signor)

6 agreed to pay the balance of $15,000, financed over years “at the maximum rate of interest

7 allowed by law.” After signing the debt agreement and after several hours of processing by the

8 private bail bond company, Ms. Patterson was eventually released, having spent a total of

9 approximately 31 hours in jail.

10

38. Hours after her release, Ms. Patterson’s case was discharged when the District

11 Attorney’s Office decided not to file formal charges against her. Id. at ¶ 17. Even though she

12 does not face any criminal charges, Ms. Patterson is still indebted to a private bail bond company

13 for the balance of her $15,000 debt, plus interest. This is debt she never would have had to take

14 on were it not for San Francisco’s wealth-based detention.

15

39. Had Ms. Patterson been wealthy enough to pay the full bail amount of $150,000

16 immediately, she would have been immediately released and would have had her full amount

17 returned to her when her case was discharged.

18 B. 19 20 21

Defendants’ Wealth-Based Detention Scheme Detains Arrestees Who Cannot Pay Their Money Bail Amount while Releasing Those Who Can Pay
40. Upon arrest, all arrestees in San Francisco are transported to San Francisco

22 County Jail #1 for booking. The Sheriff’s Custody Division performs booking processes on all

23 arrestees.

24

41. The San Francisco Sheriff’s Department has a computerized Jail Management

25 System, which records various data on all inmates in the county jail system. These records are

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1 updated on an ongoing basis as events occur, and include information about the time of arrest

2 and the charge(s), the posting of any bail, and the date and time of release from custody.

3

42. The booking processes of arrestees include searching arrestees, medical triage,

4 photographing, fingerprinting to include warrant checks, classification, criminal history review,

5 review by the O.R. Project for eligibility to be released on one’s own recognizance, review for

6 eligibility to be cited and released, DNA collection from persons arrested for felony charges, and

7 inventory and storage of property.

8

43. The San Francisco Pretrial Diversion Project contracts with the Sheriff’s

9 Department to provide certain pretrial services, including the O.R. Project. See Ex. 4, McCovey

10 Aff. at ¶ 12. Employees of the O.R. Project interview inmates in the county jail and prepare a

11 workup to submit to a magistrate. Id. The workup includes contacting references provided by

12 the inmate. Id. The process of obtaining release through the O.R. Project may take hours or

13 several days.

14

44. At the end of booking processes, arrestees are given a booking sheet, which

15 includes their booking charge and their bail amount. Bail is determined by referring to the

16 Felony and Misdemeanor Bail Schedule as established by the Superior Court of California,

17 County of San Francisco. Deputy sheriffs use this bail schedule, referring to an arrestee’s

18 booking charge(s), when determining an arrestee’s bail amount.

19

45. Arrestees are told that if they pay their bail amount, they will be released

20 immediately. They are told that if they cannot pay bail, they will remain in jail until arraignment

21 or discharge, unless they are able to obtain release through the O.R. Project.

22

46. Arrestees who are not able to pay their money bail amount are shown a poster

23 listing the phone numbers of bail bond agents and told that they may call one of these numbers to

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1 attempt to secure their release. Arrestees who obtain release through bail agents remain in jail

2 while making arrangements with the agent such as finding cosigners for the bail bond contract.

3 This process can take hours or days.

4

47. If an arrestee can afford to pay her bail amount, the Sheriff’s Department accepts

5 the money and orders the release of the arrestee.

6

48. If an arrestee cannot afford to pay her bail amount, the Sheriff’s Department

7 keeps her in jail until either she can make other arrangements to obtain her release, she is

8 discharged, or she is taken to court 2 to 5 days later for arraignment.

9

49. The Sheriff’s Department books approximately 18,000 individuals in county jail

10 every year. On a typical day, the Sheriff’s Department locks approximately 50 new arrestees in

11 the county jail.

12

50. At any given time, approximately 85% of county jail inmates in San Francisco are

13 being detained pretrial.

14

51. Although they are presumed innocent of the crime for which they have been

15 arrested, more than 100 individuals at any given time are being detained by San Francisco solely

16 because they cannot afford money bail.

17

52. Approximately 90% of pretrial detainees are held due to probation revocation

18 proceedings, violation of terms of release, immigration detainers, or other holds. Even

19 discounting this percentage, San Francisco detains more than 1,800 individuals annually who are

20 in jail solely due to their wealth-status.

21 C. 22 23 24

Defendants’ Wealth-Based Detention Scheme Caused Plaintiffs To Be Held in Jail Solely Due to Their Inability To Pay Bail
53. The named Plaintiffs would have been released from jail immediately if they had

25 paid the amount of money required by the Sheriff’s Department.

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1

54. Arrestees are given a right to release pending trial, but Defendants’ pay-for-

2 freedom system conditions their release on their ability to afford money bail, thus tying their

3 pretrial freedom to their wealth-status.

4

55. The treatment of the named Plaintiffs and other Class Members is caused by two

5 factors: (1) the unconstitutional provisions of California’s Penal Code that are enforced by the

6 Sheriff and Attorney General and (2) the Sheriff’s and San Francisco’s policies and practices of

7 wealth-based detention.

8

56. As a matter of policy and practice, when the San Francisco Sheriff’s Department

9 books a new arrestee at the county jail, county employees inform the arrestee that she will be

10 released from jail immediately if she pays her money bail amount. The arrestee is told that she

11 will remain in jail if she is not able to make that payment.

12

57. It is the policy and practice of the Sheriff’s Department to immediately release

13 those arrestees who pay their money bail amount.

14

58. In a typical week, the Sheriff’s Department releases dozens of individuals who

15 pay their money bail amount.

16

59. It is the policy and practice of the Sheriff’s Department to detain individuals who

17 do not pay their money bail amount. Before arraignment, it is the policy and practice of the

18 Sheriff’s Department to detain individuals who do not pay the amount listed on the bail schedule.

19 After arraignment, it is the policy and practice of the Sheriff’s Department to detain individuals

20 who do not pay the bail amount set by the Superior Court.

21

60. In a typical week, the Sheriff’s Department detains dozens of individuals who do

22 not pay their money bail amount.

23

61. No provision of California law expressly prohibits the Sheriff and the Sheriff’s

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1 Department from releasing indigent arrestees from jail even if they have not paid their money

2 bail amount.

3

62. The Sheriff and Sheriff’s Department have a longstanding practice and custom —

4 which constitutes the standard operating procedure of the Sheriff and the City and County of San

5 Francisco — of releasing those individuals who pay their money bail amount.

6

63. The Sheriff and Sheriff’s Department have a longstanding practice and custom —

7 which constitutes the standard operating procedure of the Sheriff and the City and County of San

8 Francisco — of detaining those individuals who cannot pay their money bail amount.

9

64. Under San Francisco’s pay-for-freedom system, those wealthy enough to pay

10 their bail amount are immediately released from the county jail. Some poorer arrestees

11 eventually make arrangements with private bail bond companies — arrangements that require

12 significant time spent in jail not suffered by wealthier arrestees. And many others who are

13 poorer still are left to languish in jail until the resolution of their case.

14

65. Any provisions of California law that require the use of secured money bail to

15 detain individuals due to their inability to pay are unconstitutional because they violate the

16 principle that no person should have to spend a single day in jail simply because she cannot

17 make a monetary payment.

18

66. By directing that arrestees’ money bail amounts are set without regard to ability to

19 pay, Cal. Pen. Code § 1269b(b) violates the Equal Protection and Due Process Clauses of the

20 Fourteenth Amendment.

21

67. The Sheriff is liable under Ex parte Young for enforcing California law in

22 imposing money bail irrespective of an arrestee’s ability to pay.

23

68. The Attorney General is liable under Ex parte Young for enforcing California law

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1 in supervising the Sheriff and in requiring imposition of money bail irrespective of an arrestee’s

2 ability to pay.

3

69. The Sheriff and the City and County of San Francisco are liable under Monell for

4 the policy and practice of detaining all individuals who do not pay money bail while releasing

5 those individuals who do pay money bail.

6 D. 7 8 9

None of the Alternatives to Bail Available in San Francisco Allows for Immediate Release of Arrestees
70. Those arrestees too poor to pay for their freedom are not appointed counsel until

10 their first appearance in court. Such arrestees could theoretically apply to a magistrate for

11 release on lower bail or on own recognizance, but this process is functionally non-existent while

12 arrestees remain unrepresented by counsel.

13

71. Some indigent arrestees are released without bail at the discretion of the O.R.

14 Project, a service contracted by the Sheriff’s Department. This service does not operate to

15 release all arrestees, and it is not immediate. Even those eventually released under the O.R.

16 Project spend significant time in jail before their release.

17

72. Wealthy arrestees do not have to wait in jail for any of these processes, because

18 the County grants them immediate release when they pay their money bail amount.

19

73. By offering bail to arrestees, the Sheriff’s Department allows pretrial release, but

20 condition that release on an arrestee’s wealth-status. Only those who can afford their money bail

21 amount are permitted pretrial release.

22 E. 23 24 25

Defendants’ Use of Money Bail Is Not Narrowly Tailored — Nor Is It as Effective as Many Other Methods — in Securing Court Attendance or Public Safety
74. While tying pretrial freedom to wealth-status is the norm in San Francisco, other

26 jurisdictions throughout the country do not hold people in jail because of their poverty. Instead

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1 of relying on money bail, these jurisdictions release arrestees with pretrial supervision practices

2 that effectively promote court attendance and public safety without requiring detention. Pretrial

3 services agencies in other counties employ numerous methods of maximizing public safety and

4 court appearances, including reporting obligations, phone and text message reminders of court

5 dates, rides to court for those without transportation or a stable address, counseling, drug and

6 alcohol treatment, batterer intervention programs, anger management courses, reporting

7 obligations, SCRAM bracelets (for alcohol testing), or electronic monitoring, among other

8 services, when necessary to guard against a particular risk. See generally Ex. 5, Murray Aff.; Ex.

9 6, Morrison Aff.

10

75. Other jurisdictions also employ non-monetary conditions of release, including

11 unsecured or “signature” bonds (which do not require payment up front), stay-away orders,

12 curfews, or even home detention, further contributing to high public safety and court appearance

13 rates. See generally Ex. 5, Murray Aff.

14

76. San Francisco can and does use such pretrial services, but only tangentially. See

15 generally Ex. 7, Mirkarimi Decl. at ¶ 9. The majority of arrestees booked in San Francisco

16 County Jail are processed and detained through San Francisco’s money bail scheme rather than

17 non-monetary supervision methods.

18

77. Jurisdictions with robust pretrial services and non-monetary conditions of release

19 often achieve court-appearance rates over 90%, with more than 85% of those released pretrial

20 remaining arrest-free (and 98–99% remaining arrest-free for violent crimes). See generally Ex.

21 6, Morrison Aff.; Ex. 8, Herceg Aff.

22

78. Unnecessary pretrial detention causes instability in employment, housing, and

23 care for dependent relatives. See generally Ex. 5, Murray Aff. Studies show that those detained

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1 pretrial face worse outcomes at trial and sentencing than those released pretrial, even when

2 charged with the same offenses. Detained defendants are more likely to plead guilty just to

3 shorten their jail time, even if they are innocent. Ex. 9, Adachi Decl. at ¶ 7. They have a harder

4 time preparing for their defense, gathering evidence and witnesses, and meeting with their

5 lawyers. Id. at ¶ 8. Studies also show that just two days of pretrial detention substantially

6 increase the likelihood of future arrests.

7

79. Pretrial detention is more than ten times more expensive than effective pretrial

8 supervision programs. See generally Ex. 5, Murray Aff. Through non-monetary tools, pretrial

9 supervision programs can save taxpayer funds while maintaining high public safety and court

10 appearance rates.

11

80. Although money bail is the central component of Defendants’ pretrial justice

12 system, in limited circumstances the Sheriff’s Department can and does rely on a variety on non-

13 wealth-based metrics to make release/detention decisions. For example, the Sheriff’s

14 Department decides to detain arrestees (without money bail) who have violated probation, have

15 violated terms of release, have immigration detainers, or have other holds. The Sheriff’s

16 Department can also detain individuals accused of certain serious crimes without money bail.

17 Similarly, the Sheriff and the City and County of San Francisco can release arrestees without

18 requiring money bail.

19

Class Action Allegations

20

81. The named Plaintiffs bring this action, on behalf of themselves and all others

21 similarly situated, to assert the claims alleged in this Third Amended Complaint on a common

22 basis.

23

82. A class action is a superior means, and the only practicable means, by which the

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1 named Plaintiffs and unknown Class Members can challenge Defendants’ unlawful wealth-based

2 detention scheme.

3

83. This action is brought and may properly be maintained as a Class action pursuant

4 to Rule 23(a)(1)–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.

5

84. This action satisfies the numerosity, commonality, typicality, and adequacy

6 requirements of those provisions.

7

85. Plaintiffs propose one Class seeking declaratory and injunctive relief. The

8 Declaratory and Injunctive Class is defined as: all arrestees who are or will be in the custody of

9 the City and County of San Francisco and are or will be detained for any amount of time because

10 they are unable to pay money bail.

11 A. Numerosity — Fed. R. Civ. P. 23(a)(1)

12

86. The San Francisco County Jail detains approximately 18,000 individuals

13 annually. Of those, approximately 85% are detained pretrial. Those arrestees who are not held

14 due to probation revocation proceedings, violation of terms of release, immigration detainers, or

15 other holds are presented with Defendants’ standard money bail choice of pay or jail.

16

87. Some arrestees are able to pay for release immediately. Those not able to pay are

17 held in the county jail pursuant to Defendants’ wealth-based detention scheme.

18

88. The number of current and future arrestees detained pursuant to Defendants’

19 wealth-based detention scheme — if it is not enjoined — is well into the hundreds.

20 B. Commonality — Fed. R. Civ. P. 23(a)(2)

21

89. The relief sought is common to all Class Members, and common questions of law

22 and fact exist as to all Class Members. The named Plaintiffs seek relief concerning whether

23 provisions of state law that require the use of money bail and whether the Sheriff Department’s

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1 policies, practices, and procedures violate the rights of the Class Members and relief mandating

2 that Defendants not enforce such provisions nor continue such practices so that the constitutional

3 rights of the Class Members will be protected in the future.

4

90. These common legal and factual questions arise from one set of policies and

5 practices: Defendants’ wealth-based detention scheme. Defendants operates this scheme in

6 materially the same manner every day. The material components of the scheme do not vary

7 from Class Member to Class Member, and the resolution of these legal and factual issues will

8 determine whether all Class Members are entitled to the relief they seek.

9

Among the most important, but not the only, common questions of fact are:

10  11
12  13
14  15 16 17

Do the Sheriff and San Francisco have a policy and practice of requiring money bail as a prerequisite for post-arrest release? Do the Sheriff and San Francisco immediately release those arrestees wealthy enough to pay their money bail amount? Do the Sheriff and San Francisco detain, for any amount of time, those arrestees too poor to pay their money bail amount solely because they cannot make that monetary payment?
91. Among the most important common question of law are:

18  19
20  21 22 23 C.

Do the Equal Protection and Due Process Clauses prohibit the government from jailing an individual solely due to her inability to make a monetary payment? Does jailing an individual due solely to her inability to afford money bail constitute jailing her due to her inability to make a monetary payment?
Typicality — Fed. R. Civ. P. 23(a)(3)

24

92. The named Plaintiffs’ claims are typical of the other Class Members’ claims, and

25 they have the same interests in this case as all other Class Members. Each Class Member is

26 confined in jail because she could not afford her money bail amount. The answer to whether

27 Defendants’ wealth-based detention scheme is unconstitutional will determine the claims of the

28 named Plaintiffs and every other Class Member.

29

93. If the named Plaintiffs succeed in the claim that Defendants’ policies and

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1 practices concerning wealth-based detention violate their constitutional rights, that ruling will

2 likewise benefit every other Class Member.

3 D. Adequacy — Fed. R. Civ. P. 23(a)(4)

4

94. The named Plaintiffs are adequate representatives of the Class because their

5 interests in the vindication of the legal claims that they raise are entirely aligned with the

6 interests of the other Class Members, who each have the same basic constitutional claims. They

7 are a member of the Class, and their interests coincide with, and are not antagonistic to, those of

8 the other Class Members.

9

95. There are no known conflicts of interest among Class Members, all of whom have

10 a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-

11 freedom system.

12

96. Plaintiffs are represented by attorneys from Equal Justice Under Law, who have

13 experience in litigating complex civil rights matters in federal court and extensive knowledge of

14 both the details of Defendants’ scheme and the relevant constitutional and statutory law.

15 Counsels’ relevant qualifications are more fully set forth in the previously filed Motion for Class

16 Certification.

17

97. The combined efforts of Class counsel have so far included extensive

18 investigation into money bail schemes over a period of years, including numerous interviews

19 with witnesses, court employees, jail inmates, families, attorneys throughout the region,

20 community members, statewide experts in the functioning of state and local courts, and national

21 experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures,

22 criminal law, pretrial services, and jails.

23

98. Class counsel have a detailed understanding of state law and practices as they

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1 relate to federal constitutional requirements. Counsel have studied the way that these systems

2 function in other counties in order to investigate the wide array of lawful alternatives.

3

99. As a result, counsel have devoted enormous time and resources becoming

4 intimately familiar with Defendants’ scheme and with the relevant state and federal laws.

5 Counsel have also developed relationships with many of the individuals and families most

6 victimized by Defendants’ practices. The interests of the Class Members will be fairly and

7 adequately protected by the Plaintiffs and their attorneys.

8 E. Rule 23(b)(2)

9

100. Class action status is appropriate because Defendants have acted in the same

10 unconstitutional manner with respect to all Class Members. Defendants enforce a wealth-based

11 system of pretrial justice: wealthy arrestees can purchase their immediate release, while poorer

12 arrestees must remain in jail.

13

101. The Class therefore seeks declaratory and injunctive relief to enjoin the Sheriff

14 and San Francisco from detaining arrestees who cannot afford their money bail amounts.

15 Because the putative Class challenges Defendants’ scheme as unconstitutional through

16 declaratory and injunctive relief that would apply the same relief to every Class Member, Rule

17 23(b)(2) certification is appropriate and necessary.

18

102. Injunctive relief compelling Defendants to comply with these constitutional rights

19 will similarly protect each Class Member from being subjected to Defendants’ unlawful policies

20 and practices. A declaration and injunction stating that the Sheriff and San Francisco cannot

21 detain arrestees due to their inability to make a monetary payment would provide relief to every

22 Class Member. Therefore, declaratory and injunctive relief with respect to the Class as a whole

23 is appropriate.

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1

103. Plaintiffs seek the following relief and hereby demand a jury in this cause for all

2 matters so appropriate.

3

Claims for Relief

4 Count One: Defendants Violate Plaintiffs’ Rights by Jailing Them Because They Cannot

5 Afford a Monetary Payment

6

7

104. Plaintiffs incorporate by reference the allegations in paragraphs 1–103.

8

105. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit

9 jailing a person because of her inability to make a monetary payment. Defendants violate

10 Plaintiffs’ fundamental rights by keeping them in jail solely because they cannot afford to pay

11 money bail.

12

Request for Relief

13

WHEREFORE, Plaintiffs and the other Class Members request that this Court issue the

14 following relief:

15

a. A declaratory judgment that Defendant City and County of San Francisco and the

16

Sheriff violate the named Plaintiffs’ and Class Members’ constitutional rights by

17

keeping them in jail solely because they cannot make a monetary payment;

18

19

b. An order and judgment preliminarily and permanently enjoining Defendants from

20

enforcing their unconstitutional wealth-based detention policies and practices

21

against the named Plaintiffs and the Class of similarly situated people that they

22

represent;

23

24

c. An order and judgment preliminarily and permanently enjoining Defendant City

25

and County of San Francisco — including the Sheriff and all officers and

26

employees of the Sheriff’s Department at the county jail — from using money

27

bail to detain any person due to her inability to make a monetary payment and

28

requiring that all release/detention decisions be based on factors other than

29

wealth-status or ability to make a monetary payment;

30

31

d. An order and judgment preliminarily and permanently enjoining the Attorney

32

General from requiring the use of money bail to detain indigent arrestees in San

33

Francisco;

34

35

e. An order declaring that all Defendants must follow the requirements of the Equal

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1

Protection and Due Process Clauses, regardless of contrary state law or contrary

2

policies and practices;

3

4

f. An order declaring that, as applied by Defendants against Plaintiffs and Class

5

Members, California Penal Code section 1269b(b) and any other state statutory or

6

constitutional provisions that require the use of secured money bail to detain any

7

person without an inquiry into ability to pay are unconstitutional;

8

9

g. A judgment individually compensating the named Plaintiffs for the damages that

10

they suffered as a result of Defendants’ unconstitutional and unlawful conduct,

11

including damages resulting from their confinement in jail;

12

13

h. An order and judgment granting reasonable attorneys’ fees and costs pursuant to

14

42 U.S.C. § 1988, and any other relief this Court deems just and proper.

15

16

Respectfully submitted,

17

18

/s/ Phil Telfeyan

19

Phil Telfeyan (California Bar No. 258270)

20

/s/ Katherine Hubbard

21

Katherine Hubbard (California Bar No. 302729)

22

Attorney, Equal Justice Under Law

23

601 Pennsylvania Avenue NW

24

South Building — Suite 900

25

Washington, D.C. 20004

26

(202) 505-2058

27

ptelfeyan@equaljusticeunderlaw.org

28

khubbard@equaljusticeunderlaw.org

29

Attorneys for Plaintiffs

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 1

2

3

4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6

7

8 RIANA BUFFIN, et al.,

9

Plaintiffs,

10

v.

11 THE CITY AND COUNTY OF SAN FRANCISCO, et al.,
12
Defendants.
13

Case No. 15-cv-04959-YGR ORDER ON MOTIONS TO DISMISS AND MOTION TO INTERVENE
Re: Dkt. Nos. 76, 77, 81

United States District Court Northern District of California

14

Plaintiffs Riana Buffin and Crystal Patterson, on behalf of themselves and all others

15 similarly situated, bring this civil rights action against defendants the City and County of San

16 Francisco (the “County”), Vicki Hennessy in her official capacity as the County’s Sheriff (the

17 “Sheriff”), and Kamala Harris in her official capacity as the Attorney General (the “Attorney

18 General”) for the State of California (the “State”). Plaintiffs bring a single count against the

19 County, the Sheriff, and the Attorney General for violation of their Fourteenth Amendment equal

20 protection and due process rights when the Sheriff enforces state law by keeping them in jail before

21 arraignment solely because they cannot afford to pay money bail. Specifically, plaintiffs challenge

22 defendants’ enforcement of California Penal Code section 1269b, which provides that a sheriff may

23 only collect bail from pre-arraignment arrestees in the amount fixed, inter alia, in the schedule of

24 bail set by the superior court judges sitting in and for that county.

25

Based thereon, plaintiffs seek declaratory and injunctive relief on behalf of themselves and

26 putative class members. The named plaintiffs additionally seek monetary damages, attorneys’ fees,

27 and costs from defendants. Defendants move under Rule 12(b)(6) to dismiss the single count in the

28 Third Amended Complaint (“3AC”), arguing plaintiffs fail to state a cognizable claim for relief

United States District Court Northern District of California

1 under the Fourteenth Amendment as to each of them. Additionally, the California Bail Agents

2 Association (“CBAA”) moves to intervene as a defendant. Having carefully considered the papers

3 submitted and the pleadings in this action, and for the reasons discussed below, the Court GRANTS

4 IN PART the County’s and the Sheriff’s motion to dismiss, GRANTS IN PART the Attorney General’s

5 motion to dismiss WITHOUT PREJUDICE, and DENIES WITHOUT PREJUDICE CBAA’s motion to

6 intervene.

7

I.

BACKGROUND

8

A. Factual Background

9

The County police arrested plaintiff Riana Buffin on October 26, 2015 for grand theft of

10 personal property from a department store and conspiracy. (Dkt. No. 71, “3AC,” ¶ 27.) Plaintiff

11 Buffin was taken to jail and she was informed that her bail was set at $30,000. (Id. ¶ 28.) Late in

12 the evening of October 28, 2015, after approximately 46 hours in jail, plaintiff Buffin was released

13 when the District Attorney’s office decided not to file formal charges against her. (Id. ¶ 31.)

14

With respect to plaintiff Crystal Patterson, she was arrested on October 27, 2015 by the

15 County police for assault with force causing great bodily injury. (Id. ¶ 33.) The police took her to

16 jail where she was told that her bail was set at $150,000. (Id. ¶ 34.) After approximately 31 hours

17 in jail, plaintiff Patterson posted bail through a private bond company. (Id. ¶ 37.) Following her

18 release, the case against plaintiff Patterson was discharged and no formal charges were filed against

19 her. (Id. ¶ 38.) Named plaintiffs make no allegation that their bail amounts were set by the Sheriff

20 other than in conformance with the County’s bail schedule set by state judges on the California

21 Superior Court sitting in and for the City and County of San Francisco (the “Superior Court”).

22

In California, state law imposes a duty on superior court judges to “prepare, adopt, and

23 annually revise a uniform countywide schedule of bail” for all bail-eligible offenses except Vehicle

24 Code infractions. Cal. Pen. Code § 1269b(c). In San Francisco, the Superior Court establishes the

25 felony and misdemeanor bail schedule. (Id. ¶ 44.) The Sheriff determines an arrestee’s bail

26 amount by reference to the bail schedule; she is authorized to release arrestees from the County’s

27

28

2

United States District Court Northern District of California

1 jail prior to appearance in front of a judicial officer1 only when they pay their bail amount as set 2 forth in that schedule of bail.2 Cal. Pen. Code § 1269b(a). Plaintiffs allege that, consistent with

3 California Penal Code section 1269b(a), the Sheriff “enforces the law [i.e., California Penal Code

4 section 1269b(a)] requiring use of secured money bail after arrest,” which has the effect of

5 discriminating against poor arrestees. (Id. ¶ 18.) Plaintiffs further allege that the County “has a

6 policy and practice of detaining individuals based on their inability to make a monetary payment,”

7 but plaintiffs identify no such county policy other than the Sheriff’s enforcement of the bail

8 schedule established pursuant to state law. (Id.)

9

B. Procedural Background

10

Plaintiffs filed their original complaint on October 28, 2015 against the County and “the

11 State of California” generically. (Dkt. No. 1.) They concurrently filed an emergency motion for

12 temporary restraining order and preliminary injunction for the immediate release of named

13 plaintiffs and all putative class members from the County’s jail (Dkt. No. 2), as well as a motion to

14 certify their proposed class (Dkt. No. 7). The Court denied the motion for temporary restraining

15 order, finding plaintiffs had not established they were entitled to the affirmative relief sought. (Dkt.

16 No. 13.) The Court then set a schedule for the parties to brief the pending motions for preliminary

17 injunction and for class certification, as well as defendants’ anticipated motions to dismiss. (Dkt.

18 No. 19.)

19

The County and the State moved to dismiss the complaint on Rule 12 grounds, namely

20 arguing: (1) the State was entitled to sovereign immunity under the Eleventh Amendment, and (2)

21 Younger abstention applied such that the Court should not consider any of plaintiffs’ claims. (Dkt.

22 Nos. 20, 26.) Plaintiffs implicitly conceded that the State was entitled to sovereign immunity, and

23
1 Subject to narrow exceptions, in California a person accused of committing an offense 24 requiring them to remain in custody must be taken before a magistrate judge for arraignment within 25 48 hours of his or her arrest, not including Sundays and holidays. Cal. Pen. Code § 825(a)(1).

26

2 California Penal Code section 1269b(a) also authorizes the Sheriff to release arrestees

27 upon collection of bail in the amount set by the warrant of arrest or by court order. Here, however, plaintiffs challenge the practice of bail as “determined by referring to the Felony and Misdemeanor

28 Bail Schedule as established by the Superior Court of California, County of San Francisco,” and not

bail set by warrants of arrest or by individual court order. (3AC ¶ 44.)

3

United States District Court Northern District of California

1 the Court granted the State’s motion on that ground. (Dkt. No. 55 at 3.) With respect to

2 defendants’ Younger argument, the Court found the comity doctrine did not apply because there

3 was no ongoing state proceeding when plaintiffs filed their complaint. (Id. at 3–8.) Thus the case

4 could proceed against the County. The Court did agree with the County, however, that plaintiffs’

5 complaint had “analytical, legal, and factual gaps” such that they should be ordered to provide a

6 more definite statement on their claims and requests for relief under Rule 12(e). (Id. at 8–9.)

7 Given the unintelligible nature of plaintiffs’ complaint, the Court otherwise denied without

8 prejudice plaintiffs’ pending motion for preliminary injunction and motion for class certification.

9 (Id. at 9–10.) For similar reasons, the Court found that the motion to intervene brought by CBAA

10 was premature. (Id. at 10.)

11

Plaintiffs’ amended complaints followed. (See Dkt. No. 58, “FAC,” Dkt. No. 62, “SAC.”)

12 By agreement of the parties, the County did not respond to plaintiffs’ FAC, and plaintiffs instead

13 filed the SAC. (See Dkt. No. 61.) The County then moved to dismiss the SAC under Rule

14 12(b)(6), or in the alternative, for a more definite statement under Rule 12(e). (Dkt. No. 63.)

15 Plaintiffs filed a motion for leave to file a surreply, which in part sought leave to amend to cure the

16 concerns raised by the County in its motion. (Dkt. No. 69.) To promote judicial efficiency, the

17 Court allowed plaintiffs to file the portion of the surreply containing the request for leave to amend

18 and directed plaintiffs to file the 3AC. (Dkt. No. 70.)

19

The 3AC adds the Sheriff and the Attorney General as defendants in this action for the first

20 time. (3AC ¶¶ 12, 23.) Plaintiffs allege that the Sheriff is an officer of the County, and in that

21 capacity, is the final policymaker for the County with respect to its release and detention policy at

22 its six jails. (Id. ¶¶ 12-16.) The Sheriff allegedly enforces discriminatory state bail laws based on

23 her “exclusive authority to keep the county jail and the prisoners in it.” (Id. ¶ 13) (citing Cal. Gov.

24 Code § 26605.) Plaintiffs seek to enjoin the Sheriff from enforcing the California state law

25 requiring her to use secured money bail after arrest, which, in plaintiffs’ view, results in wealth-

26 based discrimination against class members. (Id. ¶ 18, Requests for Relief b, c.) With respect to

27 the Attorney General, plaintiffs allege that, in her official capacity as the chief law enforcement

28 officer in California, she “requires the Sheriff to impose bail pursuant to a bail schedule, thereby

4

United States District Court Northern District of California

1 creating a wealth-based detention scheme.” (Id. ¶ 23) (citing Cal. Pen. Code § 1269b.) Plaintiffs

2 similarly request relief enjoining the Attorney General from requiring use of money bail for

3 indigent detainees in the County’s jails. (Id. at Request for Relief d.)

4

Now pending before the Court are defendants’ motions to dismiss pursuant to Rule 12(b)(6)

5 and CBAA’s second motion to intervene. (Dkt. Nos. 76, 77, 81.)

6

II. DEFENDANTS’ MOTIONS TO DISMISS

7

The County, the Sheriff, and the Attorney General move to dismiss under Rule 12(b)(6),

8 arguing plaintiffs fail to state a claim under the Fourteenth Amendment as to each of them in the

9 3AC. The County and the Sheriff principally argue that no claim exists against them because the

10 Sheriff acts on behalf of the State, not the County, when she enforces the bail schedule. The

11 Attorney General argues the claims against her should be dismissed or stayed because they are

12 duplicative of claims filed against her in a case pending in the Eastern District of California.

13 Alternatively, the Attorney General argues she is immune from suit under the Eleventh Amendment

14 and the exception thereto as announced in Ex Parte Young does not apply here. The Court

15 considers each of these arguments in turn:

16

A. Applicable Legal Standard

17

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in

18 the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003). “Dismissal can be

19 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

20 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

21 All allegations of material fact are taken as true and construed in the light most favorable to the

22 plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To survive a motion

23 to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

24 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

25 Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

26

B. The County’s and the Sheriff’s Motion to Dismiss

27

The County argued in its previous motion to dismiss that the SAC failed to state a claim

28 against it because the Sheriff acts on behalf of the State when she implements the State’s money

5

United States District Court Northern District of California

1 bail system; the system is not a municipal policy or practice. The Court recognized the County’s

2 concerns as valid and allowed plaintiffs another opportunity to amend their complaint. The 3AC

3 then supplemented to include the Sheriff and the Attorney General as additional defendants.

4

Consistent with its prior arguments for dismissal, the County and the Sheriff maintain that

5 the Sheriff is a state actor when she enforces the money bail system against arrestees. They argue

6 the Sheriff is entitled to Eleventh Amendment immunity from suit and the County cannot be held

7 liable for her acts done on behalf of the State. Plaintiffs oppose, contending that the Sheriff is a

8 county official in her capacity as a jailor, including her pre-arraignment release and detention

9 decisions.

10

1. Applicable Legal Framework

11

The Supreme Court instructs federal courts to conduct a case-by-case analysis focusing on

12 state law and a sheriff’s actions at issue when determining whether to construe a sheriff as a state

13 actor or county actor. McMillian v. Monroe Cty., Alabama, 520 U.S. 781, 785–86 (1997). When

14 announcing the appropriate framework in McMillian, the Supreme Court cautioned that the

15 question is not whether the Sheriff acted for the state or county “in some categorical, ‘all or

16 nothing’ manner.” Id. at 785. Rather, in deciding the issue, courts are guided by two principles: (1)

17 “whether governmental officials are final policymakers for the local government in a particular

18 area, or on a particular issue,” and (2) analysis of state law focused on “the definition of the

19 official’s functions under relevant state law.” Id.; see also Brewster v. Shasta Cty., 275 F.3d 803,

20 806 (9th Cir. 2001). To determine if the Sheriff is a policymaker for the County in this context

21 (principle one), the Court must “ask whether Sheriff [Hennessey] represents the State or the

22 [C]ounty when” she detains a person who is unable to pay the bail amount set by the Superior

23 Court. McMillian, 520 U.S. at 785–86. When analyzing state law (principle two), the Court must

24 look beyond any state law simply labeling the Sheriff as a municipal or state official, and examine

25 “the actual function of a governmental official, in a particular area” of her authority. Id. at 786.

26

The Ninth Circuit has addressed this topic as to California sheriffs three times since the

27 Supreme Court announced the McMillian framework. In each decision, the Ninth Circuit

28

6

United States District Court Northern District of California

1 conducted an analysis unique to the circumstances and concluded that the sheriffs acted on behalf

2 of the county in each particular context. The decisions are summarized as follows:

3

The Ninth Circuit first addressed the issue under the McMillian framework in Streit v. Cty.

4 of Los Angeles, 236 F.3d 552, 559–65 (9th Cir. 2001). In Streit, the question was whether:

the Los Angeles County Sheriff’s Department (the ‘LASD’) in

5

adopting and administering its policy of requiring that a records

6

check, including review of all wants and holds received on a

prisoner’s release date, act[s] on behalf of the state of California or on

7

behalf of the [County]?

8 Id. at 555. Following an exhaustive analysis of relevant provisions in California state law, the

9 Streit court concluded that the LASD acts on behalf of the county when administering local jails’

10 release policy. The court found that the California Constitution, California Government Code, and

11 the county’s own code “lead inexorably to the conclusion that the LASD is tied to the County in its

12 political, administrative, and fiscal capacities.” Id. at 562. In particular, the court looked to its

13 determinations that “there is no provision in the California Constitution that states that the LASD

14 acts for the state when managing the local jails,” the California and county codes provide that the

15 county pays monetary damages for section 1983 claims against the LASD, and the county code

16 reflects that the county board of supervisors “retains budgetary oversight and control over the

17 LASD.” Id. at 562.

18

Turning to the particular function at issue, the court emphasized that merely framing the

19 function as LASD’s over-detention of a prisoner in the county jail was not dispositive. Decisions to

20 detain a prisoner can be both administrative functions performed for the county, while others are

21 made on behalf of California. The court made a “critical” distinction between a challenge to a

22 sheriff department policy of “[s]earching for wants and holds that may or may not have been issued

23 for person whom the state has no legal right to detain,” on the one hand, and challenges to a

24 sheriff’s detention of a prisoner based on a “facially-valid warrant” on the other. Id. at 564. The

25 court viewed the former challenge, at issue in Streit, as one to the “administrative function of jail

26 operations for which the LASD answers to the County.” Id. By contrast, acting upon a facially-

27 valid warrant is part of a sheriff’s “law enforcement function with which the LASD is tasked under

28 California state law.” Id. Thus, after “examining the precise function at issue in conjunction with

7

United States District Court Northern District of California

1 the state constitution, codes, and case law, [the court] conclude[d] that the LASD acts as the final

2 policymaker for the county when administering the County’s release policy and not in its state law

3 enforcement capacity.” Id. at 564–65.

4

Next, in Brewster, the Ninth Circuit was faced with whether a California sheriff acts for the

5 county or state when investigating a crime in the county. Brewster, 275 F.3d at 805–12. The

6 Brewster court heavily relied on the reasoning in Streit to conclude that a sheriff acts as a county

7 official when investigating crime. Id. at 807 (“It requires little extension of Streit for us to conclude

8 that the [sheriff] acts for the County, not the state, when investigating a crime in the county.”) The

9 court noted that the same provisions in the California Constitution and Code relied on by the Streit

10 court applied equally in Brewster. The Brewster court rejected the county’s arguments that

11 additional state law provisions required a different outcome when considering a sheriff’s

12 investigatory functions rather than execution of a jail release policy. First, reliance on Article V,

13 section 13, of the California Constitution placing sheriffs under the “direct supervision” of the

14 Attorney General “would prove too much, as the California Constitution permits the Attorney

15 General to supervise all other law enforcement officers as may be designated by law.” Id. at 809

16 (internal quotations omitted). Second, the court viewed a statutory provision “prohibit[ing] a

17 county board of supervisors from obstructing the investigative function of the sheriff,” as “akin to a

18 separation of powers provision, and as such [had] no bearing” on the relevant inquiry. Id. at 810–

19 11 (analyzing Cal. Gov. Code § 25303). Finally, the court was similarly unpersuaded by the

20 county’s arguments that the sheriff is a state actor in investigating a crime because:

California law imposes on sheriffs the duty to ‘preserve peace,’ Cal.

21

Gov. Code § 26600; arrest ‘all persons who attempt to commit or

22

who have committed a public offense,’ Cal. Gov. Code § 26601;

and ‘prevent and suppress any affrays, breaches of the peace, riots,

23

and insurrections…, and investigate public offenses which have

24

been committed,’ Cal. Gov. Code § 26602…

Id. at 811. In the court’s view, these provisions did not show that the county was not given
25

discretionary authority regarding law enforcement. “Unlike in Alabama [in McMillian,] however,
26

in California, county boards of supervisors have authority to supervise the conduct of the sheriffs,
27

including their law enforcement conduct, subject to the limitation that the board not obstruct the
28

8

United States District Court Northern District of California

1 sheriff’s investigation of crime.” Id. The Brewster court thus concluded that a California sheriff

2 acts on behalf of the county, not state, when investigating a crime within the county. Id. at 812.

3

Finally, in Cortez v. Cty. of Los Angeles, 294 F.3d 1186 (9th Cir. 2002), the Ninth Circuit

4 held that a California sheriff acts as a county official “in establishing and implementing policies

5 and procedures for the safekeeping of inmates in the county jail.” Id. at 1187. The particular

6 function at issue was the sheriff-established policy to segregate inmates identified as gang

7 members. The Cortez court construed Streit as standing for the proposition that a “sheriff acts on

8 behalf of the county when serving in his administrative capacity.” Id. at 1189–90. In that regard,

9 the court reasoned that Streit “resolve[d] the question,” id. at 1189, presented in Cortez:

As in Streit, the Sheriff's actions here were taken in his capacity as the

10

administrator of the jail. Sheriffs are given broad statutory authority

11

to manage county jails under California law. Government Code

section 26605 provides that the ‘sheriff shall take charge of and be the

12

sole and exclusive authority to keep the county jail and the prisoners

in it.’ Cal. Gov’t. Code § 26605; accord Cal. Pen. Code § 4000

13

(providing that the county sheriff operates the county jail). As

14

administrator of the jail, the Sheriff is responsible for developing and

implementing policies pertaining to inmate housing. Cal. Code Regs.

15

tit. 15, § 1050.

16 Id. at 1190. Moreover, even if the court adopted the county’s view that the policy was established

17 pursuant to the sheriff’s duty to keep the peace, it would still have come to the same conclusion.

18 Id. at 1191. The court reviewed Streit and Brewster, supra, to reject the county’s position that a

19 sheriff necessarily is a final policymaker for the state when executing law enforcement functions.

20 The sheriff’s policy to segregate gang members was “established pursuant to his authority as the

21 administrator of the county jail and custodian of the inmates within it.” Id. at 1192. His actions in

22 enforcing the policy were therefore attributable to the county rather than the state.

23

2. Analysis

24

The Court thus analyzes whether the Sheriff is properly classified as a state or county actor

25 when she enforces the bail schedule set by the Superior Court in conformance with California state 26 law.3 California has a “comprehensive statutory scheme” regulating bail. Galen v. Cty. of Los

27

28

3 The County argues no supervisory liability exists against it under Monell v. New York

City Dep’t of Social Servs., 436 U.S. 658 (1978), regardless of whether the Sheriff is classified as a

9

United States District Court Northern District of California

1 Angeles, 477 F.3d 652, 660 (9th Cir. 2007); see Cal. Pen. Code § 1268–1276.5. Under that scheme,

2 California law establishes the circumstances under which a sheriff may release persons committed

3 to a county jail and mandates that any “prisoner committed to the county jail . . . must be actually

4 confined in the jail until legally discharged.” Cal. Pen. Code § 4004 (emphasis supplied); see also,

5 id. § 1269a (providing “Any officer releasing any defendant upon bail otherwise than as herein

6 provided shall be guilty of a misdemeanor.”)

7

Relevant here, and as alleged in the 3AC, Penal Code section 1269b(a) provides that a

8 sheriff and her officers “may approve and accept bail . . . to issue and sign an order for the release 9 of the arrested person . . . .” Id. § 1269b(a).4 “[T]he amount of the bail shall be pursuant to the

10 uniform countywide schedule of bail for the county in which the defendant is required to appear,

11 previously fixed and approved as provided [herein].” Id. § 1269b(b). The statute further provides

12 that “[i]t is the duty of the superior court judges in each county to prepare, adopt, and annually

13 revise a uniform countywide schedule of bail” for all bail-eligible felony and misdemeanor

14 offenses, except as to Vehicle Code infractions. Id. § 1269b(c). Thus, the Sheriff’s authority to

15

16
county or state actor when enforcing the bail schedule. As discussed, infra, the Court determines at
17 the outset that the Sheriff is a state actor in this context and so no liability arises as to the County
under Monell. However, even if the Court were to determine that the Sheriff was wearing her 18 county hat when enforcing the bail schedule, the 3AC would still fail to state a claim against the
19 County or the Sheriff for supervisory liability. To state a Monell claim against them, plaintiffs must plausibly allege that the Sheriff took “action pursuant to official municipal policy of some
20 nature caused a constitutional tort.” Id. at 691. Plaintiffs allege in a conclusory fashion that the
Sheriff’s mandatory compliance with state law is a municipal policy. (See, e.g., 3AC ¶¶ 18, 56.) 21 The Court concludes as a matter of law there is no county policy where the State directs its judges
22 to set a bail schedule, which the Sheriff’s department is required to enforce pursuant to state law. See id.; Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (a municipal policy for Monell
23 purposes must involve “a deliberate choice to follow a course of action is made from among
various alternatives by the official or officials responsible for establishing final policy with respect 24 to the subject matter in question.”); Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (applying
25 the standard as announced by the Supreme Court in Pembaur). The Sheriff cannot choose a course of action “from various alternatives” when she or her deputies enforce the bail schedule set by the
26 Superior Court judges. Because the 3AC fails to allege plausibly that a municipal policy was the
27 cause of plaintiffs’ detention, no Monell claim is stated against the County or the Sheriff.

28

4 The other alternatives for an order of release are acceptance of “bail in the amount fixed

by the warrant of arrest” or by order of the court. Cal. Pen. Code § 1269b(a).

10

United States District Court Northern District of California

1 release arrestees is dictated by the bail amount set by the Superior Court. In this regard she has no

2 discretion, nor does the 3AC allege to the contrary.

3

Federal district courts have distinguished Streit, Brewster, and Cortez, supra, to conclude

4 that California sheriffs acted as representatives of the state, not a county, when detaining prisoners 5 pursuant to a court order.5 First, in McNeely v. Cty. of Sacramento, 2008 WL 489893, *3–5 (E.D.

6 Cal. Feb. 20, 2008), the district court distinguished Streit and Brewster holding there that the sheriff

7 “was acting on behalf of the State of California in detaining Plaintiff pursuant to pending criminal

8 proceedings, and a facially valid bench warrant issued by the [county’s superior court].” Id. at *3.

9 On those facts, the district court concluded:

While the Ninth Circuit has treated the sheriff as a county actor where

10

his administrative or investigative responsibilities are under scrutiny,

11

those cases are distinguishable from the present case, which concerns

conduct arising from simply detaining Plaintiff in jail pending the

12

outcome of ongoing criminal proceedings in Sacramento and Placer

Counties. [citations] Indeed in Streit, the Ninth Circuit recognizes

13

that ‘[a]cting upon a warrant is a law enforcement function with

14

which [a sheriff's department] is tasked under California state law.

See Cal. Gov. Code § 12560.’ Streit, 236 F.3d at 564.

15

Id. at *4. Moreover, the district court emphasized that California Penal Code section 4004 requires

16
a sheriff to keep a detainee in county jail “until legally discharged.” Id. at *5 (quoting Cal. Pen.

17
Code. § 4004). As such, the district court reasoned “it would make no sense to hold the sheriff

18
liable for incarcerating individuals at the prosecutor’s impetus,” when the prosecutor herself is

19

20
5 Similarly, a district court concluded that a California sheriff acts on behalf of the state not 21 county when issuing licenses in compliance with state law. Scocca v. Smith, 912 F. Supp. 2d 875,
22 879–80 (N.D. Cal. 2012). In Scocca, plaintiffs sued the county and its sheriff for the sheriff’s administration of a state statute providing for the issuance of licenses to carry concealed weapons
23 (“CCW”). The district court determined that the Ninth Circuit’s prior analyses of state law under
the McMillian framework had “limited application” to the question before it in Scocca, “i.e., how 24 does state law treat a sheriff, in particular, when acting as a CCW licensor?” Id. at 881–82. The
25 district court analyzed the relevant California code provisions and concluded they do not provide for county oversight in the CCW process, but instead “clearly delineate[d] a role for the state with
26 respect to administration and oversight.” Id. at 883. The district court also found persuasive that
27 the CCW licensing scheme largely allowed a sheriff in one county “to grant a license which conveys a right exercisable throughout the state and thus [had] a statewide effect.” Id. Thus the
28 district court determined that that sheriff, “when making her decisions on granting or denying CCW licenses, acts as a representative of the state of California, not of the County.” Id.

11

United States District Court Northern District of California

1 immune under well-established principles of prosecutorial immunity. Id. at 5; Smith v. Cty. of San

2 Mateo, 1999 WL 672318, at *5 (N.D. Cal. Aug. 20, 1999) (applying McMillian framework to

3 conclude on summary judgment that sheriff’s incarceration of arrestee at county jail pursuant to

4 bench warrant was on behalf of the state, not the county).

5

Likewise, in Munoz v. Kolender, 208 F. Supp. 2d 1125, 1152–53 (S.D. Cal. 2002), the

6 district court determined that a California sheriff acts on behalf of the state, not the county, when

7 detaining a plaintiff in a county jail pursuant to court order. The district court distinguished Sreit as

8 follows:
9 10 11 12 13 14 15 16

The Streit county jail detainees sued . . . for detention in county jails ‘after all legal justification for their seizure and detention ended,’ while the Sheriff's Department conducted an automated search of a computerized law enforcement data base to confirm the prisoner is not wanted by any other law enforcement agency. Streit, 236 F.3d at 556. Under departmental policy, all warrants and holds arriving through the day of scheduled release were to be input into the data base before the search was run . . . . The result of that policy was to perpetuate the jail confinement of inmates who were no longer required to serve time, extending their incarceration beyond their release date, with no other judicial proceedings pending. [The plaintiff here], in contrast, appears to have been at all relevant times in lawful custody under state law . . . .

17 Id. at n. 31.

18

McNeely and Munoz both address the precise issue presented here: whether a California

19 sheriff is a state or county actor when detaining arrestees at a county jail pursuant to a lawful state

20 order. Together they highlight the critical distinction (first raised in Streit) between detention

21 caused by a sheriff’s own administrative policy, on the one hand, versus detention required by state

22 law or court order, on the other. In both McNeely and Munoz, the district courts acknowledged that,

23 in certain circumstances, the state law provisions relied upon by the Ninth Circuit in Streit support a

24 conclusion that the sheriff is a county actor. However, the McNeely and Munoz decisions

25 distinguished the circumstances from Streit to conclude that a California sheriff acts on behalf of

26 the state – not the county – when the sheriff detains someone pursuant to state law rather than under

27 an administrative policy set by the sheriff herself. The Court finds the reasoning of its sister courts

28 persuasive.

12

United States District Court Northern District of California

1

California allows three alternative methods of release: “(1) citation (Pen. Code §§ 853.5,

2 853.6); (2) bail (Pen. Code § 1268 et seq.); or (3) own recognizance release (Pen. Code § 1318 et 3 seq.).” Van Atta v. Scott, 27 Cal.3d 424, 430 (1980). The first6 and third7 methods lie outside the

4 purview of plaintiffs’ complaint. With respect to bail, California assigns decisions regarding the

5 terms of release to superior courts, not county sheriffs. See Cal. Pen. Code §§ 1268, 1269b(c),

6 1270; Galen v. Cty. of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (noting that California has a

7 “comprehensive statutory scheme” regulating bail determinations). Thus, the Sheriff may accept

8 the bail amount as set either: (i) in the warrant of arrest, if one exists, signed by a judicial officer; or

9 (ii) by the bail schedule established by the judges of the superior court as required by state law. See

10 Cal. Pen. Code § 1269b(a). Once the arrestee has appeared in front of a judicial officer, the Sheriff

11 may accept the bail amount set (iii) individually by the court. See id. In all three cases, the Sheriff 12 lacks discretion to release the arrested person outside the bounds of the statute.8

13

Although the San Francisco Superior Court is nominally designated as the County, it is an

14 arm of the State. Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th

15 Cir. 1987) (a superior court’s “geographical location within any particular county cannot change

16 the fact that the court derives its power from the State and is ultimately regulated by the State”). As

17

18

6 The 3AC does not allege that the Sheriff has a policy of imposing detention on individuals

19 who are entitled to citation release. Nor do plaintiffs have standing to bring such a claim, as neither named plaintiff asserts she was entitled to – but was not afforded – citation release. The authority

20 for law enforcement to cite and release offenders is limited to certain infractions and

misdemeanors. See Cal. Pen. Code §§ 853.5, 853.6.
21

22

7 Plaintiffs allege that the County partially funds and operates the “O.R. Project” to review

an arrestee’s eligibility for own recognizance release, which takes into account factors other than

23 the arrestee’s ability to pay. (3AC ¶¶ 42–43.) The O.R. Project does not affect the Court’s analysis

on the pending motions. As an initial matter, the parties agree that the O.R. Project is not relevant 24 to their arguments. (See Dkt. No. 95.) Further, the Sheriff may release an arrestee participating in

25 the O.R. Project only following a judicial determination – i.e., pursuant to state law. (See id. ¶ 1.)

26

8 That the Sheriff determines the booking charge, which in turn dictates the bail amount, is

27 irrelevant to plaintiffs’ claims. The 3AC does not allege that the Sheriff’s policy in setting the booking charge is unconstitutional. Under plaintiffs’ theory, the Sheriff acts unconstitutionally

28 when she detains a person who cannot afford the applicable bail, regardless of the amount.

13

United States District Court Northern District of California

1 such, the Court concludes that the terms of release at issue are set wholly by the State, as the

2 Superior Court establishes the bail schedule. The Sheriff is not acting on behalf of the County.

3

As noted, California law requires the Sheriff’s conduct challenged by plaintiffs. The Penal

4 Code provides her no discretion to alter the terms of release as she sees fit. Instead, the Sheriff

5 must detain individuals lawfully in her custody unless a court order directs their release: “A

6 prisoner committed to the county jail for examination . . . must be actually confined in the jail until 7 legally discharged.” Cal. Pen. Code § 4004 (emphasis supplied).9 As in McNeely and Munoz,

8 where the fact of detention is established by California state law under Section 4004, the Sheriff

9 acts on behalf of the State when detaining an individual pursuant thereto. Indeed, plaintiffs’ own

10 allegations acknowledge that the Sheriff imposes the challenged bail schedule at the direction of the

11 State. (See, e.g., 3AC ¶ 18 [“State law requires the use of secured money bail after arrest”].)

12

Plaintiffs make two additional arguments. First, plaintiffs attempt to characterize the

13 Sheriff as a county actor because of her general capacity overseeing the jail. This fails under Ninth

14 Circuit precedent. That the Sheriff may be a policymaker for the County in the establishment and

15 administration of departmental policies affecting the conditions of confinement is not dispositive

16 here. Cf. Streit v. Cty. of Los Angeles, 236 F.3d 552, 559–65 (9th Cir. 2001) (sheriff acts on behalf

17 of county in administering its departmental records check policy before releasing detainee from

18 county jail); Cortez v. Cty. of Los Angeles, 294 F.3d 1186 (9th Cir. 2002) (sheriff acts on behalf of

19 county in “establishing and implementing policies and procedures for the safekeeping of inmates

20 in the county jail.”). The fact that the Sheriff has authority over the County’s jails is not what

21 drives the actions at issue. Rather, the function is driven exclusively by the State’s non-

22 discretionary mandate. See Cal. Pen. Code §§ 1268, 1269b(a), 1269b(c), 4004.

23

Plaintiffs next argue that the Sheriff does make decisions related to conditional release,

24 including: (1) whether the arrestee tendered the bail amount as set by the Superior Court’s adopted

25

26

9 Plaintiffs argue in opposition that Section 4004 applies only to prisoners committed “by

27 the court” to the jail, and not to arrestees. (Dkt. No. 82 at 12:1–4.) This argument fails for two reasons. First, the quoted language does not appear in the statute nor is it an accurate representation

28 of the law. Second, the California Supreme Court has said that the term “prisoner” as used in the

Penal Code includes arrestees. Teter v. City of Newport Beach, 30 Cal.4th 446, 455–56 (2003).

14

United States District Court Northern District of California

1 bail schedule, (2) the methods of payment accepted, (3) when arrestees are notified of the amount

2 of bail, (4) whether arrestees receive a list of bail bond companies, and (5) when and how arrestees

3 may contact persons to make arrangements to satisfy bail. Even if true, these decisions and

4 procedures are not challenged by plaintiffs in this lawsuit and do not alter the Sheriff’s lack of

5 discretion in detaining a person who is unable to pay the bail amount set by the bail schedule. Said

6 otherwise, plaintiffs have not tethered the Sheriff’s policymaking authority on behalf of the County

7 to the conduct at issue.

8

In sum, the Court concludes that defendant Sheriff Hennessey acts on behalf of the State

9 when she detains a person based on his or her inability to pay the bail amount prescribed in the bail

10 schedule as set by the Superior Court. As a state actor, the Sheriff is entitled to immunity from suit

11 for money damages under the Eleventh Amendment and plaintiffs’ request for such relief is barred

12 thereby. However, to the extent plaintiffs seek declaratory or injunctive relief against the Sheriff 13 for her allegedly unconstitutional conduct,10 the sole count for violation of plaintiffs’ Fourteenth

14 Amendment rights may proceed against her. Ex Parte Young, 209 U.S. 123, 155–56 (1908)

15 (Eleventh Amendment immunity from suit does not bar claims for injunctive or declaratory relief

16 against state actors enforcing challenged state law).

17

As to the County, however, the sole claim alleged fails. The State is the relevant actor when

18 the Sheriff detains a person who does not pay bail and plaintiffs have not alleged a municipal policy

19 or practice for which the County may be held liable. McMillian v. Monroe Cnty., Ala., 520 U.S.

20 781, 783 (1997) (explaining that the county is liable for the sheriff’s actions only if they constitute

21 a county policy) (citing Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978)).

22 The County’s motion to dismiss is GRANTED, the Sheriff’s motion is GRANTED IN PART to the

23 extent the 3AC seeks monetary damages, and the Sheriff’s motion is DENIED IN PART with respect

24 to the requests for injunctive or declaratory relief.

25
10 The Sheriff concedes that Eleventh Amendment immunity does not bar prospective or 26 injunctive relief against a state actor. C.f. Section II.C.2, infra (discussion of exception to Eleventh 27 Amendment immunity under Ex Parte Young). She nevertheless argues that plaintiffs’ assertion of
claims for monetary damages necessarily precludes their requests for declaratory and injunctive 28 relief against her. This argument does not persuade. The Court can dismiss certain requests for
relief as barred while allowing others to proceed.

15

United States District Court Northern District of California

1

C. The Attorney General’s Motion to Dismiss

2

The Attorney General moves to dismiss on two separate grounds.11 First, she argues

3 procedurally the Court should dismiss or stay the claims because they are duplicative of identical

4 claims previously asserted against her in another district court. Second, the Attorney General

5 argues substantively (i) she is immune from suit under the Eleventh Amendment and (ii) the

6 exception for prospective and declaratory relief against state actors first announced in Ex Parte

7 Young does not apply here. The Court addresses each argument below.

8

1. First-to-File Rule

9

As discussed, supra, plaintiffs filed this putative class action on October 28, 2015 against

10 the County and the “State of California” generically. On January 26, 2016, the Court held a

11 hearing on defendants’ pending motions to dismiss and for more definite statement, and indicated

12 that the State would be dismissed because it was entitled to sovereign immunity. Plaintiffs

13 conceded as much at the hearing. (Dkt. No. 57 at 4:21–22.) Three days later, on January 29, 2016,

14 plaintiffs’ counsel filed a substantially identical complaint on behalf of a similarly situated putative

15 class in the Eastern District of California against Sacramento County and the Attorney General.

16 See Case No. 2:16-cv-00185-TLN-DB (“Sacramento Docket” at No. 1.) Plaintiffs were given an

17 opportunity to amend the complaint in this case, which they did on February 25, 2016 (FAC) and

18 again on March 17, 2016 (SAC). Neither the FAC nor the SAC named the Attorney General as a

19 defendant. Plaintiffs then requested to file a further amended complaint in response to the County’s

20 motion to dismiss the SAC, which the Court permitted. (See Dkt. No. 70.) The 3AC, filed May 27,

21 2016, named the Attorney General as a defendant for the first time. (See 3AC.) In the interim, the

22 Attorney General filed a motion to dismiss the Sacramento litigation. (Sacramento Docket at No.

23 14.) On October 11, 2016, Judge Nunley issued an order granting in part the Attorney General’s

24

25
11 Additionally, the Attorney General argues that the 3AC fails to state claims against her 26 for violations of plaintiffs’ rights under the Equal Protection and Due Process Clauses of the 27 Fourteenth Amendment. The Sheriff did not join in these arguments. Because the Court dismisses
the Attorney General on Eleventh Amendment grounds, the Court does not reach the Attorney 28 General’s Fourteenth Amendment arguments.

16

United States District Court Northern District of California

1 motion. (Sacramento Docket at No. 30.) The Sacramento litigation will proceed against the

2 Attorney General for violation of the Due Process Clause Fourteenth Amendment.

3

A federal district court has discretion to dismiss, stay, or transfer a case to another district

4 court under the first-to-file rule. Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th

5 Cir. 1982); Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 (9th Cir. 1991) (“The most

6 basic aspect of the first-to-file rule is that it is discretionary.”). The first-to-file rule is “a generally

7 recognized doctrine of federal comity” permitting a district court to decline jurisdiction over an

8 action. Inherent.com v. Martindale–Hubbell, 420 F. Supp. 2d 1093, 1097 (N.D. Cal. 2006)

9 (quoting Pacesetter, 678 F.2d at 94–95). The rule is primarily meant to alleviate the burden placed

10 on the federal judiciary by duplicative litigation and to prevent the possibility of conflicting

11 judgments. See Microchip Tech., Inc. v. United Module Corp., 2011 WL 2669627, at *3 (N.D. Cal.

12 July 7, 2011). As such, the rule should not be disregarded lightly. Id. Courts analyze three factors

13 in determining whether to apply the first-to-file rule: (1) chronology of the actions; (2) similarity of

14 the parties; and (3) similarity of the issues. Id. (citing Alltrade, 946 F.2d at 625).

15

A district court may, in its discretion, decline to apply the first-to-file rule in the interests of

16 equity. Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1149 (E.D. Cal. 2010); Ward v.

17 Follett Corp., 158 F.R.D. 645, 648 (N.D. Cal. 1994). Exceptions to the first-to-file rule include

18 where the filing of the first suit evidences bad faith, anticipatory suits, and forum shopping.

19 Alltrade, 946 F.2d at 628. The Ninth Circuit has cautioned that relaxing the first-to-file rule on the

20 basis of convenience is a determination best left to the court in the first-filed action. Ward, 158

21 F.R.D. at 648 (citing Alltrade, 946 F.2d at 628).

22

Application of the first-filed rule without further briefing is inappropriate here. At the

23 outset, whether this action was first-filed is a matter of serious contention. While it is beyond

24 dispute that this case was filed before the Sacramento litigation, the parties agree that the Attorney

25 General was first sued for similar claims in Sacramento. The case law suggests that the relevant

26 inquiry is when the court “acquired jurisdiction over the [other] action, not the parties . . . . All this

27 Court is concerned with is whether the [other district court] had the matter before it first . . . .”

28

17

United States District Court Northern District of California

1 Intersearch Worldwide, Ltd. v. Intersearch Grp., Inc., 544 F. Supp. 2d 949, 958 (N.D. Cal. 2008)

2 (emphasis in original).

3

The Court has an insufficient record before it to determine whether plaintiffs’ counsel, as

4 opposed to plaintiffs themselves, engaged in forum shopping or conduct evidencing bad faith in

5 how they pursued the two different actions. The Court directed plaintiffs to amend their complaint

6 to add a suitable defendant to answer for their alleged constitutional harms in this litigation. The

7 addition of the Attorney General as a defendant was plaintiffs’ attempt to add an appropriate

8 representative of the “State of California.” Further, the relief plaintiffs seek against the Attorney

9 General in this action is limited to enforcement of the bail system by the City and County of San

10 Francisco – i.e., relief the plaintiff in the Sacramento litigation does not request.

11

Given the current record, the Court will not invoke the first-to-file rule to dismiss the

12 Attorney General. The Attorney General’s motion to stay or dismiss on this basis is DENIED

13 WITHOUT PREJUDICE.

14

2. Eleventh Amendment Immunity

15

The Court previously dismissed plaintiffs’ claims against the “State of California” as barred

16 by the Eleventh Amendment. (See Dkt. No. 55 at 3.) Plaintiffs have now amended to sue the

17 Attorney General in her official capacity as the chief law enforcement officer for the State. The

18 Attorney General argues that the 3AC fails to state a claim against her as she is also entitled to

19 Eleventh Amendment immunity from suit. Plaintiffs acknowledge that the Eleventh Amendment

20 generally bars suit against the Attorney General in her official capacity. However, they invoke the

21 exception first announced in Ex Parte Young, 209 U.S. 123 (1908), to argue immunity does not

22 protect the Attorney General from prospective injunctive relief prohibiting her from enforcing an

23 unconstitutional statute.

24

The exception to Eleventh Amendment immunity from suit under Ex Parte Young “allows

25 citizens to sue state officers in their official capacities for prospective declaratory or injunctive

26 relief . . . for their alleged violations of federal law.” Ass’n des Eleveurs de Canards et d’Oies du

27 Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (internal quotations omitted) (alteration in

28 original). The exception applies only where the state official has “some connection with the

18

United States District Court Northern District of California

1 enforcement of the act.” Ex Parte Young, 209 U.S. at 157; Coal. to Defend Affirmative Action v.

2 Brown, 674 F.3d 1128, 1134 (9th Cir. 2014). The connection of the state official to the act at issue

3 “must be fairly direct; a generalized duty to enforce state law or general supervisory power over the

4 persons responsible for enforcing the challenged provision will not subject an official to suit.”

5 Coal. to Defend, 674 F.3d at 1134 (quoting Los Angeles Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704

6 (9th Cir. 1992)) (emphasis supplied).

7

Plaintiffs urge that Ex Parte Young applies because the Attorney General enforces the bail

8 scheme vis-à-vis her authority to prosecute punishable violations of the California Penal Code’s

9 bail provisions. Plaintiffs primarily rely on the Ninth Circuit’s analysis in Quebec, supra, for this

10 proposition. 729 F.3d at 943. In Quebec, producers and sellers of foie gras brought an action

11 seeking to enjoin the California Attorney General from enforcing a statutory provision banning the

12 sale of their product as unconstitutionally vague. The Ninth Circuit recognized that, without more,

13 the Attorney General’s enforcement duties could not establish a “fairly direct” connection between

14 the Attorney General and the challenged statute. Importantly, the statute banning the sale of foie

15 gras also “expressly authorize[d] enforcement of the statute by district attorneys and city

16 attorneys.” Id. The Ninth Circuit held that this provision “giv[ing] district attorneys the authority

17 to prosecute violations” of the challenged statute in combination with “the Attorney General’s duty

18 to prosecute as a district attorney establishes sufficient enforcement power for Ex Parte Young.”

19 Id. at 943–44.

20

The enforcement provision in Quebec is meaningfully distinct from the bail enforcement

21 provision at issue in this case. In Quebec, the Ninth Circuit emphasized that the Attorney General

22 had authority to prosecute anyone who violated the foie gras statute, including the plaintiffs in that

23 case. In that respect, enjoining her from bringing such an enforcement action would protect those

24 plaintiffs from the alleged injury of prosecution for violation of an unconstitutional statute. By

25 contrast, the only enforcement provision which plaintiffs reference in the bail statute authorizes

26 criminal punishment of an officer for the officer’s failure to enforce the bail scheme, notably not the

27 plaintiffs. Cal. Pen. Code § 1269a (“Any officer releasing any defendant upon bail otherwise than

28 as herein provided shall be guilty of a misdemeanor.”).

19

United States District Court Northern District of California

1

To determine whether the Ex Parte Young exception applies, the Court must consider the

2 Attorney General’s enforcement authority in the context of plaintiffs’ injury alleged to arise

3 therefrom. Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (“Absent a real likelihood that

4 the state official will employ [her] supervisory powers against plaintiffs’ interests, the Eleventh

5 Amendment bars federal court jurisdiction.”) (emphasis supplied). Here, plaintiffs’ claims are

6 based on the Sheriff’s enforcement of the bail law against them. Nothing suggests that the Attorney

7 General has, will, or can supplant the Sheriff in her routine and daily role of releasing arrestees

8 based upon the bail schedule.

9

As alleged, this case is not about the Attorney General’s enforcement – or threat of

10 enforcement – of an unconstitutional law against plaintiffs or the putative class. Rather, as

11 plaintiffs allege throughout the 3AC, the Sheriff is the actor responsible for enforcing the

12 challenged state law in San Francisco. Ninth Circuit precedent makes clear that the Attorney

13 General’s role as the Sheriff’s ultimate supervisor is not alone sufficient to bring suit against her in

14 federal court for enforcement of the law by the Sheriff. Coal. to Defend, 674 F.3d at 1134

15 (“general supervisory power over the persons responsible” does not subject a state official to suit in

16 federal court). Likewise, “[s]tate attorneys general are not invariably proper defendants in

17 challenges to state criminal laws.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908,

18 919 (9th Cir. 2004). The Court finds that the generic notion that the Attorney General can assist a

19 district attorney in prosecuting crimes or enforcing the Penal Code is too remote to the function

20 challenged in the 3AC. Thus plaintiffs have failed to allege a “fairly direct” connection between

21 the Attorney General’s actions or authority and plaintiffs’ claims.

22

Accordingly, sovereign immunity bars the claims against the Attorney General and her

23 motion to dismiss on this ground is GRANTED. However, the Court grants the motion WITH LEAVE

24 TO AMEND consistent with this Order and counsel’s Rule 11 obligations.

25

III. CBAA’S MOTION TO INTERVENE

26

CBAA is a non-profit association of approximately 3,300 bail agents in California. CBAA

27 moves to intervene under Rule 24 as a defendant in this action to represent the financial interest of

28 its members to insure that the California bail system is not eliminated. Plaintiffs oppose, arguing

20

United States District Court Northern District of California

1 CBAA does not meet the requirements for intervention under Rule 24. The named defendants do

2 not take a position on CBAA’s motion to intervene. (See Dkt. Nos. 85, 87.)

3

A. Applicable Legal Standard

4

A person may move to intervene as of right pursuant to Rule 24(a) or under a permissive

5 standard pursuant to Rule 24(b). A district court must grant intervention as of right under Rule

6 24(a)(2) to anyone who satisfies a four-factor test: (1) the applicant must assert a “significantly

7 protectable” interest relating to the property or transaction that is the subject of the action; (2) the

8 applicant’s interest must be represented inadequately by the parties to the action; (3) disposition of

9 the action without intervention may as a practical matter impair or impede its ability to protect that

10 interest; and (4) the applicant’s motion must be timely. Donnelly v. Glickman, 159 F.3d 405, 409

11 (9th Cir. 1998); Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir. 1997).

12 Failure to satisfy any one of the requirements is fatal to the application, and a court need not reach

13 the remaining elements if one of the elements is not satisfied. Perry v. Proposition 8 Official

14 Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

15

With respect to permissive intervention, the Court considers three factors pursuant to Rule

16 24(b)(1)(B), namely: (1) the applicant’s claim or defense must share a common question of law or

17 fact with the main action; (2) any independent grounds for jurisdiction over the claim or defense;

18 and (3) timeliness. League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir.

19 1997); Fed. R. Civ. P. 24(b). Even where all the prerequisites are met, a district court has

20 considerable discretion in ruling on the motion for permissive intervention. In re Benny, 791 F.2d

21 712, 721–22 (9th Cir. 1986). “In exercising its discretion, the court must consider whether the

22 intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R.

23 Civ. P. 24(b)(3).

24

In addition, both intervention as of right and permissive intervention are subject to service

25 and pleading requirements. Under Rule 24(c), a motion to intervene must be: (1) served on the

26 parties as provided in Rule 5, and (2) accompanied by a pleading that sets out the claim or defense

27 for which intervention is sought. The requirement in Rule 24(c) that a pleading be attached to the

28 motion to intervene is relaxed in certain circumstances and the Ninth Circuit has approved of

21

United States District Court Northern District of California

1 motions to intervene “without a pleading where the court was otherwise apprised of the grounds for

2 the motion.” Beckman Industries, Inc. v. Int’l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992).

3

B. Analysis

4

Plaintiffs argue that the motion to intervene fails under Rule 24(c) because CBAA does not

5 attach a pleading to its intervention motion. CBAA concedes it has not complied with Rule 24(c)

6 and asks the Court to relax the pleading requirement because the Court is otherwise aware of the

7 defenses CBAA intends to raise.

8

In narrow circumstances the Ninth Circuit has declined to impose a “technical” application

9 of Rule 24(c). Beckman, 966 F.2d at 474 (citing Shores v. Hendy Realization Co., 133 F.2d 738,

10 (9th Cir. 1943) (declining to enforce literal interpretation of earlier version of Rule 24)). In

11 Beckman, the proposed intervenor sought to modify the terms of a protective order to gain access to

12 deposition transcripts following resolution of the underlying action. Although the proposed

13 intervenor did not attach a pleading to its motion, the district court granted intervention as the Rule

14 24 motion “describe[d] the basis for intervention with sufficient specificity to allow the district

15 court to rule” thereon. Id. at 475. On that record the Ninth Circuit determined that Rule 24(c) was

16 not a proper ground for reversal of the district court order granting intervention. Id.

17

Likewise, in Bushansky v. Armacost, the district court granted a motion to intervene despite

18 the proposed intervenor’s failure to comply strictly with Rule 24(c). 2014 WL 5335255, at *2

19 (N.D. Cal. Oct. 17, 2014). In that case, the proposed plaintiff intervenor filed his motion in

20 response to a press release noting that the purported class action would be dismissed without

21 prejudice as the current plaintiff was not proper. Id. The district court recognized that its previous

22 order “invited intervention in [the] action premised on the existing complaint.” Id. Indeed, the

23 district court had “ordered the parties to provide express notice to [purported class members] to

24 allow them to intervene, and that notice identified this case and included an explanation of the

25 causes of action alleged in the complaint.” Id. Additionally, the district court found “that the

26 original complaint was incorporated by reference into his request to intervene and thus that the

27 [district court was] aware of the grounds for intervention.” Id. Thus, the district court found that it

28 and the parties were adequately “apprised of the grounds” for the request to intervene as Rule 24(c)

22

United States District Court Northern District of California

1 envisions. Id.; accord Dixon v. Cost Plus, 2012 WL 2499931, at *6 (N.D. Cal. June 27, 2012)

2 (granting motion to intervene where proposed plaintiff intervenor “specifically state[d] that

3 intervention [was] sought on claims already included” in the operative complaint).

4

Here, the Court understands CBAA’s financial interest in the State’s bail system. However,

5 how those issues relate to the constitutionality of the State’s bail law provisions remains elusive.

6 CBAA indicates it intends to file a response to the operative complaint following this Court’s

7 ruling on the pending motions to dismiss, relying on the Ninth Circuit’s decision in Beckman and

8 district court orders including Bushansky. Those cases are distinguishable. In Beckman, the

9 proposed intervenor sought to modify a protective order in a closed case and did not seek to assert

10 claims or defenses in the action. In Bushansky, the proposed intervenor sought to assert the same

11 claims in the operative complaint and incorporated that pleading by reference into his motion to

12 intervene. CBAA has not presented any reason for the Court to relax the Rule 24(c) pleading

13 requirement in this instance and allow CBAA to delay explaining the defenses it intends to assert,

14 especially in light of the complex constitutional issues presented by plaintiffs in this case. The

15 Court requires a proposed responsive pleading from CBAA to assess adequately whether

16 intervention is appropriate. Moreover, by this Order, the Court resolves the motions to dismiss.

17

Accordingly, the Court DENIES CBAA’s motion to intervene WITHOUT PREJUDICE to

18 CBAA re-filing its motion in full compliance with Rule 24, including a proposed pleading attached

19 thereto.

20

IV. CONCLUSION

21

Based upon the foregoing, the Court rules on the pending motions as follows:

22

 The County’s and the Sheriff’s motion to dismiss (Dkt. No. 76) is GRANTED IN

23

PART: plaintiffs’ requests for monetary damages against the Sheriff are DISMISSED

24

WITH PREJUDICE on Eleventh Amendment immunity grounds and the single count

25

against the County is DISMISSED WITH PREJUDICE.

26

 The Attorney General’s motion to dismiss (Dkt. No. 77) is GRANTED on Eleventh

27

Amendment immunity grounds WITH LEAVE TO AMEND.

28

23

United States District Court Northern District of California

1

 Proposed intervenor California Bail Agents Association’s motion to intervene (Dkt.

2

No. 81) is DENIED WITHOUT PREJUDICE to re-filing the motion with a proposed

3

pleading attached thereto in compliance with Rule 24(c).

4

Accordingly, the 3AC properly alleges a single claim against the Sheriff in her official

5 capacity for prospective declaratory and injunctive relief for her alleged violation of plaintiffs’

6 Fourteenth Amendment rights. The Sheriff shall file her answer to the 3AC no later than

7 November 1, 2016. Any further motion to intervene by CBAA shall be filed no later than

8 November 1, 2016.

9

While the Court is not convinced that an appropriate claim can be stated, to the extent

10 plaintiffs seek to file a fourth amended complaint against the Attorney General consistent with this

11 Order and Rule 11, plaintiffs shall file the same by October 25, 2016. Otherwise, the dismissal of

12 the Attorney General will be deemed with prejudice.

13

The Court hereby SETS a case management conference to be held on December 5, 2016 on

14 the Court’s 2:00 p.m. calendar in the Federal Courthouse, 1301 Clay Street Oakland, California,

15 Courtroom 1. The parties shall file their Joint Case Management Statement by no later November

16 28, 2016.

17

This Order terminates Docket Numbers 76, 77, and 81.

18

IT IS SO ORDERED.

19 Date: October 14, 2016

20

21

_______________________________________

22

YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE

23

24

25

26

27

28

24

 
 Case 4:15-cv-04959-YGR Document 191 Filed 01/16/18 Page 1 of 20

United States District Court Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

RIANA BUFFIN, ET AL.,

7

Plaintiffs,

8

vs.

9

CITY AND COUNTY OF SAN FRANCISCO, ET

AL., 10

Defendants.

11

CASE NO. 15-cv-04959-YGR
ORDER DENYING CBAA’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 132, 136

12

Pending before the Court are plaintiffs’ and California Bail Agents Association’s

13 (“CBAA”) cross motions for summary judgment on plaintiffs’ Equal Protection and Due Process

14 claims. Plaintiffs argue, principally, that San Francisco County’s (the “County”) system of

15 pretrial bail violates the Equal Protection and Due Process clauses of the United States

16 Constitution because it not only contravenes the absolute proscription against wealth-based

17 discrimination in the criminal justice system, but also because personal liberty is a fundamental

18 right, and the County’s system cannot pass strict scrutiny review. In contrast, CBAA essentially

19 argues that no constitutional right to pre-arraignment release exists, that the County’s pre-

20 arraignment policies are subject to rational basis review, and that the County’s policies are

21 constitutional under that standard.

22

Having carefully considered the pleadings, the fully-briefed motions, and the hearing held

23 on December 12, 2017, and for the reasons set forth below, the Court DENIES both motions for

24 summary judgment. As a threshold matter, the Court finds the strict scrutiny standard applies to

25 plaintiffs’ claims. Accordingly, as CBAA concedes, its motion cannot be granted. With respect to

26 plaintiffs, the Court finds the current state of the factual record insufficient to grant summary

27 judgment.

28 \\

Case 4:15-cv-04959-YGR Document 191 Filed 01/16/18 Page 2 of 20

United States District Court Northern District of California

1 I.

BACKGROUND

2

A. Factual Overview

3

The Court finds the following facts not subject to reasonable dispute:1

4

San Francisco police arrested plaintiff Riana Buffin on October 26, 2015 for grand theft of

5 personal property and conspiracy. Plaintiff Buffin was taken to jail and informed that her bail

6 amount was set at $30,000. She did not post bail. Rather, she was released after the District

7 Attorney’s office decided not to file formal charges against her, at which point she had spent

8 approximately 46 hours in jail and had not been brought to court for an initial appearance.

9

San Francisco police arrested plaintiff Crystal Patterson on October 27, 2015 for assault

10 with a deadly weapon or instrument other than a firearm. She was taken to jail, where she was

11 informed that her bail amount was set at $150,000. After approximately 29 hours, and prior to her

12 initial appearance, plaintiff Patterson was able to post a bond with the financial assistance of 13 relatives and was released.2 Following plaintiff Patterson’s release, the case against her was

14 discharged when the District Attorney’s office decided not to file formal charges against her.

15

In California, state law imposes a duty on superior court judges to “prepare, adopt, and

16 annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all

17 misdemeanor and infraction offenses except Vehicle Code infractions.” Cal. Penal Code §

18 1269b(c). In San Francisco, the superior court establishes the Felony and Misdemeanor Bail

19 Schedule (the “Bail Schedule”). The Sheriff’s Department, currently led by defendant Sheriff

20 Vicki Hennessy (the “Sheriff”), determines an arrestee’s bail amount by reference to the Bail

21 Schedule, which sets forth bail amounts based on specific booking charges. The Sheriff’s

22 Department releases arrestees who are eligible for release on bail upon payment of the applicable

23 bail amount as set forth in the Bail Schedule or the posting of a bail bond for the applicable bail

24

25

1 See generally Joint Stipulation of Facts, Dkt. No. 133-1.

26

2 Pursuant to a contract plaintiff Patterson signed with a surety bail agent, the cost of the

27

bond was $15,000, of which $1,500 was to be paid up front, with the remainder to be paid in installments over time. Plaintiff Patterson’s uncle paid the surety bail agent the $1,500 deposit on

28 her behalf, and her sister and grandmother co-signed the surety bail contract.

2

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1 amount as set forth in the Bail Schedule.3 Not all arrestees are eligible for release on bail.

2

Under state law, some arrestees may apply to a magistrate for pre-arraignment release on

3 lower bail or on his or her own recognizance (“OR”). See Cal. Penal Code § 1269c. This

4 application may be made without a hearing. Id. Pursuant to California Penal Code (“Penal

5 Code”) sections 1269b and 1269c, individuals charged with certain offenses are ineligible to apply

6 pre-arraignment for OR release or a reduction in bail, though they may obtain pre-arraignment

7 release by paying the applicable amount under the Bail Schedule if specified therein, or any

8 greater amount set by a judge pursuant to Penal Code section 1269c, absent some other legal

9 impediment to their release. Individuals ineligible for pre-arraignment OR release or pre-

10 arraignment reduction in bail may be ordered released on their OR, or on reduced bail, after a

11 hearing in open court in accordance with Penal Code section 1270.1.

12

In setting bail, a judge or magistrate may consider the information included in a report

13 prepared by an investigative staff employed by the court for the purpose of recommending

14 whether a defendant should be released on his or her OR. Cal. Penal Code §§ 1275(a)(1), 1318.1.

15 In San Francisco, the San Francisco Pretrial Diversion Project contracts with the Sheriff’s

16 Department to provide certain pretrial services, including the OR Project. One of the purposes of

17 the OR Project is to provide the superior court with information to decide whether to release an

18 arrestee on his or her OR prior to arraignment.

19

On April 30, 2016, the OR Project staff began using a Public Safety Assessment Tool (the

20 “PSA Tool”) developed by the Laura and John Arnold Foundation. The purpose of the PSA Tool

21 is to assess the risk that an arrestee, if released pretrial, will fail to appear or will engage in new 22 criminal activity, and to generate a release recommendation based on the assessed risk.4 Various

23

24

3 Subject to narrow exceptions, in California a person accused of committing an offense requiring them to remain in custody must be taken before a magistrate judge for arraignment

25

within 48 hours of his or her arrest, not including Saturdays and holidays. Cal. Penal Code § 825(a)(1).

26

4 Release recommendations are a function of (1) the score generated by the PSA Tool and

27

(2) a decision-making framework (“DMF”) prepared by a working group that includes representatives from the San Francisco Superior Court, Sheriff’s Department, District Attorney,

28 Public Defender, and Conflict Counsel.

3

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1 procedures followed by the OR Project staff changed with the implementation of the PSA Tool.

2

Prior to the implementation of the PSA Tool, the OR Project staff prepared a report called

3 an “OR Workup” after interviewing the arrestee, which consisted of the information gathered from

4 the interview and references, a criminal history report, a summary of the criminal history report,

5 and a cover sheet. For those arrestees eligible for pre-arraignment release, the OR Workup was 6 presented to the duty judge.5 Otherwise, the court considered it at arraignment.6

7

Since implementation of the PSA Tool, the OR project staff are no longer required to

8 interview the arrestee. Rather, they prepare an OR Workup for each arrestee eligible for OR

9 release (whether at arraignment or before), which includes a summary of the arrestee’s individual

10 and criminal history, the criminal history printouts, the police report, a cover sheet, and the release

11 recommendation generated by the PSA Tool and the DMF. As before, for those arrestees eligible

12 for pre-arraignment release, the OR Workup is either presented to the duty judge in the first

13 instance or presented to the court for consideration at arraignment. There is no guaranteed 14 timeline for when the OR Workup will be completed.7

15

In assigning bail to plaintiffs, the Sheriff’s predecessor followed California laws governing

16 the setting of bail and complied with the Bail Schedule.8

17

B. Procedural Overview

18

Plaintiffs filed their original complaint on October 28, 2015 against the County and “the

19 State of California” generically. (Dkt. No. 1.) The operative complaint is the Third Amended

20 Complaint. (Dkt. No. 71 (“3AC”).) Since plaintiffs filed their 3AC, the Court has dismissed all

21

22

5 The duty judge is the judicial officer assigned to rule on applications for pre-arraignment release.

23

6 The OR Workup prior to the implementation of the PSA Tool did not contain a release

24 recommendation.

25

7 For pre-arraignment applications, it is generally submitted to and ruled upon by the duty judge the same working day the OR Project receives the arrestee’s fingerprint record. The OR

26

Project did not prepare an OR Workup for plaintiff Patterson because she had already posted bail. It did not complete an OR Workup for plaintiff Buffin before she was released.

27

8 Plaintiff Patterson’s and plaintiff Buffin’s arrests occurred before Sheriff Hennessy

28 assumed office.

4

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1 defendants except for the Sheriff, who announced that she would not defend this action. (See Dkt.

2 No. 101 at 1.)

3

In this context, CBAA filed its fourth motion to intervene, which the Court granted subject

4 to certain conditions. (See Dkt. No. 119 (“Intervention Order”).) Subsequently, plaintiffs, CBAA,

5 and the Sheriff (collectively, the “parties”) agreed upon certain stipulated facts and conducted

6 discovery regarding those facts that were not established through stipulation.

7

While the Court has articulated the scope of this case on numerous occasions,9 plaintiffs’

8 summary judgment briefing indicated an attempt to alter the scope of the case drastically.

9 Namely, plaintiffs asked the Court to “[d]eclare unconstitutional and enjoin the use of money bail

10 and all pretrial processes that condition release on a monetary sum extracted from a criminal

11 defendant.” (Plaintiffs’ Motion for Summary Judgment, Dkt. No. 136 at 25 sub. (a) (“Plaintiffs’

12 Motion”).) Moreover, they argued the Court should “[d]eclare unconstitutional and enjoin the

13 enforcement of all state laws that create wealth-based pretrial release processes, including but not

14 limited to California Penal Code sections 1270.1, 1269b, and 1269c.” (Id. sub. (c).)

15

In light of the overreaching, and unauthorized, scope of the relief sought by plaintiffs at

16 this late stage in the litigation, the Court asked them recently to clarify the relief they are seeking.

17 (See Dkt. No. 178.) Plaintiffs responded that they “seek an order declaring unconstitutional and

18

19

9 In its order on the County’s and the Sheriff’s motion to dismiss the 3AC, the Court

20 summarized the action as follows:

21

Plaintiffs bring a single count against the County, the Sheriff, and the Attorney General for violation of their Fourteenth Amendment equal protection and due

22

process rights when the Sheriff enforces state law by keeping them in jail before arraignment solely because they cannot afford to pay money bail. Specifically,

23

plaintiffs challenge defendants’ enforcement of California Penal Code section 1269b, which provides that a sheriff may only collect bail from pre-arraignment

24

arrestees in the amount fixed, inter alia, in the schedule of bail set by the superior court judges sitting in and for that county.

25 (Dkt. No. 99 at 1.) Moreover, in its order granting CBAA permissive intervention, the Court

26

explained that the 3AC “challenges the San Francisco Sheriff’s use of a bail schedule to detain a person prior to being seen by a judicial officer” as required by Penal Code section 1269b, and

27

“allege[s] section 1269b has the effect of requiring secured money bail and causes San Francisco to detain individuals solely because they cannot afford the cost of release.” (Intervention Order at

28 1–2.)

5

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1 enjoining the use of the bail schedule for the class . . . .” (Dkt. No. 181 at 2.)10 Moreover, they

2 seek “an injunction that outlines a framework for a replacement, non-monetary process for the

3 class . . . .” (Id.) While plaintiffs’ summary judgment briefing is tethered to the overreaching

4 scope of the relief sought in their motion, they retreated at oral argument. Against this

5 background, the Court will treat plaintiffs’ constitutional challenges as challenges to the Sheriff’s

6 use of the Bail Schedule.

7 II. LEGAL STANDARD ON SUMMARY JUDGMENT

8

A party seeking summary judgment bears the initial burden of demonstrating the absence

9 of a genuine issue of material fact as to the basis for the motion. Celotex Corp. v. Catrett, 477

10 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case.

11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

12 “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

13 party. Id.

14

Where the moving party has the burden of proof at trial, it “must affirmatively demonstrate

15 that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty

16 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the moving party meets its initial burden, the

17 opposing party must then set out specific facts showing a genuine issue for trial in order to defeat

18 the motion. See Anderson, 477 U.S. at 250; Soremekun, 509 F.3d at 984; see also Fed. R. Civ. P.

19 56(c), (e). The opposing party’s evidence must be more than “merely colorable” and must be

20 “significantly probative.” Anderson, 477 U.S. at 249–50. Further, the opposing party may not rest

21 upon mere allegations or denials of the adverse party’s evidence, but instead must produce

22 admissible evidence showing a genuine dispute of material fact exists. See Nissan Fire & Marine

23 Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000). “Disputes over

24 irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv.,

25 Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

26

27

10 The Court will issue a separate order on plaintiffs’ motion for class certification.

28 6

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1

Nevertheless, when deciding a summary judgment motion, a court must view the evidence

2 in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor.

3 See Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). A

4 district court may only base a ruling on a motion for summary judgment upon facts that would be

5 admissible in evidence at trial. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir.

6 2010); Fed. R. Civ. P. 56(c).

7 III. DISCUSSION

8

A. Eighth Amendment - Prohibition on Excessive Bail

9

As a threshold matter, CBAA argues that plaintiffs’ claims actually constitute a challenge

10 under the Eighth Amendment’s Excessive Bail Clause and should not be considered under a

11 Fourteenth Amendment analytical framework. According to CBAA, it is entitled to summary

12 judgment as to this claim on the ground that the bail amounts assigned to plaintiffs were not

13 unconstitutionally excessive in light of the County’s valid government interests. Citing Galen v.

14 County of Los Angeles, 477 F.3d 652 (9th Cir. 2007), CBAA avers that because the Sheriff

15 followed California’s bail laws and Bail Schedule in assigning bail to plaintiffs, plaintiffs are

16 foreclosed from arguing that the bail amounts are unconstitutionally excessive.

17

Plaintiffs respond that not every claim related to pretrial detention must necessarily be an

18 excessive bail claim. Namely, they argue that rather than challenging the specific bail amounts on

19 the Bail Schedule, they challenge the County’s discriminatory practices. Because plaintiffs have

20 not raised an Eighth Amendment claim, they deem CBAA’s argument irrelevant.

21

The Court agrees with plaintiffs. CBAA’s mischaracterization of the issues as an Eighth

22 Amendment challenge to excessive bail is merely a red herring. As plaintiffs note, they do not

23 challenge the specific amounts set out in the Bail Schedule. (Plaintiffs’ Opposition to CBAA’s

24 Motion for Summary Judgment, Dkt. No. 153 at 22 (“Plaintiffs’ Opposition”).) Rather, their

25 claims concern the effect the Sheriff’s use of the Bail Schedule has on those who cannot afford to

26 pay the set amounts in relation to those who can. CBAA’s efforts to recast plaintiffs’ claims as

27 Eighth Amendment claims thus ignore the Supreme Court’s express acknowledgement that federal

28 courts “generally analyze the fairness of relations between the criminal defendant and the State 7

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1 under the Due Process Clause, while [they] approach the question whether the State has

2 invidiously denied one class of defendants a substantial benefit available to another class of 3 defendants under the Equal Protection Clause.” Bearden v. Georgia, 461 U.S. 660, 665 (1983).11

4 CBAA also overlooks other cases involving similar challenges to bail systems that have been 5 decided on Fourteenth Amendment grounds.12

6

B. Fourteenth Amendment - Due Process and Equal Protection

7

The parties principally dispute whether the Sheriff’s use of the Bail Schedule implicates a

8 fundamental right and whether the rational basis or strict scrutiny standard of review applies to

9 plaintiffs’ Due Process and Equal Protection claims. The ensuing discussion addresses both

10 issues.

11

1. Due Process Framework

12

The Due Process Clause of the Fourteenth Amendment prohibits the government from

13 depriving individuals of their life, liberty, or property, without due process of law. U.S. Const.

14 amend. XIV, § 1. In general, it “provides heightened protection against government interference

15 with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702,

16 720 (1997). Accordingly, the threshold inquiry in every Due Process challenge is “whether the

17

18

11 Moreover, Galen, the case on which CBAA principally relies, did not involve the inability to pay. Rather, it involved a challenge to a significant bail enhancement—from $50,000

19

to $1 million—which the appellant argued was unconstitutionally excessive. Galen, 477 F.3d at 659. The Ninth Circuit concluded that “[b]ecause [Appellant] has offered no evidence that would

20

tend to show that the Commissioner enhanced [Appellant’s] bail for an improper purpose or that his bail was excessive in light of the purpose for which it was set, he has failed to meet his burden

21 for withstanding summary judgment.” Id. at 661.

22

12 See, e.g., ODonnell v. Harris Cty., 251 F. Supp. 3d 1052, 1147–48 (S.D. Tex. 2017) (finding claim against county’s post-arrest detention policies, which in practice detained people

23

arrested for misdemeanor offenses who were unable to pay financial bond longer than those financially able to pay, was not an excessive bail challenge but rather a proper Fourteenth

24

Amendment challenge warranting preliminary injunction); Jones v. City of Clanton, No. 2:15CV34-MHT, 2015 WL 5387219, at *2 (M.D. Ala. Sept. 14, 2015) (holding that “use of a

25

secured bail schedule to detain a person after arrest, without an individualized hearing regarding the person’s indigence and the need for bail or alternatives to bail, violates the Due Process Clause

26

of the Fourteenth Amendment”); Cooper v. City of Dothan, No. 1:15-CV-425-WKW [WO], 2015 WL 10013003, at *1 (M.D. Ala. June 18, 2015) (finding allegations that city’s arrest and detention

27

policies and practices routinely resulted in confinement of individuals solely due to their poverty in violation of Fourteenth Amendment’s Due Process and Equal Protection clauses warranted

28 temporary restraining order).

8

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1 plaintiff has been deprived of a protected interest in . . . ‘liberty.’” American Mfrs. Mut. Ins. Co. v.

2 Sullivan, 526 U.S. 40, 59 (1999) (quoting Fourteenth Amendment); see also Shanks v. Dressel,

3 540 F.3d 1082, 1087 (9th Cir. 2008) (“To state a substantive due process claim, the plaintiff must

4 show as a threshold matter that a state actor deprived it of a constitutionally protected life, liberty,

5 or property interest.”). The Supreme Court has long recognized constitutional limits on pretrial 6 detention.13

7

By way of background, the Supreme Court in Salerno considered, inter alia, the

8 substantive Due Process implications of the Bail Reform Act of 1984, which required pretrial

9 detention of arrestees charged with certain serious felonies if the government demonstrated by

10 clear and convincing evidence after an adversary hearing that no release conditions “will

11 reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. § 3142(e).

12 Applying general Due Process principles, the Court considered whether the law constituted an

13 impermissible infringement of arrestees’ liberty interest. The Court explained that the

14 “individual’s strong interest in liberty” is “fundamental,” Salerno, 481 U.S. at 750, and cited the

15 “general rule of substantive due process that the government may not detain a person prior to a

16 judgment of guilt in a criminal trial.” Id. at 749 (internal quotation marks omitted). But the Court

17 concluded that the Bail Reform Act passed constitutional muster because it both served a

18 “compelling” and “overwhelming” governmental interest “in preventing crime by arrestees” and

19 was “carefully limited” to achieve that purpose. Id. at 749–50, 755. Additionally, the Act

20 “careful[ly] delineat[ed] . . . the circumstances under which detention will be permitted . . . .” Id. 21 at 751.14 While the Salerno Court itself did not describe its analysis as strict scrutiny, it made

22

23

13 The Court has, inter alia: prohibited excessive bail, see Stack v. Boyle, 342 U.S. 1, 4–5 (1951); barred punitive conditions of pretrial confinement, see Bell v. Wolfish, 441 U.S. 520, 535–

24

37 (1979); prohibited pretrial detention as punishment, see United States v. Salerno, 481 U.S. 739, 746–48 (1987); held that restrictions on pretrial release of adult arrestees must be carefully limited

25

to serving a compelling government interest, see id. at 748–51; and required a judicial determination of probable cause within 48 hours after arrest, see Cty. of Riverside v. McLaughlin,

26

500 U.S. 44, 56 (1991). See also Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (en banc) (discussing above cases).

27

14 The Act: (1) “narrowly focuse[d] on a particularly acute problem in which the

28

Government interests are overwhelming”; (2) “operate[d] only on individuals who have been arrested for a specific category of extremely serious offenses”—individuals that “Congress

9

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1 clear that under the Due Process Clause, “liberty is the norm, and detention prior to trial or without

2 trial is the carefully limited exception.” Id. at 755 (emphasis supplied).

3

In Lopez-Valenzuela v. Arpaio, the Ninth Circuit, sitting en banc, interpreted Salerno to

4 require strict scrutiny of pretrial detention conditions. 770 F.3d 772, 780–81 (9th Cir. 2014).15

5 Applying Salerno’s Due Process framework, the court considered the substantive Due Process

6 implications of the Fourteenth Amendment with respect to an Arizona constitutional provision

7 which denied eligibility for bail to individuals who were charged with “serious felony offenses”

8 and who were in the United States illegally (“Proposition 100”). Citing Salerno, the court applied

9 “heightened scrutiny” because the challenged laws “infringe[d] a fundamental right,” namely, “the

10 individual’s strong interest in liberty.” Id. at 780. Thus, the court explained, the Proposition 100

11 laws “[would] satisfy substantive due process only if they [were] ‘narrowly tailored to serve a

12 compelling state interest.’” Id. at 781 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).

13 Because the court found no evidence that the Proposition 100 laws were adopted to address a

14 “particularly acute problem,” the laws were not limited to “a specific category of extremely

15 serious offenses,” and the laws employed an “overbroad, irrebuttable presumption rather than an

16 individualized hearing to determine whether a particular arrestee pose[d] an unmanageable flight

17 risk,” the court concluded that the Proposition 100 laws were “not carefully limited, as they must

18 be to survive heightened scrutiny . . . .” Id. at 783–84 (internal quotation marks and citations

19 omitted).

20

Based on the foregoing, this Court concludes that the Sheriff’s use of the Bail Schedule

21

22

specifically found” were “far more likely to be responsible for dangerous acts in the community after arrest”; and (3) afforded arrestees a “full-blown adversary hearing” at which the government

23

was required to “convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Salerno,

24 481 U.S. at 750.

25

15 In their summary judgment briefing, plaintiffs do not do not state clearly whether their Due Process claim is of a procedural or substantive nature. However, given their emphasis on the

26

alleged deprivation by the government of a right they deem fundamental, in addition to their reliance on Lopez-Valenzuela both in their briefing and at oral argument, the Court understands

27

their Due Process claim to be of a substantive nature. Moreover, plaintiffs have not objected to CBAA’s consistent characterization of plaintiffs’ Due Process claim as a substantive Due Process

28 claim.

10

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1 implicates plaintiffs’ fundamental right to liberty, and any infringement on such right requires a

2 strict scrutiny analysis. According to the Ninth Circuit, that liberty is a fundamental right is

3 “beyond dispute.” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017); id. (“[T]he private

4 interest at issue here is ‘fundamental’: freedom from imprisonment is at the ‘core of the liberty

5 protected by the Due Process Clause.’”) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992));

6 see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprisonment—from

7 government custody, detention, or other forms of physical restraint—lies at the heart of the liberty

8 that [the Due Process] Clause protects.”); Foucha, 504 U.S. at 80 (“Freedom from bodily restraint

9 has always been at the core of the liberty protected by the Due Process Clause from arbitrary

10 governmental action.”).

11

Relying on Gerstein v. Pugh, 420 U.S. 103 (1975) and County of Riverside v. McLaughlin,

12 500 U.S. 44 (1991), CBAA attempts to frame the right at issue here narrowly, that is, as the “right

13 to liberty in the brief period between arrest and arraignment.” (CBAA’s Opposition to Plaintiffs’

14 Motion for Summary Judgment, Dkt. No. 143 at 9 (“CBAA’s Opposition”); see also CBAA’s

15 Motion for Summary Judgment, Dkt. No. 132 at 18 (“CBAA’s Motion”).) Using this

16 construction, CBAA argues that no such fundamental right exists but rather that detention is

17 “justified and constitutional.” (CBAA’s Motion at 17.) In Gerstein, the Supreme Court held that

18 the Fourth Amendment requires a prompt judicial determination of probable cause as a

19 prerequisite to an extended pretrial detention following a warrantless arrest. 420 U.S. at 124–25.

20 The Court did not specify what would meet the promptness standard, instead noting that “the

21 nature of the probable cause determination usually will be shaped to accord with a State’s pretrial

22 procedure viewed as a whole.” Id. at 123. Subsequently, in considering what constitutes a

23 “prompt” probable cause determination under Gerstein, the Supreme Court held in McLaughlin

24 that a judicial determination of probable cause within 48 hours of arrest generally will pass 25 constitutional muster. 500 U.S. at 56.16 Essentially, CBAA avers that McLaughlin creates a 48-

26

27

16 In so holding, the Court recognized that “some delays are inevitable” where

28

jurisdictions “incorporate probable cause determinations into other pretrial procedures . . . . [T]here will be delays caused by paperwork and logistical problems. Records will have to be

11

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1 hour period within which the County can constitutionally detain arrestees pursuant to the Bail

2 Schedule.

3

CBAA’s narrow reading of McLaughlin ignores that the Court treated the 48-hour rule

4 merely as a presumption. The fact that a person is given a determination of probable cause within

5 48 hours after arrest does not mean that “the probable cause determination in a particular case

6 passes constitutional muster . . . .” McLaughlin, 500 U.S. at 56. Such a hearing may nonetheless

7 violate the Constitution “if the arrested individual can prove that his or her probable cause

8 determination was delayed unreasonably.” Id. CBAA’s reference to the “48-hour outer-limit

9 found constitutional for probable cause hearings” is thus misleading. (CBAA’s Motion at 17)

10 (emphasis supplied). Moreover, it is not clear that the McLaughlin 48-hour presumption applies to

11 the inquiry into an arrestee’s eligibility for pre-arraignment release. CBAA baldly asserts that “the

12 context of pre-arraignment bail hearings . . . also implicates the realities of law enforcement and

13 the heavy burden on the criminal justice system to process defendants in a timely yet effective

14 manner after arrest.” (Id.) However, it offers no evidence to support its claim. As one court

15 noted in a case similar to this one, “[t]he 48-hour probable-cause-hearing standard announced in

16 [McLaughlin] is not a safe harbor . . . .” ODonnell v. Harris Cty., 227 F. Supp. 3d 706, 732 (S.D.

17 Tex. 2016) (noting “plaintiffs do not challenge the timing of probable-cause hearings”). Finally,

18 Gerstein and McLaughlin dealt with the procedural safeguards necessary to effect limited post-

19 arrest detention, and plaintiffs’ claim here purports to be of a substantive nature.

20

Accordingly, CBAA’s claim is unavailing. The Ninth Circuit has not drawn the narrow

21 demarcation proffered, instead announcing general Due Process principles in cases involving 22 detention of adults.17

23

24

reviewed, charging documents drafted, appearance of counsel arranged, and appropriate bail determined.” McLaughlin, 500 U.S. at 55.

25

17 See, e.g., Hernandez, 872 F.3d at 981 (“[W]e reaffirm our commitment to th[e]

26

principle of fairness for all as embodied in the Due Process Clause . . . . Here, it prohibits our government from discriminating against the poor in providing access to fundamental rights,

27

including the freedom from physical restraints on individual liberty.”); Lopez-Valenzuela, 770 F.3d at 781 (“The institutionalization of an adult by the government triggers heightened,

28

substantive due process scrutiny.”) (internal quotation marks and alteration omitted). Moreover, the District Court for the Eastern District of California, in a case involving a

12

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1

2. Equal Protection Framework

2

The Equal Protection Clause of the Fourteenth Amendment prohibits the government from

3 denying individuals equal protection of the laws. U.S. Const. amend. XIV, § 1. While Equal

4 Protection is typically used to analyze government actions that draw a distinction among people

5 based on specific characteristics, it is also used if the government discriminates among people as 6 to the exercise of a fundamental right.18

7

Strict scrutiny under the Equal Protection Clause applies where the classification impinges

8 on a fundamental right or the classification itself is suspect. See Rodriguez, 411 U.S. at 2 (the

9 “strict judicial scrutiny . . . test is reserved for cases involving laws that operate to the

10 disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties

11 explicitly or implicitly protected by the Constitution.” ); cf. Pugh v. Rainwater, 557 F.2d 1189,

12 1197 (5th Cir. 1977), vacated, 572 F.2d 1053 (5th Cir. 1978) (en banc) (where plaintiffs claimed

13 that imprisonment prior to trial solely due to inability to pay bail violated Equal Protection, court

14 applied strict scrutiny in part because “the inability to raise money bail necessarily affects 15 fundamental rights of the indigent defendant”).19

16

17

Due Process claim similar to the one at hand and which CBAA cites in support of its Equal Protection contentions, agreed with the plaintiff in that case that “pretrial liberty is a fundamental

18

right” and that “detention conditioned upon posting of bail . . . is subject to strict scrutiny review.” Welchen v. Cty. of Sacramento, No. 2:16-cv-00185-TLN-KJN, 2016 WL 5930563, at *9–10 (E.D.

19

Cal. Oct. 11, 2016). While the court in Welchen determined that the plaintiff’s Equal Protection claim was

20

subject to rational basis review, it did so based on the premise that “wealth status is not a suspect class” and is therefore irrelevant here. Welchen, 2016 WL 5930563 at *11. In any event, when

21

the Supreme Court ruled in San Antonio Independent School District v. Rodriguez that wealthbased classifications ordinarily require rational basis review, it specifically exempted cases in

22

which “the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum.” 411 U.S. 1, 22 (1973).

23

18 See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942) (Court declared law

24

unconstitutional as violating Equal Protection because it discriminated among people in their ability to exercise the fundamental right to procreate); see also Bush v. Gore, 531 U.S. 98 (2000)

25 (Court used Equal Protection Clause to address the fundamental right to vote).

26

19 The en banc court vacated as moot the panel decision finding the challenged system unconstitutional because Florida had amended its rules while the appeal was pending. Rainwater

27

(en banc), 572 F.2d at 1058–59. Although the en banc court did not comment on the scrutiny standard to be applied, it cited Williams v. Illinois, 399 U.S. 235 (1970) and Tate v. Short, 401

28

U.S. 395 (1971), stating “[a]t the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” 572 F.2d at

13

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United States District Court Northern District of California

1

To the extent CBAA frames plaintiffs’ Equal Protection claim as one based purely on a

2 “wealth-based” classification, (see CBAA’s Motion at 13–14), the Court agrees, as a matter of 3 legal theory, that wealth-based challenges generally do not warrant strict scrutiny.20 Here,

4 however, plaintiffs do not proceed on that basis. Therefore, CBAA’s wealth-based classification

5 challenge fails.

6

With respect to plaintiffs’ claim, given their muddled briefing, counsel attempted orally to

7 clarify plaintiffs’ theories. Relying principally on the Bearden-Tate-Williams line of cases,

8 counsel described (i) an Equal Protection claim based on the deprivation of the fundamental right

9 to personal liberty on an unequal basis; (ii) a Due Process claim based on the deprivation of the

10 fundamental right to personal liberty; and (iii) a claim based on the “fundamental fairness”

11 principle, which plaintiffs say involves a “blended analysis between the equal protection and due 12 process clause[s].”21 As a threshold matter, the Court does not interpret these cases as giving rise

13 to a separate “fundamental fairness” claim under the Fourteenth Amendment. The Bearden Court

14 itself noted that the “‘touchstone of due process’” is “‘fundamental fairness.’” Bearden, 461 U.S.

15 at 666 n.7 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 791 (1973)); see also Quill Corp. v. North

16 Dakota, 504 U.S. 298, 299 (1992) (“Due process concerns the fundamental fairness of government

17 activity . . . .”). Rather, the Court understands “fundamental fairness” as a consideration that

18 should guide its Fourteenth Amendment analysis, not that a separate claim springs therefrom.

19

That said, an examination of the Bearden-Tate-Williams line of cases persuades the Court

20 that strict scrutiny applies to plaintiffs’ Due Process and Equal Protection claims. In Williams, the

21 Supreme Court held that a facially neutral system of imprisoning convicted defendants who did

22 not pay their fines “works an invidious discrimination” as applied to indigent defendants and

23 therefore violated the Equal Protection Clause. 399 U.S. at 242. Though the majority did not

24

25 1056.

26

20 But see supra note 17 (noting exception to general rule).

27

21 See Transcript of Proceedings Held on December 12, 2017, Dkt. No. 186 at 5:10–22,

28 6:16–22 (“Transcript”).

14

Case 4:15-cv-04959-YGR Document 191 Filed 01/16/18 Page 15 of 20

United States District Court Northern District of California

1 explicitly call for heightened scrutiny, it used a functionally similar analysis, finding the

2 government’s “substantial and legitimate” interest in collecting revenues from fines did not justify

3 “invidious discrimination” against those financially unable to pay the fines. Id. at 238, 242. In

4 Tate, the Supreme Court followed and extended the rule in Williams, holding:

5

The same constitutional defect condemned in Williams also inheres in jailing an

6

indigent for failing to make immediate payment of any fine, whether or not the fine

is accompanied by a jail term and whether or not the jail term of the indigent

7

extends beyond the maximum term that may be imposed on a person willing and

able to pay a fine. In each case, the Constitution prohibits the State from imposing

8

a fine as a sentence and then automatically converting it into a jail term solely

9

because the defendant is indigent and cannot forthwith pay the fine in full.

10 Tate, 401 U.S. at 398 (internal quotation marks omitted). The Court similarly found that the

11 “invidious discrimination” was not justified in light of “other alternatives to which the State may

12 constitutionally resort to serve its concededly valid interest in enforcing payment of fines.” Id. at

13 399.

14

In Bearden, the Supreme Court summarized the rule of Williams and Tate as follows: “[I]f

15 the State determines a fine or restitution to be the appropriate and adequate penalty for the crime,

16 it may not thereafter imprison a person solely because he lacked the resources to pay it.” 461 U.S.

17 at 667–68. Rather, the Constitution requires the government to use the least-restrictive alternative:

18

[T]he [sentencing] court must consider alternate measures of punishment other than

19

imprisonment. Only if alternate measures are not adequate to meet the State’s

interests in punishment and deterrence may the court imprison a probationer who

20

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,

21

he cannot pay the fine. Such a deprivation would be contrary to the fundamental

22

fairness required by the Fourteenth Amendment.

23 Id. at 672–73. In so holding, the Court noted that “[d]ue process and equal protection principles

24 converge in the Court’s analysis” in cases involving the fair treatment of indigents in the criminal

25 justice system. Id. at 665. The Court explained that the question whether differential treatment

26 violates Equal Protection in such cases is “substantially similar to asking directly the due process

27 question of whether and when it is fundamentally unfair or arbitrary for the State to revoke

28 probation when an indigent is unable to pay the fine.” Bearden, 461 U.S. at 665–66. The Court 15

Case 4:15-cv-04959-YGR Document 191 Filed 01/16/18 Page 16 of 20

United States District Court Northern District of California

1 reasoned that the answer to that question “cannot be resolved by resort to easy slogans or

2 pigeonhole analysis, but rather requires a careful inquiry into such factors as ‘the nature of the

3 individual interest affected, the extent to which it is affected, the rationality of the connection

4 between legislative means and purpose, [and] the existence of alternative means for effectuating

5 the purpose . . . .’” Bearden, 461 U.S. at 666–67 (quoting Williams, 399 U.S. at 260 (Harlan, J.,

6 concurring)) (alterations in original).

7

While the Court disagrees that these cases establish an unambiguous constitutional right

8 not to be detained based on indigence as plaintiffs apparently suggest,22 the cases appear to require

9 the Court to consider the instant challenge with heightened review. CBAA argues that the

10 Bearden-Tate-Williams line of cases address additional penalties imposed after a convicted

11 indigent criminal defendant was unable to pay court-ordered fines or restitution, which

12 “essentially converted the defendant’s purely-financial penal sentence into jail time for failure to

13 pay.” (CBAA’s Motion at 14.) For this reason, CBAA maintains that these cases have “no

14 application to the pretrial bail context . . . .” (Id. at 15.) CBAA does not persuade. The Supreme

15 Court’s holdings and analyses apply with special force in the bail context, where fundamental

16 deprivations are at issue and arrestees are presumed innocent. Indeed, arrestees who have not

17 been found guilty have an especially “strong interest in liberty.” Salerno, 481 U.S. at 750.

18

Accordingly, the Court is satisfied that strict scrutiny review applies to plaintiffs’ Due

19 Process and Equal Protection claims. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357

20 (1978) (“[A] government practice or statute which restricts ‘fundamental rights’ . . . is to be

21 subjected to ‘strict scrutiny’ and can be justified only if it furthers a compelling government

22 purpose and, even then, only if no less restrictive alternative is available.”); see also Bearden, 461

23

24

22 Citing Bearden, plaintiffs argue that the County’s use of money bail, which they

25 describe as “detain[ing] arrestees who cannot afford bail longer than those who buy their

freedom,” violates the “fundamental principle that a government cannot hold someone in jail

26 solely because she is unable to pay money.” (Plaintiffs’ Motion at 6; see also id. at 7 (“[M]oney

bail violates the fundamental proscription of wealth-based detention.”).) According to plaintiffs, 27 Bearden, Tate, Williams, and related cases “compel the conclusion that the County’s money bail

28 system is unconstitutional.” (Id. at 8.)

16

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United States District Court Northern District of California

1 U.S. at 665 (in cases of detaining the indigent, “[d]ue process and equal protection principles

2 converge in the Court’s analysis.”).

3

C. Application and Parties’ Respective Burdens

4

Applying these principles, the Court must determine (i) whether the Sheriff, through use of

5 the Bail Schedule, has significantly deprived plaintiffs of their fundamental right to liberty, and, if

6 so, (ii) whether, under the strict scrutiny standard of review, the Sheriff’s use of the Bail Schedule 7 is the least restrictive alternative for achieving the government’s compelling interests.23

8

Plaintiffs first claim that the County’s current bail system infringes on the fundamental

9 right to pretrial liberty because the “non-monetary release alternatives” it affords to arrestees “are

10 slower than monetary release” and “those who can afford bail procure release much faster than

11 those who must wait for the OR Project.” (Plaintiffs’ Motion at 10.) The Court finds genuine

12 disputes of fact exist as to plaintiffs’ claim of a significant deprivation of liberty.

13

Plaintiffs contend: “Of the 513 people released in 2016 through the OR Project, only 4%

14 were released in less than 24 hours; nearly 11% spent 24–48 hours waiting for their release; 71%

15 waited at least two full days; roughly 14% waited for at least three full days.” (Plaintiff’s Motion 16 at 10.) However, the Sheriff (and CBAA24) notes that plaintiffs’ analysis used the wrong data.

17 (Sheriff Vicki Hennessy’s Response to Plaintiffs’ and CBAA’s Motions for Summary Judgment,

18 Dkt. No. 149 at 2 (“Sheriff’s Response to MSJs”).) Specifically, the Sheriff argues that plaintiffs

19 used certain figures which overstate the actual amount of time that individuals released through

20

21

23 See Halet v. Wend Inv. Co., 672 F.2d 1305, 1311 (9th Cir. 1982) (“Because the state

22

action in this case infringes upon a fundamental right, we must reverse the district court’s dismissal of [Appellant’s] due process and equal protection claims to enable it to consider whether

23

. . . a genuinely significant deprivation of a fundamental right has occurred. . . . If such a deprivation has occurred, then the court must determine whether the . . . policy can survive strict

24

scrutiny.”) (internal quotation marks and citations omitted); Nat’l Ass’n for Advancement of Multijurisdiction Practice v. Berch, 973 F. Supp. 2d 1082, 1114 (D. Ariz. 2013) (“Plaintiffs

25

correctly state that rules that infringe on fundamental rights are subject to strict scrutiny . . . , but they have not shown infringement on a fundamental right . . . that would trigger that standard of

26 review in this case.”).

27

24 CBAA concurs with each of the Sheriff’s observations with respect to factual inaccuracies contained in Plaintiffs’ Motion. (See CBAA’s Reply ISO Motion for Summary

28 Judgment, Dkt. No. 160 at 2 n.2).

17

Case 4:15-cv-04959-YGR Document 191 Filed 01/16/18 Page 18 of 20

United States District Court Northern District of California

1 the OR Project spent in custody.25 Moreover, the Sheriff (and CBAA) cautions the Court that

2 plaintiffs’ methodology did not identify all pre-arraignment releases granted through the OR

3 Project because it assumed they would all be denominated “Project OR” on certain spreadsheets 4 produced by the Sheriff in discovery, which is not necessarily the case. (Id. at 2–3.)26 For this

5 reason, the Sheriff states that plaintiffs’ count of the number of releases “necessarily understates

6 the total.” (Id. at 3.)

7

In light of the factual dispute as to the meaning of the data, the Court cannot say, as a

8 matter of law, that the Sheriff significantly infringed on plaintiffs’ fundamental right to liberty by

9 “detain[ing] [them] longer” (Plaintiffs’ Motion at 10), let alone that the Sheriff has done so by sole 10 reason of their indigence.27 Given that even those who pay the set bail amount are detained for

11 some measure of time, the Court cannot find that any amount of detention per se is

12 unconstitutional. Plaintiffs’ motion thus fails. Accordingly, the evidence at trial must ultimately

13 show the full context of the detentions at issue.

14

Plaintiffs’ motion also fails because plaintiffs have not met their initial burden as to the

15 existence of a less restrictive alternative to achieve the government’s interests as compared to the

16 Sheriff’s use of the Bail Schedule. As plaintiffs concede, they must first make a prima facie

17

18 25 According to the Sheriff, the appropriate interpretation of the data shows that of the 513
19 people released in 2016 through the OR Project, 49%—not 4%—were released in less than 24

20

hours; 42.5%—not 11%—were released between 24 and 48 hours; and 8%—not 71%—were released after 48 hours. (Sheriff’s Response to MSJs at 2.)

21

26 The Sheriff explains that when an individual is released under more active supervision,

22

either before or after arraignment, the release is denominated “Assertive Case Management.” (Sheriff’s Response to MSJs at 3.) The Sheriff adds that because the Jail Management System can

23

record only one release reason, and a person may be detained for multiple reasons, there would be additional pre-arraignment releases granted through the OR Project that were not recorded as

24 either “Project OR” or “Assertive Case Management.” (Id.)

25

27 The Sheriff indicates that “[h]ad Plaintiffs discussed in advance what statistics they wished to present, we would have tried to reach a stipulation on methodology and results.”

26

(Sheriff’s Response to MSJs at 3 n.5.) The Court notes that there is no genuine dispute of material fact as to data pertaining to the number of individuals released from custody through the OR

27

Project within three hours or less or within ten hours or less. However, since this action concerns the 48 hours between arrest and arraignment, the Court deems the disputed information critical to

28 understanding the extent of the alleged liberty deprivation.

18

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United States District Court Northern District of California

1 showing in this regard. (See Plaintiffs’ Reply ISO Motion for Summary Judgment, Dkt. No. 161

2 at 8.) That is, they must make a showing of a “plausible, less restrictive alternative[],”Ashcroft v.

3 ACLU, 542 U.S. 656, 666 (2004) (emphasis supplied). The proposed alternative need not be

4 “more effective,” id. at 669 (emphasis supplied)—plaintiffs must show only that it would be “at

5 least as effective,” Reno v. ACLU, 521 U.S. 844, 874 (1997) (emphasis supplied). The current

6 record is insufficient on this point. Even plaintiffs’ designated expert witness, Michael Jones,

7 testified at his deposition that he is “very ignorant” about the County’s pretrial practices and was

8 not offering any opinion about whether any alternatives to the County’s current system of pretrial 9 release would be effective in achieving the government’s interests in this County.28 (Deposition of 10 Michael R. Jones, Dkt. No. 144-12 at 81, 113.)29 Plaintiffs’ prima facie case need not rise to the

11 level of scientific precision. However, given the absence of undisputed, competent evidence that

12 the proffered alternative systems could be administered feasibly in the specific context of the

13 County, plaintiffs have failed to meet their initial burden.

14

Once plaintiffs have made a showing of a plausible, less restrictive alternative, the

15 government has the burden of proof under the strict scrutiny standard.30 CBAA, having stepped

16

17

28 The same issue is posed by the testimony of Judge Truman Morrison and Garry Herceg,

18

which describe the pretrial systems of separate jurisdictions (Washington, D.C., and Santa Clara, respectively) without opining whether the County could reasonably be expected to implement a

19 similar type of pretrial system. (See Dkt. Nos. 136-19, 136-20.)

20

29 This is not to say that CBAA’s evidence proffered on this point is without flaw. Namely, in support of its arguments that plaintiffs’ proposed alternative is not less restrictive and

21

is less effective at ensuring court appearance, CBAA cites to “expert” reports which in large part are not based on personal knowledge, are not supported by citations to verifiable sources, and/or

22 fail to articulate a reliable methodology. (CBAA’s Opposition at 16–17.)

23

30 See, e.g., Burson v. Freeman, 504 U.S. 191, 199 (1992) (“To survive strict scrutiny . . . a State must do more than assert a compelling state interest—it must demonstrate that its law is

24

necessary to serve the asserted interest.”); see also Miller v. Johnson, 515 U.S. 900, 920 (1995) (“To satisfy strict scrutiny, the State must demonstrate that its . . . legislation is narrowly tailored

25

to achieve a compelling interest.”); Bernal v. Fainter, 467 U.S. 216, 227 (1984) (“To satisfy strict scrutiny, the State must show that [the statute] furthers a compelling state interest by the least

26

restrictive means practically available.”); Nordyke v. King, 681 F.3d 1041, 1045 n.2 (9th Cir. 2012) (“Strict scrutiny requires the government to show that it has taken the least restrictive means

27

to serve a compelling government interest.”); c.f. Rodriguez, 411 U.S. at 51 (“Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to

28 have chosen the least restrictive alternative.”).

19

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United States District Court Northern District of California

1 into the shoes of the Sheriff as intervenor, must show that plaintiffs’ proposed alternative would 2 be less effective at serving the government’s compelling interest(s) and/or more restrictive.31

3 Here, plaintiffs and CBAA agree that at a minimum the County has a compelling interest in

4 ensuring that arrestees appear for trial. (See, e.g., CBAA’s Motion at 20; Plaintiffs’ Opposition at

5 7.) However, as mentioned previously, the evidence of plausible, less restrictive alternatives to

6 furthering that interest is disputed (and, in many cases, given plaintiffs’ evidentiary failures, was

7 not admissible as proffered).

8

Given plaintiffs’ numerous failures of proof, their motion is denied. CBAA’s motion also

9 fails because it is based on the assumption that no fundamental right is at issue and relies on a

10 rational basis analysis.

11 IV. CONCLUSION

12

For the foregoing reasons, plaintiffs’ motion for summary judgment is DENIED, and

13 CBAA’s motion for summary judgment is DENIED.

14

This Order terminates Docket Numbers 132 and 136.

15

IT IS SO ORDERED.

16 Dated: January 16, 2018 17 18

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

19

20

21

22

23

24

25

31 Plaintiffs need only make a prima facie showing as to one effective alternative. To the

26

extent they introduce competent evidence as to more than one alternative, however, CBAA will have to show that each proposed alternative would be less effective and/or more restrictive than

27

the Sheriff’s use of the Bail Schedule. Of note, “[t]he Government’s burden is not merely to show that a proposed less restrictive alternative has some flaws; its burden is to show that is less

28 effective.” Ashcroft, 542 U.S. at 669.

20

 
 Case 4:15-cv-04959-YGR Document 200 Filed 01/22/18 Page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER

A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to case
15-cv-04959-YGR Buffin v. City and County of San Francisco
I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.

Case

Title

Related Not Related

18-cv-00310-MEJ v. Hennessy YGR

ORDER

The parties are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

Dated: January 22, 2018

Yvonne Gonzalez Rogers United States District Judge

1

 
 Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 1 of 10

United States District Court Northern District of California

1

2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4

5

RIANA BUFFIN, ET AL.,

6

Plaintiffs,

7

vs.

8

CITY AND COUNTY OF SAN FRANCISCO, ET

AL., 9

Defendants.

10

CASE NO. 15-cv-04959-YGR
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AS MODIFIED BY THE COURT Re: Dkt. No. 140

11

Now before the Court is plaintiffs’ motion for class certification. (Dkt. No. 140

12 (“Motion”).) Having carefully considered the papers submitted, the pleadings in this action, the

13 oral arguments held on December 12, 2017, and the parties’ comments to the Court’s proposed

14 class definition, and for the reasons set forth below, the Court GRANTS AS MODIFIED BY THE

15 COURT plaintiffs’ Motion.1

16 I.

RELEVANT BACKGROUND

17

The facts at issue in this case are well known to the parties and the Court. The Court

18 adopts in full the background section of its order denying plaintiffs’ and CBAA’s motions for

19 summary judgment. (See Dkt. No. 191.) The Court summarizes the procedural background

20 pertinent to the instant motion below.

21

In response to CBAA’s opposition to the motion for class certification,2 plaintiffs Riana

22 Buffin and Crystal Patterson redefined the proposed class as follows:

23

24

25

1 With respect to the various Daubert motions filed by plaintiffs and California Bail Agents Association (“CBAA”) (Dkt. Nos. 134, 137, 138, & 139), the Court DENIES these motions

26

WITHOUT PREJUDICE to resubmitting them after a revised trial order has been issued. In so doing, the Court reiterates its concerns as to the evidentiary foundation for the experts’ opinions.

27

2 The Court granted CBAA leave to file an opposition to plaintiffs’ motion. (See Dkt. No.

28 142.)

Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 2 of 10

United States District Court Northern District of California

1

[A]ll pre-arraignment arrestees who are or who will be in the custody of the City

2

and County of San Francisco who have the option of monetary release under

current state law but remain in custody for any amount of time because they cannot

3

afford their bail amount.

4 (Plaintiffs’ Reply Brief in Support of Motion for Class Certification, Dkt. No. 168 at 1

5 (“Plaintiffs’ Reply”).) In light of the oral arguments on the motion, the Court proposed for

6 comment the following modified class definition:

7

All pre-arraignment arrestees (i) who are, or will be, in the custody of the City and

8

County of San Francisco; (ii) whose bail amount is determined by the Felony and

Misdemeanor Bail Schedule as established by the Superior Court of California,

9

County of San Francisco; (iii) whose arrest has not been reviewed by a judicial

officer; and (iv) who remain in custody for any amount of time because they cannot

10

afford to pay their set bail amount.

11 (Order re: Class Certification and Plaintiffs’ Requested Relief, Dkt. No. 178 at 2 (“Court’s

12 Inquiry”).) The Court also asked plaintiffs’ counsel, Mr. Phil Telfeyan of Equal Justice Under

13 Law, to supplement the record with information regarding his adequacy to represent the proposed 14 class and to clarify the relief sought by plaintiffs.3

15

Plaintiffs, CBAA, and Sheriff Vicki Hennessy (the “Sheriff”) (collectively, the “parties”)

16 responded timely to the Court’s inquiry. Plaintiffs principally approved of the Court’s proposed

17 definition but questioned whether the limitation in subsection (iii) was necessary. (Plaintiffs’

18 Response to Inquiry at 2.) The Sheriff proposed two revisions. First, she suggested that “the City

19 and County of San Francisco” in subsection (i) be changed to “the San Francisco Sheriff” to

20 reflect that the Sheriff is the proper defendant, and that she acts in her capacity as a state official

21 when enforcing the Bail Schedule. (Dkt. No. 182.) Second, the Sheriff proposed that subsection

22 (iii) be revised to delete the reference to those “whose arrest” has not been reviewed by a judicial

23 officer and to substitute instead “whose terms of pretrial release” have not been reviewed by a

24

25

3 In this regard, Mr. Telfeyan indicated that plaintiffs seek “an order declaring

26

unconstitutional and enjoining the use of the bail schedule for the class . . . . In addition, Plaintiffs believe that an injunction that outlines the framework for a replacement, non-monetary process for

27

the class would be helpful.” (Plaintiffs’ Response to Court’s Inquiry, Dkt. No. 181 at 2 (“Plaintiffs’ Response to Inquiry”).) The response contributed further to the Court’s continuing

28 concern regarding Mr. Telfeyan’s adequacy.

2

Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 3 of 10

United States District Court Northern District of California

1 judicial officer in light of the fact that judicial officers’ review of arrests for probable cause occurs

2 independently of any individualized judicial determination of the terms of pretrial release. (Id.)

3 Next, CBAA suggested that subsection (iii) be modified in order to exclude from the class “those

4 arrestees who are eligible to make a §1269c application, but who either have chosen not to . . . or

5 who have done so and are still awaiting review by a judicial officer.” (Dkt. No. 185 (emphasis in

6 original).) Moreover, CBAA expressed concerns that the Court’s proposed definition would not

7 satisfy ascertainability by virtue of its inclusion of the terms “cannot afford” and “because.” (Id.)

8

In its January 16, 2018 scheduling order, after denying plaintiffs’ and CBAA’s motions for

9 summary judgment, the Court expressed lingering concerns over the adequacy of counsel and gave

10 Mr. Telfeyan until February 8, 2018 to identify additional counsel to represent the proposed class

11 jointly. (Dkt. No. 192.) Mr. Telfeyan notified the Court on February 2, 2018 that Equal Justice

12 Under Law is now joined by Robert E. Sims and Steven M. Bauer from Latham & Watkins LLP

13 as co-counsel. (Dkt. No. 203.)

14

In light of the parties’ submissions, and for the reasons discussed below, the Court

15 CERTIFIES the following class:

16

All pre-arraignment arrestees (i) who are, or will be, in the custody of the San

Francisco Sheriff; (ii) whose bail amount is determined by the Felony and

17

Misdemeanor Bail Schedule as established by the Superior Court of California,

18

County of San Francisco; (iii) whose terms of pretrial release have not received an

individualized determination by a judicial officer; and (iv) who remain in custody

19

for any amount of time because they cannot afford to pay their set bail amount.

20 II. LEGAL FRAMEWORK

21

Under Federal Rule of Civil Procedure 23(a), the Court may certify a class only where “(1)

22 the class is so numerous that joinder of all members is impracticable; (2) there are questions of law

23 or fact common to the class; (3) the claims or defenses of the representative parties are typical of

24 the claims or defenses of the class; and (4) the representative parties will fairly and adequately

25 protect the interests of the class.” Fed. R. Civ. P. 23(a). Courts refer to these four requirements as

26 “numerosity, commonality, typicality[,] and adequacy of representation.” Mazza v. Am. Honda

27 Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012).

28

Once the threshold requirements of Rule 23(a) are met, plaintiffs must then show “through

3

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United States District Court Northern District of California

1 evidentiary proof” that a class is appropriate for certification under one of the provisions of Rule

2 23(b). Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Here, plaintiffs seek

3 certification under Rule 23(b)(2), which requires plaintiffs to establish that the “party opposing the

4 class has acted or refused to act on grounds that apply generally to the class, so that final

5 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

6 Fed. R. Civ. P. 23(b)(2); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir.

7 2011) (“Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought

8 is declaratory or injunctive.”) (internal quotation marks omitted).

9

“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap

10 with the merits of the plaintiff’s underlying claim[.]’” Amgen, Inc. v. Conn. Ret. Plans & Trust

11 Funds, 133 S. Ct. 1184, 1194 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351

12 (2011)); see also Mazza, 666 F.3d at 588. The court considers the merits to the extent they

13 overlap with the Rule 23 requirements. Ellis, 657 F.3d at 983. Nevertheless, “Rule 23 grants

14 courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen, 133

15 S. Ct. at 1194–95. If a court concludes that the moving party has met its burden of proof, then the

16 court has broad discretion to certify the class. Zinser v. Accufix Research Inst., 253 F.3d 1180,

17 1186 (9th Cir. 2001).

18 III. DISCUSSION

19

Plaintiffs contend that they have established all requirements for certification of an

20 injunctive relief class under Rule 23(b)(2). CBAA challenges the typicality and adequacy of 21 representation elements of Rule 23(a).4 Moreover, CBAA argues that the proposed class is not 22 ascertainable.5 The Court will first address the Rule 23(a) and 23(b)(2) requirements followed by

23

24

4 With respect to numerosity, CBAA stated at oral argument that “if the class is clearly defined, there is likely not to be a dispute over that particular aspect of class cert.” (See Transcript

25

of Proceedings Held on December 12, 2017, Dkt. No. 186 at 52:14–16 (“Transcript”).) Moreover, it indicated that it opposed commonality only to the extent that the definition “would include

26

arrestees who already received an individualized determination and weren’t subject to the bail schedule . . . .” (Id. at 53.) The Court’s certified class definition assuages both of these concerns.

27

5 In its opposition to plaintiffs’ motion, CBAA objects to plaintiffs’ citation to, and

28

reliance on, certain articles by Newsweek and the United Way Bay Area. (CBAA’s Opposition to Plaintiffs’ Motion for Class Certification, Dkt. No. 158 at 13 (“CBAA’s Opposition”).) CBAA

4

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1 ascertainability.6

2

A. Numerosity

3

Rule 23(a) requires that the proposed class be “so numerous that joinder of all members is

4 impracticable.” Fed. R. Civ. P. 23(a)(1). As indicated at oral argument, neither CBAA nor the

5 Sheriff contests that the numerosity requirement is met in the instant case. The Court concurs that

6 the numerosity requirement is satisfied.

7

B. Commonality

8

Commonality requires that the class members’ claims “depend upon a common contention

9 such that determination of its truth or falsity will resolve an issue that is central to the validity of

10 each claim in one stroke.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013)

11 (internal quotation marks omitted). “Rule 23(a)(2) has been construed permissively.” Hanlon v.

12 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). “[T]he key inquiry is not whether the

13 plaintiffs have raised common questions . . . but rather, whether class treatment will ‘generate

14 common answers apt to drive the resolution of the litigation.’” Abdullah, 731 F.3d at 957 (quoting

15 Dukes, 564 U.S. at 350) (emphasis in original). “This does not, however, mean that every

16 question of law or fact must be common to the class; all that Rule 23(a)(2) requires is ‘a single

17 significant question of law or fact.’” Id. (quoting Mazza, 666 F.3d 581 at 589) (emphasis in

18 original). “[F]or purposes of Rule 23(a)(2), even a single common question will do.” Dukes, 564

19 U.S. at 359 (alteration and quotation marks omitted).

20

The Court finds that plaintiffs have demonstrated sufficient commonality to satisfy Rule

21 23(a)(2) because the resolution of one question, that is, whether the Sheriff’s use of the Bail

22

23 does so on three grounds: (1) neither article is properly authenticated pursuant to Federal Rule of

24

Evidence 901; (2) neither article is supported by the declaration testimony of a witness with knowledge that the articles are what they claim to be; and (3) the content of the articles is

25

inadmissible hearsay. (Id.) The Court agrees with the substance of CBAA’s objections, sustains the objections, and has not incorporated the contents of the articles into its analysis.

26

6 To the extent plaintiffs’ and CBAA’s initial arguments still apply to the Court’s certified

27

class definition, the Court addresses them herein. The Court does not address arguments that have been mooted by changes made to plaintiffs’ proposed class definition or by concessions made by

28 the parties at oral argument or in subsequent filings.

5

Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 6 of 10

United States District Court Northern District of California

1 Schedule prior to arraignment violates the Equal Protection or Due Process clauses of the

2 Fourteenth Amendment, will resolve “in one stroke” all class members’ claims. Abdullah, 731

3 F.3d at 957; see also Rodriguez v. Hayes, 591 F.3d 1105, 1122–24 (9th Cir. 2010) (finding

4 commonality even though class members were detained pursuant to different statutes and under

5 different factual circumstances because a single question, namely, whether a bond hearing was

6 required for individuals detained longer than six months, was “posed by the detention of every

7 member of the class and their [individual claims would] largely be determined by its answer”).

8 Further, in keeping with the purpose of class action litigation, settling this common question

9 would “render management of [proposed members’] claims more efficient for the court” and

10 “would also benefit many of the putative class members by obviating the severe practical concerns 11 that would likely attend them were they forced to proceed alone.” Rodriguez, 591 F.3d at 1123.7

12

C. Typicality

13

“The typicality requirement looks to whether the claims of the class representatives [are]

14 typical of those of the class, and [is] satisfied when each class member’s claim arises from the

15 same course of events, and each class member makes similar legal arguments to prove the

16 defendant’s liability.” Rodriguez, 591 F.3d at 1124 (internal quotation marks omitted). “The

17 purpose of the typicality requirement is to assure that the interest of the named representative

18 aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

19 1992). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are

20 reasonably co-extensive with those of absent class members; they need not be substantially

21 identical.” Hanlon,150 F.3d at 1020. The test of typicality “is whether other members have the

22 same or similar injury, whether the action is based on conduct which is not unique to the named

23

24

7 CBAA’s primary concern with respect to commonality—that plaintiffs’ proposed class is

25

over-inclusive to the extent it would include (i) arrestees who received an individualized determination pursuant to California Penal Code section 1269c and whose bail amount, as a result,

26

was set at an amount different from the scheduled amount; and/or (ii) arrestees detained after arraignment—is moot in light of the Court’s certified class definition. The Sheriff “agrees that

27

this case presents questions of law that are common to members of the class . . . .” (Sheriff Vicki Hennessy’s Response to Plaintiffs’ Motion for Class Certification, Dkt. No. 157 at 3 (“Sheriff’s

28 Response to Motion”).)

6

Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 7 of 10

United States District Court Northern District of California

1 plaintiffs, and whether other class members have been injured by the same course of conduct.”

2 Hanon, 976 F.2d at 508 (internal quotation marks omitted). “Where the challenged conduct is a

3 policy or practice that affects all class members, . . . the cause of the injury is the same”; thus, the

4 analysis requires “comparing the injury asserted in the claims raised by the named plaintiffs with

5 those of the rest of the class.” Armstrong v. Davis, 275 F.3d 849, 868–69 (9th Cir. 2001),

6 abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005).

7

The Court finds the typicality requirement satisfied. All class members had their bail

8 amounts set by the Bail Schedule and were unable to afford their set bail amounts. CBAA’s

9 argument that plaintiffs are not typical of the class because neither of them remained in custody

10 due to her inability to afford bail is unavailing. CBAA points to the fact that plaintiff Patterson

11 was ultimately, after having spent approximately 29 hours in jail, able to pay the surety bail agent

12 a deposit amount of $1,500 with the help of family members. As to plaintiff Buffin, CBAA

13 argues that she made a “personal choice” to not attempt to obtain financial help from family

14 members or friends so that she could post a bail bond. (CBAA’s Opposition at 11.) Given these

15 circumstances, CBAA avers that plaintiffs lack a common interest in representing the class and do

16 not even appear to be members of the proposed class. However, CBAA’s focus on plaintiffs’

17 potential ability to obtain money from third parties does not persuade: plaintiffs were personally

18 unable to pay their set bail amounts, and as a result spent longer periods in jail than they otherwise 19 would have.8 The Court is not willing to exclude individuals from the class based on whether or

20 not they could ask friends and family members for bail money.

21

CBAA’s additional argument that plaintiffs’ claims are not typical because plaintiffs’

22 detentions predated the implementation of the Public Safety Assessment (“PSA”) Tool is also

23 unavailing. As the Sheriff noted and plaintiffs confirmed, “Plaintiffs claim that California’s

24 statutory scheme is unconstitutional notwithstanding the current or past operation of the OR

25 Project, and . . . [CBAA’s] arguments for the scheme’s constitutionality likewise do not depend on

26

27

8 Plaintiffs have both stated that if they had personally been able to pay their set bail amounts they “would immediately pay for [their] freedom.” (Dkt. No. 136-7 ¶ 6; Dkt. No. 136-12

28 ¶ 6.)

7

Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 8 of 10

United States District Court Northern District of California

1 the OR Project’s existence or manner of operation . . . .” (Plaintiffs’ Reply at 13; see also

2 Sheriff’s Response to Motion at 4.) Thus, the typicality of plaintiffs’ claims is unaffected by the 3 implementation of the PSA Tool on April 30, 2016.9

4

The Court finds that plaintiffs’ claims are typical of those of the certified class members, as

5 both plaintiffs’ claims and those of the class members arise from the Sheriff’s use of the Bail

6 Schedule. The injury alleged is the same injury suffered by all of the certified class members, that

7 is, the violation of the class members’ Due Process and Equal Protection rights through the

8 Sheriff’s use of the Bail Schedule. Similarly, all class members share the remedy sought, namely,

9 an order declaring unconstitutional and enjoining the Sheriff’s use of the Bail Schedule.

10

D. Adequacy of Representation

11

Rule 23(a)(4) permits the certification of a class only if “the representative parties will

12 fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In this regard,

13 the Court must consider: “(1) [whether] the representative plaintiffs and their counsel have any

14 conflicts of interest with other class members, and (2) [if] the representative plaintiffs and their

15 counsel [will] prosecute the action vigorously on behalf of the class.” Staton v. Boeing Co., 327

16 F.3d 938, 957 (9th Cir. 2003).

17

Here, CBAA has not raised any potential conflicts of interest, and the Court cannot discern

18 any in this case.10 While the Court previously harbored concerns regarding plaintiffs’ counsel’s

19 adequacy to represent the proposed class, the Court is now satisfied in light of his recent filing that

20 plaintiffs’ counsel, now joined by and Robert E. Sims and Steven M. Bauer of Latham & Watkins

21 LLP as co-counsel, will prosecute this action vigorously moving forward and adequately represent

22 the interests of the class members.

23 9 CBAA would appear to agree in light of this clarification by plaintiffs on reply.
24 Specifically, CBAA noted in its opposition that “[t]o the extent that Plaintiffs’ . . . claims will depend upon the role and/or use of the Public Safety Assessment Tool in San Francisco, the
25 Plaintiffs’ claims are not typical of the class claims.” (CBAA’s Opposition at 11) (emphasis supplied).
26 10 Rather, CBAA’s argument against adequacy mirrors its argument against typicality—
27 that plaintiffs are not members of the proposed class because neither of them remained in custody due to her inability to afford bail. Because the Court addressed this argument previously, it need
28 not do so again here.
8

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United States District Court Northern District of California

1

E. Rule 23(b)(2)—Injunctive Relief Class

2

CBAA does not dispute the propriety of an injunctive relief class under Rule 23(b)(2).

3 Accordingly, and because a “single injunction or declaratory judgment would provide relief to

4 each member of the class,” the Court finds that the certified class meets the requirements of Rule

5 23(b)(2). Dukes, 564 U.S. at 360.

6

F. Ascertainability

7

CBAA argues that the proposed class is not ascertainable because the phrase “cannot

8 afford” is ambiguous. (CBAA’s Opposition at 6.) According to CBAA, “the class must be

9 sufficiently definite so that it is feasible for the court to determine the membership by reference to

10 objective criteria.” (Id. at 5 (internal quotation marks omitted).) CBAA does not persuade. The

11 Ninth Circuit has not adopted an ascertainability requirement. See Briseno v. ConAgra Foods, 12 Inc., 844 F.3d 1121, 1124 n.4 (9th Cir. 2017).11 Moreover, it has specifically held that “Rule 23

13 does not impose a freestanding administrative feasibility prerequisite to class certification.” Id. at

14 1126. Accordingly, the Court finds that plaintiffs’ inclusion of the phrase “cannot afford” in its

15 proposed class definition does not preclude certification.

16 IV. CONCLUSION

17

For the foregoing reasons, the Court ORDERS as follows:

18

1. Plaintiffs’ Motion is GRANTED AS MODIFIED BY THE COURT. The Court CERTIFIES

19 the following class:

20 \\

21 \\

22 \\

23

24

11 With respect to 23(b)(2) classes specifically, the logic of Briseno is particularly apt given that the focus of such classes is on the indivisible nature of the remedy sought. See Cole v.

25

City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016) (“The decisions of other federal courts and the purpose of Rule 23(b)(2) persuade us that ascertainability is not an additional requirement for

26

certification of a (b)(2) class seeking only injunctive and declaratory relief.”); Shelton v. Bledsoe, 775 F.3d 554, 563 (3d Cir. 2015) (“The nature of Rule 23(b)(2) actions, the Advisory Committee’s

27

note on (b)(2) actions, and the practice of many of [sic] other federal courts all lead us to conclude that ascertainability is not a requirement for certification of a (b)(2) class seeking only injunctive

28 and declaratory relief . . . .”).

9

Case 4:15-cv-04959-YGR Document 214 Filed 02/26/18 Page 10 of 10

United States District Court Northern District of California

1

All pre-arraignment arrestees (i) who are, or will be, in the custody of the San

2

Francisco Sheriff; (ii) whose bail amount is determined by the Felony and

Misdemeanor Bail Schedule as established by the Superior Court of California,

3

County of San Francisco; (iii) whose terms of pretrial release have not received an

individualized determination by a judicial officer; and (iv) who remain in custody

4

for any amount of time because they cannot afford to pay their set bail amount.

5

2. The Court APPOINTS lead plaintiffs Riana Buffin and Crystal Patterson as class

6 representatives of the certified class.

7

3. The Court APPOINTS Phil Telfeyan, Catherine Sevcenko, Rebecca Ramaswamy, and

8 Marissa Hatton of Equal Justice Under Law, and Robert E. Sims and Steven M. Bauer of Latham

9 & Watkins LLP as class counsel.

10

This Order terminates Docket Numbers 134, 137, 138, 139, and 140.

11

IT IS SO ORDERED.

12

13 Dated: February 26, 2018 14 15

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28 10

 
 Case 4:15-cv-04959-YGR Document 314 Filed 03/04/19 Page 1 of 41

United States District Court Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

RIANA BUFFIN, ET AL.,

CASE NO. 15-cv-04959-YGR

7

Plaintiffs,

ORDER GRANTING PLAINTIFFS’ MOTION

8

vs.

FOR SUMMARY JUDGMENT; DENYING CBAA’S CROSS-MOTION FOR SUMMARY

JUDGMENT; DENYING PLAINTIFFS’

9

CITY AND COUNTY OF SAN FRANCISCO, ET

MOTION TO REVOKE CBAA’S

AL., 10

INTERVENOR STATUS

Defendants.

Re: Dkt. Nos. 282, 300, 287

11

12

Plaintiffs challenge the use of San Francisco’s Felony and Misdemeanor Bail Schedule1 as

13 a basis for defendant Sheriff Vicki Hennessy (the “Sheriff”) to release detainees prior to

14 arraignment where those detainees do not have the means to afford the amounts set forth therein.

15 Plaintiffs argue that plausible alternatives exist which would allow for their release and that the

16 continued use of such a schedule violates the Due Process and Equal Protection clauses of the

17 United States Constitution. When the Sheriff refused to defend the use of the Schedule, the Court

18 granted California Bail Agents Association (“CBAA”) limited intervenor status.

19

Now before the Court are plaintiffs’ motion to revoke CBAA’s intervenor status, and

20 plaintiffs’ and CBAA’s cross-motions for summary judgment on plaintiffs’ Equal Protection and 21 Due Process claims.2 Having carefully considered the pleadings in this action, the fully-briefed

22 motions, and the hearing held on January 8, 2019, and for the reasons set forth below, the Court

23

24

1 See Dkt. No. 283-2 (the “Bail Schedule” or “Schedule”). For purposes of this action, the

Court presumes that the parties agree that 2017 Bail Schedule, (see id.), is the same or

25 substantially similar to the one in use in 2015.

26

2 See Plaintiffs’ Motion to Revoke CBAA’s Intervenor Status (“Motion to Revoke”), Dkt.

No. 287; Plaintiffs’ Motion for Summary Judgment (“Plaintiffs’ MSJ”), Dkt. No. 282; and 27 CBAA’s Opposition to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for Summary

28 Judgment (“CBAA’s Cross-MSJ”), Dkt. No. 300.

Case 4:15-cv-04959-YGR Document 314 Filed 03/04/19 Page 2 of 41

United States District Court Northern District of California

1 DENIES plaintiffs’ motion to revoke CBAA’s intervenor status; GRANTS plaintiffs’ motion for

2 summary judgment; and DENIES CBAA’s cross-motion for summary judgment on the terms set

3 forth herein.

4 I. 5

FACTUAL BACKGROUND The Court finds the following facts not subject to reasonable dispute:

6

A. Factual Overview3

7

San Francisco police arrested plaintiff Riana Buffin on Monday, October 26, 2015 for

8 “grand theft of personal property” (Cal. Penal Code (“Penal Code”) § 487(a)) and “conspiracy to 9 commit a crime” (id. § 182(a)(1)). (Dkt. No. 136-8.)4 According to her “booking card,” Ms.

10 Buffin, at the time 19 years old, was booked into jail at 11:33 p.m. (Id.) She was informed that

11 her bail amount was set at $30,000, that is, the combined amount of $15,000 for each booking

12 charge pursuant to the Bail Schedule. (Id.) The Schedule provides, “[f]or all unscheduled

13 felonies, the bail amount is $15,000[,]” and with respect to conspiracy, if the underlying felony is

14 identified, the amount is the “same as [the] underlying” felony or, if not specified, then $15,000.

15 (Bail Schedule at 2 (emphases removed).) Here, Penal Code section 487(a) is not scheduled,

16 hence the $15,000. Under either formulation for the conspiracy charge, an additional $15,000 was

17 properly set in accordance with the Bail Schedule.

18

Ms. Buffin did not post bail because she could not afford it, testifying:

19

Q. And why didn’t you call a bail agent?

20

A. Because we or my mom didn’t have the money for a bail agent, and they want a

fortune. . . .

21

Q. Was there an amount that you could have afforded[?] . . . .

22

23

3 The Court notes that the parties cross reference facts found by the Court in its prior

24 summary judgment order. Order Denying CBAA’s Motion for Summary Judgment; Denying Plaintiffs’ Motion for Summary Judgment (“MSJ Order”), Dkt. No. 191. Thus, where appropriate,

25 the Court cites back to the evidence submitted then and which is not in dispute, such as plaintiff

Buffin’s booking card. 26

4 The Court notes that the exhibit at Docket Number 136-8 was previously locked at 27 plaintiffs’ counsel’s request, to be refiled at a later date. The document was never refiled, and no

28 basis exists for sealing. The Court hereby UNSEALS Docket Number 136-8.

2

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United States District Court Northern District of California

1

A. No.5

2 The District Attorney’s office ultimately decided not to file formal charges against Ms. Buffin, and

3 she was released. Despite having been detained on a Monday night, Ms. Buffin was never taken

4 to court on Tuesday or Wednesday for an initial appearance. Notably, by the time of her release

5 on Wednesday night, she had spent approximately 46 hours in custody, and normal court

6 operations had long since ceased. As a consequence of her detention, Ms. Buffin lost her job at

7 the Oakland Airport. (See Buffin Depo Tr. at 52:3– 53:2.)

8

San Francisco police arrested plaintiff Crystal Patterson on Tuesday, October 27, 2015 at

9 3:49 p.m. and, according to her booking card, she was detained for “assault with force likely to

10 cause great bodily injury,” Penal Code section “245(a)(1) [sic].” (Dkt. No. 283-12 at ECF p. 4.)6

11 Ms. Patterson, at the time 29 years old, was booked into jail, where she was informed that her bail

12 amount was set at $150,000. Again, this represented the combined amount of $75,000 each for

13 two separate counts of assault under Penal Code section “245(a)(1) [sic].” (Id.) Ms. Patterson,

14 too, could not afford the $150,000 for immediate release, nor was she taken to court:

15

Q. So you told [the bail agent], I can’t afford that?

16

A. Right. Q. And then the second number was a number you could afford?

17

A. I couldn’t afford it. I had to borrow from my family.7

18 After approximately 29 hours of incarceration, and prior to her initial appearance, Ms. Patterson

19 was released after her uncle paid an “initial down payment” of $1,500 on a $15,000 non-

20

21

22

5 See Exh. 1 to Declaration of Robert E. Sims ISO Plaintiffs’ Reply ISO Plaintiffs’ MSJ

23 and Opposition to CBAA’s Cross-MSJ (“Sims Decl. ISO Plaintiffs’ Reply”), Dkt. No. 306, (“Buffin Depo Tr.”) at 49:4–17, Dkt. No. 306-1.

24 6 The Court notes that “assault with force likely to cause great bodily injury” is found in
25 Penal Code section 245(a)(4) and carries a scheduled bail amount of $50,000. See Bail Schedule at 3. Penal Code section 245(a)(1) concerns “[a]ssault with deadly weapon,” and the scheduled
26 bail amount for the same is $75,000. Id. This discrepancy is not relevant for purposes of the 27 instant motions.

28

7 Exh. 2 to Sims Decl. ISO Plaintiffs’ Reply at 37:19–24, Dkt. No. 306-2.

3

Case 4:15-cv-04959-YGR Document 314 Filed 03/04/19 Page 4 of 41

United States District Court Northern District of California

1 refundable premium to secure a bond from a surety bail agent.8 The surety bail contract provided:

2

I understand that the premium owing and/or paid on this bond is fully earned upon

3

release of the defendant from custody. The fact that the defendant may have been improperly arrested or his/her bail reduced, or his/her case dismissed, shall not

4

obligate the return or forgiveness of any portion of the premium.9

5 Following Ms. Patterson’s release, the District Attorney decided not to file formal charges against

6 her and discharged the case.10

7

The evidence gathered in this case reveals that, like Ms. Patterson, over 99% of arrestees

8 who are released on bail in San Francisco obtain surety bonds through contracts with bail agents.

9 In San Francisco, in 2016, the largest number of bonds issued ranged in amounts between $10,000

10 and $50,000, with the average bail amount posted at $56,000 and the median bail posted at

11 $43,000.11 Bail agents are legally allowed to charge a non-refundable premium of up to 10% of

12 the total bail amount for their services.12 Often, third-party family members, friends, or employers

13

14

8 Ms. Patterson’s uncle paid the surety bail agent the $1,500 down payment on her behalf,

and her sister and grandmother co-signed the surety bail contract. Dkt. No. 136-1 ¶¶ 13–14. The

15 record does not reveal whether the balance of the $15,000 was paid or demanded.

16

9 Dkt. No. 25-1 at ECF p. 4 (emphasis in original).

17

10 Ms. Patterson’s and Ms. Buffin’s arrests occurred before Sheriff Hennessy assumed

18 office. The parties do not dispute that appropriate bail amounts were assigned given both plaintiffs’ charges and corresponding Bail Schedule entries.

19 11 See Exh. 8 to Declaration of Robert E. Sims ISO Plaintiffs’ MSJ (“Sims Decl. ISO
20 Plaintiffs’ MSJ”), Dkt. No. 283, (“Do the Math”) at 4, Dkt. No. 283-8.

21

12 See Do the Math at 2. CBAA disputes the June 2017 Office of the Treasurer & Tax

Collector for the City and County of San Francisco’s Financial Justice Project report entitled “Do 22 the Math: Money Bail Doesn’t Add Up for San Francisco” as not being properly authenticated and

23 as inadmissible hearsay. CBAA’s Cross-MSJ at 24.

24

Importantly, at the hearing on the instant motions, CBAA conceded that, while it does

“dispute” certain evidence in the record, it does not seek a trial to resolve any such disputes.

25 Dkt. No. 313 (“January 8, 2019 Hearing Tr.”) at 4:10–14. Trial would have obviously allowed for cross-examination of all evidence presented, including challenges to its reliability, but this right

26 was expressly waived.

27

With respect to the specific objections, the Court finds that as an official publication issued

28

by the Office of the Treasurer & Tax Collector for the City and County of San Francisco, the report is self-authenticating, see Fed. R. Evid. 902(5), and admissible under the hearsay exception

4

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United States District Court Northern District of California

1 of the arrestee will co-sign with a detainee to obtain a surety bond.13 In fact, bail companies rely 2 on these co-signors to help ensure that the detainee returns to court.14 Moreover, recent studies

3 corroborate plaintiffs’ own experiences, estimating in 2017 that “30% of custodial arrests . . . will

4 be declined for prosecution each year . . . .”15

5

Relevant here, California law requires superior court judges to “prepare, adopt, and

6 annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all

7 misdemeanor and infraction offenses except Vehicle Code infractions.” Penal Code § 1269b(c).

8 In so doing, judges are required to consider the seriousness of the offense charged. Id. § 1269b(e).

9 In this case, the San Francisco superior court established the referenced Bail Schedule, which is

10 comprised principally of a three-columned table that identifies an “Offense,” or Penal Code

11 section, a short “Description” thereof, and a fixed “Bail” amount. (See generally Bail Schedule.)

12 The Sheriff consults the Bail Schedule to determine an arrestee’s bail amount. Specifically, the

13 Sheriff locates each “booking charge,” tabulates the amounts designated per charge, and releases

14 the detainee upon payment of that sum. The Sheriff applies the process mechanically, making no

15 individualized assessment regarding public safety, flight risk, ability to pay, or strength of the

16 evidence.

17

The record is devoid of any evidence upon which the amounts in the Bail Schedule are

18 determined or justified. For sake of comparison, CBAA’s 30(b)(6) witness testified:

19

20 for public records, see Fed. R. Evid. 803(8). Further, this was a study upon which the City was to implement policy, which adds reliability to the factual representations contained therein. While
21 CBAA may not agree with the report’s conclusions, CBAA has not made any specific objection to 22 the process, data collection, or data itself. Thus, CBAA’s evidentiary objections to the report are
OVERRULED.

23 13 See CBAA’s Responsive Separate Statement of Disputed and Additional Facts re:
24 Plaintiffs’ MSJ (“CRSS”) Issue 1 Fact 14, Dkt. No. 301; Do the Math at 2; Exh. 4 to Sims Decl. ISO Plaintiffs’ MSJ (“Clayton Depo Tr.”) at 105:9–23, Dkt. No. 283-4.
25 14 See Dkt. No. 303-7 at 77:17–78:4; Exh. 9 to Declaration of Krista L. Baughman ISO
26 CBAA’s Opposition to Plaintiffs’ MSJ and Cross-MSJ (“Baughman Decl. ISO CBAA’s Cross27 MSJ”), Dkt. No. 303, (“Morris Report”) at 10, Dkt. No. 303-9.

28

15 See Exh. 6 to Sims Decl. ISO Plaintiffs’ MSJ (“Sheriff’s Department Memo”) at 1, Dkt. No. 283-6.

5

Case 4:15-cv-04959-YGR Document 314 Filed 03/04/19 Page 6 of 41

United States District Court Northern District of California

1 Q: So that’s 20,000 more than driving under the influence, right?

2

A: Yes.

Q: And 5,000 more than driving under the influence and actually causing

3

injury; is that right?

4

A: That’s right.

Q: Do you know why receipt of a stolen vehicle has a higher bail than driving

5

under the influence and causing injury?

A: I don’t.

6

Q: Can you tell me how it protects public safety to have a bail that’s higher for

receipt of a stolen vehicle than it is for driving drunk and injuring someone?

7

A: I can’t -- I don’t know what the judges were thinking on this. I don’t know

8

what the date [sic] would show in terms of, you know, are some of these

offenses more likely to fail to appear than others? Or are some of them

9

more likely to commit additional crimes, which is a consideration under the

constitution and the statutory scheme. But I don’t know why the judges did

10

this schedule the way they did.

11 (Clayton Depo Tr. at 50:1–22.) Rather, the evidence reveals that San Francisco’s Bail Schedule is

12 among the highest in the state. (Dkt. No. 283-10 at 37:22–24.) No reason or process is provided

13 for the basis upon which the amounts were determined. Meanwhile, those arrestees who either

14 can afford the amount of bail identified in the Bail Schedule or can post a surety bond for the same

15 are simply released.

16

Under state law, some arrestees may apply to a magistrate for pre-arraignment release on

17 lower bail or on his or her own recognizance (“OR”). See Penal Code § 1269c. This application

18 may be made without a hearing. Id. Ironically, individuals charged with certain offenses are

19 ineligible to apply pre-arraignment for either OR release or a reduction in bail, but, if they pay the

20 applicable amount under the Bail Schedule, the Sheriff may release them absent some other legal

21 impediment to their release.16 Id.

22

In setting bail, a judge or magistrate may consider the information included in a report

23 prepared by an investigative staff employed by the court for the purpose of recommending

24

25 16 Subject to narrow exceptions, in California a person accused of committing an offense
26 requiring them to remain in custody must be taken before a magistrate judge for arraignment within 48 hours of his or her arrest, not including Sundays and holidays. Penal Code § 825(a)(1).
27 After a hearing in open court, a judge may order release on the appropriate conditions. 28 Id. § 1270.1.
6

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1 whether a detainee should be released on his or her OR. Penal Code §§ 1275(a)(1), 1318.1. In

2 San Francisco, the San Francisco Pretrial Diversion Project contracts with the Sheriff’s

3 Department to provide certain pretrial services, including the OR Project. One of the purposes of

4 the OR Project is to provide the court with the same information prior to arraignment.

5

On April 30, 2016, the OR Project staff began using a Public Safety Assessment Tool (the

6 “PSA Tool”) developed by the Laura and John Arnold Foundation. The purpose of the PSA Tool

7 is to make an individualized assessment regarding the risk that an arrestee, if released pretrial, will

8 fail to appear or will engage in new criminal activity, and to generate a release recommendation

9 based on the assessed risk. Release recommendations (not decisions) are a function of (1) the

10 score generated by the PSA Tool and (2) a decision-making framework (“DMF”) prepared by a

11 working group that includes representatives from the San Francisco Superior Court, Sheriff’s

12 Department, District Attorney, Public Defender, and Conflict Counsel.

13

Since the PSA Tool has been in use, it has changed the OR Project staff’s various

14 procedures. Previously, the OR Project staff prepared a report called an “OR Workup” after

15 interviewing the arrestee. The OR Workup consisted of the information gathered from the

16 interview and references, a criminal history report, a summary of the criminal history report, and a

17 cover sheet. For those arrestees eligible for pre-arraignment release, the OR Workup was

18 presented to the duty judge.17 Otherwise, the court considered it at arraignment.

19

Since implementation of the PSA Tool, the OR Project staff are no longer required to

20 interview the arrestee. Rather, they prepare an OR Workup for each arrestee eligible for OR

21 release (whether at arraignment or before), which includes a summary of the arrestee’s individual

22 and criminal history, the criminal history printouts, the police report, and a cover sheet,

23 supplemented with a release recommendation generated by the PSA Tool and the DMF.

24 Presentation to the duty judge or at arraignment remain the same. There is no guaranteed timeline

25

26

27

17 The duty judge is the judicial officer assigned to rule on applications for pre-

28 arraignment release.

7

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1 for when the OR Workup will be completed.18

2

In terms of timing, the evidence unequivocally demonstrates that arrestees who post the

3 full amount of bail listed on the Bail Schedule can secure release more quickly than any other

4 category of arrestees.19 This is true even when an arrestee who posts the full bail amount has been

5 charged with a more serious offense than the indigent arrestee.20 By way of example only, the

6 Sheriff released on bail within several hours of arrest a person who had been charged in what

7 appeared to be a serious assault case involving an axe and requiring SWAT team management,

8 while an indigent, disabled individual who was also arrested for assault (her “deadly weapon” was

9 a cane) was held in custody for five days because she could not afford the felony bail. (Klement

10 Decl. ¶ 8.) There, the assault charge was ultimately reduced to a misdemeanor, and the individual

11 was released on her own recognizance. (Id.) Consistent with this example, research indicates that

12 individuals charged with serious or violent offenses who are able to secure release usually do so

13

14

15

18 For pre-arraignment applications, it is generally submitted for ruling to the duty judge the same working day the OR Project receives the arrestee’s fingerprint record. The OR Project

16 did not prepare an OR Workup for either plaintiff Buffin before she was released or plaintiff Patterson before she posted bail.

17 19 See, e.g., Plaintiffs’ Responsive Separate Statement (“PRSS”) Fact 6, Dkt. No. 307;
18 Clayton Depo Tr. at 84:20–85:2; id. at 85:8–10.

19

20 See Declaration of Tal H. Klement ISO Plaintiffs’ MSJ (“Klement Decl.”) ¶ 8, Dkt. No.

20

284. CBAA disputes Mr. Klement’s declaration testimony “to the extent that [p]laintiffs appear to be using him as an undisclosed expert offering opinions on the underlying data.” See CBAA’s

21 Cross-MSJ at 25. This objection is OVERRULED. Mr. Klement was not proffered as an expert, nor does he provide expert opinions. Instead, plaintiffs are only offering Mr. Klement’s testimony

22 as a summary witness for factual information under Federal Rule of Evidence 1006, and he

properly testifies as to matters which are squarely within his particularized firsthand knowledge 23 and experience as a San Francisco Deputy Public Defender. His personal knowledge of the Public

24 Defender and the Sheriffs’ data from the superior court’s case management system is sufficient to testify as a summary witness. See Ferrari Club of Am., Inc. v. Bourdage, 6:12-CV-06530 EAW,

25 2017 WL 1498080, at *6 (W.D.N.Y. Apr. 25, 2017) (“[P]ersonal knowledge of the records

themselves is sufficient to testify as a summary witness.”); see also Donlin v. Philips Lighting N.

26 Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009) (“When a lay witness has particularized knowledge by

virtue of her experience, she may testify—even if the subject matter is specialized or technical— 27 because the testimony is based upon the layperson’s personal knowledge rather than on

28 specialized knowledge within the scope of [Federal Rule of Evidence] 702.”).

8

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1 by posting bail.21 Moreover, with respect to some offenses, current law elevates bail over OR

2 release. That is, under the law, arrestees for certain offenses are ineligible for OR release before a

3 bail hearing or arraignment but bail is nevertheless an option for those very same offenses.22 This

4 effectively means that a wealthy arrestee who is charged with a violent offense can be released

5 from custody within a matter of hours, while an indigent arrestee can remain incarcerated for as

6 many as five days before seeing a judicial officer or the case is discharged for “lack of evidence.”

7 (Klement Decl. ¶ 17.)

8

Evidence further reveals that San Francisco arrestees who are released after posting

9 secured money bail are released, on average, 12.8 hours faster than arrestees who obtain release

10 through the OR Project. (PRSS Fact 6.) Nonetheless, “some people currently in California jails

11 who are safe to be released are held in custody solely because they lack the financial resources for

12 a commercial bond, and other people who may pose a threat to public safety have been able to

13 secure their release from jail simply because they could afford to post a commercial bond.”

14 (Workgroup Report at 25.) Consistent with plaintiffs’ experiences, and the Sheriff’s Department’s

15 2017 internal memorandum, evidence shows that one quarter of the arrests are dismissed or not

16 rebooked prior to arraignment. Thus, from 2016 to 2018, the number of felony charges filed

17 totaled 42,672. Of those, 10,923 were dropped or not rebooked, and an additional 441 were

18 reduced to misdemeanors, reflecting a combined total of 26%. (See Exh. B. to Klement Decl. at 1,

19

20

21 See Exh. 17 to Sims Decl. ISO Plaintiffs’ MSJ (“Workgroup Report”) at 25, Dkt. No.

21 283-17. CBAA disputes the Workgroup Report as not being properly authenticated and as

inadmissible hearsay. See CBAA’s Cross-MSJ at 24. The Court finds that as an official 22 publication issued by a workgroup established by the Chief Justice of the California Supreme

23

Court, the report is self-authenticating, see Fed. R. Evid. 902(5), and admissible under the hearsay exception for public records, see Fed. R. Evid. 803(8). Thus, CBAA’s evidentiary objection to the

24 report is OVERRULED.

25

22 For example, felony bail for domestic violence offenses is high, and those charged with

these offenses are ineligible for OR release before arraignment. However, an arrestee charged

26 with domestic violence who has sufficient resources can be released on bail within a matter of

hours, with virtually no supervision, and even if that individual may pose more of a threat than the 27 indigent individual who must remain in custody. Workgroup Report at 25–26; Klement Decl.

28 ¶ 17.

9

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1 Dkt. No. 284-2.) Finally, the record corroborates plaintiffs’ own experiences while held in pre-

2 arraignment detention. One to five days in jail can take a mental and physical toll on arrestees,

3 impact custody of their children, and, as happened here, lead to loss of employment. (See Klement

4 Decl. ¶ 2.)

5

B. Case-Related Background

6

1. Permissive Intervention

7

On March 6, 2017, the Court granted CBAA’s motion for permissive intervention

8 under Federal Rule of Civil Procedure 24(b). (Dkt. No. 119.) It did so under specific conditions

9 and for a very narrow purpose, namely to serve as a “zealous advocate” given, at that juncture,

10 “the absence of any defendant willing to defend the constitutionality of section 1269b[.]”

11 (Id. at 6–7.) The Court concurrently denied CBAA’s motion to intervene as of right under Rule

12 24(a)(2), reasoning, inter alia, that “CBAA’s interest in continuing to profit from the provision of

13 bail bonds” was “too remote from the core issues involved in the litigation.” (Id. at 4 (internal

14 quotation marks omitted).) While CBAA’s motives are not lost on the Court, in allowing CBAA

15 to intervene permissively the Court sought to ensure “two sets of well-crafted legal arguments and

16 a fully-vetted factual record.” (Id. at 7.) To that end, the parties engaged in substantial discovery.

17 That said, the Court contained the scope of CBAA’s intervention, by prohibiting it from

18 expanding the scope of the action or raising new issues, to simply defending the constitutionality

19 of Penal Code section 1269b.

20

2.

Penal Code section 1269b

21

The text of Penal Code section 1269b is restated in pertinent part below. The

22 statute commences with the duties of the Sheriff:

23

(a) The officer in charge of a jail in which an arrested person is held in custody . . . may

24

approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond executed by a certified, admitted surety

25

insurer . . . , to issue and sign an order for the release of the arrested person, and to set

a time and place for the appearance of the arrested person before the appropriate court

26

and give notice thereof.

27 With respect to the “schedule of bail” at issue here, subsections (b) through (d) require:

28 /// 10

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1

(b) If a defendant has appeared before a judge of the court . . . , the bail shall be in the

2

amount fixed by the judge at the time of the appearance. If that appearance has not been

made . . . [and], if no warrant of arrest has been issued, the amount of bail shall be

3

pursuant to the uniform countywide schedule of bail for the county in which the

defendant is required to appear, previously fixed and approved as provided in

4

subdivisions (c) and (d).

5

(c) It is the duty of the superior court judges in each county to prepare, adopt, and

6

annually revise a uniform countywide schedule of bail for all bailable felony offenses

and for all misdemeanor and infraction offenses except Vehicle Code infractions. . . .

7 (d) A court may, by local rule, prescribe the procedure by which the uniform countywide

8

schedule of bail is prepared, adopted, and annually revised by the judges. If a court does

not adopt a local rule, the uniform countywide schedule shall be prepared, adopted, and

9

annually revised by a majority of the judges.

10 Penal Code §§ 1296b(a)–(d). Among the little guidance in section 1269b regarding the creation of

11 the schedule is that, under subsection (e), the judges are to “consider the seriousness of the offense

12 charged.” The schedule is required to contain “a list of the offenses and the amounts of bail

13 applicable for each as the judges determine to be appropriate” plus a “general” catchall clause for

14 any offense not otherwise specifically listed. Id. § 1269b(f). Then, “[u]pon posting bail, the

15 defendant or arrested person shall be discharged from custody as to the offense on which the bail

16 is posted.” Id. § 1296b(g).

17

3. Previous Summary Judgment Order

18

In its previous 20-page summary judgment order, the Court detailed the reasons for

19 concluding that strict scrutiny review applies to plaintiffs’ Due Process and Equal Protection

20 claims. In so explicating, the Court cabined the relevant inquiry as follows: “(i) whether the

21 Sheriff, through use of the Bail Schedule, has significantly deprived plaintiffs of their fundamental

22 right to liberty, and, if so, (ii) whether, under the strict scrutiny standard of review, the Sheriff’s

23 use of the Bail Schedule is the least restrictive alternative for achieving the government’s

24 compelling interests.” (MSJ Order at 17.)

25

The Court concluded that the factual record remained in dispute, especially given the

26 Sheriff’s own objection to plaintiffs’ interpretation of the Sheriff’s data on the length of detention

27 for individuals who could not afford bail as compared to those who could. (Id. at 17–18.)

28 Moreover, given the disputes and sparse factual record, the Court determined that plaintiffs had 11

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1 “not met their initial burden as to the existence of a less restrictive alternative to achieve the

2 government’s interests as compared to the Sheriff’s use of the Bail Schedule.” (Id. at 18.)23 The

3 Court explained:

4

As plaintiffs concede, they must first make a prima facie showing in this regard. . . .

5

That is, they must make a showing of a “plausible, less restrictive alternative[],”Ashcroft

v. ACLU, 542 U.S. 656, 666 (2004) (emphasis supplied). The proposed alternative need

6

not be “more effective,” id. at 669 (emphasis supplied)—plaintiffs must show only that

it would be “at least as effective,” Reno v. ACLU, 521 U.S. 844, 874 (1997) (emphasis

7

supplied). The current record is insufficient on this point. . . . Plaintiffs’ prima facie

8

case need not rise to the level of scientific precision. However, given the absence of undisputed, competent evidence that the proffered alternative systems could be

9

administered feasibly in the specific context of the County, plaintiffs have failed to meet

their initial burden.

10

Once plaintiffs have made a showing of a plausible, less restrictive alternative, the

11

government has the burden of proof under the strict scrutiny standard. CBAA, having

12

stepped into the shoes of the Sheriff as intervenor, must show that plaintiffs’ proposed alternative would be less effective at serving the government’s compelling interest(s)

13

and/or more restrictive. Here, plaintiffs and CBAA agree that at a minimum the County

has a compelling interest in ensuring that arrestees appear for trial. . . . However, as

14

mentioned previously, the evidence of plausible, less restrictive alternatives to

furthering that interest is disputed (and, in many cases, given plaintiffs’ evidentiary

15

failures, was not admissible as proffered).

16 (Id. (footnotes omitted).)

17

The Court repeats herein, only as necessary, its analysis with respect to the finding that

18 strict scrutiny applies. The instant cross-motions for summary judgment address the parties’

19 respective showings under that standard of review.

20

4. Class Certification

21

After denying the prior cross-motions for summary judgment, the Court certified

22 the following class:

23

All pre-arraignment arrestees (i) who are, or will be, in the custody of the San Francisco

Sheriff; (ii) whose bail amount is determined by the Felony and Misdemeanor Bail

24

Schedule as established by the Superior Court of California, County of San Francisco;

25

(iii) whose terms of pretrial release have not received an individualized determination

26 23 The Court required plaintiffs to associate counsel before it would allow the class action
27 to proceed, after which counsel from Latham & Watkins joined the case. See Dkt. No. 186 at 28 43:10–44:4; see also Dkt. No. 178 at 1.
12

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1

by a judicial officer; and (iv) who remain in custody for any amount of time because

2

they cannot afford to pay their set bail amount.

3 (Dkt. No. 214 at 3.)24

4

5. Legislative Developments

5

On August 28, 2018, Governor Jerry Brown signed the California Money Bail

6 Reform Act (“S.B. 10”) into law,25 which was initially set to go into effect on October 1, 2019.

7 (CRSS Issue 2 Fact 13.) However, earlier this year, a referendum to overturn S.B. 10 qualified for

8 the November 3, 2020 statewide ballot.26 Approval by a majority of voters will be required before

9 S.B. 10 can take effect.27

10

As for the impetus behind S.B. 10, its authors recognized that “[o]n any given day,

11 approximately 60% of people in jail in California are either awaiting trial or sentencing” and that

12 “[m]any of those in California’s jails are there for no reason other than the fact that they are unable

13 to afford money bail.”28 Moreover:

14

15 24 CBAA’s continued objection to the use of the phrase “cannot afford” in the class
16 definition is rejected. The issue was fully briefed, and the Court will not revisit it now simply

because CBAA wants to base additional and irrelevant arguments thereon. 17

25 S.B. 10, 2018 Cal. Legis. Serv. Ch. 244 (Cal. 2018). 18

19

26 See https://www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures/.

20

27 See id.

21

28 Exh. 3 to Plaintiffs’ Request for Judicial Notice ISO MSJ, Dkt. No. 285, (“Senate

Report”) at 8, Dkt. No. 285-3. In connection with their motion for summary judgment, plaintiffs

22 request that the Court take judicial notice of: (i) S.B. 10; (ii) a document detailing the actions

taken by legislative committees in considering and passing S.B. 10, pulled from the website for 23 California Legislative Information; and (iii) the Report from the Senate Committee on Public

24 Safety regarding S.B. 10.

25

CBAA opposes only plaintiffs’ request as to the Senate Report, “to the extent Plaintiffs

seek judicial notice of the truth of any factual representations made in that document.” Dkt. No.

26 292 at 1; see also CBAA’s Cross-MSJ at 24. CBAA does not challenge the authenticity of the

Senate Report itself. The Court refers to the Senate Report here “as part of the familiar process of 27 consulting legislative history in order to illuminate legislative intent.” Brown v. City of

28

Pittsburgh, 586 F.3d 263, 267 n.2 (9th Cir. 2009) (emphasis supplied). The Court does not draw any conclusions about the truth of any factual representations made in the committee report but

13

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1

Even a short period of pretrial detention can result in loss of employment, housing, and

2

public benefits for the detained person – costs that then must be borne by family

members already struggling to make ends meet. Family members who are able to scrape

3

together enough money to pay a non-refundable fee to a for-profit bail company to

secure a loved-one’s release from jail often end up with long-term debt to the bail

4

company, even when their loved one is innocent of any wrongdoing and is never

5

convicted of a crime. . . .

6 (Senate Report at 9.) CBAA provides no evidence to the contrary. S.B. 10’s statutory history

7 reveals the Legislature’s decision to “remedy” California’s pretrial system by “reducing reliance

8 on money bail, supporting pretrial defendants with pretrial services, focusing detention resources

9 on those who pose a risk of danger, reducing racial disparities, and ensuring that people are not

10 left in jail simply because they cannot afford to pay for their release.” (Id.)

11

In relevant part, S.B. 10 prohibits monetary conditions of release in California, authorizing

12 Pretrial Assessment Services to release, without court approval and prior to arraignment, low-risk

13 and medium-risk arrestees with “the least restrictive nonmonetary condition or combination of

14 conditions that will reasonably assure public safety and the person’s return to court.” S.B. 10

15 §§ 1320.10(b), (c). More specifically, S.B. 10 requires the following, inter alia:

16

 Individuals arrested for misdemeanors (with certain exceptions) will be released within 12

17

hours. Id. § 1320.8.

18

 To determine eligibility for release under S.B. 10, all jurisdictions will be required to

19

generate for each arrestee who is arrested and booked, prior to arraignment or pre-

20

arraignment review, the results of a risk assessment “using a validated risk assessment

21

instrument, including the risk score or risk level.” Id. § 1320.9(a)(1).

22

23 notes only that certain representations regarding the impetus behind S.B. 10 are consistent with the 24 purposes stated in the text of S.B. 10 itself and the facts gathered in this action. Accordingly, and
because courts may take judicial notice of state statutes and their legislative history, plaintiffs’ 25 request for judicial notice is GRANTED in its entirety. See Anderson v. Holder, 673 F.3d 1089,
1094 n.1 (9th Cir. 2012) (“Legislative history is properly a subject of judicial notice.”); Lee v. City 26 of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (explaining that a court may take judicial notice of
undisputed matters of public record but not disputed facts stated therein); Oceanic Cal., Inc. v. 27 City of San Jose, 497 F. Supp. 962, 967 n.8 (N.D. Cal. 1980) (explaining that courts may take 28 judicial notice of state statutes).
14

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1

 Pretrial Assessment Services shall consider the risk score, the criminal charge,

2

supplemental information, and input from the victim to generate a report.

3

Id. §§ 1320.9(a)–(c).

4

 Individuals who are assessed as low risk to public safety and of failure to appear in court

5

(with certain exceptions) shall be released on their own recognizance, prior to arraignment

6

and without review by the court, “with the least restrictive nonmonetary condition or

7

combination of conditions that will reasonably assure public safety and the person’s return

8

to court.” Id. § 1320.10(b).

9

 Individuals who are assessed as medium risk (with certain exceptions) shall be released on

10

their own recognizance or on supervised own recognizance release, prior to arraignment

11

and without review by the court, “and with the least restrictive nonmonetary condition or

12

combination of conditions that will reasonably assure public safety and the person’s return

13

to court.” Id. § 1320.10(c).

14

 Individuals who are assessed as high risk shall be detained until arraignment.

15

Id. § 1320.10(h).

16

 Superior courts shall adopt a local rule with respect to pre-arraignment review of medium-

17

risk arrestees that “support[s] an effective and efficient pretrial release or detention system

18

that protects public safety and respects the due process rights of defendants.”

19

Id. § 1320.11(a). Moreover, superior courts shall consider annually “the impact of the

20

[local] rule on public safety [and] the due process rights of defendants[.]” Id.

21

 The Judicial Council shall establish options for conditions of release, which shall become

22

part of the recommendations made in the report created by Pretrial Assessment Services.

23

Id. § 1320.9(c).

24 S.B. 10 also requires counties to report to the state pretrial release and detention information

25 biannually, which includes information about the percentage of individuals released pretrial, the

26 percentage of those who fail to appear at a required court appearance, those who commit new

27 crimes while on pretrial release, and the rate of judicial concurrence with recommended conditions

28 of release. Id. § 1320.24(b). None of these provisions exist in Penal Code section 1296b. 15

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1

6. September 2018 Pretrial Conference

2

In anticipation of trial, post a period of additional discovery, the Court held a

3 pretrial conference. (See Dkt. Nos. 219, 278.) Thereat, plaintiffs, the Sheriff, and CBAA agreed

4 that, in light of the passage of S.B. 10, a bench trial was unnecessary and opted instead for another

5 round of cross-motions for summary judgment, and plaintiffs’ filing of a motion to revoke

6 CBAA’s intervenor status. (Dkt. No. 280 at 51:21–57:16.) The Court considers the latter motion

7 first.

8 II. 9

MOTION TO REVOKE CBAA’S INTERVENOR STATUS Plaintiffs submit that the Court should strip CBAA of its intervenor status on the grounds

10 that CBAA no longer has standing and cannot “stand in the shoes” of the Sheriff in light of the

11 passage of S.B. 10. (Motion to Revoke at 7.) Plaintiffs’ arguments fail to persuade.29

12

The Court granted intervenor status under Federal Rule of Civil Procedure 24(b).

13 Admittedly, “intervention does not carry with it an absolute entitlement to continue as a party until

14 termination of the suit.” Tasby v. Wright, 109 F.R.D. 296, 298 (N.D. Tex. 1985) (citing Morgan v.

15 McDonough, 726 F.2d 11, 14 (1st Cir. 1984)). Courts have authority to determine whether

16 intervenor status “continues to be viable” when faced with a motion to revoke that party’s

17 intervenor status. Mishewal Wappo Tribe of Alexander Valley v. Salazar, No. 5:09-cv-02502 EJD,

18 2012 WL 4717814, at *1 (N.D. Cal. Sept. 28, 2012), aff'd, 534 F. App’x 665 (9th Cir. 2013). This

19 authority stems from courts’ “inherent power to control the proceedings” before them. Id. A court

20 can therefore terminate intervention should the result of the inquiry weigh in favor of such an

21 order. Id.

22 ///

23

24

29 In connection with its opposition to plaintiffs’ motion to revoke CBAA’s intervenor

25 status, CBAA requests that the Court take judicial notice of the California Secretary of State’s

webpage entitled “Initiatives and Referenda Cleared for Circulation.” Dkt. No. 293. Under

26 Federal Rule of Evidence 201, a court can take judicial notice of “[p]ublic records and government

documents available from reliable sources on the Internet,” such as websites run by government 27 agencies. Gerritsen v. Warner Bros. Entm’t, Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015)

28 (internal quotation marks omitted). Accordingly, the Court GRANTS CBAA’s unopposed request.

16

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1

The Court finds that plaintiffs’ arguments are premature as they are premised on the

2 notion that Penal Code section 1269b has been repealed, in fact. (See Motion to Revoke at 6.)

3 The text of S.B. 10 itself indicates: “This bill would, as of October 1, 2019, repeal existing laws

4 regarding bail and require that any remaining references to bail refer to the procedures specified in

5 the bill.” (S.B. 10 at ECF p. 1 (emphasis supplied).)30 Next, the Court finds plaintiffs’ claim that

6 CBAA must meet Article III standing requirements misplaced. CBAA did not initiate the instant

7 action, seek review on appeal, or perform any “other function that invoke[d] the power of the

8 federal courts.” Vivid Entm’t LLC v. Fielding, 774 F.3d 566, 573 (9th Cir. 2014) (emphasis in

9 original). Thus, CBAA need not satisfy standing separately. The Court’s prior rationale for 10 granting intervenor status remains valid.31 Plaintiffs’ motion to revoke CBAA’s intervenor status

11 is DENIED.

12 III. CROSS-MOTIONS FOR SUMMARY JUDGMENT

13

A. Legal Standard

14

A party seeking summary judgment bears the initial burden of demonstrating the absence

15 of a genuine issue of material fact as to the basis for the motion. Celotex Corp. v. Catrett, 477

16 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case.

17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

18 “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

19 party. Id.

20

Where the moving party will have the burden of proof at trial, it “must affirmatively

21 demonstrate that no reasonable trier of fact could find other than for the moving party.”

22 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the moving party meets

23 its initial burden, the opposing party must then set out specific facts showing a genuine issue for

24

25

30 This date will extend as the referendum has qualified for the November 2020 ballot.

See supra at 13. 26

31 Plaintiffs’ final argument that CBAA can no longer stand in the shoes of the Sheriff due 27 to “changed circumstances” merely repeats the argument relative to the “repeal” of Penal Code

28 § 1269b. See Motion to Revoke at 7–8. As explained, the argument is premature.

17

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1 trial in order to defeat the motion. See Anderson, 477 U.S. at 250; Soremekun, 509 F.3d at 984;

2 see also Fed. R. Civ. P. 56(c), (e). The opposing party’s evidence must be more than “merely

3 colorable” and must be “significantly probative.” Anderson, 477 U.S. at 249. Further, the

4 opposing party may not rest upon mere allegations or denials of the adverse party’s evidence, but

5 instead must produce admissible evidence showing a genuine dispute of material fact exists. See

6 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000). If

7 the opposing party fails to make a sufficient showing of an element of its case, the moving party is

8 entitled to judgment as a matter of law. Celotex, 477 U.S. at 325. “Where the record taken as a

9 whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

10 issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

11 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In

12 making this determination, the court must “view[] the evidence in the light most favorable to the

13 nonmoving party[.]” Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). It is not the court’s

14 task to “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d

15 1275, 1279 (9th Cir. 1996) (internal quotation marks omitted). Moreover, “[d]isputes over

16 irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv.,

17 Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

18

“[W]hen parties submit cross-motions for summary judgment, each motion must be

19 considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249

20 F.3d 1132, 1136 (9th Cir. 2001) (alteration and internal quotation marks omitted). Thus, “[t]he

21 court must rule on each party’s motion on an individual and separate basis, determining, for each

22 side, whether a judgment may be entered in accordance with the Rule 56 standard.” Id. (quoting

23 Wright, et al., Federal Practice and Procedure § 2720, at 335–36 (3d ed. 1998)). If, however, the

24 cross-motions are before the court at the same time, the court must consider the evidence proffered

25 by both sets of motions before ruling on either one. Riverside Two, 249 F.3d at 1135–36.

26

B. Short Overview of the History of Bail

27

By way of background, a synopsis of the history of bail is warranted.

28 /// 18

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1

Bail originated in medieval England as “a device to free untried prisoners.”32 The penalty

2 for most crimes was a “fine paid as compensation to the victim.” (Workgroup Report at 9.) When

3 capital and corporal punishment replaced fines, “abuses in the delay between arrest and trial began

4 to emerge.” (Id.) In response, the common law right to bail was codified into English law, and

5 the principles that “an accused is presumed innocent and entitled to personal liberty pending trial”

6 were incorporated into the Magna Carta. (Id.) Criteria set for determining whether a person

7 should be released on bail included the strength of the evidence against the accused and the

8 accused’s criminal history. (Id.)

9

In America, the development and use of bail followed a different course. The United

10 States Constitution does not specifically grant a right to bail, and the Eighth Amendment states

11 only that “[e]xcessive bail shall not be required[.]” U.S. Const. amend. VIII. However, the

12 presumption of innocence and right to freedom pending trial “became the foundation of our

13 current system of bail.” (Workgroup Report at 9.) Initially, the system did not contemplate a

14 profit industry or indemnification in the posting of the bond. By the nineteenth century, our bail

15 system had shifted to a surety system “in which secured bonds were typically administered

16 through commercial sureties and their agents, and the deposit of money or the pledge of assets

17 became a principal condition of release.” (Id. at 10.)

18

In 1912, when the United States Supreme Court considered the goals and interests of bail,

19 it observed that the “interest to produce the body of the principal in court [was] impersonal and

20 wholly pecuniary.” Leary v. United States, 224 U.S. 567, 575 (1912). In 1951, the Supreme

21 Court indicated that “[u]nless th[e] right to bail before trial is preserved, the presumption of

22 innocence, secured only after centuries of struggle, would lose its meaning.” Stack v. Boyle, 342

23 U.S. 1, 4 (1951). Further, since the “function of bail is limited, the fixing of bail for any

24

25

32 Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964 1 (National

Conference on Bail and Criminal Justice, Working Paper, 1964) (“Bail in the United States”).

26 Unless stated otherwise, this summary is pulled largely from the Workgroup Report and Bail in

the United States. Notably, the Pretrial Detention Reform Workgroup also relied on the latter 27 source, which was extensively cited in the legislative history of the United States Bail Reform Act

28 of 1966 and commentary of the same.

19

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1 individual defendant must be based upon standards relevant to the purpose of assuring the

2 presence of that defendant.” Id. at 5 (emphasis supplied).

3

Both federal and state rules outlined more specific criteria for consideration. For example,

4 a prior version of Federal Rule of Criminal Procedure 46(c) provided that “the amount [of bail] . . .

5 will insure the presence of the defendant, having regard to the nature and circumstances of the

6 offense charged, the weight of the evidence against him, the financial ability of the defendant to

7 give bail, and the character of the defendant.” Fed. R. Crim. P. 46(c) (amended in 1985). State

8 appellate courts laid down similar criteria, for instance:

9

The factual matters to be taken into account include: The nature of the offense, the

penalty which may be imposed, the probability of the willing appearance of the

10

defendant or his flight to avoid punishment, the pecuniary and social condition of the

defendant and his general reputation and character, and the apparent nature and strength

11

of the proof, as bearing on the probability of his conviction.

12 People ex rel. Lobell v. McDonnell, 296 N.Y. 109, 111 (1947) (internal quotation marks omitted).

13

Despite the early origins and broad recognition of the right to bail in this country, studies

14 of administration of bail in the twentieth century raised a number of concerns about its widespread

15 misuse.33 The studies concluded that the system of money bail in the United States discriminates

16 against indigent detainees who lack the financial resources to post bail.34 Challenges to requiring

17 bail from an impoverished detainee were raised in the courts as early as 1960, questioning whether

18 freedom and liberty could be rightfully denied merely on the basis of indigence. See Bandy v.

19 United States, 81 S. Ct. 197, 197–98 (1960); see also Bandy v. United States, 82 S. Ct. 11 (1961).

20 ///

21

22

23

33 See, e.g., Field Study, A Study of the Administration of Bail in New York City, 106 U. Pa. L. Rev. 693 (1958); Note, Compelling Appearance in Court: The Administration of Bail in

24 Philadelphia, 102 U. Pa. L. Rev. 1031 (1954); Arthur L. Beeley, The Bail System in Chicago (1927).

25 34 See, e.g., Wayne H. Thomas, Jr., Bail Reform in America 11, 19 (1976) (“The American

26 system of bail allows a person arrested for a criminal offense the right to purchase his release

pending trial. Those who can afford the price are released; those who cannot remain in jail. . . . 27 The requirement that virtually every defendant must post bail causes discrimination against

28 defendants who are poor.”).

20

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1

Driven by concerns about problems and inequities in bail practices, Congress enacted the

2 Bail Reform Act of 1966, the stated purpose of which was “to assure that all persons, regardless of

3 their financial status, shall not needlessly be detained pending their appearances to answer charges

4 . . . when detention serves neither the ends of justice nor the public interest.”35 By emphasizing

5 nonmonetary terms of bail, Congress attempted to remediate the negative impacts experienced by

6 defendants who were unable to pay for their pretrial release, including the adverse effect on

7 defendants’ ability to consult with counsel and prepare a defense, the financial impacts on their

8 families, a statistically less-favorable outcome at trial and sentencing, and the fiscal burden that

9 pretrial incarceration poses on a society at large.36

10

Congress again revised federal bail procedures with the Bail Reform Act of 1984.37 The

11 legislative history of the 1984 Act explains that Congress wanted to “address the alarming

12 problem of crimes committed by persons on release” and to “give the courts adequate authority to

13 make release decisions that give appropriate recognition to the danger a person may pose to others 14 if released.”38 The 1984 Act, as amended, retains many of the key provisions of the 1966 Act but

15 “allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear

16 and convincing evidence after an adversary hearing that no release conditions ‘will reasonably

17 assure . . . the safety of any other person and the community.’” United States v. Salerno, 481 U.S.

18 739, 741 (1987) (alteration in original) (quoting Bail Reform Act of 1984) (upholding the

19 preventive detention provisions in the 1984 Act); see also 18 U.S.C. § 3142(a) (providing

20 generally the current federal procedure for ordering either release or detention of a defendant

21 pending trial).

22 ///

23

24

35 Bail Reform Act of 1966, Pub. L. No. 89-465, § 2, 80 Stat. 214 (repealed 1984).

25

36 See H.R. Rep. No. 89-1541 (1966), reprinted in 1966 U.S.C.C.A.N. 2293, 2299.

26

37 See Bail Reform Act of 1984, Pub. L. No. 98-473, § 202, 98 Stat. 1837, 1976 (codified

27 at 18 U.S.C. §§ 3141–50).

28

38 S. Rep. 98-225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3185.

21

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1

Notwithstanding twentieth-century advances in pretrial justice, there is a growing

2 nationwide “consensus on concerns regarding the administration of bail in the criminal justice

3 system.” (Workgroup Report at 13.)

4

C. Standard of Review: One’s Liberty is a Fundamental Right Necessitating

Strict Scrutiny Review 5

6

The Court previously found that whether the Sheriff’s use of the Bail Schedule violates the

7 Due Process and Equal Protection clauses of the United States Constitution is an issue subject to

8 strict scrutiny analysis. (See supra at 11–12.) As the Court explained, heightened scrutiny is

9 required by the United States Supreme Court’s Bearden-Tate-Williams line of cases,39 particularly

10 “where fundamental deprivations are at issue and arrestees are presumed innocent.” (MSJ Order

11 at 16.) Because the Sheriff’s use of the Bail Schedule implicates plaintiffs’ fundamental right to

12 liberty, “any infringement on such right requires a strict scrutiny analysis.” (Id. at 10–11.)

13

In its cross-motion for summary judgment, CBAA requests that the Court reconsider the

14 standard of review. CBAA’s request is procedurally and substantively unwarranted.40 Civil Local

15 Rule 7-9, which governs motions for reconsideration, applies. While CBAA argues that a material

16 difference in law from that previously presented to the Court justifies reconsideration, the law

17 must be controlling. See Civ. L.R. 7-9(b)(2); see also Mason & Dixon Intermodal, Inc. v.

18 Lapmaster Int’l, LLC, No. C 08-1232 VRW, 2009 WL 10681000, at *1 (N.D. Cal. Sept. 23, 2009)

19 (noting that “[d]espite the imprecise language of [Civ. L.R. 7-9], only a change in controlling law

20 warrants reconsideration”) (emphasis in original); see also Sch. Dist. No. 1J, Multnomah Cty., Or.

21 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“Reconsideration is appropriate if . . . there is

22 an intervening change in controlling law.”) (emphasis supplied). No such change exists here.

23

24

39 See Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S. 395 (1971); and

Williams v. Illinois, 399 U.S. 235 (1970).

25 40 While CBAA is correct that “[t]he law of the case doctrine does not . . . bar a court from

26 reconsidering its own orders before judgment is entered or the court is otherwise divested of

jurisdiction over the order[,]” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1042 (9th 27 Cir. 2018), the Court nevertheless finds no basis to reconsider its previous summary judgment

28 order.

22

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1

As a preliminary matter, the Court previously considered and rejected CBAA’s contention

2 that a 48-hour safe harbor exists under Gerstein v. Pugh, 420 U.S. 103 (1975) and County of

3 Riverside v. McLaughlin, 500 U.S. 44 (1991) (addressing the window in which the government

4 must make a probable cause determination after a warrantless arrest). (See MSJ Order at 11–12.)

5 In summary, the Court found that CBAA read the cited cases too narrowly:

6

In Gerstein, the Supreme Court held that the Fourth Amendment requires a prompt

7

judicial determination of probable cause as a prerequisite to an extended pretrial

detention following a warrantless arrest. 420 U.S. at 124–25. The Court did not specify

8

what would meet the promptness standard, instead noting that “the nature of the

probable cause determination usually will be shaped to accord with a State’s pretrial

9

procedure viewed as a whole.” Id. at 123. Subsequently, in considering what constitutes

10

a “prompt” probable cause determination under Gerstein, the Supreme Court held in McLaughlin that a judicial determination of probable cause within 48 hours of arrest

11

generally will pass constitutional muster. 500 U.S. at 56.

12 (MSJ Order at 11.) The Supreme Court noted a presumption, not a safe harbor. The constitutional

13 question is whether an “arrested individual can prove that his or her probable cause determination

14 was delayed unreasonably.” (Id. (quoting McLaughlin, 500 U.S. at 56).) None of the CBAA’s

15 proffered authority compels a different result. See Walker v. City of Calhoun, 901 F.3d 1245 (11th

16 Cir. 2018); ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018) (“ODonnell II”). Neither case is

17 binding, and both are distinguishable.

18

ODonnell II is a non-binding split decision of the Fifth Circuit, which involved a non-

19 dispositive interlocutory decision in the context of granting a stay of an injunction. See ODonnell

20 II, 900 F.3d at 223 (“We now grant the motion and enter a stay . . . pending plenary resolution of

21 this appeal by a merits panel.”) There, fourteen state trial court judges themselves sought the stay.

22 The injunction arose from procedural due process claims with respect to use of the bail schedule at

23 issue. That court’s analysis focused on specific aspects of the injunction’s language not at issue

24 here. Id. at 222–23. Moreover, the instant case involves substantive due process and equal

25 protection claims. Further, ODonnell II’s passing reference to the appropriateness of “rational

26 basis review” ignores its own decision in ODonnell v. Harris County, 892 F.3d 147 (5th Cir.

27 2018) (“ODonnell I”) calling for “heightened scrutiny.” See ODonnell I, 892 F.3d at 161–62 &

28 n.6. 23

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1

Quoting ODonnell II, CBAA argues that, in light of In re Humphrey, 19 Cal. App. 5th

2 1006 (2018), rational basis review controls because procedural safeguards exist and this case is

3 premised “solely on inability to afford bail, as distinguished from inability to afford bail plus the

4 absence of meaningful consideration of other possible alternatives.”41 This argument contravenes

5 Supreme Court precedent. Indigent arrestees who are detained prior to their individualized

6 hearings solely because they cannot afford secured money bail do not receive any “meaningful

7 consideration of other possible alternatives” that would enable their pre-hearing release. Rather,

8 they “share[] two distinguishing characteristics” which trigger heightened scrutiny: (1) “because

9 of their impecunity they [are] completely unable to pay for some desired benefit”; and (2) “as a

10 consequence, they sustain[] an absolute deprivation of a meaningful opportunity to enjoy that

11 benefit.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973).

12

Walker, too, is non-binding and does not necessitate reconsideration. There, again, a split

13 Eleventh Circuit vacated a preliminary injunction based on procedural due process arguments after

14 the City of Calhoun, Georgia itself filed an interlocutory appeal. Walker, 901 F.3d at 1253. In

15 short, indigent arrestees brought a putative class action against the city, alleging constitutional

16 violations by conditioning immediate release from jail on an arrestee’s ability to pay a preset

17 amount of cash without providing meaningful alternatives to indigent arrestees. The city itself

18 identified concerns with the specifics of the injunction. In relevant part, the Walker court

19 determined that indigency determinations for purposes of setting bail are presumptively

20 constitutional if made within 48 hours of arrest, id. at 1266, noting that indigent detainees “must

21 merely wait some appropriate amount of time to receive the same benefit as the more affluent” and

22 that an appropriate period of delay, without more, does not offend the Constitution. Id. at 1261.

23

24

41 CBAA’s Cross-MSJ at 8–9 (quoting ODonnell II, 900 F.3d at 231–32) (emphasis in

25 original). Under Humphrey, during an individual’s arraignment, a court must make findings

regarding an arrestee’s ability to pay the fixed bail amount and alternatives to money bail.

26 Humphrey, 19 Cal. App. 5th at 1044–45. If an arrestee’s financial resources would be insufficient

and the court’s order would result in pretrial detention, then the court must find by clear and 27 convincing evidence that no less restrictive alternative conditions of release could serve the

28 government’s compelling interests. Id.

24

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1 Accordingly, the court rendered it unnecessary to review the City’s practice with heightened

2 scrutiny. Id. at 1260–62.

3

As with ODonnell II, the Walker court’s reasoning regarding procedural due process does

4 not bear on the analysis of plaintiffs’ equal protection and substantive due process claims here.

5 See id. at 1259 (“Walker’s claim . . . challenges not the amount and conditions of bail per se, but

6 the process by which those terms are set . . . .“) (emphasis supplied); id. at 1265 (“[T]he relief

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

8 gain release.”). That said, Walker also reaffirms the notion that only a presumption exists. See id.

9 at 1266 (“[I]ndigency determinations for purposes of setting bail are presumptively constitutional

10 if made within 48 hours of arrest.”) (emphasis supplied); id. at 1267 n.13 (“The McLaughlin Court

11 made clear that the 48-hour presumption was rebuttable: a probable cause hearing held within 48

12 hours may nonetheless be unconstitutional ‘if the arrested individual can prove that his or her

13 probable cause determination was delayed unreasonably.’”) (quoting McLaughlin, 500 U.S. at 56).

14 In fact, the 48-hour presumption itself was contested as too lengthy in McLaughlin. Justice Scalia

15 lambasted the majority for its arbitrary articulation of “48 hours,” harkening back to reams of legal

16 authority rooted as far back as 1825, citing Wright v. Court, 107 Eng. Rep. 1182 (K.B. 1825) (“[I]t

17 is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon

18 as he reasonably can.”). McLaughlin, 500 U.S. at 61–62 (Scalia, J., dissenting). Justice Scalia

19 argued that given the data available, law enforcement needed only “24 hours” to obtain probable

20 cause review (perhaps excepting Sunday). Id. at 68–69. At that time, twenty-nine states required

21 “presentment or arraignment ‘without unnecessary delay’ or ‘forthwith’; eight [s]tates explicitly

22 require[d] presentment or arraignment within 24 hours; and only seven [s]tates [had] statutes

23 explicitly permitting a period longer than 24 hours.” Id. at 69.

24

Ultimately, this Court does not share the same view on the principle of liberty as the

25 Walker court. All courts agree that the Bearden Court summarized the rule of Williams and Tate

26 as follows:42 “[I]f the State determines a fine or restitution to be the appropriate and adequate

27

28

42 See generally MSJ Order at 13–17.

25

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1 penalty for the crime, it may not thereafter imprison a person solely because he lacked the

2 resources to pay it.” Bearden, 399 U.S. at 667–68. Rather, the Constitution requires the

3 government to use the least restrictive alternative. In so holding, the Bearden Court noted that

4 “[d]ue process and equal protection principles converge in the Court’s analysis” in cases involving

5 the fair treatment of indigents in the criminal justice system. Id. at 665. Answers to constitutional

6 questions in that context “cannot be resolved by resort to easy slogans or pigeonhole analysis, but

7 rather require[] a careful inquiry into such factors as ‘the nature of the individual interest affected,

8 the extent to which it is affected, the rationality of the connection between legislative means and

9 purpose, [and] the existence of alternative means for effectuating the purpose . . . .’” Id. at 666–67

10 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)) (alterations in original). Those means

11 are not hard and fast but must be tested, especially given that we live in a technology-driven age

12 where information is readily available, and some courts are even open seven days a week.43 The

13 question is under what standard.

14

On that basis, this Court found the instant challenge to be properly reviewed under strict

15 scrutiny and is aligned with the dissenting opinions in both ODonnell II and Walker. The

16 deprivation of one’s liberty cannot, and should not, be easily trampled. Nor should one’s liberty

17 be so easily discarded upon strained hypotheticals such as the Walker court’s comparison of the

18 inability to afford bail with the inability to pay for express mail. See Walker, 901 F.3d at 1264.

19 As dissenting Circuit Judge Martin observed in Walker, the United States Supreme Court recently

20 reaffirmed that “[a]ny amount of actual jail time is significant and has exceptionally severe

21 consequences for the incarcerated individual and for society which bears the direct and indirect

22 costs of incarceration.” Id. at 1275 (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897,

23 1907 (2018)) (citation and internal quotation marks omitted). Here, the bonds of history remind us

24 that the “presumption of innocence, secured only after centuries of struggle,”44 should not vanish

25

26

43 See, e.g., http://www.courts.state.ny.us/courts/nyc/criminal/generalinfo.shtml. The Court takes judicial notice of the New York Courts’ website, which shows that certain New York

27 City criminal courts are open Monday through Sunday.

28

44 See Boyle, 342 U.S. at 4.

26

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1 under the guise of the universal benefits of a bail option. While “indigency,” by definition,

2 indicates a lack of wealth, the constitutional principle is what controls. That principle here is

3 grounded in liberty. We need not be concerned with hysteric claims of floodgates to wealth-based

4 claims opening. Cf. Walker, 901 F.3d at 1262, 1277–78.

5

In sum, CBAA’s efforts to establish rational basis as the applicable standard of review in

6 this case, again, are unavailing. The Court proceeds with its analysis based on a strict scrutiny

7 standard of review.45

8

D. Analysis

9

1. Step 1: Does the Sheriff’s use of the Bail Schedule significantly deprive

plaintiffs of their fundamental right to liberty by sole season of their

10

indigence?

11

In summary, strict scrutiny applies because the fundamental right to liberty is

12 implicated by plaintiffs’ claims. The question then is whether a significant deprivation has

13 occurred. Contrary to CBAA’s position, the existence of a significant deprivation is not a

14 threshold requirement which triggers strict scrutiny,46 but rather the first inquiry in a strict scrutiny

15

16

45 See MSJ Order at 10–11, 16; see also Erwin Chemerinsky, Constitutional Law Principles and Policies at 827 (Erwin Chemerinsky et al. eds., 5th ed. 2015) (“[O]nce a right is

17 deemed fundamental, under due process or equal protection, strict scrutiny is generally used.”); see also id. at 828 (“If a right is deemed fundamental, the government usually will be able to

18 prevail only if it meets strict scrutiny; but if the right is not fundamental, generally only the

rational basis test is applied.”). 19

46 CBAA cites Tsosie v. Califano, 630 F.2d 1328 (9th Cir. 1980) in support of its 20 contention that plaintiffs must first show that they have suffered a genuinely significant

21 deprivation of a fundamental right in order for strict scrutiny to apply. See Dkt. No. 308 (“CBAA’s Reply ISO Cross-MSJ”) at 4. Specifically, CBAA describes Tsosie as having

22 “appl[ied] strict scrutiny only where [a] classification impermissibly interferes with the exercise of

a fundamental right[.]” Id. (emphasis in original) (internal quotation marks omitted). However, 23 the court in Tsosie applied the rational basis standard because “no fundamental rights [were]

24

implicated by th[e] case in such a way as to require strict scrutiny.” Tsosie, 630 F.2d at 1337 (emphasis supplied). Specifically, “[a]s the class of after-adopted children receiving public or

25 other outside assistance is not a suspect class,” the court determined it “must examine the statutory distinctions [at issue] in light of the rational-basis standard . . . .” Id. CBAA similarly misleads

26 with its citation to Halet v. Wend Investment Co., 672 F.2d 1305 (9th Cir. 1982). There, the court

reaffirmed that strict scrutiny is required in the equal protection context when a classification 27 impermissibly interferes with the exercise of a fundamental right and in the due process context

28

when fundamental rights are at issue. Id. at 1310. While the Halet court recognized that “[n]ot every state action that infringes on a fundamental right triggers strict scrutiny[,]” it cited Tsosie

27

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1 analysis.47 Here, plaintiffs have established a significant deprivation, beginning with longer

2 detention by sole reason of their indigence.48

3

As a threshold matter, the Court disagrees with plaintiffs’ contention that the passage of

4 S.B. 10 “unequivocally establish[es] that . . . the Sheriff’s use of the Bail Schedule significantly

5 deprives the class of its fundamental right to liberty[.]” (Plaintiffs’ MSJ at 2.) Simply because a

6 state chooses to change its laws does not mean that the previous law was unequivocally

7 unconstitutional.

8

With respect to whether longer periods of pre-arraignment detention actually exist simply

9 because indigent detainees cannot afford bail, the evidence firmly establishes this component.

10 Admissions from CBAA and the Sheriff, as well as statistical and summary evidence, demonstrate

11 that the use of the Bail Schedule results in longer statutory detention of the plaintiff class. The

12 proposition is not credibly challenged. Its truth is grounded in logic.

13

The Sheriff, whose day-to-day activities include managing this process, concedes:

14 “Plaintiffs’ general point . . . that individuals who are able to pay the amount in the bail schedule .

15 . . can obtain release more quickly than those who obtain release through a prearraignment

16 application to a magistrate facilitated by the OR Project . . . is undoubtedly true.” (Dkt. No. 149 at

17 1; see also Dkt. No. 101 at 1 (“Those who can pay are released at a time of their choosing . . . .

18 Those who cannot pay must wait.”).) CBAA’s own Rule 30(b)(6) witness concurs. When asked

19 to identify the “fastest way to secure a release in the City and County of San Francisco” in the

20

21 and Socialist Workers Party v. March Fong Eu, 591 F.2d 1252 (9th Cir. 1978), cert denied, 441 U.S. 946 (1979) in support thereof, neither of which involved the right at issue here. Halet, 672
22 F.2d at 1311.

23

47 Moreover, CBAA’s position is disingenuous given that a key issue being litigated on

24 the last round of motions for summary judgment was whether “pretrial liberty” was fundamental in the pre-arraignment context such that the detention at issue here implicates a fundamental right

25 triggering strict scrutiny review. See Dkt. No. 132 at 16, 19.

26

48 In any event, CBAA appears to concede that application of the strict scrutiny standard is

appropriate if the Court finds that the Sheriff’s use of the Bail Schedule in the pre-arraignment 27 period significantly deprives plaintiffs of their fundamental right to liberty. See CBAA’s Cross-

28 MSJ at 8. As discussed herein, the Court finds that such a deprivation exists.

28

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1 period between arrest and arraignment, he responded: “100 percent cash.” (Clayton Depo Tr. at

2 84:20–85:2.) “And then . . . working with the bail agent [would be] the second fastest[,]” i.e., the

3 posting of a surety bond. (Id. at 85:8–10.)

4

CBAA’s response to these longer detention periods merely reinforces their existence. For

5 instance, CBAA suggests that a detainee would prefer detention because a public defender may

6 have advised the detainee to wait for rebooking. Other justifications proffered by CBAA are that

7 the OR Project may be slow at processing arrestees, or that a duty judge may have been

8 unavailable to consider a section 1269c application or OR application immediately following its

9 submission, or may have decided the arrestee should be detained.49 None of these arguments

10 persuade.50

11

As to the first, CBAA misconstrues the testimony. The San Francisco Public Defender’s

12 Office’s 30(b)(6) witness testified that a public defender may advise a detainee to wait for

13 rebooking in light of the arrestee’s indigent status and ability to pay the 10% bail bond premium.

14 Namely, a public defender “basically . . . explain[s] the consequences of bailing out” to an

15 individual who may be able to “scrape up the 10 percent fee,” that is “that the 10 percent will not

16 be returned even if the case is discharged.”51 Ms. Patterson’s surety bail contract corroborates this

17 view.

18

As to the other possible causes, CBAA offers no evidence in support thereof. Nonetheless,

19 CBAA’s assertions regarding the same do not surprise. The purported “causes” of longer

20 detention are, in fact, merely collateral consequences of the sole cause, that being, indigence.

21 Given that all parties agree that cash and the posting of a surety bond are the fastest ways to be

22 released, the longer detention stems from the generic use of San Francisco’s Bail Schedule, which

23

24

49 See CBAA’s Cross-MSJ at 6–7.

25

50 The Court disregards a myriad of irrelevant, unsubstantiated, or non-evidentiary based

arguments which CBAA proffers. See, e.g., CBAA’s Cross-MSJ at 7 (arguing that “an arrestee 26 may choose to bail out because their scheduled bail amount was lower than the opportunity cost of

27 awaiting duty judge review”).

28

51 See Exh. 1 to CBAA’s Cross-MSJ at 33:23–34:4, 34:8–14.

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1 mandates detention unless the scheduled amount is paid. Said differently, arrestees who can

2 afford to bail themselves out are never in the position of having to deal with such collateral

3 consequences.52

4

As for the issue of whether plaintiffs’ deprivation is “significant,” it is undisputed that San

5 Francisco arrestees who are released after posting secured money bail are detained, on average,

6 12.8 hours less than arrestees who obtain release through the OR Project and who spend an

7 average of 25.4 hours in jail. (See PRSS Fact 6.) Thus, those who obtain release through the OR

8 Project spend, on average, more than twice as much time behind bars than those who are able to

9 post bail. The time detained can be even greater for others, such as Ms. Buffin, who was

10 incarcerated for 46 hours.

11

Here, the time differential is but one component of the analysis. “Significance” is

12 measured by more than just a difference in hours.53 Plaintiff Buffin’s experience evidences the

13 real-world consequences of such a deprivation; she lost her job. She is not alone. The evidence

14 reveals that individuals can also lose their housing, public benefits, and child custody, and be

15 burdened by significant long-term debt due to a short period of detention.54 Moreover, many

16 detainees “plead guilty (or no contest) at an early stage in the proceedings to secure their release

17 from custody.” (Workgroup Report at 14.)55

18

19

52 CBAA creates a new argument based on the definition of “indigence,” namely “[t]he

fact that an arrestee might be able to post a $5,000 bond (or a surety bond for 10% or less of that

20 amount) does not mean that the same arrestee could do the same thing for a $50,000 bond; in the

latter case, the sole reason for the detention would be the severity of the offense charged.” 21 CBAA’s Cross-MSJ at 7. CBAA does not persuade. In either case, if class members could afford

22

to post bail, they would be released faster. The only difference is their inability to pay the higher $50,000 bail amount. Moreover, the argument does not impact the constitutional analysis.

23

53 CBAA cites no authority in support of its suggestion that plaintiffs must show how the

24 extra 12.8-hour detention causes negative consequences. See CBAA’s Cross-MSJ at 2, 4, 13.

Rather, plaintiffs must offer evidence showing “significance.” In that context, evidence of

25 negative consequences is relevant to the Court’s analysis.

26

54 See Workgroup Report at 13, 51; Klement Decl. ¶ 2; Do the Math at 16.

27

55 Plaintiffs argue that the Sheriff’s practice of “charge stacking” and charging “wobbler”

28

offenses as felonies broadens the class and exacerbates the harm to the same. Plaintiffs’ MSJ at 15–16. However, these allegations are mentioned nowhere in plaintiffs’ 3AC, are irrelevant to

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1

Further, the 48-hour presumption must be viewed in context. Nothing stopped the

2 government from taking Ms. Buffin to court on Tuesday morning, ten hours after she was booked,

3 or even on Wednesday. Had it done so, Ms. Buffin would have seen a judge who could have

4 made a determination as to her continued detention prior to arraignment. Holding her four and

5 one-half times longer and well after the court had closed on Wednesday suggests that the

6 government is unjustifiably taking advantage of the 48-hour window.56 Such “delay for delay’s

7 sake” has been condemned by the Supreme Court. See McLaughlin, 500 U.S. at 56.

8

Given the consequences which flow from an extended duration of pre-arraignment

9 detention, the Court finds the deprivation significant. Accordingly, plaintiffs have shown that the

10 Sheriff, through use of the Bail Schedule, has significantly deprived plaintiffs of their fundamental

11 right to liberty by sole reason of their indigence.

12

2. Step 2: Have plaintiffs established a prima facie case under the strict

scrutiny standard? 13

14

Plaintiffs bear the burden of identifying a plausible alternative that is less restrictive

15 and at least as effective at serving the government’s compelling interests, here identified as

16 protecting public safety and assuring future court appearances.57 The burden is not high, and it

17

18 plaintiffs’ claims, and appear to concern practices of entities not before the Court. Thus, the Court

disregards them. 19

20

56 The factual record gathered in this case illuminates the need to test and maintain the classification of a presumption. Namely, the evidence suggests law enforcement is abusing the

21 “48” hours by not moving the cases forward. Rather than taking Ms. Buffin promptly to court, law enforcement waited until the 48 hours had almost expired. That Ms. Buffin spent 46 hours in
22 custody is consistent with the Sheriff’s Department’s observation that “most arrestees are

presented within the last four hours of the legal time limit.” See Sheriff’s Department Memo at 3. 23 For those incarcerated before the weekend, the 48 hours can stretch as far as five days.

24

57 In their motion for summary judgment, plaintiffs take the position that there are three

25 compelling government interests at issue: (i) protecting public safety; (ii) protecting the rights of arrestees; and (iii) encouraging future court appearances. See Plaintiffs’ MSJ at 22. However,

26 presumably in response to CBAA’s argument that the liberty interest of detainees is a

countervailing individual interest to be weighed against the two compelling government interests, 27 (see CBAA’s Cross-MSJ at 16), plaintiffs have retreated from their position that “protecting the

28

rights of the accused” is a compelling interest at issue in this case and focused their Reply in Support of Plaintiffs’ Motion for Summary Judgment and Opposition to CBAA’s Cross Motion

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1 need not rise to the level of scientific precision. See, e.g., Ashcroft, 542 U.S. at 666–68 (upholding

2 injunction enjoining Child Online Protection Act (“COPA”), which imposed criminal liability for

3 commercially disseminating online material harmful to minors, in light of existing non-legal

4 alternatives, namely online blocking and filtering software equally effective and less restrictive

5 than COPA); Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 965 (9th Cir. 2009)

6 (relying on hypothetical alternative to affirm a permanent injunction of newly enacted California

7 statute imposing labeling requirements on the sale of violent video games to minors). Plaintiffs

8 are correct that in the context of strict scrutiny, when a court asks whether a proposed alternative is

9 “less restrictive,” it is making an inquiry into whether the challenged law is necessary as a means

10 to accomplishing the end. See Constitutional Law Principles and Policies at 567 (“[T]he law must

11 be shown to be ‘necessary’ as a means to accomplishing the end. This requires proof that the law

12 is the least restrictive or least discriminatory alternative.”) (footnote omitted).58

13

Here, plaintiffs’ proposed alternative is to “rely solely on a computerized risk assessment

14 process (such as the current San Francisco Public Safety Assessment (‘PSA’)[,]”59 with S.B. 10

15 having “essentially implemented” this alternative, serving as a “more detailed version” of the

16 same.60 The Court previously outlined the relevant portions of S.B. 10, on which plaintiffs now

17

18 for Summary Judgment, (Dkt. No. 305), on the other two stated interests. The Court proceeds 19 with its discussion accordingly.

20

58 CBAA attacks plaintiffs’ reliance on cases finding alternatives less concrete and

specific than plaintiffs’ alternative to be plausible. See CBAA’s Cross-MSJ at 16. However,

21 CBAA cites no authority supporting the notion that a proposed alternative must be more precise

than the one proffered. In any event, S.B. 10 serves as evidence that a plausible alternative to the 22 current system exists.

23

59 Dkt. No. 221 at 2. While plaintiffs’ notice of proposed alternatives identified two other

24 alternatives—namely, “re-institute the San Francisco interview process” or “use a combination computerized risk assessment and interview process,” (id.)—plaintiffs’ instant motion for

25 summary judgment focuses on the first of the three proposed alternatives. Indeed, plaintiffs

concede that “the best evidence of [p]laintiffs’ position is the passage of S.B. 10.” Plaintiffs’ MSJ

26 at 19–20. The Court tailors its analysis accordingly.

27

60 CBAA’s last-ditch attempt to evade its burden on the ground that S.B. 10 was not

28

previously identified as an alternative is disingenuous. See CBAA’s Cross-MSJ at 17. Indeed, the parties submitted several filings with the Court regarding the passage of S.B. 10 and discussed it at

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1 rely. (See supra at 14–15.) Importantly, the government itself concurs that the alternative is

2 plausible; that is, the state has now enacted what it believes to be a less restrictive yet at least as

3 effective alternative, with the express goal of reasonably assuring public safety and individuals’

4 return to court.61

5

Unlike the current reliance on a bail schedule, S.B. 10 requires all jurisdictions to generate

6 prior to arraignment for each arrestee “[t]he results of a risk assessment using a validated risk

7 assessment instrument, including the risk score or risk level.” S.B. 10 § 1320.9(a)(1); see also

8 supra at 14–15. Amongst its provisions, individuals who are assessed as low- or medium-risk to

9 public safety and of failure to appear in court shall be released on their own recognizance, prior to

10 arraignment and without review by the court, “with the least restrictive nonmonetary condition or

11 combination of conditions that will reasonably assure public safety and the person’s return to

12 court.” Id. §§ 1320.10(b), (c). This will allow for release when court is not in session. Further,

13 individuals arrested for misdemeanors, with some exceptions, will be released within 12 hours (id.

14 § 1320.8), i.e., roughly the average length of those posting bail for release under the current

15 system.

16

CBAA disputes the plausibility of the proposed alternative. First, CBAA argues that, to

17 the extent plaintiffs’ alternative would eliminate use of the Bail Schedule for all arrestees, “it is

18 not plausible because it would deprive individuals of their right to be released on bail by sufficient

19 sureties, as memorialized in California’s Constitution (Art. 1, § 12).” (CBAA’s Cross-MSJ at 23.)

20 In so doing, CBAA effectively attempts to challenge the constitutionality of S.B. 10 by proxy.

21 This Court is not faced with an affirmative challenge to the constitutionality of S.B. 10 itself. It

22 has repeatedly cautioned that this action is narrow in scope. Principles of federalism limit the

23 Court’s review and counsel in favor of narrow relief to the extent required. See U.S. v. Ron Pair

24

25 length at the September 7, 2018 pretrial conference. In that context, CBAA did not seek leave of court to conduct further discovery on that topic. Rather, it conceded that renewed motions for
26 summary judgment were the appropriate course. Accordingly, CBAA’s argument that S.B. 10’s 27 framework is an objectionable fourth proposed alternative does not persuade.

28

61 This concession further distinguishes this case from Walker and ODonnell II.

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1 Enters., Inc., 489 U.S. 235, 245 (1989) (“[A] basic principle of our federalism [is] that ‘the States’

2 interest in administering their criminal justice systems free from federal interference is one of the

3 most powerful of the considerations that should influence a court considering equitable types of

4 relief.”) (quoting Kelly v. Robinson, 479 U.S. 36, 49 (1986)). The Court is not considering the

5 wholesale elimination of bail as it is outside the scope of this action.

6

Next, CBAA argues that the proposed alternative is not plausible because it would pose

7 “insurmountable administrative problems” for the Sheriff in determining which arrestees “cannot

8 afford” bail. (CBAA’s Cross-MSJ at 5.) However, CBAA has proffered no evidence in support

9 thereof aside from the bald conclusion of its expert. Nor has the Sheriff conceded such

10 “insurmountable” problems.62

11

Plaintiffs’ burden is not high, nor is scientific precision required. Against that backdrop,

12 the Court notes that S.B. 10 was passed after a year of study by the California Chief Justice’s

13 Pretrial Detention Reform Workgroup, which included the then-presiding judge of the San

14 Francisco superior court. (See Workgroup Report at ECF p. 3.) The Workgroup found that as

15 many as 60 pretrial risk assessment instruments exist in the United States, which, after study,

16 revealed various common factors as “good predictors of court appearance and/or danger to the

17 community.” (Id. at 47.) Such indicators include current charges, outstanding warrants, pending

18 charges, and active community supervision at the time of arrest, and criminal history, history of

19 violence, residential stability over time, employment stability, community ties, and history of

20 substance abuse. (Id.) San Francisco has already deployed a risk assessment unit, the results of

21 which are constantly being used to enhance its effectiveness. (See Do the Math at 1.) The

22 Workgroup found similar urban areas which have successfully used such a model, including

23 neighboring Santa Clara County and Washington, D.C. (Id. at 40–41, 90–93.)63 Collectively, the

24

25

62 For instance, other jurisdictions have had indigent detainees execute affidavits, plus

public defenders routinely evaluate such issues. See, e.g., Walker, 901 F.3d at 1253 (describing 26 City of Calhoun’s affidavit-based process for determining inability to pay); ODonnell II, 900 F.3d

at 222 (referencing Harris County’s use of affidavits showing inability to pay). 27

28

63 See also Exh. 20 to Sims Decl. ISO Plaintiffs’ MSJ (“Weisberg Report”) ¶ 37, Dkt. No. 283-20 (plaintiffs’ expert opinion regarding Washington, D.C. as “the so-called gold standard for

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1 evidence demonstrates that a plausible alternative to the current system exists.

2

In order to analyze whether plaintiffs’ proposed alternative is less restrictive and at least as

3 effective than the Bail Schedule in serving the government’s compelling interests, the Court must

4 also consider how the Bail Schedule itself enhances public safety and ensures future court

5 appearance. Importantly, the record is devoid of any evidence showing that the Bail Schedule

6 considers either of the articulated goals.64 CBAA’s own Rule 30(b)(6) witness testified that he

7 do[esn’t] know why the judges did th[e] schedule the way they did[,]” noting that “there’s no

8 requirement for any input, data collection, deviation reports, [or] comparative data . . . in putting

9 together the schedule.”65 Further, CBAA’s own expert admitted that there are no peer-reviewed

10 studies that have empirically addressed questions specifically regarding the effectiveness of bail

11 schedules, and that such schedules are simply used for “operational efficiency.”66

12

Absent any evidence justifying the Bail Schedule as a means for accomplishing the

13 government’s compelling interests, the Court finds that “operational efficiency” does not trump a

14 significant deprivation of liberty.67 Merely assigning a random dollar amount to a Penal Code

15

16 bail reform”).

17

64 In response to the Court’s observation that “there seems to be no indication in the

Schedule[,] and there’s certainly nothing in the record that has been established[,] that identifies 18 any relationship between the money being demanded in the Schedule and [the] compelling

19 governmental interest[s,]” CBAA conceded, “[t]hat evidence is not in the record, your honor.” January 8, 2019 Hearing Tr. at 22:24–23:8.

20 This is unsurprising considering that under the Bail Schedule, the bail for a DUI is
21 relatively low, even if an individual arrestee has a history of prior DUI arrests, but the bail for a

non-violent drug offense involving small quantities of drugs can be two to five times higher. 22 Klement Decl. ¶ 7. Moreover, as CBAA concedes, some arrestees who are not eligible for pre-

23 arraignment OR release due to a “release not recommended” score on the PSA/DMF nevertheless have the option to secure release under the Bail Schedule. PRSS Fact 23.

24 65 Clayton Depo Tr. at 50:21–22, 66:15–18.

25 66 See Morris Report at 40.
26 67 The claim of “operational efficiency” in any case is questionable. For instance,
27 Kentucky “requires its pretrial officers to interview individuals within 12 hours of arrest[,]” which

28

expedites review considerably. Weisberg Report ¶ 28 n.12 (internal quotation marks omitted). Here, the record suggests operational inefficiencies as a source of the lengthy detentions.

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1 section does not address an actual person’s ability or willingness to appear in court or the public

2 safety risk that person poses. At most, all that can be discerned is that the amounts are so high as

3 to keep all arrestees detained except for those who can afford to be released. This practice, then,

4 replaces the presumption of innocence with the presumption of detention. Accordingly, the Bail

5 Schedule, which merely associates an amount of money with a specific crime, without any

6 connection to public safety or future court appearance, cannot be deemed necessary.68

7

CBAA’s primary evidentiary showing posits that release on bail produces lower failure to

8 appear (“FTA”) rates, namely “Release on Bail” at 20.6% versus “Project O.R.” at 27.3%, a delta

9 of 6.7 percentage points.69 (See Morris Report at 5.)70 The Court understands that data on the

10 topics raised is limited. Nonetheless, CBAA’s expert has analyzed the little data that does exist in

11 a manner ignoring the narrow scope of this case, presumably to support CBAA’s view.71 Given

12

13 Consistent with Ms. Buffin’s experience, the Sheriff’s Department’s Work Group to Re-Envision

14

the Jail Replacement Project identified law enforcement’s failure to provide the district attorney charging information until four hours before the end of the statutory period and the Treasurer’s

15 report confirmed the chronic delay. See Sheriff’s Department Memo at 3; Do the Math at 16–17. Law enforcement appears to respond to deadlines, suggesting faster review is plausible, whereas

16 under the current model, delay until the end of the 48 hours has become the operational protocol.

17

68 In fact, the use of such an arbitrary schedule may not even satisfy an analysis under a

18

rational basis review. See Constitutional Law Principles and Policies at 706 (explaining that the basic requirement of the rational basis test is “that a law meets rational basis review if it is

19 rationally related to a legitimate government purpose”). The presumption of detention is not a legitimate government purpose.

20 69 Professor Morris also presents FTA statistics on other types of release such as Assertive

21 Case Management, Supervised Pretrial Release, and Court OR, all of which typically occur at or after arraignment. See Morris Report at 5; Klement Decl. ¶ 15.

22 70 CBAA’s reference to this delta as “32% lower” seeks to imply a greater disparity than

23 exists by comparing the 20.6 and 27.3 rates in terms of a percentage. CBAA’s Cross-MSJ at 28. In terms of sheer numbers of detainees, according to the Morris Report, 10,553 were released on

24 bail, and 20.6 percent, or 2,174, failed to appear, while 1,622 were released under Project OR, and 27.3 percent, or 443, failed to appear. Morris Report at 5.

25 71 The Court notes that Professor Morris claims there are only four empirical assessments

26 which have comparatively addressed the impact of pretrial release mechanisms on FTA and bond

forfeiture, three of which he prepared. See Morris Report at 9. Moreover, Professor Morris was 27 the expert witness in the ODonnell case. Id. Because of the lack of a trial in this case, it is not

28 clear whether a financial connection exists between Professor Morris and the bail industry.

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1 the data provided, the Court finds CBAA’s statistical analysis flawed and unconvincing. First, this

2 case is focused on pre-arraignment release. Thus, the relevant comparison of FTA rates is those

3 who, pre-arraignment, were released on bail versus those released under the OR Project, and who

4 failed to appear at arraignment. These parameters are particularly important given the large

5 percentage of detainees who are never charged, i.e., 25 to 33 percent. Professor Morris’ analysis

6 based on historical FTA rates relates to “‘any’ failure to appear associated with an individual

7 booking[,]” including those rendered after judicial review at arraignment. (Morris Report at 5

8 (emphasis supplied).)

9

Second, the data used to generate comparisons of historical FTA rates spans beyond the

10 period of use of the PSA Tool, which forms the basis of plaintiffs’ plausible alternative. The

11 Court finds the combined effect of Professor Morris’ data choices less reliable and persuasive than

12 other data presented. His approach raises concerns that he is exaggerating the supposed

13 differences between bail release and OR release.

14

Next, Professor Morris’ Propensity Score Matching (“PSM”) analysis—which, unlike his

15 analysis based on historical FTA rates, addresses “questions specific to whether an individual

16 defendant would be more or less likely to FTA if he/she were released via one method over

17 another (e.g., O.R. versus Surety)[,]” (Morris Report at 7)—found that surety FTA rates were 14.0

18 percentage points lower than OR FTA rates. (Id. at 7–8.) However, his analysis, again, does not

19 distinguish between arrestees released on bail or the OR Project who failed to appear at

20 arraignment versus those who failed to appear at a later proceeding. (See id. at 7.) Moreover, the

21 analysis appears to include Court OR (as opposed to only Project OR) to reach his conclusions

22 regarding FTA rates.72

23

By contrast, San Francisco Deputy Public Defender Tal Klement, who has served in that

24 capacity since 2003, focused his FTA review on data pertaining only to the relevant pre-

25

26 72 To the extent CBAA claims that Professor Morris did an “apples-to-apples
27 comparison,” the analysis remains elusive and the Court will scour no further. January 8, 2019 28 Hearing Tr. at 33:4–5.
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1 arraignment period. Out of a total 1,697 individuals who failed to appear at arraignment between

2 2016 and 2018, 215 of those individuals had been released on bail, and 145 had been released

3 through Project OR. (See Klement Decl. ¶ 28.)73 Thus, a more appropriate FTA comparison

4 reveals better FTA results through the OR Project over bail.

5

In sum, plaintiffs’ proposed alternative—which entails an individualized inquiry into the

6 risk an arrestee has to public safety and of failure to appear—is consistent with the government’s

7 goals of enhancing public safety and ensuring court appearance and does not perpetuate the

8 deprivation of one’s liberty.74 Accordingly, plaintiffs have made a prima facie showing that it is

9 less restrictive and at least as effective at serving the state’s compelling interests than the Sheriff’s

10

11

73 CBAA has no response to Mr. Klement’s analysis other than a general objection to his

12 declaration testimony “to the extent that [p]laintiffs appear to be using him as an undisclosed expert offering opinions on the underlying data.” CBAA’s Cross-MSJ at 25. As discussed above,

13 see supra note 20, this objection fails.

14

Moreover, CBAA mischaracterizes Mr. Klement’s testimony to argue that “[p]laintiffs’

own evidence calls into question the PSA’s effectiveness at ensuring court appearance.” See 15 CBAA’s Cross-MSJ at 19 (citing Klement Decl. ¶ 26). The cited paragraph actually shows that

16 Mr. Klement doubts the effectiveness of cash bail, not the PSA, to wit:

17

Having represented thousands of indigent arrestees in San Francisco, I do not believe

that cash bail is the but-for cause for defendants to appear in court as directed.

18

Indeed, many bail agents in San Francisco require arrestees and/or third parties to

continue making installment payments whether or not the defendant appears in court.

19

In my experience, the likelihood that a given defendant will appear in court as

20

directed has much more to do with the defendant’s individual circumstances, such as

the charges faced, resources available, family stability, mental health, available

21

transportation, and homelessness.

22 Klement Decl. ¶ 26.

23

74 For this reason, CBAA’s argument that plaintiffs’ proposal is more restrictive because it

24 would eliminate one current option for pre-arraignment release (albeit an option available only to non-class members who can afford it) extends too far. As the Court has noted, this case presents a

25 narrower question. Moreover, CBAA’s argument that plaintiffs’ alternative “has the potential to

implement impermissible discrimination into the release/detain decision-making process on the

26 basis of race, ethnicity, gender, and/or income level” lacks an evidentiary basis. CBAA’s Reply

ISO Cross-MSJ at 11 (emphasis supplied). Press releases are not evidence. Moreover, that the 27 Judicial Council is inquiring into the topic may produce evidence, but none yet exists.

28 Presumably, if found, and not rectified, battle lines will be drawn for some future dispute.

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1 use of the Bail Schedule.

2

3. Step 3: Has CBAA shown that plaintiffs’ proposed alternative would be

less effective at serving the government’s compelling interests or more

3

restrictive?

4

Once a plaintiff makes a prima facie showing under a strict scrutiny analysis, the

5 burden shifts to the government to show that the proposed alternative would be less effective or

6 more restrictive. Most of the CBAA’s arguments in this regard overlap with its arguments in

7 response to plaintiffs’ initial burden. As for those not previously addressed, they are unavailing

8 given that plaintiffs’ proposed alternative entails an individualized inquiry into the risk an arrestee

9 has as to either public safety or a failure to appear and thus does not result in the deprivation of

10 one’s liberty solely due to one’s indigence.75 The Bail Schedule, by contrast, is arbitrary in that it

11 sets amounts without regard to any objective measurement and thus bears no relation to the

12 government’s interests in enhancing public safety and ensuring court appearance. It merely

13 provides a “Get Out of Jail” card for anyone with sufficient means to afford it. In light thereof,

14 CBAA cannot show that plaintiffs’ proposed alternative would be less effective at serving the

15

16

75 As for CBAA’s separate argument that it must show only that plaintiffs’ proposed alternative is less effective at achieving either state interests (as opposed to both), the Court

17 disagrees. In its previous summary judgment order, the Court referred explicitly to the government’s compelling “interest(s),” in plural form because at that point, “plaintiffs and CBAA

18 agree[d] that at a minimum the County has a compelling interest in ensuring that arrestees appear

for trial.” MSJ Order at 20 (emphasis supplied). However, in the event other compelling interests 19 were identified, CBAA’s showing as to the effectiveness of plaintiffs’ alternative(s) would have to

20

address each interest. Thus, Professor Morris’ failure to consider public safety in his evaluation of the efficacy of proposed alternatives, except to the extent that he treated FTA/bond forfeiture as a

21 proxy for public safety, deems any showing with respect to efficacy unavailing. See Exh. 7 to Sims Decl. ISO Plaintiffs’ MSJ at 68:9–25, Dkt. No. 283-7 (when asked how consideration of

22 public safety factored into his opinions in this case, Professor Morris responded: “Sadly, there was

no data that I could use to effectively assess it quantitatively, which is what I was tasked with, so I 23 didn’t have information on recidivism rates. . . . [Public safety is] built in, in part, through bond

24 forfeiture.”) CBAA’s attempt to evade its burden is particularly disingenous given its insistence that plaintiffs’ initial burden is to propose an alternative that is at least as effect as the Bail

25 Schedule “at achieving both of the government’s compelling interests[.]” CBAA’s Reply ISO Cross-MSJ at 9 (emphasis in original); see also id. (arguing that “[e]ven if [p]laintiffs could show

26 that their proposed alternative is at least as good as the Bail Schedule at ensuring public safety

. . . , this showing would be insufficient to meet [p]laintiffs’ initial burden of an ‘as effective’ 27 alternative, because that alternative would only meet half of the government’s compelling

28 interests.”) (emphasis supplied).

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1 government’s compelling interest or more restrictive and has thus failed to meet its burden under

2 the strict scrutiny standard.

3

Accordingly, and within the confines of the issues defined herein, plaintiffs’ motion for

4 summary judgment is GRANTED, and CBAA’s cross-motion is DENIED.76

5 IV. CONCLUSION

6

Plaintiffs’ motion to revoke CBAA’s intervenor status is DENIED as it is based on the

7 premature argument that Penal Code section 1269b has been repealed.

8

Plaintiffs’ motion for summary judgment is GRANTED, and CBAA’s cross-motion for

9 summary judgment is DENIED. The evidence demonstrates that the Sheriff’s use of the Bail

10 Schedule significantly deprives plaintiffs of their fundamental right to liberty, and a plausible

11 alternative exists which is at least as effective and less restrictive for achieving the government’s

12 compelling interests in protecting public safety and assuring future court appearances.

13 Operational efficiency based upon a bail schedule which arbitrarily assigns bail amounts to a list

14 of offenses without regard to any risk factors or the governmental goal of ensuring future court

15 appearances is insufficient to justify a significant deprivation of liberty.

16

In terms of injunctive relief, the parties have not briefed the topic. In general, relief must

17 be narrowly tailored to address the extent of the constitutional violations found. See Dayton Bd. of

18 Ed. v. Brinkman, 433 U.S. 406, 420 (1977) (“Once a constitutional violation is found, a federal

19 court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional

20 violation.”) (internal quotation marks omitted); Missouri v. Jenkins, 515 U.S. 70, 88 (1995)

21 (“[T]he nature of the . . . remedy is to be determined by the nature and scope of the constitutional

22 violation.”) (internal quotation marks omitted). Accordingly, the Court will issue an injunction

23 enjoining the Sheriff from using the Bail Schedule as a means of releasing a detainee who cannot

24 afford the amount but will delay issuing the injunction pending briefing. A separate scheduling

25

26 76 The Court need not rule on the remainder of CBAA’s evidentiary objections because the
27 Court did not need to consider such evidence to resolve the instant cross-motions for summary 28 judgment.
40

Case 4:15-cv-04959-YGR Document 314 Filed 03/04/19 Page 41 of 41

United States District Court Northern District of California

1 order shall issue.

2

This Order terminates Docket Numbers 282, 287, and 300.

3

IT IS SO ORDERED.

4

5 Dated: March 4, 2019 6 7

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 41

 
 Case 4:15-cv-04959-YGR Document 372 Filed 09/03/19 Page 1 of 6

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

RIANA BUFFIN, ET AL., 8
Plaintiffs,

CASE NO. 15-cv-04959-YGR

9 vs.

FINAL JUDGMENT AND INJUNCTION

10

CITY AND COUNTY OF SAN FRANCISCO, ET

11

AL.,

12

Defendants.

13

On March 4, 2019, this Court issued its Order Granting Plaintiffs’ Motion for Summary

14 Judgment holding that Sheriff Vicki Hennessy’s use of the San Francisco Felony and

15 Misdemeanor Bail Schedule (“Bail Schedule”) to determine pretrial release violates the Due

16 Process and Equal Protection Clauses of the United States Constitution (“March 4 Order”). (Dkt.

17 No. 314.)

18

Thereafter, and based upon the real parties-in-interest’s request and considerations of

19 federalism, the Court allowed those parties time to resolve the action with a global comprehensive

20 solution. On Friday, August 30, 2019, the parties notified the Court that they had reached a

21 settlement as to the appropriate remedy to be imposed in this case except for two outstanding

22 issues. (Dkt. No. 368.) Attaching a heavily-negotiated “Stipulated Final Judgment Remedying

23 Constitutional Violations,” the parties agreed, in summary, to an injunction prohibiting the use of

24 the Bail Schedule, detailed modifications of the procedures for pretrial release as a plausible

25 alternative to the current use of the Bail Schedule, and to monitoring for an effective period of

26 eighteen (18) months. (Id.)

27

On Tuesday, September 03, 2019, the parties appeared before the Court regarding the

28 settlement and the outstanding issues. First, plaintiffs argued that the Court should include the

Case 4:15-cv-04959-YGR Document 372 Filed 09/03/19 Page 2 of 6

United States District Court Northern District of California

1 proposed provision which allows arrestees charged with offenses enumerated in California Penal

2 Code section 1270.1(a) to have the right to submit an application under section 1269c seeking own

3 recognizance release prior to arraignment. The Sheriff took no position on the issue. Second, the

4 parties confirmed that an award of attorneys’ fees and costs should come later after a motion and

5 further negotiation.

6

Accordingly, to effectuate the March 4 Order, and based upon previous briefing, principles

7 of federalism, good cause, and pursuant to stipulation by the parties, the Court FINDS that the

8 additional proposed procedures are appropriate as part of a plausible alternative to the

9 constitutional violation and the Court HEREBY ADJUDGES as follows:

10

(I) The San Francisco Sheriff’s Department (hereafter “Sheriff”) is enjoined from

11

using the Bail Schedule, or any form or derivative thereof that requires or has as its

12

effect that the existence and duration of pre-arraignment detention is determined by

13

an arrestee’s ability to pay.

14

(II) For all arrestees booked on an offense not enumerated in California Penal Code

15

§ 1270.1(a), and who are arrested without a warrant and are not otherwise ineligible

16

for pre-arraignment OR release under state law:

17

(A) The arrestee’s PSA Report, along with all other portions of the OR Workup

18

reasonably available to the OR Project, shall be submitted to the San

19

Francisco Superior Court within eight (8) hours from the time of booking.1

20

(B) The Sheriff shall release the arrestee at eighteen (18) hours from the time of

21

booking if: (1) the Superior Court has not rendered a decision on OR release

22

23

1 For purposes of this Stipulated Judgment, “Own Recognizance” or “OR” release refers to any release not conditioned on payment of bail, and includes releases subject to any non-

24

financial conditions. The OR Workup refers to the report created by the OR Project of the San Francisco Pretrial Diversion Project (hereafter, “OR Project”) which contains the arrestee’s

25

criminal history, the police report, a cover sheet, and the PSA Report. “Booking” refers to the time that ID confirmation for an arrestee is received. The Sheriff shall maintain all reasonable

26

procedures to ensure that ID confirmation is received as swiftly as possible. To the extent circumstances beyond the OR Project’s or the Sheriff’s control render the completion of the PSA

27

Report impossible within eight (8) hours, the OR Project will exercise best efforts to complete the PSA Report as soon as feasible. The automatic release provision of Section II does not apply in

28

cases where the OR Project has been unable to complete the PSA Report for reasons beyond the OR Project’s or the Sheriff’s control.

2

Case 4:15-cv-04959-YGR Document 372 Filed 09/03/19 Page 3 of 6

United States District Court Northern District of California

1

at that time (which decision shall otherwise control) and (2) the PSA Report

2

for the arrestee does not indicate “release not recommended.”

3

(C) Release pursuant to this Section shall treat as binding the recommendation

4

of the PSA Report as to any conditions of release, and release procedures

5

shall be carried out as if the release recommendations in the PSA Report

6

had been adopted by the Superior Court. No arrestee shall be entitled to

7

release without signing an agreement to be bound by the conditions of

8

release contained in the PSA Report’s recommendation. An arrestee who is

9

being released subject to recommended Assertive Case Management

10

(ACM) procedures by the OR Project shall not be released from custody

11

before completing any procedures necessary to implementing the release

12

conditions.

13

(III) For all arrestees booked on an offense enumerated in California Penal Code

14

§ 1270.1(a), for whom pre-arraignment OR release is not available under current

15

law, the provisions of Section II shall not apply.

16

(IV) The procedures for seeking alterations on release, as currently reflected in

17

California Penal Code § 1269c, shall be modified as follows:

18

(A) For all arrestees booked on an offense not enumerated in California Penal

19

Code § 1270.1(a), a peace officer who (1) has reasonable cause to believe

20

that an arrestee may not appear at arraignment, or poses a threat to public

21

safety, or (2) expects that specific information not yet provided will be

22

delivered within the next twelve (12) hours and will probably provide

23

reasonable cause to believe that an arrestee may not appear at arraignment,

24

or poses a threat to public safety, shall prepare a declaration under penalty

25

of perjury setting forth the facts and circumstances in support of his or her

26

belief and file it with a magistrate or commissioner. Such a declaration may

27

be filed at any point throughout the 18-hour period referenced in Section II,

28

and will, without further judicial action, serve to extend the 18-hour period

3

Case 4:15-cv-04959-YGR Document 372 Filed 09/03/19 Page 4 of 6

United States District Court Northern District of California

1

by an additional twelve (12) hours.

2

(B) For all arrestees booked on an offense not enumerated in California Penal

3

Code § 1270.1(a), the arrestee or their attorney, friend or family member

4

shall have the right to submit an application under California Penal Code

5

§ 1269c to the magistrate or commissioner seeking a swifter judicial

6

decision than the automatic 18-hour release provision provided for in

7

Section II. Such an application shall not alter the obligation in Section II.A.

8

(C) For all arrestees booked on an offense enumerated in California Penal Code

9

§ 1270.1(a), the arrestee or their attorney, friend or family member shall

10

have the right to submit an application under California Penal Code § 1269c

11

to the magistrate or commissioner seeking OR release prior to arraignment.

12

(V) The obligations of this Stipulated Judgment are conditioned on the enactment of

13

legislation by the City and County of San Francisco approving the Stipulated

14

Judgment and providing additional funding to enable the OR Project to operate

15

twenty-four (24) hours a day, seven (7) days a week. The Sheriff shall expend all

16

reasonable efforts to seek a final vote on the enactment of such legislation within

17

ninety (90) days of entry of this Stipulated Judgment. The Stipulated Judgment

18

shall take full effect ninety (90) days after the enactment of such legislation. If the

19

City and County of San Francisco has, notwithstanding the Sheriff’s efforts, not

20

enacted such legislation within ninety (90) days of entry of this Stipulated

21

Judgment, the Stipulated Judgment shall be vacated, and unless the parties jointly

22

notify the Court that they have agreed to extend the time, the Court shall issue its

23

own final judgment in this matter.

24

(VI) The parties shall separately file, and the Court shall separately rule, on the issue of

25

attorneys’ fees and costs.

26

(VII) The Court shall retain jurisdiction over this matter until eighteen (18) months after

27

the terms of this injunction go into full effect pursuant to Section V, and Plaintiffs

28

shall be provided comprehensive reports every three (3) months in order to monitor

4

Case 4:15-cv-04959-YGR Document 372 Filed 09/03/19 Page 5 of 6

United States District Court Northern District of California

1

the Sheriff’s compliance with this Stipulated Judgment and its efficacy at

2

remedying the constitutional harm, and to bring matters to the Court’s attention as

3

appropriate. The parties shall meet and confer in good faith so as to ensure the

4

reports provided are sufficient for such monitoring purposes. The Sheriff will

5

make good faith efforts to begin to gather data regarding time of arraignment for all

6

arrestees. The reports are currently expected to include:

7

 Data regarding arrestees’ initiation of booking, charges, time of ID

8

Confirmation, and time of PSA Report submission and OR Workup

9

submission(s);

10

 Data regarding PSA Report recommendations;

11

 Data regarding the operation of Section II, including but not limited to data

12

regarding the arrestees deemed ineligible for pre-arraignment release pursuant

13

to Section II.B;

14

 Data regarding OR judicial decisions;

15

 Data regarding all automatic releases pursuant to Section II;

16

 Data regarding individual arrestees’ total length of incarceration and the manner

17

and timing of any release;

18

 Data regarding the number of affidavits submitted by peace officers pursuant

19

to Section IV.A, including information on timing;

20

 Data regarding the number of applications submitted on behalf of arrestees

21

pursuant to Sections IV.B and IV.C, including information on timing and

22

ultimate determinations, to the extent such information (if any) is available.

23

The first report shall include data from the year prior, including and up to the first

24

three months from the date the provisions of this Order become operative and shall

25

be due thirty (30) days after the expiration of that period, with additional reports to

26

be filed every three months thereafter. This provision imposes no obligation except

27

as to data in the possession of the Sheriff or the OR Project, or reasonably available

28

to them, and shall not require the provision of data other than is maintained or will

5

Case 4:15-cv-04959-YGR Document 372 Filed 09/03/19 Page 6 of 6

United States District Court Northern District of California

1

be maintained in the ordinary course of business.

2

(VIII) This Stipulated Judgment is intended to address the timing of release decisions pre-

3

arraignment and is not otherwise intended to interfere with changes to the processes

4

by which the Superior Court makes release determinations, including changes to

5

the way in which risk assessments are conducted or by which entity they are

6

conducted. Nothing in this Stipulated Judgment shall prevent the Sheriff from

7

releasing any person subject to terms of pretrial release who has received an

8

individualized determination by a judicial officer.

9

(IX) To the extent the Superior Court, California legislature, or any other entity seeks to

10

implement material changes that may implicate the terms of this Stipulated

11

Judgment or the pre-arraignment processes set forth herein, including to the manner

12

in which high risk arrestees may be identified by the PSA Report for the purposes

13

of the exception to the automatic release provisions of Section II.B, the parties shall

14

meet and confer over potential alterations to the terms of this Stipulated Judgment

15

and thereafter notify this Court of any joint proposal or inability to reach

16

agreement, which may include petitioning the Court to dissolve or modify the

17

Stipulated Judgment.

18

A compliance hearing shall be held on the Court’s 9:01 a.m. calendar on Friday,

19 November 22, 2019, in Courtroom 1 of the United States Courthouse located at 1301 Clay Street

20 in Oakland, California. Five (5) business days prior to the date of the compliance hearing, the

21 parties shall file a joint statement providing the Court with a status update. If compliance is 22 complete, the parties need not appear, and the compliance hearing will be taken off calendar.2

23

IT IS SO ORDERED.

24

25 Dated: September 3, 2019 26

YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

27

28

2 Defendant-Intervenor California Bail Agents Association’s request for entry of judgment (Dkt. No. 326) is hereby TERMINATED as MOOT.

6

 
 Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 1 of 7
EXHIBIT A

Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 2 of 7

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12

13

RIANA BUFFIN and CRYSTAL PATTERSON, on behalf of themselves and

14 others similarly situated,

15

Plaintiffs,

16

v.

17

VICKI HENNESSY in her official capacity as the San Francisco Sheriff, et al.,

18

Defendants.

19

CASE NO. 4:15-cv-04959-YGR STIPULATED FINAL JUDGMENT REMEDYING CONSTITUTIONAL VIOLATION

20

21

22

23

24

25

26

27

28

STIPULATED FINAL JUDGMENT CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 3 of 7

1

As set forth in the Order Granting Plaintiffs’ Motion for Summary Judgment, the San

2 Francisco Sheriff’s Department’s use, as required by current California law, of the Superior Court

3 of California, County of San Francisco Felony-Misdemeanor Bail Schedule (“Bail Schedule”)

4 violates the 14th Amendment of the U.S. Constitution. Accordingly, to remedy the Constitutional

5 violation and harm, and pursuant to stipulation by the parties, the Court orders the following for

6 purposes of pre-arraignment release procedures:

7

(I) The San Francisco Sheriff’s Department (hereafter “Sheriff”) is enjoined from

8

using the Bail Schedule, or any form or derivative thereof that requires or has as its

9

effect that the existence and duration of pre-arraignment detention is determined by

10

an arrestee’s ability to pay.

11

(II) For all arrestees booked on an offense not enumerated in California Penal Code

12

§ 1270.1(a), and who are arrested without a warrant and are not otherwise ineligible

13

for pre-arraignment OR release under state law:

14

(A) The arrestee’s PSA Report, along with all other portions of the OR

15

Workup reasonably available to the OR Project, shall be submitted to

16

the San Francisco Superior Court within eight (8) hours from the time

17

of booking.1

18

(B) The Sheriff shall release the arrestee at eighteen (18) hours from the

19

time of booking if: (1) the Superior Court has not rendered a decision

20

on OR release at that time (which decision shall otherwise control) and

(2) the PSA Report for the arrestee does not indicate “release not

21

recommended.”

22

23 1 For purposes of this Stipulated Judgment, “Own Recognizance” or “OR” release refers to any release not conditioned on payment of bail, and includes releases subject to any non-financial
24 conditions. The OR Workup refers to the report created by the OR Project of the San Francisco Pretrial Diversion Project (hereafter, “OR Project”) which contains the arrestee’s criminal

25 history, the police report, a cover sheet, and the PSA Report. “Booking” refers to the time that ID confirmation for an arrestee is received. The Sheriff shall maintain all reasonable procedures

26 to ensure that ID confirmation is received as swiftly as possible. To the extent circumstances beyond the OR Project’s or the Sheriff’s control render the completion of the PSA Report

27 impossible within eight (8) hours, the OR Project will exercise best efforts to complete the PSA Report as soon as feasible. The automatic release provision of Section II does not apply in cases
28 where the OR Project has been unable to complete the PSA Report for reasons beyond the OR Project’s or the Sheriff’s control.

STIPULATED FINAL JUDGMENT

1

CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 4 of 7

1

(C) Release pursuant to this Section shall treat as binding the

2

recommendation of the PSA Report as to any conditions of release, and

3

release procedures shall be carried out as if the release

4

recommendations in the PSA Report had been adopted by the Superior

Court. No arrestee shall be entitled to release without signing an

5

agreement to be bound by the conditions of release contained in the

6

PSA Report’s recommendation. An arrestee who is being released

7

subject to recommended Assertive Case Management (ACM)

8

procedures by the OR Project shall not be released from custody before

9

completing any procedures necessary to implementing the release

10

conditions.

11

(III) For all arrestees booked on an offense enumerated in California Penal Code

12

§ 1270.1(a), for whom pre-arraignment OR release is not available under current

13

law, the provisions of Section II shall not apply.

14

(IV) The procedures for seeking alterations on release, as currently reflected in

15

California Penal Code § 1269c, shall be modified as follows:

16

(A) For all arrestees booked on an offense not enumerated in California

17

Penal Code § 1270.1(a), a peace officer who (1) has reasonable cause

18

to believe that an arrestee may not appear at arraignment, or poses a

threat to public safety, or (2) expects that specific information not yet 19
provided will be delivered within the next twelve (12) hours and will

20

probably provide reasonable cause to believe that an arrestee may not

21

appear at arraignment, or poses a threat to public safety, shall prepare

22

a declaration under penalty of perjury setting forth the facts and

23

circumstances in support of his or her belief and file it with a magistrate

24

or commissioner. Such a declaration may be filed at any point

25

throughout the 18-hour period referenced in Section II, and will,

without further judicial action, serve to extend the 18-hour period by

26

an additional twelve (12) hours.

27

(B) For all arrestees booked on an offense not enumerated in California 28
Penal Code § 1270.1(a), the arrestee or their attorney, friend or family

STIPULATED FINAL JUDGMENT

2

CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 5 of 7

1

member shall have the right to submit an application under California

2

Penal Code § 1269c to the magistrate or commissioner seeking a

3

swifter judicial decision than the automatic 18-hour release provision

4

provided for in Section II. Such an application shall not alter the

obligation in Section II.A.

5

6

(C) For all arrestees booked on an offense enumerated in California Penal

7

Code § 1270.1(a), the arrestee or their attorney, friend or family

member shall have the right to submit an application under California

8

Penal Code § 1269c to the magistrate or commissioner seeking OR

9

release prior to arraignment.

10 (V) The obligations of this Stipulated Judgment are conditioned on the enactment of

11

legislation by the City and County of San Francisco approving the Stipulated

12

Judgment and providing additional funding to enable the OR Project to operate

13

twenty-four (24) hours a day, seven (7) days a week. The Sheriff shall expend all

14

reasonable efforts to seek a final vote on the enactment of such legislation within

15

ninety (90) days of entry of this Stipulated Judgment. The Stipulated Judgment

16

shall take full effect ninety (90) days after the enactment of such legislation. If the

City and County of San Francisco has, notwithstanding the Sheriff’s efforts, not

17

enacted such legislation within ninety (90) days of entry of this Stipulated

18

Judgment, the Stipulated Judgment shall be vacated, and unless the parties jointly

19

notify the Court that they have agreed to extend the time, the Court shall issue its

20

own final judgment in this matter.

21

(VI) The parties shall separately file, and the Court shall separately rule, on the issue of

22

attorneys’ fees and costs.

23

(VII) The Court shall retain jurisdiction over this matter until eighteen (18) months after

24

the terms of this injunction go into full effect pursuant to Section V, and Plaintiffs

25

shall be provided comprehensive reports every three (3) months in order to monitor

26

the Sheriff’s compliance with this Stipulated Judgment and its efficacy at

27

remedying the constitutional harm, and to bring matters to the Court’s attention as

appropriate. The parties shall meet and confer in good faith so as to ensure the 28
reports provided are sufficient for such monitoring purposes. The Sheriff will make

STIPULATED FINAL JUDGMENT

3

CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 6 of 7

1

good faith efforts to begin to gather data regarding time of arraignment for all

2

arrestees. The reports are currently expected to include:

3

• Data regarding arrestees’ initiation of booking, charges, time of ID

4

Confirmation, and time of PSA Report submission and OR Workup submission(s);

5

• Data regarding PSA Report recommendations;

6

• Data regarding the operation of Section II, including but not limited

to data regarding the arrestees deemed ineligible for pre-arraignment

7

release pursuant to Section II.B;

8

• Data regarding OR judicial decisions;

9

• Data regarding all automatic releases pursuant to Section II;

10

• Data regarding individual arrestees’ total length of incarceration and the manner and timing of any release;

11

• Data regarding the number of affidavits submitted by peace officers

12

pursuant to Section IV.A, including information on timing;

• Data regarding the number of applications submitted on behalf of

13

arrestees pursuant to Sections IV.B and IV.C, including information

14

on timing and ultimate determinations, to the extent such information (if any) is available.

15

The first report shall include data from the year prior, including and up to the first

16

three months from the date the provisions of this Order become operative and shall

17

be due thirty (30) days after the expiration of that period, with additional reports to

18

be filed every three months thereafter. This provision imposes no obligation except

19

as to data in the possession of the Sheriff or the OR Project, or reasonably available

to them, and shall not require the provision of data other than is maintained or will

20

be maintained in the ordinary course of business.

21

22

(VIII) This Stipulated Judgment is intended to address the timing of release decisions pre-

arraignment and is not otherwise intended to interfere with changes to the processes

23

by which the Superior Court makes release determinations, including changes to

24

the way in which risk assessments are conducted or by which entity they are

25

conducted. Nothing in this Stipulated Judgment shall prevent the Sheriff from

26

releasing any person subject to terms of pretrial release who has received an

27

individualized determination by a judicial officer.

28

STIPULATED FINAL JUDGMENT

4

CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368-1 Filed 08/30/19 Page 7 of 7

1

(IX) To the extent the Superior Court, California legislature, or any other entity seeks to

2

implement material changes that may implicate the terms of this Stipulated

3

Judgment or the pre-arraignment processes set forth herein, including to the manner

4

in which high risk arrestees may be identified by the PSA Report for the purposes

of the exception to the automatic release provisions of Section II.B, the parties shall

5

meet and confer over potential alterations to the terms of this Stipulated Judgment

6

and thereafter notify this Court of any joint proposal or inability to reach agreement,

7

which may include petitioning the Court to dissolve or modify the Stipulated

8

Judgment.

9

10 Dated: 11 12 13

The Hon. Yvonne Gonzalez Rogers United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STIPULATED FINAL JUDGMENT

5

CASE NO. 4:15-CV-04959-YGR

 
 Case 4:15-cv-04959-YGR Document 368 Filed 08/30/19 Page 1 of 4

1 LATHAM & WATKINS LLP

Robert E. Sims (CA Bar No. 116680)

2

Sadik Huseny (CA Bar No. 224659)

Tyler P. Young (CA Bar No. 291041)

3 505 Montgomery Street, Suite 2000

San Francisco, California 94111-6538

4 Telephone: +1.415.391.0600

Facsimile: +1.415.395.8095

5 Email: Bob.Sims@lw.com

Email: Sadik.Huseny@lw.com

6 Email: Tyler.Young@lw.com

EQUAL JUSTICE UNDER LAW Phil Telfeyan (CA Bar No. 258270)
Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 Telephone: +1.202.505.2058 Email: Ptelfeyan@equaljusticeunderlaw.org

7 Attorneys for Plaintiffs Riana Buffin and Crystal Patterson
8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12

13

RIANA BUFFIN and CRYSTAL PATTERSON, on behalf of themselves and

14 others similarly situated,

15

Plaintiffs,

16

v.

17

VICKI HENNESSY in her official capacity as the San Francisco Sheriff, et al.,

18

Defendants.

19

CASE NO. 4:15-cv-04959-YGR NOTICE OF STIPULATED FINAL JUDGMENT REMEDYING CONSTITUTIONAL VIOLATION

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW SAN FRANCISCO

NOTICE OF STIPULATED FINAL JUDGMENT CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368 Filed 08/30/19 Page 2 of 4

1

Plaintiffs and Defendant the San Francisco Sheriff are pleased to inform the Court that,

2 with the assistance of Chief Magistrate Judge Spero, they have reached agreement as to the

3 appropriate remedy to be imposed in this case, with two exceptions. The Stipulated Final

4 Judgment Remedying Constitutional Violation is attached as Exhibit A.

5

First, the parties have agreed to modify the procedures for seeking alterations on release,

6 as currently reflected in California Penal Code § 1269c, in two ways: (1) pursuant to Section IV.A

7 of Exhibit A, for arrestees charged with an offense not enumerated in California Penal Code

8 § 1270.1, a peace officer may file a declaration to extend the 18-hour automatic release deadline

9 by 12 hours if there is reasonable cause to believe that an arrestee may not appear at arraignment,

10 or poses a threat to public safety; and (2) pursuant to Section IV.B of Exhibit A, for arrestees

11 charged with offenses not enumerated in California Penal Code § 1270.1(a), the arrestee or their

12 attorney, friend or family member shall have the right to submit an application under § 1269c to

13 the magistrate or commissioner seeking a swifter judicial determination and release than the

14 automatic 18-hour release provision. Plaintiffs also seek to modify these procedures a third way

15 (Section IV.C), which is to provide all arrestees charged with offenses enumerated in California

16 Penal Code § 1270.1(a) the right to submit an application (by the arrestee or their attorney, friend

17 or family member) under § 1269c to the magistrate or commissioner seeking OR release prior to

18 arraignment. The Sheriff does not stipulate to this provision and takes no position on whether the

19 Court should adopt it. The parties agree that the Court’s decision on this issue shall not impact

20 any other provision of the stipulated final judgment.

21

Second, per Section VI of Exhibit A, the parties have not reached agreement as to

22 attorneys’ fees and costs, and expect to submit briefs on the matter to the Court following the entry

23 of final judgment if an agreement as to fees and costs cannot ultimately be reached.

24

We respectfully request that the Court enter final judgment at its earliest convenience, so

25 that the relevant time periods for implementation can begin. We would of course be pleased to

26 address any questions the Court may have.

27 //

28 //

ATTORNEYS AT LAW SAN FRANCISCO

1

NOTICE OF STIPULATED FINAL JUDGMENT CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368 Filed 08/30/19 Page 3 of 4

1 Dated: August 30, 2019 2 3 4 5 6 7 8 Dated: August 30, 2019 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW SAN FRANCISCO

Respectfully submitted, LATHAM & WATKINS LLP
Robert E. Sims Sadik Huseny Tyler P. Young By: /s/ Sadik Huseny Sadik Huseny
Attorneys for Plaintiffs Riana Buffin and Crystal Patterson
Respectfully submitted, DENNIS J. HERRERA City Attorney By: /s/ Jeremy M. Goldman
Jeremy M. Goldman
Attorneys for Defendant Sheriff Vicki Hennessy

2

NOTICE OF STIPULATED FINAL JUDGMENT CASE NO. 4:15-CV-04959-YGR

Case 4:15-cv-04959-YGR Document 368 Filed 08/30/19 Page 4 of 4

1

SIGNATURE ATTESTATION

2

I, Sadik Huseny, am the ECF user whose ID and password are being used to file this

3 Notice of Stipulated Final Judgment Remedying Constitutional Violation. In compliance with

4 Civil Local Rule 5-1(i)(3), I hereby attest that concurrence in the filing of this document has

5 been obtained from each of the other Signatories.

6 7 Dated: August 30, 2019
8

/s/ Sadik Huseny Sadik Huseny

9

10

11

12

13

14

15

16

17

18

19

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ATTORNEYS AT LAW SAN FRANCISCO

3

NOTICE OF STIPULATED FINAL JUDGMENT CASE NO. 4:15-CV-04959-YGR

 
 Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 1 of 38
CASREF,CLOSED,PROTO,REFSET−JCS,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15−cv−04959−YGR

Buffin et al v. City and County of San Francisco et al Assigned to: Hon. Yvonne Gonzalez Rogers Referred to: Magistrate Judge Joseph C. Spero (Settlement) Relate Case Case: 4:18−cv−00310−YGR Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/28/2015 Date Terminated: 09/03/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Riana Buffin

represented by Aaron T. Chiu Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111−6538 415−646−7839 Fax: 415−395−8095 Email: aaron.chiu@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clare Kathleen Toney Latham and Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111−6538 415−391−0600 Fax: 415−395−8095 Email: clare.toney@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan Equal Justice Under Law 400 7th Street NW Suite 602 Washington, DC 20004 202−505−2058 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sadik Harry Huseny Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415−391−0600 Fax: 415−395−8095 Email: sadik.huseny@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron Bernell Zisser Disability Rights Advocates 2001 Center Street, Fourth Floor Berkeley, CA 94704 United Sta (510)665−8644 Fax: (510)665−8511 Email: aaronzisser@gmail.com TERMINATED: 09/21/2017

Alec George Karakatsanis ,

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 2 of 38
Civil Rights Corps 910 17th Street NW Second Floor Washington, DC 20001
202−681−2409 Fax: Email: alec@civilrightscorps.org TERMINATED: 10/17/2016 PRO HAC VICE
Ariel E Rogers 505 Montgomery Street, Suite 2000 San Francisco, CA 94111−6538 415−391−0600 Email: ariel.rogers@lw.com ATTORNEY TO BE NOTICED
Catherine Bentley Sevcenko Equal Justice Under Law 400 7th Street NW Suite 602 Washington, DC 20004 703−643−7227 Email: catherine@equaljusticeunderlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
David Derrick 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415−391−0600 Email: david.derrick@lw.com ATTORNEY TO BE NOTICED
Katherine Claire Hubbard Civil Rights Corps 910 17th Street NW, Second Floor Washington, DC 20006 202−930−3835 Email: katherine@civilrightscorps.org TERMINATED: 10/17/2016
Margaret Tough Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111−6538 415−391−0600 Fax: 415−395−8095 Email: margaret.tough@lw.com ATTORNEY TO BE NOTICED
Robert E. Sims Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415−391−0600 Fax: 415−395−8095 Email: bob.sims@lw.com ATTORNEY TO BE NOTICED
Steven Mark Bauer Latham & Watkins LLP 505 Montgomery Street, Suite 2000

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 3 of 38

Plaintiff Crystal Patterson

San Francisco, CA 94111 415−391−0600 Fax: 415−395−8095 Email: steve.bauer@lw.com ATTORNEY TO BE NOTICED
Tyler Paul Young Latham and Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415−646−8317 Fax: 415−395−8095 Email: tyler.young@lw.com ATTORNEY TO BE NOTICED
represented by Aaron T. Chiu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clare Kathleen Toney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phil Telfeyan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Bernell Zisser (See above for address) TERMINATED: 09/21/2017
Alec George Karakatsanis , (See above for address) TERMINATED: 10/17/2016 PRO HAC VICE
Ariel E Rogers (See above for address) ATTORNEY TO BE NOTICED
Catherine Bentley Sevcenko (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Derrick (See above for address) ATTORNEY TO BE NOTICED
Katherine Claire Hubbard (See above for address) TERMINATED: 10/17/2016
Margaret Tough

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 4 of 38
(See above for address) ATTORNEY TO BE NOTICED
Robert E. Sims (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Tyler Paul Young (See above for address) ATTORNEY TO BE NOTICED

V. Defendant City and County of San Francisco
Defendant The State of California TERMINATED: 03/17/2016
Defendant Sheriff Vicki Hennessy

represented by Jeremy Michael Goldman San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415−554−6762 Fax: 415−554−4699 Email: jeremy.goldman@sfgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jose A Zelidon−Zepeda California State Attorney General's Office Department of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−510−3879 Fax: 415−703−5843 Email: Jose.ZelidonZepeda@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Jeremy Michael Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara M. Steeley San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415−554−4655 Fax: 415−554−4699 Email: tara.steeley@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neha Gupta San Francisco City Attorney's Office 1 Dr. Carlton B. Goodlett Pl. Suite 234 San Francisco, CA 94102

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 5 of 38

Defendant Attorney General Kamala Harris
Defendant Xavier Becerra

415−554−4665 Email: neha.gupta@sfgov.org ATTORNEY TO BE NOTICED
represented by Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by Jose A Zelidon−Zepeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Dft California Bail Agents Association
Amicus San Francisco Public Defender's Office

represented by Harmeet K. Dhillon Dhillon Law Group Inc. 177 Post Street, Suite 700 San Francisco, CA 94108 415−433−1700 Fax: 415−520−6593 Email: harmeet@dhillonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon D. Baum Dhillon Law Group LLC 177 Post Street, Suite 700 San Francisco, CA 94108 415−682−6846 Email: 3xdamages@gmail.com ATTORNEY TO BE NOTICED
Gregory Richard Michael Dhillon Law Group Inc. 177 Post St. 700 San Francisco, CA 94108 (415) 433−1700 Email: gmichael@dhillonlaw.com ATTORNEY TO BE NOTICED
Krista Lee Baughman Dhillon Law Group Inc. 177 Post Street, Suite 700 San Francisco, CA 94108 415−433−1700 Fax: 415−520−6593 Email: kbaughman@dhillonlaw.com ATTORNEY TO BE NOTICED
represented by Mary Beth McCord Institute for Constitutional Advocacy and Protection 600 New Jersey Ave NW Washington, DC 20001 202−661−6607 Email: mbm7@georgetown.edu

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 6 of 38
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/28/2015 10/28/2015
10/28/2015 10/28/2015 10/28/2015
10/28/2015 10/28/2015 10/29/2015
10/29/2015 10/29/2015 10/29/2015 10/29/2015

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−9950110.). Filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Civil Cover Sheet)(Telfeyan, Phil) (Filed on 10/28/2015) Modified on 1/26/2016 (cpS, COURT STAFF). (Entered: 10/28/2015)
2 Emergency MOTION for Temporary Restraining Order AND Preliminary Injunction filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Telfeyan, Phil) (Filed on 10/28/2015) Modified on 10/30/2015 (fs, COURT STAFF). Modified on 10/30/2015 (fs, COURT STAFF). (Entered: 10/28/2015)
3 Proposed Summons. (Telfeyan, Phil) (Filed on 10/28/2015) (Entered: 10/28/2015)
4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Riana Buffin, Crystal Patterson.. (Telfeyan, Phil) (Filed on 10/28/2015) (Entered: 10/28/2015)
5 Case assigned to Hon. Yvonne Gonzalez Rogers.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (sv, COURT STAFF) (Filed on 10/28/2015) (Entered: 10/28/2015)
6 Proposed Summons. (Telfeyan, Phil) (Filed on 10/28/2015) (Entered: 10/28/2015)
7 MOTION to Certify Class filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/1/2015 02:00 PM before Hon. Yvonne Gonzalez Rogers. Responses due by 11/12/2015. Replies due by 11/19/2015. (Attachments: # 1 Exhibit 1)(Telfeyan, Phil) (Filed on 10/28/2015) (Entered: 10/28/2015)
8 CLERK'S NOTICE VACATING HEARING DATE ON MOTION TO CERTIFY CLASS [DKT. NO. 7] AS HEARING DATE IS LESS THAN 35 DAYS.Counsel is to file a re−notice of motion for 35 days on a Tuesday at 2:00pm before Judge Yvonne Gonzalez Rogers.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 10/29/2015) (Entered: 10/29/2015)
9 CERTIFICATE OF SERVICE by Riana Buffin, Crystal Patterson re 1 Complaint, (Telfeyan, Phil) (Filed on 10/29/2015) (Entered: 10/29/2015)
10 CERTIFICATE OF SERVICE by Riana Buffin, Crystal Patterson re 2 Emergency MOTION for Temporary Restraining Order (Telfeyan, Phil) (Filed on 10/29/2015) (Entered: 10/29/2015)
11 Summons Issued as to Office of the City Attorney, Office of the Attorney General, Office of the Mayor. (Attachments: # 1 Summons)(cpS, COURT STAFF) (Filed on 10/29/2015) (Entered: 10/29/2015)
12 Renotice motion hearing re 7 MOTION to Certify Class to December 8 at 2pm filed byRiana Buffin, Crystal Patterson. (Related document(s) 7 ) (Telfeyan, Phil) (Filed on 10/29/2015) (Entered: 10/29/2015)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 7 of 38

10/30/2015 10/30/2015 10/30/2015 10/30/2015 11/02/2015 11/04/2015 11/04/2015
11/04/2015
11/12/2015
11/12/2015 11/13/2015 11/13/2015

Set/Reset Deadlines as to 7 MOTION to Certify Class . Motion Hearing set for 12/8/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Briefing dates remain in place. (fs, COURT STAFF) (Filed on 10/30/2015) (Entered: 10/30/2015)
13 ORDER by Judge Yvonne Gonzalez Rogers denying 2 Motion for Temporary Restraining Order and Setting Teleconference. (fs, COURT STAFF) (Filed on 10/30/2015) (Entered: 10/30/2015)
14 CERTIFICATE OF SERVICE by Riana Buffin, Crystal Patterson re 11 Summons Issued, 1 Complaint, (Telfeyan, Phil) (Filed on 10/30/2015) (Entered: 10/30/2015)
15 CERTIFICATE OF SERVICE by Riana Buffin, Crystal Patterson re 7 MOTION to Certify Class (Telfeyan, Phil) (Filed on 10/30/2015) (Entered: 10/30/2015)
16 NOTICE of Appearance by Jose Alfonso Zelidon−Zepeda DEFENDANT STATE OF CALIFORNIA'S NOTICE OF APPEARANCE (Zelidon−Zepeda, Jose) (Filed on 11/2/2015) (Entered: 11/02/2015)
17 NOTICE of Appearance by Jeremy Michael Goldman FOR DEFENDANT CITY AND COUNTY OF SAN FRANCISCO (Goldman, Jeremy) (Filed on 11/4/2015) (Entered: 11/04/2015)
18 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Telephone Conference held on 11/4/2015.Motion for Preliminary Injunction 2 : Responses due by 11/23/2015. Replies due by NOON on 12/2/2015. Motion for Preliminary Injunction Hearing set for WEDNESDAY, 12/16/2015 09:30 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Motion to Certify Class 7 : Responses due 11/13/15; Reply due 11/20/15; Motion to Certify Class Hearing set for WEDNESDAY, 12/16/2015 at 09:30 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.Court Reporter Name NOT REPORTED. Plaintiff Attorney Phil Telfeyan and Katherine Hubbard. Defendant Attorney Jeremy Goldman and Jose Zelidon−Zepeda. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 11/4/2015) (Entered: 11/05/2015)
19 ORDER SETTING BRIEFING SCHEDULE AND HEARING DATE.Set/Reset Deadlines as to 2 Motion for Preliminary Injunction;Responses due 11/23/15; Replies Due 12/2/15 by NOON. Motion for Preliminary Injunction set for WEDNESDAY, 12/16/15 at 09:30 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Set/Reset Deadlines as to 7 MOTION to Certify Class . Responses due by 11/13/2015. Replies due by 11/20/2015. Motion to Certify Class Hearing set for WEDNESDAY, 12/16/2015 09:30 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.Defendants' deadline to respond to the Complaint is 11/23/15. Signed by Judge Yvonne Gonzalez Rogers on 11/4/15. (fs, COURT STAFF) (Filed on 11/4/2015) (Entered: 11/05/2015)
20 MOTION to Dismiss; Memorandum of Points and Authorities filed by State of California. Motion Hearing set for 1/15/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 11/27/2015. Replies due by 12/4/2015. (Attachments: # 1 Proposed Order)(Zelidon−Zepeda, Jose) (Filed on 11/12/2015) Modified on 11/13/2015 (cpS, COURT STAFF). (Entered: 11/12/2015)
Set/Reset Deadlines as to 20 MOTION to Dismiss Defendant State of California's Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities. Motion Hearing set for 1/5/2016 02:00 PM before Hon. Yvonne Gonzalez Rogers. (cpS, COURT STAFF) (Filed on 11/12/2015) (Entered: 11/12/2015)
21 RESPONSE (re 7 MOTION to Certify Class ) SAN FRANCISCO'S OPPOSITION TO PLAINTIFFS' MOTION TO CERTIFY CLASS filed byCity and County of San Francisco. (Goldman, Jeremy) (Filed on 11/13/2015) (Entered: 11/13/2015)
22 Declaration of LIEUTENANT JOHN RAMIREZ IN SUPPORT OF SAN FRANCISCO'S OPPOSITION TO 7 MOTION TO CERTIFY CLASS filed by City and County of San Francisco. (Goldman, Jeremy) (Filed on 11/13/2015) Modified on 11/16/2015 (kcS, COURT STAFF). (Entered: 11/13/2015)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 8 of 38

11/13/2015 11/13/2015 11/20/2015 11/23/2015
11/23/2015
11/23/2015
11/23/2015 11/23/2015 11/30/2015 12/01/2015 12/02/2015 12/02/2015 12/02/2015 12/03/2015 12/07/2015 12/08/2015

23 Proposed Order DENYING AS MOOT 7 MOTION TO CERTIFY CLASS by City and County of San Francisco. (Goldman, Jeremy) (Filed on 11/13/2015) Modified on 11/16/2015 (kcS, COURT STAFF). (Entered: 11/13/2015)
24 RESPONSE (re 7 MOTION to Certify Class ) Defendant State of California's Opposition to Plaintiffs' Motion for Class Certification filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 11/13/2015) (Entered: 11/13/2015)
25 REPLY (re 7 MOTION to Certify Class ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1)(Telfeyan, Phil) (Filed on 11/20/2015) (Entered: 11/20/2015)
26 NOTICE OF JOINDER IN STATE OF CALIFORNIA'S MOTION TO DISMISS UNDER RULE 12(b)(6); NOTICE AND MOTION IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) filed by City and County of San Francisco. (Goldman, Jeremy) (Filed on 11/23/2015) Modified on 11/24/2015 (cpS, COURT STAFF). (Entered: 11/23/2015)
27 Proposed Order re 26 NOTICE AND MOTION IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) by City and County of San Francisco. (Goldman, Jeremy) (Filed on 11/23/2015) Modified on 11/24/2015 (cpS, COURT STAFF). (Entered: 11/23/2015)
28 RESPONSE (re 2 Emergency MOTION for Temporary Restraining Order ) DEFENDANT STATE OF CALIFORNIA'S OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 11/23/2015) (Entered: 11/23/2015)
29 RESPONSE to Plaintiffs' Motion for a Preliminary Injunction filed byCity and County of San Francisco. (Goldman, Jeremy) (Filed on 11/23/2015) Modified on 11/24/2015 (cpS, COURT STAFF). (Entered: 11/23/2015)
30 RESPONSE (re 20 MOTION to Dismiss ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Telfeyan, Phil) (Filed on 11/23/2015) (Entered: 11/23/2015)
31 MOTION for Leave to File Excess Pages for Consolidated Reply (Unopposed) filed by Riana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 11/30/2015) (Entered: 11/30/2015)
32 ORDER by Judge Yvonne Gonzalez Rogers granting 31 Motion for Leave to File Excess Pages for Consolidated Reply Brief (fs, COURT STAFF) (Filed on 12/1/2015) (Entered: 12/02/2015)
33 REPLY re 2 Motion for Preliminary Injunction by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1)(Telfeyan, Phil) (Filed on 12/2/2015) Modified on 12/2/2015 (cpS, COURT STAFF). (Entered: 12/02/2015)
34 Proposed Order re 2 Motion for Preliminary Injunction by Riana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 12/2/2015) Modified on 12/2/2015 (cpS, COURT STAFF). (Entered: 12/02/2015)
35 Proposed Order re 7 MOTION to Certify Class by Riana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 12/2/2015) (Entered: 12/02/2015)
36 REPLY SUPPORTING (re 20 MOTION to Dismiss ) filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 12/3/2015) Modified on 12/4/2015 (cpS, COURT STAFF). (Entered: 12/03/2015)
37 RESPONSE to re 26 Motion for a More Definite Statement by Riana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 12/7/2015) Modified on 12/8/2015 (cpS, COURT STAFF). (Entered: 12/07/2015)
38 CLERK'S NOTICE RESETTING MOTION HEARINGS. The hearing on Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 2) and Plaintiffs' Motion for Class Certification (Dkt. No. 7) currently scheduled for 12/16/15 is hereby CONTINUED to Wednesday, January 6, 2016 at 2:00 p.m. The hearing on Defendants' Motion to Dismiss (Dkt. No. 20) and Motion for More Definite Statement (Dkt. No. 27) currently scheduled for 1/5/16 is likewise CONTINUED to Wednesday, January 6, 2016 at 2:00

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 9 of 38

12/09/2015 12/14/2015 12/18/2015
12/18/2015 12/21/2015
12/21/2015 12/29/2015
12/30/2015 12/31/2015 01/04/2016 01/04/2016

p.m. All motions to be addressed at the same hearing.
Set/Reset Deadlines as to 7 MOTION to Certify Class 20 MOTION to Dismiss. Motion Hearing re−set for 1/6/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 12/8/2015) (Entered: 12/08/2015)
***See dkt # 38 . Set/Reset Deadlines as to 26 MOTION for More Definite Statement. Motion Hearing set for 1/6/2016 02:00 PM before Hon. Yvonne Gonzalez Rogers. (cpS, COURT STAFF) (Filed on 12/9/2015) Modified on 12/10/2015 (cpS, COURT STAFF). (Entered: 12/09/2015)
39 REPLY (re 26 MOTION for More Definite Statement ) filed byCity and County of San Francisco. (Goldman, Jeremy) (Filed on 12/14/2015) Modified on 12/15/2015 (cpS, COURT STAFF). (Entered: 12/14/2015)
40 ORDER REQUIRING SUPPLEMENTAL BRIEFING; CONTINUING HEARING re 20 MOTION to Dismiss filed by State of California, Set/Reset Deadlines as to 20 MOTION to Dismiss, 26 Joinder in Motion to Dismiss; MOTION for More Definite Statement. Motion Hearing set for 1/6/2016 is CONTINUED to 1/26/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 12/18/15. (fs, COURT STAFF) (Filed on 12/18/2015) (Entered: 12/18/2015)
Set/Reset Hearing Motion for Preliminary Injunction 2 Hearing set for 1/26/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 12/18/2015) (Entered: 01/25/2016)
41 MOTION to Intervene filed by California Bail Agents Association. Motion Hearing set for 1/26/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 1/4/2016. Replies due by 1/11/2016. (Attachments: # 1 Declaration Supporting Declaration of Maggie Kreins, # 2 Proposed Order)(Baum, Brandon) (Filed on 12/21/2015) Modified on 12/22/2015 (cpS, COURT STAFF). (Entered: 12/21/2015)
42 NOTICE of Appearance by Harmeet K. Dhillon (Dhillon, Harmeet) (Filed on 12/21/2015) Modified on 12/22/2015 (cpS, COURT STAFF). (Entered: 12/21/2015)
43 CLERK'S NOTICE RESETTING MOTION HEARINGS. The hearing on Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 2) and Plaintiffs' Motion for Class Certification (Dkt. No. 7) currently scheduled for 1/6/2016 is hereby CONTINUED to Tuesday, January 26, 2016 at 2:00 p.m; All motions to be addressed at the same hearing.
Set/Reset Deadlines as to 2 MOTION for Preliminary Injunction; 7 MOTION to Certify Class . Motion Hearing set for 1/26/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.
(This is a text−only entry generated by the court. There is no document associated with this entry.), (fs, COURT STAFF) (Filed on 12/29/2015) (Entered: 12/29/2015)
44 Statement of Non−Opposition to California Bail Agents Association's Motion to Intervene filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 12/30/2015) (Entered: 12/30/2015)
45 MOTION Allow Pro Hac Vice Admission filed by Riana Buffin, Crystal Patterson. Responses due by 1/14/2016. Replies due by 1/21/2016. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Telfeyan, Phil) (Filed on 12/31/2015) (Entered: 12/31/2015)
46 RESPONSE (re 41 MOTION to Intervene ) filed byCity and County of San Francisco. (Goldman, Jeremy) (Filed on 1/4/2016) (Entered: 01/04/2016)
47 RESPONSE (re 41 MOTION to Intervene ) filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 1/4/2016) (Entered: 01/04/2016)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 10 of 38

01/05/2016 01/06/2016 01/06/2016 01/11/2016 01/13/2016 01/13/2016 01/26/2016
02/01/2016
02/05/2016 02/10/2016
02/25/2016 02/29/2016 03/11/2016

48 ORDER granting re [45−2] MOTION Allow Pro Hac Vice Admission as to Alexander Karakatsanis representing Plaintiffs filed by Riana Buffin, Crystal Patterson. Signed by Judge Yvonne Gonzalez Rogers on 1/5/16. (fs, COURT STAFF) (Filed on 1/5/2016) (Entered: 01/05/2016)
49 SUPPLEMENTAL BRIEF RE: ABSTENTION filed byState of California. (Zelidon−Zepeda, Jose) (Filed on 1/6/2016) Modified on 1/7/2016 (cpS, COURT STAFF). (Entered: 01/06/2016)
50 Supplemental Brief regarding the inapplicability of Younger Abstention filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1) (Telfeyan, Phil) (Filed on 1/6/2016) Modified on 1/7/2016 (cpS, COURT STAFF). (Entered: 01/06/2016)
51 REPLY (re 41 MOTION to Intervene ) filed byCalifornia Bail Agents Association. (Baum, Brandon) (Filed on 1/11/2016) (Entered: 01/11/2016)
52 Reply Brief Re: Abstention byState of California. (Zelidon−Zepeda, Jose) (Filed on 1/13/2016) Modified on 1/14/2016 (cpS, COURT STAFF). (Entered: 01/13/2016)
53 RESPONSE Brief regarding the Inapplicability of Younger Abstention filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 1/13/2016) Modified on 1/14/2016 (cpS, COURT STAFF). (Entered: 01/13/2016)
54 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held on 1/26/2016. re 2 MOTION for Preliminary Injunction filed by Riana Buffin, Crystal Patterson, 20 MOTION to Dismiss filed by State of California, 41 MOTION to Intervene filed by California Bail Agents Association, 7 MOTION to Certify Class filed by Riana Buffin, Crystal Patterson, 26 Joinder in Motion to Dismiss; MOTION for More Definite Statement filed by City and County of San Francisco. Total Time in Court 33 minutes. Court Reporter Name Raynee Mercado. Plaintiff Attorney Phil Telfeyan and Katherine Hubbard. Defendant Attorney Jeremy Goldman, Jose Zelidon−Zepeda, Brandon Baum. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 1/26/2016) (Entered: 01/28/2016)
55 ORDER by Judge Yvonne Gonzalez Rogers denying as premature 41 Motion to Intervene; denying without prejudice 7 Motion to Certify Class; granting in part and denying in part 20 Motion to Dismiss; granting 26 Motion for More Definite Statement ; denying without prejudice 2 Motion for preliminary Injunction. Plaintiffs shall file an amended complaint no later than 2/25/2016. (fs, COURT STAFF) (Filed on 2/1/2016) (Entered: 02/01/2016)
56 NOTICE OF PENDENCY OF OTHER ACTION (Goldman, Jeremy) (Filed on 2/5/2016) Modified on 2/8/2016 (cpS, COURT STAFF). (Entered: 02/05/2016)
57 Transcript of Proceedings held on January 26, 2016, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/10/2016. (rhm) (Filed on 2/10/2016) (Entered: 02/10/2016)
58 AMENDED COMPLAINT against City and County of San Francisco. Filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 2/25/2016) (Entered: 02/25/2016)
59 TRANSCRIPT ORDER by City and County of San Francisco for Court Reporter Raynee Mercado. (Goldman, Jeremy) (Filed on 2/29/2016) (Entered: 02/29/2016)
60 STIPULATION WITH PROPOSED ORDER EXTENDING DEFENDANT'S TIME TO RESPOND TO AMENDED COMPLAINT PENDING FILING OF SECOND AMENDED COMPLAINT filed by City and County of San Francisco. (Goldman, Jeremy) (Filed on 3/11/2016) Modified on 3/14/2016 (kcS, COURT STAFF). (Entered: 03/11/2016)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 11 of 38

03/11/2016 03/17/2016
03/31/2016
03/31/2016 03/31/2016 04/14/2016 04/21/2016 04/21/2016 05/03/2016 05/06/2016
05/27/2016
06/01/2016 06/02/2016 06/09/2016

61 ORDER by Judge Yvonne Gonzalez Rogers granting 60 Stipulation Extending Time to Respond [AS MODIFIED BY THE COURT].(fs, COURT STAFF) (Filed on 3/11/2016) (Entered: 03/11/2016)
62 SECOND AMENDED COMPLAINT against City and County of San Francisco. Filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Telfeyan, Phil) (Filed on 3/17/2016) Modified on 3/18/2016 (kcS, COURT STAFF). (Entered: 03/17/2016)
63 MOTION to Dismiss PLAINTIFFS' SECOND AMENDED COMPLAINT UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e)MEMORANDUM OF POINTS & AUTHORITIES filed by City and County of San Francisco. Motion Hearing set for 5/10/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 4/14/2016. Replies due by 4/21/2016. (Goldman, Jeremy) (Filed on 3/31/2016) Modified on 4/1/2016 (cpS, COURT STAFF). Modified on 4/1/2016 (cpS, COURT STAFF). (Entered: 03/31/2016)
64 Proposed Order re 63 MOTION to Dismiss PLAINTIFFS' SECOND AMENDED COMPLAINT UNDER RULE 12(b)(6) by City and County of San Francisco. (Goldman, Jeremy) (Filed on 3/31/2016) Modified on 4/1/2016 (cpS, COURT STAFF). (Entered: 03/31/2016)
65 Proposed Order re 63 MOTION FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) by City and County of San Francisco. (Goldman, Jeremy) (Filed on 3/31/2016) Modified on 4/1/2016 (cpS, COURT STAFF). (Entered: 03/31/2016)
66 RESPONSE (re 63 MOTION to Dismiss PLAINTIFFS' SECOND AMENDED COMPLAINT UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) ) filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 4/14/2016) (Entered: 04/14/2016)
67 REPLY (re 63 MOTION to Dismiss PLAINTIFFS' SECOND AMENDED COMPLAINT UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) ) filed byCity and County of San Francisco. (Goldman, Jeremy) (Filed on 4/21/2016) (Entered: 04/21/2016)
68 Request for Judicial Notice re 67 Reply to Opposition/Response, DECLARATION OF JEREMY M. GOLDMAN filed byCity and County of San Francisco. (Attachments: # 1 Exhibit 1)(Related document(s) 67 ) (Goldman, Jeremy) (Filed on 4/21/2016) (Entered: 04/21/2016)
69 MOTION for Leave to File Surreply filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit Proposed Surreply)(Telfeyan, Phil) (Filed on 5/3/2016) (Entered: 05/03/2016)
70 ORDER by Judge Yvonne Gonzalez Rogers denying as moot 63 Motion to Dismiss; granting in part 69 Motion for Leave to File surreply. The hearing set for May 10, 2016 is VACATED. Plaintiffs shall file a third amended complaint no later than May 27, 2016 (fs, COURT STAFF) (Filed on 5/6/2016) Modified on 5/9/2016 (cpS, COURT STAFF). (Entered: 05/06/2016)
71 THIRD AMENDED COMPLAINT against City and County of San Francisco, Vicki Hennessy, Kamala Harris. Filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Telfeyan, Phil) (Filed on 5/27/2016) Modified on 5/31/2016 (cpS, COURT STAFF). (Entered: 05/27/2016)
72 Proposed Summons. (Attachments: # 1 Summons)(Hubbard, Katherine) (Filed on 6/1/2016) (Entered: 06/01/2016)
73 Summons Issued as to Kamala Harris, Vicki Hennessy. (cpS, COURT STAFF) (Filed on 6/2/2016) (Entered: 06/02/2016)
74 STIPULATION WITH PROPOSED ORDER EXTENDING SAN FRANCISCO'S TIME TO RESPOND TO THIRD AMENDED COMPLAINT AND SETTING BRIEFING SCHEDULE ON MOTIONS TO DISMISS filed by City and County of San

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 12 of 38

06/13/2016 06/23/2016
06/23/2016
06/23/2016 06/24/2016 06/24/2016 07/06/2016
07/12/2016 07/12/2016 07/19/2016 07/19/2016 07/19/2016 07/19/2016 07/20/2016

Francisco, Vicki Hennessy, Riana Buffin, Crystal Patterson. (Goldman, Jeremy) (Filed on 6/9/2016) Modified on 6/10/2016 (cpS, COURT STAFF). (Entered: 06/09/2016)
75 ORDER by Judge Yvonne Gonzalez Rogers granting 74 Stipulation [*AS MODIFIED BY THE COURT*]. (fs, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/13/2016)
76 MOTION to Dismiss THIRD AMENDED COMPLAINT BY DEFENDANTS SAN FRANCISCO AND SHERIFF HENNESSY; MEMORANDUM OF POINTS AND AUTHORITIES filed by City and County of San Francisco, Vicki Hennessy. Motion Hearing set for 8/16/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/7/2016. Replies due by 7/14/2016. (Goldman, Jeremy) (Filed on 6/23/2016) Modified on 6/24/2016 (cpS, COURT STAFF). (Entered: 06/23/2016)
77 MOTION to Dismiss Plaintiffs' Third Amended Complaint; Memorandum of Points and Authorities filed by Kamala Harris. Motion Hearing set for 8/16/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/7/2016. Replies due by 7/14/2016. (Attachments: # 1 Proposed Order)(Zelidon−Zepeda, Jose) (Filed on 6/23/2016) Modified on 6/24/2016 (cpS, COURT STAFF). (Entered: 06/23/2016)
78 Request for Judicial Notice re 77 MOTION to Dismiss filed byKamala Harris. (Attachments: # 1 Exhibit)(Related document(s) 77 ) (Zelidon−Zepeda, Jose) (Filed on 6/23/2016) Modified on 6/24/2016 (cpS, COURT STAFF). (Entered: 06/23/2016)
79 Proposed Order re 76 MOTION to Dismiss THIRD AMENDED COMPLAINT by City and County of San Francisco, Vicki Hennessy. (Goldman, Jeremy) (Filed on 6/24/2016) (Entered: 06/24/2016)
80 CERTIFICATE OF SERVICE by Kamala Harris re 77 MOTION to Dismiss Third Amended Complaint, 78 Request for Judicial Notice, 79 Proposed Order Granting Defendant Attorney General Kamala Harris' Motion to Dismiss (Zelidon−Zepeda, Jose) (Filed on 6/24/2016) (Entered: 06/24/2016)
81 Second MOTION to Intervene as Defendant filed by California Bail Agents Association. Motion Hearing set for 8/16/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/20/2016. Replies due by 7/27/2016. (Attachments: # 1 Declaration, # 2 Proposed Order)(Dhillon, Harmeet) (Filed on 7/6/2016) (Entered: 07/06/2016)
82 RESPONSE (re 76 MOTION to Dismiss THIRD AMENDED COMPLAINT ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Proposed Order)(Telfeyan, Phil) (Filed on 7/12/2016) (Entered: 07/12/2016)
83 RESPONSE (re 77 MOTION to Dismiss Third Amended Complaint ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Proposed Order)(Telfeyan, Phil) (Filed on 7/12/2016) (Entered: 07/12/2016)
84 REPLY (re 77 MOTION to Dismiss Third Amended Complaint ) filed byKamala Harris. (Zelidon−Zepeda, Jose) (Filed on 7/19/2016) Modified on 7/20/2016 (cpS, COURT STAFF). (Entered: 07/19/2016)
85 Statement of Non−Opposition to California Bail Agents Association's Second Motion to Intervene filed byKamala Harris. (Zelidon−Zepeda, Jose) (Filed on 7/19/2016) Modified on 7/20/2016 (cpS, COURT STAFF). (Entered: 07/19/2016)
86 REPLY (re 76 MOTION to Dismiss THIRD AMENDED COMPLAINT ) filed byCity and County of San Francisco, Vicki Hennessy. (Goldman, Jeremy) (Filed on 7/19/2016) (Entered: 07/19/2016)
87 RESPONSE (re 81 Second MOTION to Intervene as Defendant ) filed byCity and County of San Francisco, Vicki Hennessy. (Goldman, Jeremy) (Filed on 7/19/2016) (Entered: 07/19/2016)
88 RESPONSE (re 81 Second MOTION to Intervene as Defendant ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Telfeyan, Phil) (Filed on 7/20/2016) (Entered: 07/20/2016)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 13 of 38

07/27/2016 08/11/2016
08/11/2016 08/11/2016 08/15/2016 08/15/2016 08/16/2016
08/17/2016 08/17/2016 08/18/2016

89 REPLY (re 81 Second MOTION to Intervene as Defendant ) filed byCalifornia Bail Agents Association. (Dhillon, Harmeet) (Filed on 7/27/2016) (Entered: 07/27/2016)
90 ORDER REQUIRING SUPPLEMENTAL SUBMISSIONS; CONTINUING HEARING re 77 MOTION to Dismiss Third Amended Complaint filed by Kamala Harris, 81 Second MOTION to Intervene as Defendant filed by California Bail Agents Association, 76 MOTION to Dismiss THIRD AMENDED COMPLAINT filed by Vicki Hennessy, City and County of San Francisco. Signed by Judge Yvonne Gonzalez Rogers on 8/11/16. (fs, COURT STAFF) (Filed on 8/11/2016) (Entered: 08/11/2016)
If City indicates no such program has been implemented, then the hearing shall take place: Set/Reset Deadlines as to 77 MOTION to Dismiss Third Amended Complaint, 81 Second MOTION to Intervene as Defendant, 76 MOTION to Dismiss THIRD AMENDED COMPLAINT. Motion Hearing set for 8/23/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 8/11/2016) (Entered: 08/11/2016)
If the City confirms that such a program has been implemented, then the hearing on Motions will take place: Set/Reset Hearing re 90 Order, Motion Hearing set for 9/13/2016 09:00 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 8/11/2016) (Entered: 08/11/2016)
91 SUPPLEMENTAL BRIEF BY THE CITY AND COUNTY OF SAN FRANCISCO REGARDING PILOT PROJECT Pursuant to re 90 Order, filed byCity and County of San Francisco. (Related document(s) 90 ) (Goldman, Jeremy) (Filed on 8/15/2016) Modified on 8/16/2016 (cpS, COURT STAFF). (Entered: 08/15/2016)
92 Declaration of ALISSA RIKER in Support of 91 Supplemental Brief REGARDING PILOT PROGRAM filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 91 ) (Goldman, Jeremy) (Filed on 8/15/2016) (Entered: 08/15/2016)
93 CLERK'S NOTICE SETTING MOTION HEARING DATE. In light of defendant City and Count of San Francisco's supplemental brief regarding pilot project (Dkt. No. 91) and supporting declaration (Dkt. No. 92), the hearing on pending motions shall take place on September 13, 2016 at 9:00 a.m. and the parties shall file supplemental briefs consistent with the Court's prior order (Dkt. No. 90).
Motion Hearing set for 9/13/2016 09:00 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers., Set/Reset Deadlines as to 77 MOTION to Dismiss Third Amended Complaint, 81 Second MOTION to Intervene as Defendant, 76 MOTION to Dismiss THIRD AMENDED COMPLAINT.
(This is a text−only entry generated by the court. There is no document associated with this entry (fs, COURT STAFF) (Filed on 8/16/2016) (Entered: 08/16/2016)
94 STIPULATION WITH PROPOSED ORDER CONTINUING HEARING ON PENDING MOTIONS filed by City and County of San Francisco, Vicki Hennessy, Riana Buffin, et al. (Goldman, Jeremy) (Filed on 8/17/2016) Modified on 8/18/2016 (cpS, COURT STAFF). (Entered: 08/17/2016)
95 JOINT SUBMISSION BY ALL PARTIES IN RESPONSE TO SAN FRANCISCO'S SUPPLEMENTAL BRIEF REGARDING PILOT PROJECT re 91 filed byCity and County of San Francisco, Vicki Hennessy, Riana Buffing, et al. (Goldman, Jeremy) (Filed on 8/17/2016) Modified on 8/18/2016 (cpS, COURT STAFF). Modified on 8/18/2016 (cpS, COURT STAFF). (Entered: 08/17/2016)
96 Order Denying 94 Stipulation to continue hearing to September 27, 2016. The hearing on the motions is hereby rescheduled for August 30, 2016 at 2:00 p.m. Alternatively, the Court is willing to continue the hearings to September 6, 2016 at 2:00 p.m. Parties shall confer and jointly contact the courtroom deputy by no later than August 19, 2016 if the latter date is preferred. Entered by Hon. Yvonne Gonzalez Rogers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 08/18/2016)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 14 of 38

08/18/2016 08/19/2016 08/19/2016
10/14/2016 10/17/2016 11/01/2016 11/01/2016
11/01/2016 11/22/2016 11/22/2016 11/22/2016 11/23/2016
11/23/2016

Set/Reset Deadlines as to 77 MOTION to Dismiss Third Amended Complaint, 81 Second MOTION to Intervene as Defendant, 76 MOTION to Dismiss THIRD AMENDED COMPLAINT. Motion Hearing set for 8/30/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 8/18/2016) (Entered: 08/19/2016)
97 Response to Court's August 18, 2016 Order Re: Hearing on Pending Motion byKamala Harris. (Zelidon−Zepeda, Jose) (Filed on 8/19/2016) Modified on 8/22/2016 (cpS, COURT STAFF). (Entered: 08/19/2016)
98 ORDER VACATING HEARING. The hearing on pending motions re 77 MOTION to Dismiss Third Amended Complaint filed by Kamala Harris, 81 Second MOTION to Intervene as Defendant filed by California Bail Agents Association, 76 MOTION to Dismiss THIRD AMENDED COMPLAINT filed by Vicki Hennessy, City and County of San Francisco set for August 30, 2016 at 2:00pm (see Dkt.no.96) is hereby VACATED. The Court will reset the hearing if necessary. Signed by Judge Yvonne Gonzalez Rogers on 8/19/16. (fs, COURT STAFF) (Filed on 8/19/2016) (Entered: 08/19/2016)
99 ORDER ON MOTIONS TO DISMISS AND MOTION TO INTERVENE by Judge Yvonne Gonzalez Rogers; granting in part 76 Motion to Dismiss; granting with leave to amend 77 Motion to Dismiss; denying without prejudice 81 Motion to Intervene. (fs, COURT STAFF) (Filed on 10/14/2016) (Entered: 10/14/2016)
100 NOTICE of Change In Counsel by Phil Telfeyan (Telfeyan, Phil) (Filed on 10/17/2016) (Entered: 10/17/2016)
101 ANSWER to Amended Complaint by Sheriff Vicki Hennessy byVicki Hennessy. (Goldman, Jeremy) (Filed on 11/1/2016) (Entered: 11/01/2016)
102 Third MOTION to Intervene filed by California Bail Agents Association. Motion Hearing set for 12/13/2016 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 12/27/2016. Replies due by 1/3/2017. (Attachments: # 1 Proposed Order [Proposed] Order Granting Motion to Intervene, # 2 Declaration Declaration of Gloria Mitchell, # 3 Proposed Order [Proposed] Motion to Dismiss Per Rule 12(b)(6))(Dhillon, Harmeet) (Filed on 11/1/2016) (Entered: 11/01/2016)
RE−SETTING RESPONSE AND REPLY DATES: Set/Reset Deadlines as to 102 Third MOTION to Intervene . Responses due by 11/22/2016. Replies due by 11/29/2016. (fs, COURT STAFF) (Filed on 11/1/2016) (Entered: 11/02/2016)
103 Statement of Non−Opposition re 102 Third MOTION to Intervene filed byVicki Hennessy. (Related document(s) 102 ) (Goldman, Jeremy) (Filed on 11/22/2016) (Entered: 11/22/2016)
104 OPPOSITION/RESPONSE (re 102 Third MOTION to Intervene ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1)(Telfeyan, Phil) (Filed on 11/22/2016) (Entered: 11/22/2016)
105 STIPULATION WITH PROPOSED ORDER Concerning Hearing re 102 Third MOTION to Intervene by CBAA filed by California Bail Agents Association, Kamala Harri, et al. (Baughman, Krista) (Filed on 11/22/2016) Modified on 11/23/2016 (cpS, COURT STAFF). (Entered: 11/22/2016)
106 ORDER by Judge Yvonne Gonzalez Rogers granting 105 Stipulation Concerning Hearing on Pending Third Motion by CBAA to Intervene, and Anticipated First Motion by Attorney General Kamala Harris to Intervene. Attorney General of CA Motion to Intervene to be filed by 12/13/2016. CBAA's Fourth Motion to Intervene filed by 12/20/2016. Motion Hearing for both motions to Intervene is set for 2/7/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 11/23/2016) (Entered: 11/23/2016)
Set/Reset Deadlines as to RE Motions to Intervene: Responses due by 1/10/2017. Replies due by 1/17/2017. Motion Hearing set for 2/7/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 11/23/2016) (Entered: 11/23/2016)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 15 of 38

11/28/2016 11/29/2016

107 JOINT CASE MANAGEMENT STATEMENT filed by Vicki Hennessy, Riana Buffin, Crystal Patterson. (Goldman, Jeremy) (Filed on 11/28/2016) Modified on 11/29/2016 (cpS, COURT STAFF). (Entered: 11/28/2016)
108 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Initial Case Management Conference set for Monday, 12/5/16 is CONTINUNED to Monday, 2/13/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland. Updated Case Management Statement due by 2/6/2017.

12/14/2016 12/20/2016
01/10/2017 01/10/2017 01/17/2017 02/01/2017

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 11/29/2016) (Entered: 11/29/2016)
109 NOTICE of Non−Intervention by Kamala Harris (Zelidon−Zepeda, Jose) (Filed on 12/14/2016) Modified on 12/14/2016 (cpS, COURT STAFF). (Entered: 12/14/2016)
110 Fourth MOTION to Intervene filed by California Bail Agents Association. Motion Hearing set for 2/7/2017 02:00 PM before Hon. Yvonne Gonzalez Rogers. Responses due by 1/10/2017. Replies due by 1/17/2017. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibit, # 4 Exhibit)(Baughman, Krista) (Filed on 12/20/2016) (Entered: 12/20/2016)
111 Statement of Non−Opposition re 110 Fourth Motion to Intervene, filed by Vicki Hennessy. (Related document(s) 110 ) (Goldman, Jeremy) (Filed on 1/10/2017) Modified on 1/11/2017 (jlmS, COURT STAFF). (Entered: 01/10/2017)
112 OPPOSITION/RESPONSE (re 110 Fourth MOTION to Intervene ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1)(Telfeyan, Phil) (Filed on 1/10/2017) (Entered: 01/10/2017)
113 REPLY (re 110 Fourth MOTION to Intervene ) filed byCalifornia Bail Agents Association. (Baughman, Krista) (Filed on 1/17/2017) (Entered: 01/17/2017)
114 CLERK'S NOTICE CHANGING DATE OF INITIAL CASE MANAGEMENT CONFERENCE TO TUESDAY, FEBRUARY 7, 2017. Case Management Statement due by 2/6/2017. Initial Case Management Conference set for 2/13/2017 WILL NOW BE HELD ON TUESDAY, 2/7/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland, the same date and time as the Hearing on Motion to Intervene [Dkt. No. 110]. The 2/13/17 at 2:00pm date is VACATED.

02/06/2017 02/07/2017
02/14/2017 02/27/2017 03/06/2017 03/06/2017

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 2/1/2017) (Entered: 02/01/2017)
115 JOINT CASE MANAGEMENT STATEMENT filed by Vicki Hennessy, Riana Buffin, Crystal Patterson. (Goldman, Jeremy) (Filed on 2/6/2017) Modified on 2/7/2017 (cpS, COURT STAFF). (Entered: 02/06/2017)
116 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 2/7/2017 re 110 Fourth MOTION to Intervene filed by California Bail Agents Association. Initial Case Management Conference set for Monday, 3/6/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland. Updated Joint CMC Statement filed 2/27/17.Total Time in Court 3:20pm−3:38pm. Court Reporter Name Diane Skillman. (fs, COURT STAFF) (Date Filed: 2/7/2017) (Entered: 02/08/2017)
117 Joint Notice Regarding CBAA Intervention by Riana Buffin, Crystal Patterson (Telfeyan, Phil) (Filed on 2/14/2017) Modified on 2/15/2017 (cpS, COURT STAFF). (Entered: 02/14/2017)
118 JOINT CASE MANAGEMENT STATEMENT filed by Riana Buffin, Crystal Patterson., California Bail Agents Association, Vicki Hennessy (Telfeyan, Phil) (Filed on 2/27/2017) Modified on 2/28/2017 (cpS, COURT STAFF). (Entered: 02/27/2017)
119 ORDER by Judge Yvonne Gonzalez Rogers granting 110 Motion to Intervene. (fs, COURT STAFF) (Filed on 3/6/2017) (Entered: 03/06/2017)
120 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Initial Case Management Conference held on 3/6/2017. Close of Fact Discovery due by 8/1/2017. Case Management Statement due by 7/28/2017. Dispositive Motion filed

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 16 of 38

03/27/2017 03/27/2017 03/28/2017 05/04/2017 05/09/2017 05/17/2017 06/12/2017
07/31/2017 08/01/2017 08/02/2017
09/21/2017 10/31/2017

by 9/5/2017. Opening Reports due by 5/5/2017. Rebuttal Reports due by 5/19/2017. Further Case Management Conference set for 8/7/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland. Motion Hearing set for 10/10/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 9/19/2017. Replies due by 9/26/2017.Total Time in Court 21 Minutes. Court Reporter Name Kathy Wyatt. (fs, COURT STAFF) (Date Filed: 3/6/2017) (Entered: 03/13/2017)
121 NOTICE by California Bail Agents Association NOTICE OF WITHDRAWAL OF BRANDON D. BAUM (Dhillon, Harmeet) (Filed on 3/27/2017) (Entered: 03/27/2017)
122 NOTICE of Appearance by Gregory Richard Michael (Michael, Gregory) (Filed on 3/27/2017) (Entered: 03/27/2017)
123 INTERVENOR DEFENDANT CALIFORNIA BAIL AGENTS ASSOCIATIONS ANSWER to Amended Complaint byCalifornia Bail Agents Association. (Dhillon, Harmeet) (Filed on 3/28/2017) (Entered: 03/28/2017)
124 STIPULATION WITH PROPOSED ORDER CONTINUING DEADLINES FOR DISCLOSURE OF EXPERTS filed by California Bail Agents Association, Vicki Hennessy. (Baughman, Krista) (Filed on 5/4/2017) Modified on 5/5/2017 (cpS, COURT STAFF). (Entered: 05/04/2017)
125 ORDER by Judge Yvonne Gonzalez Rogers granting 124 Stipulation Continuing Deadlines for Disclosure of Experts. Opening Reports due by 5/19/2017. Rebuttal Reports due by 6/2/2017..(fs, COURT STAFF) (Filed on 5/9/2017) (Entered: 05/09/2017)
126 TRANSCRIPT ORDER for proceedings held on 2/7/2017 before Hon. Yvonne Gonzalez Rogers by City and County of San Francisco, for Court Reporter Diane Skillman. (Dhillon, Harmeet) (Filed on 5/17/2017) (Entered: 05/17/2017)
127 Transcript of Proceedings held on February 7, 2017, before Judge Yvonne Gonzalez Rogers. Court Reporter Diane E. Skillman, telephone number 925−899−2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 126 Transcript Order ) Release of Transcript Restriction set for 9/11/2017. (Related documents(s) 126 ) (Skillman, Diane) (Filed on 6/12/2017) (Entered: 06/12/2017)
128 JOINT CASE MANAGEMENT STATEMENT filed by Riana Buffin, Crystal Patterson, California Bail Agents Association. (Telfeyan, Phil) (Filed on 7/31/2017) Modified on 8/1/2017 (cpS, COURT STAFF). (Entered: 07/31/2017)
129 NOTICE of Appearance by Aaron Bernell Zisser (Zisser, Aaron) (Filed on 8/1/2017) (Entered: 08/01/2017)
130 ORDER GRANTING EXTENSION OF BRIEFING SCHEDULE; VACATING CASE MANAGEMENT CONFERENCE re 128 Joint Case Management Statement filed by California Bail Agents Association, Riana Buffin, Crystal Patterson. Dispositive /Daubert Motions due by 10/31/2017. Replies due by 11/21/2017. Responses due by 11/14/2017. Dispositive/Daubert Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Court VACATES the case management conference set for 8/7/2017. Signed by Judge Yvonne Gonzalez Rogers on 8/2/17. (fs, COURT STAFF) (Filed on 8/2/2017) Modified on 8/3/2017 (cpS, COURT STAFF). (Entered: 08/02/2017)
131 NOTICE of Change In Counsel by Phil Telfeyan (Telfeyan, Phil) (Filed on 9/21/2017) (Entered: 09/21/2017)
132 MOTION for Summary Judgment filed by California Bail Agents Association. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Supplement Supporting Separate Statement, # 2 Proposed

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 17 of 38

10/31/2017 10/31/2017 10/31/2017 10/31/2017
10/31/2017 10/31/2017 10/31/2017 10/31/2017 11/07/2017 11/09/2017

Order)(Baughman, Krista) (Filed on 10/31/2017) (Entered: 10/31/2017)
133 Declaration of Krista L. Baughman in Support of 132 MOTION for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 132 ) (Baughman, Krista) (Filed on 10/31/2017) (Entered: 10/31/2017)
134 MOTION Exclude Opinion Testimony of Truman Morrison III re 132 MOTION for Summary Judgment filed by California Bail Agents Association. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 10/31/2017) (Entered: 10/31/2017)
135 Declaration of Krista L. Baughman in Support of 134 MOTION Exclude Opinion Testimony of Truman Morrison III re 132 MOTION for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Exhibit 1)(Related document(s) 134 ) (Baughman, Krista) (Filed on 10/31/2017) (Entered: 10/31/2017)
136 MOTION for Summary Judgment filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, *** # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10 DOCUMENTS LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** , # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Supplement Supporting Statement, # 26 Proposed Order)(Telfeyan, Phil) (Filed on 10/31/2017) Modified on 11/2/2017 (ewn, COURT STAFF). (Entered: 10/31/2017)
137 MOTION to Exclude Testimony of Dennis Bartlett filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Telfeyan, Phil) (Filed on 10/31/2017) Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)
138 MOTION to Exclude or Limit Testimony of John Rorabaugh filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Telfeyan, Phil) (Filed on 10/31/2017) Modified on 11/1/2017 (cpS, COURT STAFF). Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)
139 MOTION to Limit the Testimony of Judge Quentin Kopp filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Proposed Order)(Telfeyan, Phil) (Filed on 10/31/2017) Modified on 11/1/2017 (cpS, COURT STAFF). Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)
140 MOTION to Certify Class filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2017 02:00 PM in Courtroom 1, 4th Floor, Oakland before Judge Yvonne Gonzalez Rogers. Responses due by 11/14/2017. Replies due by 11/21/2017. (Attachments: # 1 Declaration, # 2 Proposed Order)(Telfeyan, Phil) (Filed on 10/31/2017) (Entered: 10/31/2017)
141 MOTION for Leave to File Opposition to Plaintiffs' Motion for Class Certification filed by California Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 11/7/2017) (Entered: 11/07/2017)
142 Order Granting 141 Motion for Leave to File an Opposition to the Class Certification Motion. At this juncture, and absent stipulation, the Court declines to postpone briefing. Parties shall meet and confer on a briefing schedule noting that briefing must be complete no less than 14 days prior to the hearing. Entered

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 18 of 38

11/14/2017 11/14/2017
11/14/2017 11/14/2017
11/14/2017 11/14/2017 11/14/2017 11/14/2017
11/14/2017 11/14/2017 11/14/2017
11/14/2017 11/16/2017

by Judge Yvonne Gonzalez Rogers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 11/09/2017)
143 OPPOSITION/RESPONSE (re 136 MOTION for Summary Judgment ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Responsive Separate Statement, # 2 Proposed Order)(Baughman, Krista) (Filed on 11/14/2017) (Entered: 11/14/2017)
144 DECLARATION of Krista L. Baughman in Support of Opposition to 136 MOTION for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Related document(s) 136 ) (Baughman, Krista) (Filed on 11/14/2017) Modified on 11/15/2017 (cpS, COURT STAFF). (Entered: 11/14/2017)
145 OPPOSITION/RESPONSE (re 137 MOTION to Exclude Testimony of Dennis Bartlett ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 11/14/2017) (Entered: 11/14/2017)
146 DECLARATION of Krista L. Baughman in Support of California Bail Agents Association's Opposition to 137 MOTION to Exclude Testimony of Dennis Bartlett filed by California Bail Agents Association. (Attachments: # 1 Exhibit 1)(Related document(s) 137 ) (Baughman, Krista) (Filed on 11/14/2017) Modified on 11/15/2017 (cjlS, COURT STAFF). (Entered: 11/14/2017)
147 OPPOSITION/RESPONSE (re 138 MOTION to Exclude or Limit Testimony of John Rorabaugh ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 11/14/2017) (Entered: 11/14/2017)
148 OPPOSITION/RESPONSE (re 139 MOTION to Limit the Testimony of Judge Quentin Kopp ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 11/14/2017) (Entered: 11/14/2017)
149 SHERIFF VICKI HENNESSY'S RESPONSE TO 132 PLAINTIFFS' AND CBAA'S MOTIONS FOR SUMMARY JUDGMENT filed by Vicki Hennessy. (Goldman, Jeremy) (Filed on 11/14/2017) Modified on 11/15/2017 (cjlS, COURT STAFF). (Entered: 11/14/2017)
150 Declaration of JEREMY M. GOLDMAN IN SUPPORT OF SHERIFF VICKI HENNESSY'S RESPONSE TO MOTIONS FOR SUMMARY JUDGMENT filed byVicki Hennessy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Goldman, Jeremy) (Filed on 11/14/2017) (Entered: 11/14/2017)
151 Declaration of ALISSA RIKER IN SUPPORT OF THE SHERIFF'S RESPONSE TO THE MOTIONS FOR SUMMARY JUDGMENT filed byVicki Hennessy. (Goldman, Jeremy) (Filed on 11/14/2017) (Entered: 11/14/2017)
152 Declaration of SERGEANT LINDA BUI IN SUPPORT OF THE SHERIFF'S RESPONSE TO THE MOTIONS FOR SUMMARY JUDGMENT filed byVicki Hennessy. (Goldman, Jeremy) (Filed on 11/14/2017) (Entered: 11/14/2017)
153 OPPOSITION/RESPONSE (re 132 MOTION for Summary Judgment ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Supplement Responsive Statement, # 11 Proposed Order)(Telfeyan, Phil) (Filed on 11/14/2017) (Entered: 11/14/2017)
154 OPPOSITION/RESPONSE (re 134 MOTION Exclude Opinion Testimony of Truman Morrison III re 132 MOTION for Summary Judgment ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Telfeyan, Phil) (Filed on 11/14/2017) (Entered: 11/14/2017)
155 JOINT STIPULATION for Class Certification Briefing Schedule filed by Riana Buffin, Crystal Patterson, Vicki Hennessy, California Bail Agents Association. (Telfeyan, Phil) (Filed on 11/16/2017) Modified on 11/17/2017 (cpS, COURT STAFF). (Entered: 11/16/2017)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 19 of 38

11/17/2017
11/17/2017 11/18/2017 11/21/2017 11/21/2017 11/21/2017 11/21/2017 11/21/2017 11/21/2017 11/21/2017 11/22/2017 11/28/2017 11/28/2017 11/28/2017 11/29/2017
12/01/2017

156 ORDER GRANTING 155 JOINT Stipulation for Class Certification Briefing Schedule filed by California Bail Agents Association, Riana Buffin, Vicki Hennessy, Crystal Patterson. Set/Reset Deadlines as to 155 Stipulation as to 140 MOTION to Certify Class. Defendant Responses due by 11/17/2017. CBAA Responses filed 11/18/17. Replies due by 11/28/2017. Signed by Judge Yvonne Gonzalez Rogers on 11/17/17. (fs, COURT STAFF) (Filed on 11/17/2017) (Entered: 11/17/2017)
157 OPPOSITION/RESPONSE (re 140 MOTION to Certify Class ) filed byVicki Hennessy. (Goldman, Jeremy) (Filed on 11/17/2017) Modified on 11/20/2017 (cpS, COURT STAFF). (Entered: 11/17/2017)
158 OPPOSITION/RESPONSE (re 140 MOTION to Certify Class ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 11/18/2017) (Entered: 11/18/2017)
159 REPLY (re 134 MOTION Exclude Opinion Testimony of Truman Morrison III re 132 MOTION for Summary Judgment ) filed byCalifornia Bail Agents Association. (Baughman, Krista) (Filed on 11/21/2017) (Entered: 11/21/2017)
160 REPLY (re 132 MOTION for Summary Judgment ) filed byCalifornia Bail Agents Association. (Baughman, Krista) (Filed on 11/21/2017) (Entered: 11/21/2017)
161 REPLY to CBAA's Opposition (re 136 MOTION for Summary Judgment ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Telfeyan, Phil) (Filed on 11/21/2017) Modified on 11/22/2017 (cpS, COURT STAFF). (Entered: 11/21/2017)
162 REPLY to Sheriff's Response (re 136 MOTION for Summary Judgment ) in Response to the Sheriff filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Telfeyan, Phil) (Filed on 11/21/2017) Modified on 11/22/2017 (cpS, COURT STAFF). (Entered: 11/21/2017)
163 REPLY (re 137 MOTION to Exclude Testimony of Dennis Bartlett ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Telfeyan, Phil) (Filed on 11/21/2017) (Entered: 11/21/2017)
164 REPLY (re 138 MOTION to Exclude or Limit Testimony of John Rorabaugh ) filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 11/21/2017) (Entered: 11/21/2017)
165 REPLY (re 139 MOTION to Limit the Testimony of Judge Quentin Kopp ) filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 11/21/2017) (Entered: 11/21/2017)
166 Consent MOTION for Leave to File Erratum filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Errata, # 2 Errata Page, # 3 Proposed Order)(Telfeyan, Phil) (Filed on 11/22/2017) (Entered: 11/22/2017)
167 ORDER by Judge Yvonne Gonzalez Rogers granting 166 Motion for Leave to File Erratum. (fs, COURT STAFF) (Filed on 11/28/2017) (Entered: 11/28/2017)
168 REPLY (re 140 MOTION to Certify Class ) filed byRiana Buffin, Crystal Patterson. (Telfeyan, Phil) (Filed on 11/28/2017) (Entered: 11/28/2017)
169 Evidentiary Objections to Plaintiffs' Reply Evidence and Motion to Strike re 161 , 162 , 163 filed byCalifornia Bail Agents Association. (Baughman, Krista) (Filed on 11/28/2017) Modified on 11/29/2017 (cpS, COURT STAFF). (Entered: 11/28/2017)
170 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11912251.) Filing fee paid on 11/29/17 filed by San Francisco Public Defender's Office. (Attachments: # 1 Exhibit Certificate of Good Standing)(McCord, Mary) (Filed on 11/29/2017) Modified on 11/30/2017 (cpS, COURT STAFF). (Entered: 11/29/2017)
171 ORDER by Judge Yvonne Gonzalez Rogers granting 170 Motion for Pro Hac Vice as to Mary B. McCord. (fs, COURT STAFF) (Filed on 12/1/2017) (Entered: 12/01/2017)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 20 of 38

12/01/2017
12/01/2017 12/05/2017 12/06/2017 12/11/2017 12/11/2017

172 MOTION for Leave to File Opposition to Motion to Stike and Proposed Order filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Opposition, # 2 Proposed Order, # 3 Proposed Order)(Telfeyan, Phil) (Filed on 12/1/2017) Modified on 12/4/2017 (cpS, COURT STAFF). Modified on 12/4/2017 (cpS, COURT STAFF). (Entered: 12/01/2017)
173 Amended MOTION for Leave to File Opposition to Motion to Stike and Proposed Order filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Opposition, # 2 Proposed Order, # 3 Proposed Order)(Telfeyan, Phil) (Filed on 12/1/2017) Modified on 12/4/2017 (cpS, COURT STAFF). (Entered: 12/01/2017)
174 ADMINISTRATIVE MOTION Leave to File Amicus Curiae Brief filed by San Francisco Public Defender's Office. Responses due by 12/11/2017. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Amicus Brief)(McCord, Mary) (Filed on 12/5/2017) (Entered: 12/05/2017)
175 ORDER by Judge Yvonne Gonzalez Rogers granting 174 Unopposed Administrative Motion to file Amicus Brief. (fs, COURT STAFF) (Filed on 12/6/2017) (Entered: 12/06/2017)
176 Brief of Amicus Curiae filed by Francisco Public Defender's Office. (McCord, Mary) (Filed on 12/11/2017) Modified on 12/12/2017 (cpS, COURT STAFF). (Entered: 12/11/2017)
177

***DUPLICATE ENTRY OF DOCUMENT # 176 ***

12/12/2017
12/14/2017 12/15/2017 12/16/2017 12/20/2017 12/20/2017

Brief of Amicus Curiae filed bySan Francisco Public Defender's Office. (McCord, Mary) (Filed on 12/11/2017) Modified on 12/12/2017 (cpS, COURT STAFF). (Entered: 12/11/2017)
180 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 12/12/2017 re 138 MOTION to Exclude or Limit Testimony of John Rorabaugh filed by Riana Buffin, Crystal Patterson, 132 MOTION for Summary Judgment filed by California Bail Agents Association, 136 MOTION for Summary Judgment filed by Riana Buffin, Crystal Patterson, 140 MOTION to Certify Class filed by Riana Buffin, Crystal Patterson, 137 MOTION to Exclude Testimony of Dennis Bartlett filed by Riana Buffin, Crystal Patterson, 139 MOTION to Limit the Testimony of Judge Quentin Kopp filed by Riana Buffin, Crystal Patterson, 134 MOTION Exclude Opinion Testimony of Truman Morrison III re 132 MOTION for Summary Judgment filed by California Bail Agents Association. Bench Trial set for Monday, 2/12/2018 08:30 AM before Judge Yvonne Gonzalez Rogers. Total Time in Court: 1:28. Court Reporter: Raynee Mercado. (fs, COURT STAFF) (Date Filed: 12/12/2017) (Entered: 12/15/2017)
178 ORDER RE: CLASS CERTIFICATION AND PLAINTIFFS' REQUESTED RELIEF re 140 MOTION to Certify Class filed by Riana Buffin, Crystal Patterson. Filing due within one week of this order. Signed by Judge Yvonne Gonzalez Rogers on 12/14/2017. (fs, COURT STAFF) (Filed on 12/14/2017) (Entered: 12/14/2017)
179 TRANSCRIPT ORDER for proceedings held on 12/12/2017 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Raynee Mercado. (Dhillon, Harmeet) (Filed on 12/15/2017) (Entered: 12/15/2017)
181 RESPONSE to Court's Inquiry re 178 Order, by Riana Buffin, Crystal Patterson (Attachments: # 1 Affidavit and Supporting Letters)(Telfeyan, Phil) (Filed on 12/16/2017) Modified on 12/18/2017 (cpS, COURT STAFF). (Entered: 12/16/2017)
182 RESPONSE to re 178 COURT'S ORDER RE CLASS CERTIFICATION AND REQUESTED RELIEF by Vicki Hennessy. (Goldman, Jeremy) (Filed on 12/20/2017) Modified on 12/21/2017 (cpS, COURT STAFF). (Entered: 12/20/2017)
183

***STRICKEN PER ORDER (DKT. # 184 )***

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 21 of 38

12/21/2017 12/21/2017 01/04/2018
01/10/2018 01/12/2018 01/12/2018 01/12/2018
01/16/2018 01/16/2018 01/17/2018

RESPONSE to re 178 COURT ORDER by California Bail Agents Association. (Baughman, Krista) (Filed on 12/20/2017) Modified on 12/21/2017 (cpS, COURT STAFF). Modified on 12/22/2017 (cpS, COURT STAFF). (Entered: 12/20/2017)
184 ORDER STRIKING DKT. NO. 183 re 183 Response ( Non Motion ) filed by California Bail Agents Association. Signed by Judge Yvonne Gonzalez Rogers on 12/21/17. (fs, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
185 AMENDED RESPONSE to re 178 Order by California Bail Agents Association. (Baughman, Krista) (Filed on 12/21/2017) Modified on 12/22/2017 (cpS, COURT STAFF). (Entered: 12/21/2017)
186 Transcript of Proceedings held on December 12, 2017, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 179 Transcript Order ) Release of Transcript Restriction set for 3/26/2018. (Related document(s) 179 ) (rhm) (Filed on 1/4/2018) (Entered: 01/04/2018)
187 ADMINISTRATIVE MOTION seeking order continuing trial date and scheduling trial−setting conference for Feb. 12, 2018 filed by California Bail Agents Association. Responses due by 1/17/2018. (Attachments: # 1 Declaration, # 2 Proposed Order)(Baughman, Krista) (Filed on 1/10/2018) (Entered: 01/10/2018)
188 SHERIFF VICKI HENNESSYS RESPONSE TO 187 CBAAS ADMINISTRATIVE MOTION TO CONTINUE TRIAL DATE AND SCHEDULE TRIAL−SETTING CONFERENCE FOR FEBRUARY 12, 2018 filed by Vicki Hennessy. (Goldman, Jeremy) (Filed on 1/12/2018) Modified on 1/16/2018 (cjlS, COURT STAFF). (Entered: 01/12/2018)
189 Declaration of JEREMY M. GOLDMAN IN SUPPORT OF SHERIFF VICKI HENNESSYS RESPONSE TO CBAAS ADMINISTRATIVE MOTION TO CONTINUE TRIAL DATE AND SCHEDULE TRIAL−SETTING CONFERENCE FOR FEBRUARY 12, 2018 filed byVicki Hennessy. (Goldman, Jeremy) (Filed on 1/12/2018) (Entered: 01/12/2018)
190 Order Granting in Part 187 CBAA's Administrative Motion. The parties are informed that the Court will continue the trial date. A substantive order on the motions for summary judgment will be forthcoming. The Court sets a case management conference for January 22, 2018 at 1:00 p.m. in Courtroom One of the US District Court, Oakland to discuss the remainder of CBAA's Administrative Motion. Entered by Judge Yvonne Gonzalez Rogers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 01/12/2018)
191 ORDER DENYING CBAA'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by Judge Yvonne Gonzalez Rogers; denying 132 Motion for Summary Judgment; denying 136 Motion for Summary Judgment. (fs, COURT STAFF) (Filed on 1/16/2018) (Entered: 01/16/2018)
192 SCHEDULING ORDER. The Court VACATES the trial date currently set for February 12, 2018. Further Case Management Conference set for Monday, 1/22/2018 at specially set time of 01:00 PM in Courtroom 1, 4th Floor, Oakland. Proposed Joint Plan filed by 10:00 AM on Monday, 1/22/2018. Signed by Judge Yvonne Gonzalez Rogers on 1/16/18. (fs, COURT STAFF) (Filed on 1/16/2018) (Entered: 01/16/2018)
193 MOTION to Relate Case 18−cv−00310 filed by David Dupree, Philip Donatelli. (Attachments: # 1 Declaration of Matthew Miller in Support of Motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Proposed Order)(Jolley, David) (Filed on 1/17/2018) Modified on 1/18/2018 (cpS, COURT STAFF). (Entered: 01/17/2018)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 22 of 38

01/18/2018 01/18/2018

194 ORDER RE: ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED re 193 MOTION to Relate Case 18−cv−00310 filed by David Dupree, Philip Donatelli. Parties in the Dupree action (18−cv−00310−MEJ) are invited to attend the Monday, January 22, 2018 at **1:00 PM** Case Management Conference in the 15−cv−4959−YGR Buffin action before Judge Hon. Yvonne Gonzalez Rogers, in the Federal Courthouse, 1301 Clay Street, Oakland, California, Courtroom 1. Signed by Judge Yvonne Gonzalez Rogers on 1/18/2018. (fs, COURT STAFF) (Filed on 1/18/2018) Modified on 1/18/2018 (fs, COURT STAFF). (Entered: 01/18/2018)
195 CLERK'S NOTICE : PLEASE NOTE THE CORRECT TIME OF THE CASE MANAGEMENT CONFERENCE SET MONDAY, JANUARY 22, 2018 IS 1:00PM [not 2:00Pm] BEFORE JUDGE HON. YVONNE GONZALEZ ROGERS.

01/19/2018 01/19/2018 01/20/2018
01/22/2018 01/22/2018 01/22/2018
01/23/2018 02/02/2018 02/09/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 1/18/2018) (Entered: 01/18/2018)
196 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12039378.) filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Telfeyan, Phil) (Filed on 1/19/2018) (Entered: 01/19/2018)
197 TRANSCRIPT ORDER for proceedings held on 12/12/17 before Judge Yvonne Gonzalez Rogers by Philip Donatelli, David Dupree, for Court Reporter Raynee Mercado. (Bies, Katherine) (Filed on 1/19/2018) (Entered: 01/19/2018)
198 Pending before the Court is plaintiffs' counsel 11th−hour request not to attend the case management conference previously set for this coming Monday. Based on the representation regarding the preparation of additional counsel, the Court hereby Grants the 196 Motion for Pro Hac Vice and Denies the request to appear telephonically which are not typically granted as set forth in the Court's standing order. Entered by Judge Yvonne Gonzalez Rogers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 01/20/2018)
199 JOINT SUBMISSION IN RESPONSE TO SCHEDULING ORDER, DKT. 192 by California Bail Agents Association, Riana Buffin, Vicki Hennessy, Crystal Patterson. (Baughman, Krista) (Filed on 1/22/2018) Modified on 1/23/2018 (cpS, COURT STAFF). (Entered: 01/22/2018)
200 ORDER by Judge Yvonne Gonzalez Rogers granting 193 Motion to Relate Cases 4:15−cv−4959−YGR and 3:18−cv−0310−MEJ; and ORDER RELATING CASES. (fs, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)
202 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Further Case Management Conference held on 1/22/2018. Further Case Management Conference set for Wednesday 2/28/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor.Total Time in Court: 34 minutes. Court Reporter: Sarah Goekler. (fs, COURT STAFF) (Date Filed: 1/22/2018) (Entered: 01/26/2018)
201 TRANSCRIPT ORDER for proceedings held on 01/22/2018 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Sarah Goekler. (Dhillon, Harmeet) (Filed on 1/23/2018) (Entered: 01/23/2018)
203 NOTICE of Additional Class Counsel pursuant to re 192 Order (Telfeyan, Phil) (Filed on 2/2/2018) Modified on 2/5/2018 (cpS, COURT STAFF). (Entered: 02/02/2018)
204 Transcript of Proceedings held on 01/22/2018, before Judge Gonzalez Rogers. Court Reporter/Transcriber Sarah Goekler, telephone number (530)941−2621; sarah_goekler@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (201 in 4:15−cv−04959−YGR) Transcript Order ) Release of Transcript Restriction set for 5/10/2018. (slg, COURT STAFF) (Filed on 2/9/2018) (Entered: 02/09/2018)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 23 of 38

02/16/2018 02/16/2018 02/21/2018 02/23/2018
02/23/2018

205 NOTICE by Riana Buffin, Crystal Patterson of Plausible Alternatives (Attachments: # 1 Certificate/Proof of Service)(Sevcenko, Catherine) (Filed on 2/16/2018) (Entered: 02/16/2018)
206 NOTICE of Appearance by Tyler Paul Young on behalf of Riana Buffin and Crystal Patterson (Young, Tyler) (Filed on 2/16/2018) (Entered: 02/16/2018)
207 MOTION to Appear by Telephone at the February 28, 2018 Case Management Conference filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Proposed Order)(Sims, Robert) (Filed on 2/21/2018) (Entered: 02/21/2018)
208 ORDER by Judge Yvonne Gonzalez Rogers granting 207 Motion for Plaintiff Counsel Robert E. Sims to Appear by Telephone for the **2/28/18 ** at 2:00 PM Case Management Conference. (fs, COURT STAFF) (Filed on 2/23/2018) Modified on 2/23/2018 (fs, COURT STAFF). (Entered: 02/23/2018)
209 ***SEE CORRECTED CLERKS NOTICE AT DKT. NO. 210 WITH CORRECTED DATE***

CLERK'S NOTICE: Plaintiff Counsel Robert E. Sims shall contact CourtCall at (888) 882−6878 to make arrangements for the telephonic appearance for the Wednesday, 2/28/17 at 2:00 PM Case Management Conference. **See Order, docket no. 208***

02/23/2018

(This is a text−only entry generated by the court. There is no ocument associated with this entry.) (fs, COURT STAFF) (Filed on 2/23/2018) Modified on 2/23/2018 (fs, COURT STAFF). (Entered: 02/23/2018)
210 CORRECTED CLERK'S NOTICE : Plaintiff Counsel Robert E. Sims shall contact CourtCall at (888) 882−6878 to make arrangements for the telephonic appearance for the Wednesday,** 2/28/18** at 2:00 PM Case Management Conference. **See Order, docket no. 208***

02/23/2018 02/23/2018 02/26/2018 02/26/2018 02/27/2018 02/28/2018 02/28/2018

(This is a text−only entry generated by the court. There is no Document associated with this entry.) (fs, COURT STAFF) (Filed on 2/23/2018) (Entered: 02/23/2018). (This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 2/23/2018) (Entered: 02/23/2018)
211 NOTICE of Appearance by Harmeet K. Dhillon APPEARANCE OF BRANDON BAUM AS COUNSEL (Dhillon, Harmeet) (Filed on 2/23/2018) (Entered: 02/23/2018)
212 REQUESTS FOR ADDITIONAL DISCOVERY by California Bail Agents Association. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Baughman, Krista) (Filed on 2/23/2018) Modified on 2/25/2018 (cpS, COURT STAFF). (Entered: 02/23/2018)
213 TRANSCRIPT ORDER for proceedings held on 12/12/2017 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Raynee Mercado. (Young, Tyler) (Filed on 2/26/2018) (Entered: 02/26/2018)
214 ORDER by Judge Yvonne Gonzalez Rogers granting 140 Motion to Certify Class as Modified by the Court. (fs, COURT STAFF) (Filed on 2/26/2018) (Entered: 02/26/2018)
215 RESPONSE to re 212 MOTION for Additional Discovery by Vicki Hennessy. (Goldman, Jeremy) (Filed on 2/27/2018) Modified on 2/28/2018 (cpS, COURT STAFF). (Entered: 02/27/2018)
216 TRANSCRIPT ORDER for proceedings held on 02/28/2018 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Raynee Mercado. (Dhillon, Harmeet) (Filed on 2/28/2018) (Entered: 02/28/2018)
218 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Further Case Management Conference held on 2/28/2018. Further Case Management Conference set for Wednesday, 4/11/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor.Total Time in Court: 1:01. Court Reporter: Raynee Mercado. (fs, COURT STAFF) (Date Filed: 2/28/2018) (Entered: 03/02/2018)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 24 of 38

03/01/2018 03/02/2018 03/06/2018
03/09/2018 04/02/2018 04/04/2018 04/11/2018 04/13/2018 04/13/2018 04/16/2018 04/16/2018 04/20/2018
04/20/2018

217 TRANSCRIPT ORDER for proceedings held on February 28, 2018 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Raynee Mercado. (Young, Tyler) (Filed on 3/1/2018) (Entered: 03/01/2018)
219 ORDER FOLLOWING CASE MANAGEMENT CONFERENCE. Signed by Judge Yvonne Gonzalez Rogers on 3/2/2018. (fs, COURT STAFF) (Filed on 3/2/2018) (Entered: 03/02/2018)
220 Transcript of Proceedings held on February 28, 2018, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−502−6175, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (216 in 4:15−cv−04959−YGR) Transcript Order, (217 in 4:15−cv−04959−YGR) Transcript Order ) Release of Transcript Restriction set for 6/4/2018. (rhm) (Filed on 3/6/2018) (Entered: 03/06/2018)
221 Revised Notice of Plausible Alternatives by Riana Buffin, Crystal Patterson (Sims, Robert) (Filed on 3/9/2018) Modified on 3/12/2018 (cpS, COURT STAFF). (Entered: 03/09/2018)
222 NOTICE of Appearance by Neha Gupta (Gupta, Neha) (Filed on 4/2/2018) (Entered: 04/02/2018)
223 JOINT CASE MANAGEMENT STATEMENT filed by Riana Buffin, Crystal Patterson, Vicki Hennessy, California Bail Agents Association. (Sims, Robert) (Filed on 4/4/2018) Modified on 4/5/2018 (cpS, COURT STAFF). (Entered: 04/04/2018)
226 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Further Case Management Conference held on 4/11/2018.Total Time in Court: 1:31. Court Reporter: Diane Skillman. (fs, COURT STAFF) (Date Filed: 4/11/2018) (Entered: 04/16/2018)
224 STIPULATION WITH PROPOSED ORDER RE PROTECTIVE ORDER filed by California Bail Agents Association, Riana Buffin, Crystal Patterson, Vicki Hennessy. (Baum, Brandon) (Filed on 4/13/2018) Modified on 4/16/2018 (cpS, COURT STAFF). (Entered: 04/13/2018)
225 STIPULATION WITH PROPOSED ORDER to Set Case Management Schedule filed by Riana Buffin, Crystal Patterson, Vicki Hennessy, California Bail Agents Association. (Sims, Robert) (Filed on 4/13/2018) Modified on 4/16/2018 (cpS, COURT STAFF). (Entered: 04/13/2018)
227 TRANSCRIPT ORDER for proceedings held on 04/11/2018 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Diane Skillman. (Dhillon, Harmeet) (Filed on 4/16/2018) (Entered: 04/16/2018)
228 STIPULATED PROTECTIVE ORDER [*As Modified by the Court* ] re 224 STIPULATION WITH PROPOSED ORDER RE PROTECTIVE ORDER filed by California Bail Agents Association, Riana Buffin, Vicki Hennessy, Crystal Patterson. Signed by Judge Yvonne Gonzalez Rogers on 15−4959. (fs, COURT STAFF) (Filed on 4/16/2018) (Entered: 04/16/2018)
229 ORDER [*AS MODIFIED BY THE COURT*] by Judge Yvonne Gonzalez Rogers granting 225 Stipulation to Set Case Management Schedule. Close of Expert Discovery due by 8/3/2018. Close of Fact Discovery due by 6/30/2018. Opening Reports due by 7/6/2018. Rebuttal Reports due by 7/20/2018. Bench Trial set for 9/17/2018 08:30 AM before Judge Yvonne Gonzalez Rogers. Pretrial Conference set for 9/7/2018 09:30 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)
Set/Reset Hearing re 229 Order on Stipulation,, Bench Trial set for 9/17/2018 08:30 AM before Judge Yvonne Gonzalez Rogers. Bench Trial set for 9/18/2018 08:30 AM before Judge Yvonne Gonzalez Rogers. Bench Trial set for 9/19/2018 08:30 AM before Judge Yvonne Gonzalez Rogers. Bench Trial set for 9/20/2018 08:30 AM

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 25 of 38

04/24/2018
05/15/2018 05/15/2018 06/11/2018 08/10/2018 08/10/2018 08/14/2018 08/17/2018
08/17/2018
08/17/2018
08/17/2018 08/17/2018 08/17/2018

before Judge Yvonne Gonzalez Rogers. Bench Trial set for 9/21/2018 08:30 AM before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/30/2018)
230 Transcript of Proceedings held on April 11, 2018, before Judge Yvonne Gonzalez Rogers. Court Reporter Diane E. Skillman, telephone number 925−899−2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 227 Transcript Order ) Release of Transcript Restriction set for 7/23/2018. (Related documents(s) 227 ) (Skillman, Diane) (Filed on 4/24/2018) (Entered: 04/24/2018)
231 NOTICE of Appearance by Ariel E Rogers on behalf of Riana Buffin and Crystal Patterson (Rogers, Ariel) (Filed on 5/15/2018) (Entered: 05/15/2018)
232 NOTICE of Appearance by David Derrick on behalf of Riana Buffin and Crystal Patterson (Derrick, David) (Filed on 5/15/2018) (Entered: 05/15/2018)
233 NOTICE of Appearance by Margaret Tough on behalf of Riana Buffin and Crystal Patterson (Tough, Margaret) (Filed on 6/11/2018) (Entered: 06/11/2018)
234 NOTICE of Appearance by Sadik Harry Huseny on Behalf of Plaintiffs Riana Buffin and Crystal Patterson (Huseny, Sadik) (Filed on 8/10/2018) (Entered: 08/10/2018)
235 NOTICE of Appearance by Clare Kathleen Toney on Behalf of Plaintiffs Riana Buffin and Crystal Patterson (Toney, Clare) (Filed on 8/10/2018) (Entered: 08/10/2018)
236 NOTICE of Appearance by Tara M. Steeley (Steeley, Tara) (Filed on 8/14/2018) (Entered: 08/14/2018)
237 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING NEGATIVE OUTCOMES ALLEGEDLY RESULTING FROM PROLONGED PRETRIAL DETENTION filed by California Bail Agents Association. Responses due by 8/24/2018. Replies due by 8/29/2018. (Baughman, Krista) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
238 MOTION in Limine NO. 2 TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING UNDISCLOSED ALTERNATIVES filed by California Bail Agents Association. Responses due by 8/24/2018. Replies due by 8/29/2018. (Baughman, Krista) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
239 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF CLAIRE M. B. BROOKER filed by California Bail Agents Association. Responses due by 8/24/2018. Replies due by 8/29/2018. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Baughman, Krista) (Filed on 8/17/2018) (Entered: 08/17/2018)
240 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF MICHAEL R. JONES filed by California Bail Agents Association. Responses due by 8/24/2018. Replies due by 8/29/2018. (Attachments: # 1 Exhibit Exhibit A)(Baughman, Krista) (Filed on 8/17/2018) (Entered: 08/17/2018)
241 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF ROBERT I. WEISBERG filed by California Bail Agents Association. Responses due by 8/24/2018. Replies due by 8/29/2018. (Baughman, Krista) (Filed on 8/17/2018) (Entered: 08/17/2018)
242 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT ABOUT PRACTICES OF THE SAN FRANCISCO SUPERIOR COURT AND/OR SAN FRANCISCO CRIMINAL JUSTICE AGENCIES CONCERNING BAIL STACKING AND CHARGING DECISIONS filed by Vicki Hennessy. Responses due by 8/24/2018. Replies due by 8/29/2018. (Goldman, Jeremy) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 26 of 38

08/17/2018
08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018 08/17/2018

243 Proposed Order re 239 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF CLAIRE M. B. BROOKER, 240 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF MICHAEL R. JONES, 241 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF ROBERT I. WEISBERG, 238 MOTION in Limine NO. 2 TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING UNDISCLOSED ALTERNATIVES, 237 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING NEGATIVE OUTCOMES ALLEGEDLY RESULTING FROM PROLONGED PRETRIAL DETENTION by California Bail Agents Association. (Baughman, Krista) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
244 EXHIBIT A re 241 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF ROBERT I. WEISBERG filed byCalifornia Bail Agents Association. (Related document(s) 241 ) (Baughman, Krista) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
245 Joinder re 242 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT ABOUT PRACTICES OF THE SAN FRANCISCO SUPERIOR COURT AND/OR SAN FRANCISCO CRIMINAL JUSTICE AGENCIES CONCERNING BAIL STACKING AND CHARGING DECISIONS by California Bail Agents Association. (Baughman, Krista) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
246 Proposed Order re 242 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT ABOUT PRACTICES OF THE SAN FRANCISCO SUPERIOR COURT AND/OR SAN FRANCISCO CRIMINAL JUSTICE AGENCIES CONCERNING BAIL STACKING AND CHARGING DECISIONS by Vicki Hennessy. (Goldman, Jeremy) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
247 MOTION in Limine No. 1 to Exclude All Evidence, Testimony, and Argument Relating to Surety Data Spreadsheets filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 9/7/2018 09:30 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 8/17/2018. Replies due by 8/24/2018. (Attachments: # 1 Proposed Order)(Huseny, Sadik) (Filed on 8/17/2018) (Entered: 08/17/2018)
248 Declaration of Sadik Huseny in Support of 247 MOTION in Limine No. 1 to Exclude All Evidence, Testimony, and Argument Relating to Surety Data Spreadsheets filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 247 ) (Huseny, Sadik) (Filed on 8/17/2018) (Entered: 08/17/2018)
249 OPPOSITION/RESPONSE (re 247 MOTION in Limine No. 1 to Exclude All Evidence, Testimony, and Argument Relating to Surety Data Spreadsheets ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Declaration of Parsa Nozzari in support of CBAAs Opposition)(Baughman, Krista) (Filed on 8/17/2018) (Entered: 08/17/2018)
250 OPPOSITION/RESPONSE (re 240 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF MICHAEL R. JONES ) filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/17/2018) (Entered: 08/17/2018)
251 OPPOSITION/RESPONSE (re 239 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF CLAIRE M. B. BROOKER ) filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/17/2018) (Entered: 08/17/2018)
252 Joint Pretrial Conference Statement by Riana Buffin, Crystal Patterson, Vicki Hennessy, California Bail Agents Association. (Huseny, Sadik) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
253 OPPOSITION/RESPONSE (re 238 MOTION in Limine NO. 2 TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING UNDISCLOSED ALTERNATIVES ) filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
254 OPPOSITION/RESPONSE (re 241 MOTION in Limine TO EXCLUDE OPINION TESTIMONY OF ROBERT I. WEISBERG ) filed byRiana Buffin, Crystal Patterson.

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 27 of 38

08/17/2018
08/17/2018
08/17/2018
08/23/2018 08/23/2018
08/23/2018 08/24/2018
08/24/2018 08/24/2018 08/28/2018 08/30/2018 08/30/2018 08/30/2018

(Huseny, Sadik) (Filed on 8/17/2018) (Entered: 08/17/2018)
255 Declaration of Sadik Huseny in Support of 251 Opposition/Response to Motion, 250 Opposition/Response to Motion, 254 Opposition/Response to Motion filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 251 , 250 , 254 ) (Huseny, Sadik) (Filed on 8/17/2018) (Entered: 08/17/2018)
256 Declaration of Sadik Huseny in Support of 257 Plaintiffs' Opposition to CBAA's Motion in Limine No. 1 to Exclude Evidence and Argument Concerning Negative Outcomes Allegedly Resulting from Prolonged Pretrial Detention filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Huseny, Sadik) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
257 OPPOSITION/RESPONSE (re 237 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING NEGATIVE OUTCOMES ALLEGEDLY RESULTING FROM PROLONGED PRETRIAL DETENTION ) filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/17/2018) Modified on 8/20/2018 (cpS, COURT STAFF). (Entered: 08/17/2018)
258 Notice of Legislative Developments Potentially Implicating Case Schedule and Trial Date by Riana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/23/2018) Modified on 8/24/2018 (cjlS, COURT STAFF). (Entered: 08/23/2018)
259 Declaration of Sadik Huseny in Support of 258 Notice of Legislative Developments Potentially Implicating Case Schedule and Trial Date filed by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A)(Related document(s) 258 ) (Huseny, Sadik) (Filed on 8/23/2018) Modified on 8/24/2018 (cjlS, COURT STAFF). (Entered: 08/23/2018)
260 RESPONSE TO PLAINTIFFS NOTICE FILED AT DKT. 258 by California Bail Agents Association. (Baughman, Krista) (Filed on 8/23/2018) Modified on 8/24/2018 (cjlS, COURT STAFF). (Entered: 08/23/2018)
261 OPPOSITION/RESPONSE (re 242 MOTION in Limine NO. 1 TO EXCLUDE EVIDENCE AND ARGUMENT ABOUT PRACTICES OF THE SAN FRANCISCO SUPERIOR COURT AND/OR SAN FRANCISCO CRIMINAL JUSTICE AGENCIES CONCERNING BAIL STACKING AND CHARGING DECISIONS ) filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/24/2018) (Entered: 08/24/2018)
262 Declaration of Sadik Huseny in Support of 261 Opposition/Response to Motion, filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 261 ) (Huseny, Sadik) (Filed on 8/24/2018) (Entered: 08/24/2018)
263 Proposed Pre−Trial Findings of Fact and Conclusions of Law by Riana Buffin, Crystal Patterson (Sims, Robert) (Filed on 8/24/2018) Modified on 8/27/2018 (cpS, COURT STAFF). (Entered: 08/24/2018)
264 RESPONSE to re 258 TO PLAINTIFFS' NOTICE OF LEGISLATIVE DEVELOPMENTS by Vicki Hennessy. (Goldman, Jeremy) (Filed on 8/28/2018) Modified on 8/29/2018 (cpS, COURT STAFF). (Entered: 08/28/2018)
265 Joint Trial Readiness Binder: Plaintiffs' Trial Exhibit List by Riana Buffin, Crystal Patterson.. (Huseny, Sadik) (Filed on 8/30/2018) Modified on 8/31/2018 (cpS, COURT STAFF). (Entered: 08/30/2018)
266 Joint Trial Readiness Binder: Plaintiffs' Witness List by Riana Buffin, Crystal Patterson (Huseny, Sadik) (Filed on 8/30/2018) Modified on 8/31/2018 (cpS, COURT STAFF). (Entered: 08/30/2018)
267 Joint Trial Readiness Binder: Joint [Proposed] Order Regarding the Conduct of Trial by Riana Buffin, Crystal Patterson, California Bail Agents Association. (Huseny, Sadik) (Filed on 8/30/2018) Modified on 8/31/2018 (cpS, COURT STAFF). (Entered: 08/30/2018)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 28 of 38

08/31/2018 08/31/2018 08/31/2018 08/31/2018 08/31/2018 09/05/2018 09/05/2018 09/07/2018 09/07/2018 09/07/2018 09/07/2018
09/07/2018 09/19/2018

268 OBJECTIONS to re 266 Witness List by Vicki Hennessy. (Goldman, Jeremy) (Filed on 8/31/2018) (Entered: 08/31/2018)
269 Trial Exhibit List with Parties' Objections by California Bail Agents Association.. (Baughman, Krista) (Filed on 8/31/2018) Modified on 9/1/2018 (cpS, COURT STAFF). (Entered: 08/31/2018)
270 Fact and Expert Witness Lists by California Bail Agents Association . (Baughman, Krista) (Filed on 8/31/2018) Modified on 9/1/2018 (cpS, COURT STAFF). (Entered: 08/31/2018)
271 Joint Trial Readiness Binder: Combined Designation Disputes and [Proposed] Order by Riana Buffin, Crystal Patterson, California Bail Agents Association (Huseny, Sadik) (Filed on 8/31/2018) Modified on 9/1/2018 (cpS, COURT STAFF). (Entered: 08/31/2018)
272 JOINT TRIAL READINESS BINDER: SHERIFF VICKI HENNESSYS DISPUTED DESIGNATIONS AND [PROPOSED] ORDER by Vicki Hennessy (Goldman, Jeremy) (Filed on 8/31/2018) Modified on 9/1/2018 (cpS, COURT STAFF). (Entered: 08/31/2018)
273 Amended Fact and Expert Witness List by California Bail Agents Association (Baughman, Krista) (Filed on 9/5/2018) Modified on 9/5/2018 (cpS, COURT STAFF). (Entered: 09/05/2018)
274 REPLY to Defendant Sheriff and Defendant Intervenor CBAA's Submissions regarding SB10 re 264 , 258 , 260 by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Huseny, Sadik) (Filed on 9/5/2018) Modified on 9/5/2018 (cpS, COURT STAFF). (Entered: 09/05/2018)
275 TRANSCRIPT ORDER for proceedings held on September 7, 2018 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Raynee Mercado. (Huseny, Sadik) (Filed on 9/7/2018) (Entered: 09/07/2018)
276 TRANSCRIPT ORDER for proceedings held on 09/07/2018 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Raynee Mercado. (Baughman, Krista) (Filed on 9/7/2018) (Entered: 09/07/2018)
277 Proposed Findings of Fact and Conclusions of Law by California Bail Agents Association . (Baughman, Krista) (Filed on 9/7/2018) Modified on 9/10/2018 (cpS, COURT STAFF). (Entered: 09/07/2018)
278 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Pretrial Conference held on 9/7/2018. The Court VACATES the Bench Trial set 9/17/18. Plaintiffs' Motion for Summary Judgment filed 9/28/2018. Plaintiffs' Motion to Revoke CBAA's Intervenor Status filed 9/28/18. CBAA's Oppositions and Cross−Motion for Summary Judgment filed 10/19/2018. Plaintiffs' Reply in Support of its Motion for Summary Judgment, Reply in Support of its Motion to Revoke CBAA's Intervenor Status and Opposition to CBAA's Cross−Motion for Summary Judgment filed 11/7/18 by 3:00 PM. CBAA's Reply in Support of its Cross−Motion for Summary Judgment filed 11/21/18. Hearing on Cross−Motions for Summary Judgment and Motion to Revoke CBAA's Intervenor Status specially set for Wednesday, 12/12/18 at 2:00 PM. Replies due by 11/21/2018. Total Time in Court: 1:25. Court Reporter: Raynee Mercado. (fsS, COURT STAFF) (Date Filed: 9/7/2018) (Entered: 09/07/2018)
279 SCHEDULING ORDER. Signed by Judge Yvonne Gonzalez Rogers on 9/7/2018. (fs, COURT STAFF) (Filed on 9/7/2018) (Entered: 09/07/2018)
280 Transcript of Proceedings held on September 7, 2018, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−565−7228, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 276 Transcript Order, 275 Transcript Order ) Release of Transcript Restriction set for 12/14/2018. (Related document(s) 276 , 275 ) (rhm) (Filed on

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 29 of 38

09/28/2018 09/28/2018
09/28/2018
09/28/2018 09/28/2018 09/28/2018 09/28/2018
10/01/2018 10/01/2018 10/01/2018 10/19/2018 10/19/2018 10/19/2018 10/19/2018

9/19/2018) (Entered: 09/19/2018)
281 NOTICE of Appearance by Aaron T. Chiu on behalf of Plaintiffs Riana Buffin and Crystal Patterson (Chiu, Aaron) (Filed on 9/28/2018) (Entered: 09/28/2018)
282 MOTION for Summary Judgment filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 10/19/2018. Replies due by 11/7/2018. (Attachments: # 1 Proposed Order)(Huseny, Sadik) (Filed on 9/28/2018) (Entered: 09/28/2018)
283 Declaration of Robert E. Sims in Support of 282 MOTION for Summary Judgment filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Related document(s) 282 ) (Sims, Robert) (Filed on 9/28/2018) (Entered: 09/28/2018)
284 Declaration of Tal H. Klement in Support of 282 MOTION for Summary Judgment filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 282 ) (Sims, Robert) (Filed on 9/28/2018) (Entered: 09/28/2018)
285 Request for Judicial Notice re 282 MOTION for Summary Judgment filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 282 ) (Sims, Robert) (Filed on 9/28/2018) (Entered: 09/28/2018)
286 Supporting Separate Statement re 282 MOTION for Summary Judgment by Riana Buffin, Crystal Patterson. (Sims, Robert) (Filed on 9/28/2018) Modified on 10/1/2018 (cpS, COURT STAFF). (Entered: 09/28/2018)
287 MOTION to Revoke the California Bail Agents Association's Intervenor Status filed by Riana Buffin, Crystal Patterson. Motion Hearing set for 12/12/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 10/19/2018. Replies due by 11/7/2018. (Attachments: # 1 Proposed Order)(Sims, Robert) (Filed on 9/28/2018) (Entered: 09/28/2018)
288 CERTIFICATE OF SERVICE by Riana Buffin, Crystal Patterson re 284 Declaration in Support, 283 Declaration in Support,, regarding Manually Filed Exhibit 1 to the Robert E. Sims Declaration and Exhibit A to the Tal H. Klement Declaration (Sims, Robert) (Filed on 10/1/2018) (Entered: 10/01/2018)
289 EXHIBIT 1 (CD) re 283 Declaration of Robert E. Sims filed byRiana Buffin, Crystal Patterson. (Related document(s) 283 ) (cpS, COURT STAFF) (Filed on 10/1/2018) (Entered: 10/01/2018)
290 EXHIBIT A (CD) re 284 Declaration of Tal H. Klement filed byRiana Buffin, Crystal Patterson. (Related document(s) 284 ) (cpS, COURT STAFF) (Filed on 10/1/2018) (Entered: 10/01/2018)
291 OPPOSITION/RESPONSE (re 287 MOTION to Revoke the California Bail Agents Association's Intervenor Status ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 10/19/2018) (Entered: 10/19/2018)
292 OPPOSITION to Plaintiffs' Request for Judicial Notice by California Bail Agents Association. (Baughman, Krista) (Filed on 10/19/2018) Modified on 10/21/2018 (cpS, COURT STAFF). (Entered: 10/19/2018)
293 Request for Judicial Notice re: Opposition to Motion to Revoke Intervenor Status; Opposition to Plaintiffs' Motion for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Exhibit A)(Baughman, Krista) (Filed on 10/19/2018) (Entered: 10/19/2018)
294 ***STRICKEN PER ORDER DOCKET # 299 ***

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10/19/2018

OPPOSITION/RESPONSE (re 282 MOTION for Summary Judgment ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Responsive Separate Statement, # 2 Proposed Order)(Baughman, Krista) (Filed on 10/19/2018) Modified on 10/29/2018 (cpS, COURT STAFF). (Entered: 10/19/2018)
295 ***STRICKEN PER ORDER DOCKET # 299 ***

10/19/2018 10/23/2018 10/23/2018 10/26/2018
10/26/2018
10/26/2018 11/01/2018 11/01/2018 11/01/2018

MOTION for Summary Judgment filed by California Bail Agents Association. Motion Hearing set for 12/12/2018 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 11/7/2018. Replies due by 11/21/2018. (Attachments: # 1 Separate Statement, # 2 Proposed Order)(Baughman, Krista) (Filed on 10/19/2018) Modified on 10/29/2018 (cpS, COURT STAFF). (Entered: 10/19/2018)
296 Declaration of Krista L. Baughman in Support of 295 MOTION for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Related document(s) 295 ) (Baughman, Krista) (Filed on 10/19/2018) (Entered: 10/19/2018)
297 ADMINISTRATIVE MOTION to Strike and for Clarification regarding CBAA's Separately Filed Cross−Motion for Summary Judgment filed by Riana Buffin, Crystal Patterson. Responses due by 10/29/2018. (Attachments: # 1 Proposed Order)(Huseny, Sadik) (Filed on 10/23/2018) (Entered: 10/23/2018)
298 OPPOSITION/RESPONSE (re 297 ADMINISTRATIVE MOTION to Strike and for Clarification regarding CBAA's Separately Filed Cross−Motion for Summary Judgment ) filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 10/23/2018) (Entered: 10/23/2018)
299 ORDER RE: PLAINTIFFS' MOTION TO STRIKE AND FOR CLARIFICATION REGARDING CBAA'S SEPARATELY FILED CROSS−MOTION FOR SUMMARY JUDGMENT re 297 ADMINISTRATIVE MOTION to Strike and for Clarification regarding CBAA's Separately Filed Cross−Motion for Summary Judgment filed by Riana Buffin, Crystal Patterson. CBAA'S opposition to plaintiffs' motion for summary judgment and cross−motion for summary judgment are STRICKEN. Signed by Judge Yvonne Gonzalez Rogers on 10/26/18. (fs, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/26/2018)
Set/Reset Deadlines as to 295 MOTION for Summary Judgment , 282 MOTION for Summary Judgment. CBAA'S Single Brief containing both their opposition and cross−motion filed by 11/1/2018. Plaintiffs have until Tuesday, 11/20/2018 to file both their reply and opposition to CBAA's cross−motion. CBAA's reply in support of Cross−Motion filed by 12/4/18. The briefing schedule re Plaintiffs' Motion to Revoke CBAA's intervenor status 287 shall remain unchanged. The Hearing on ALL Motions is CONTINUED to Tuesday, 1/8/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/26/2018)
Set/Reset Deadlines as to 287 MOTION to Revoke the California Bail Agents Association's Intervenor Status . Motion Hearing set for 1/8/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/26/2018)
300 OPPOSITION/RESPONSE (re 282 MOTION for Summary Judgment ) and Cross−Motion for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Proposed Order)(Baughman, Krista) (Filed on 11/1/2018) Modified on 11/2/2018 (cpS, COURT STAFF). (Entered: 11/01/2018)
301 Responsive Separate Statement of Disputed and Additional Facts re: Plaintiffs' Motion for Summary Judgment by California Bail Agents Association. (Baughman, Krista) (Filed on 11/1/2018) Modified on 11/2/2018 (cpS, COURT STAFF). (Entered: 11/01/2018)
302 Separate Statement of Undisputed Material Facts in Support of CBAA's Cross−Motion for Summary Judgment by California Bail Agents Association. (Baughman, Krista)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 31 of 38

11/01/2018
11/07/2018 11/20/2018 11/20/2018 11/20/2018 12/04/2018 01/08/2019
01/10/2019 01/10/2019

(Filed on 11/1/2018) Modified on 11/2/2018 (cpS, COURT STAFF). (Entered: 11/01/2018)
303 Declaration of Krista L. Baughman in support of CBAA's Opposition to Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment filed byCalifornia Bail Agents Association. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Baughman, Krista) (Filed on 11/1/2018) (Entered: 11/01/2018)
304 REPLY (re 287 MOTION to Revoke the California Bail Agents Association's Intervenor Status ) filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 11/7/2018) (Entered: 11/07/2018)
305 REPLY (re 282 MOTION for Summary Judgment ) and Opposition to 300 CBAA's Cross Motion for Summary Judgment filed byRiana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 11/20/2018) (Entered: 11/20/2018)
306 Declaration of Robert E. Sims in Support of 305 Reply to Opposition/Response filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 305 ) (Sims, Robert) (Filed on 11/20/2018) (Entered: 11/20/2018)
307 RESPONSIVE SEPARATE STATEMENT OF PLAINTIFFS RIANA BUFFIN AND CRYSTAL PATTERSON by Riana Buffin, Crystal Patterson. (Sims, Robert) (Filed on 11/20/2018) Modified on 11/21/2018 (cjlS, COURT STAFF). (Entered: 11/20/2018)
308 REPLY in Support of (re 300 Cross−MOTION for Summary Judgment ) filed byCalifornia Bail Agents Association. (Baughman, Krista) (Filed on 12/4/2018) Modified on 12/5/2018 (cpS, COURT STAFF). (Entered: 12/04/2018)
310 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 1/8/2019 re 282 MOTION for Summary Judgment filed by Riana Buffin, Crystal Patterson, 287 MOTION to Revoke the California Bail Agents Association's Intervenor Status filed by Riana Buffin, Crystal Patterson; 300 CBAA's Cross−Motion for Summary Judgment.Total Time in Court: 58 minutes. Court Reporter: Diane Skillman. (fs, COURT STAFF) (Date Filed: 1/8/2019) (Entered: 01/10/2019)
309 TRANSCRIPT ORDER for proceedings held on January 8, 2019 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Diane Skillman. (Huseny, Sadik) (Filed on 1/10/2019) (Entered: 01/10/2019)
311 ***FILED IN ERROR. FORM INCOMPLETE***

01/11/2019

TRANSCRIPT ORDER for proceedings held on 01/08/2019 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Diane Skillman. (Dhillon, Harmeet) (Filed on 1/10/2019) Modified on 1/13/2019 (cpS, COURT STAFF). (Entered: 01/10/2019)
Electronic filing error. Incomplete form. This filing will not be processed by the clerk's office.

01/11/2019 01/15/2019

Please complete form and re−file in its entirety re: 311 Transcript Ord er filed by California Bail Agents Association (cpS, COURT STAFF) (Filed on 1/11/2019) (Entered: 01/11/2019)
312 TRANSCRIPT ORDER for proceedings held on 01/08/2019 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Diane Skillman. (Baughman, Krista) (Filed on 1/11/2019) (Entered: 01/11/2019)
313 Transcript of Proceedings held on January 8, 2019, before Judge Yvonne Gonzalez Rogers. Court Reporter Diane E. Skillman, telephone number 925−899−2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER.

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 32 of 38

03/04/2019 03/04/2019 03/04/2019

Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 309 Transcript Order ) Release of Transcript Restriction set for 4/15/2019. (Related documents(s) 309 ) (Skillman, Diane) (Filed on 1/15/2019) (Entered: 01/15/2019)
314 ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; DENYING CBAA'S CROSS−MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION TO REVOKE CBAA'S INTERVENOR STATUS by Judge Yvonne Gonzalez Rogers granting 282 Motion for Summary Judgment; denying 287 Motion to Revoke CBAA's Intervenor Status; denying 300 Cross−motion for Summary Judgment. (fs, COURT STAFF) (Filed on 3/4/2019) (Entered: 03/04/2019)
315 ORDER RE: BRIEFING ON LANGUAGE OF INJUNCTION. Plaintiffs shall filed a proposed form of injunction five business days from the date of this order. Objections or comments filed five business days thereafter. Hearing regarding the actual language of the injunction shall be held on Thursday, 3/21/2019 11:00 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 3/4/2019. (fs, COURT STAFF) (Filed on 3/4/2019) (Entered: 03/04/2019)
316 ***This exhibit UNSEALED per Court Order dated 3/4/2019, Dkt. no. 314 per page 2, footnote 4 of the Order.***

03/11/2019 03/11/2019 03/18/2019 03/18/2019 03/19/2019 03/21/2019
03/25/2019 03/26/2019

EXHIBIT 136−8 re 136 Plaintiffs' Motion for Summary Judgment filed 10/31/17. (fs, COURT STAFF) (Filed on 3/4/2019) (Entered: 03/04/2019)
317 Proposed Injunction by Riana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 3/11/2019) Modified on 3/12/2019 (cpS, COURT STAFF). (Entered: 03/11/2019)
318 Brief in support of re 317 [Proposed] Injunction filed byRiana Buffin, Crystal Patterson. (Related document(s) 317 ) (Huseny, Sadik) (Filed on 3/11/2019) Modified on 3/12/2019 (cpS, COURT STAFF). (Entered: 03/11/2019)
319 RESPONSE SHERIFF VICKI HENNESSY'S RESPONSE TO PLAINTIFFS' PROPOSED FORM OF INJUNCTION by Vicki Hennessy. (Attachments: # 1 Exhibit A − Sheriff Vicki Hennessy's [Proposed] Injunction)(Goldman, Jeremy) (Filed on 3/18/2019) (Entered: 03/18/2019)
320 RESPONSE re 319 Response ( Non Motion ) CBAA's PARTIAL JOINDER IN SHERIFF'S RESPONSE AND ADDITIONAL OBJECTION TO PLAINTIFFS' [PROPOSED] INJUNCTION by California Bail Agents Association. (Dhillon, Harmeet) (Filed on 3/18/2019) (Entered: 03/18/2019)
321 Plaintiffs' Modified [Proposed] Injunction [DN 317] by Riana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Huseny, Sadik) (Filed on 3/19/2019) Modified on 3/20/2019 (jmlS, COURT STAFF). (Entered: 03/19/2019)
324 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Motion Hearing re Language of Injunction held and submitted on 3/21/2019. Compliance hearing set for 4/26/2019 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. CBAA's brief filed by 4/1/19. Any responses filed by 4/8/19.Total Time in Court: 1:08. Court Reporter: Pam Hebel. (fs, COURT STAFF) (Date Filed: 3/21/2019) (Entered: 03/26/2019)
322 TRANSCRIPT ORDER for proceedings held on March 21, 2019 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Pam Batalo. (Huseny, Sadik) (Filed on 3/25/2019) (Entered: 03/25/2019)
323 Transcript of Proceedings held on 03/21/19, before Judge Gonzalez Rogers. Court Reporter Pamela Batalo Hebel, telephone number 626−688−7509; pamela_batalo−hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 322 Transcript Order )

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 33 of 38

03/27/2019 04/01/2019 04/01/2019 04/02/2019 04/05/2019 04/08/2019 04/08/2019 04/19/2019 04/24/2019
05/03/2019 05/08/2019

Redaction Request due 4/16/2019. Redacted Transcript Deadline set for 4/26/2019. Release of Transcript Restriction set for 6/24/2019. (Related documents(s) 322 ) (Batalo, Pam) (Filed on 3/26/2019) (Entered: 03/26/2019)
325 TRANSCRIPT ORDER for proceedings held on 3/21/2019 before Judge Yvonne Gonzalez Rogers by California Bail Agents Association, for Court Reporter Pam Batalo. (Dhillon, Harmeet) (Filed on 3/27/2019) (Entered: 03/27/2019)
326 Request for Entry of Judgment, FRCP 58 by California Bail Agents Association (Baughman, Krista) (Filed on 4/1/2019) Modified on 4/5/2019 (cpS, COURT STAFF). (Entered: 04/01/2019)
327 Brief Regarding Issues Pertaining to Injunctive Relief filed byCalifornia Bail Agents Association. (Baughman, Krista) (Filed on 4/1/2019) (Entered: 04/01/2019)
328 TRANSCRIPT ORDER for proceedings held on 03/21/2019 before Judge Yvonne Gonzalez Rogers by Vicki Hennessy, for Court Reporter Pam Batalo. (Goldman, Jeremy) (Filed on 4/2/2019) (Entered: 04/02/2019)
329 OPPOSITION/RESPONSE (re 326 MOTION for Entry of Judgment ) filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Proposed Order)(Huseny, Sadik) (Filed on 4/5/2019) (Entered: 04/05/2019)
330 RESPONSE re 327 Brief SHERIFF VICKI HENNESSY'S RESPONSE TO CBAA'S BRIEF REGARDING ISSUES PERTAINING TO INJUNCTIVE RELIEF by Vicki Hennessy. (Goldman, Jeremy) (Filed on 4/8/2019) (Entered: 04/08/2019)
331 RESPONSE re 327 Brief Plaintiffs' Response to CBAA's Injunction Brief by Riana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 4/8/2019) (Entered: 04/08/2019)
332 Joint Status Update by Riana Buffin, Crystal Patterson and Sheriff Vicki Hennessy. (Huseny, Sadik) (Filed on 4/19/2019) Modified on 4/19/2019 (jmlS, COURT STAFF). (Entered: 04/19/2019)
333 ORDER CONTINUING COMPLIANCE HEARING re 332 Statement filed by Riana Buffin, Vicki Hennessy, Crystal Patterson. Compliance hearing set for 4/26/2019 is CONTINUED to Friday, 5/10/2019 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 4/24/19. (fs, COURT STAFF) (Filed on 4/24/2019) (Entered: 04/24/2019)
334 Joint Status Update by Riana Buffin, Crystal Patterson and Vicki Hennessy. (Huseny, Sadik) (Filed on 5/3/2019) Modified on 5/6/2019 (jmlS, COURT STAFF). (Entered: 05/03/2019)
335 CLERK'S NOTICE. In light of the joint statement at Dkt. No. 334, the Friday, May 10, 2019 at 9:01 Compliance Hearing is VACATED.

05/08/2019 05/09/2019 05/23/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 5/8/2019) (Entered: 05/08/2019)
336 ORDER REFERRING CASE to Magistrate Judge Joseph C. Spero for Mediation on the issue of injunctive relief only re dkt. no. 334 . Signed by Judge Yvonne Gonzalez Rogers on 5/8/2019. (fs, COURT STAFF) (Filed on 5/8/2019) (Entered: 05/08/2019)
337 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER. Signed by Chief Magistrate Judge Joseph C. Spero on 5/9/2019. Settlement Conference set for 5/23/2019 at 9:30 AM in San Francisco, Courtroom G, 15th Floor. (ahm, COURT STAFF) (Filed on 5/9/2019) (Entered: 05/09/2019)
339 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Settlement Conference held on 5/23/2019. Case did not settle. Further Settlement Conference set for 7/8/2019 09:30 AM in San Francisco, Courtroom G, 15th Floor.

FTR Time: Not Reported.

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 34 of 38

Attorney for Plaintiff: David Derrick, Robert E. Sims, Sadik Huseny, Tyler Young, Phil Telfeyan, Marissa Hatton

Attorney for Defendant: Mark Nicco, Neha Gupta, Jeremy M. Goldman

05/24/2019

(klhS, COURT STAFF) (Date Filed: 5/23/2019) (Entered: 05/24/2019)
338 CLERK'S NOTICE SETTING COMPLIANCE HEARING. In light of the filing at Dkt. no. 334, the Court sets another Compliance Hearing for Friday, June 14, 2019 at 9:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint filing due 6/7/2019 regarding parties final positions re appropriate injunctive relief to be issued in case.

05/24/2019 06/03/2019 07/08/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 5/24/2019) (Entered: 05/24/2019)
340 Notice and Order Setting Further Settlement Conference before Chief Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 7/8/2019 09:30 AM in San Francisco, Courtroom G, 15th Floor. Signed by Chief Magistrate Judge Joseph C. Spero on 5/24/19. (klhS, COURT STAFF) (Filed on 5/24/2019) (Entered: 05/24/2019)
341 ORDER CONTINUING COMPLIANCE HEARING. Compliance hearing set for 6/14/2019 is CONTINUED to Friday, 7/19/2019 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint Statement filed by 7/12/2019. Signed by Judge Yvonne Gonzalez Rogers on 6/3/2019. (fs, COURT STAFF) (Filed on 6/3/2019) (Entered: 06/03/2019)
342 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: FurtherSettlement Conference held on 7/8/2019. Telephone Conference with counsel set for 7/17/2019 09:30 AM in San Francisco, Chambers before Chief Magistrate Judge Joseph C. Spero.

FTR Time: Not Reported.

07/09/2019
07/12/2019 07/16/2019

(klhS, COURT STAFF) (Date Filed: 7/8/2019) (Entered: 07/09/2019)
343 CLERK'S NOTICE SETTING TELEPHONE CONFERENCE. Please note that you must be logged into an ECF account of counsel of record in order to view this document. Telephone Conference set for 7/17/2019 09:30 AM in San Francisco, Chambers before Chief Magistrate Judge Joseph C. Spero. Parties shall use the following conference call number: 888−684−8852. Access code: 8256171. (This is a text−only entry generated by the court. There is no document associated with this entry.) (klhS, COURT STAFF) (Filed on 7/9/2019) (Entered: 07/09/2019)
344 Joint Status Update by Riana Buffin, Crystal Patterson and Vicki Hennessy. (Huseny, Sadik) (Filed on 7/12/2019) Modified on 7/15/2019 (jmlS, COURT STAFF). (Entered: 07/12/2019)
345 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING.In light of the filing at Dkt. No. 344, the Court continues the July 19, 2019 Compliance Hearing to Friday, August 2, 2019 at 9:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint filing due 7/26/2019.

07/17/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fsS, COURT STAFF) (Filed on 7/16/2019) (Entered: 07/16/2019)
346 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Telephonic Settlement Conference held on 7/17/2019. Further Telephonic Settlement Conference set for 7/19/2019 at 03:30 PM in San Francisco, Chambers. Parties may use the same conference call number and access code.

FTR Time: Not Reported.

Attorney for Plaintiff: Phil Telfeyan, Sadik Huseny, David Derrick, Robert Sims, Tyler Young.

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 35 of 38

Attorney for Defendant: Jeremy Goldman, Ron Flynn, Neha Gupta.

(klhS, COURT STAFF) (Date Filed: 7/17/2019) (Entered: 07/17/2019)
07/19/2019 347 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Telephonic Settlement Conference held on 7/19/2019.

FTR Time: Not Reported.

Attorney for Plaintiff: Phil Telfeyan, Sadik Huseny, David Derrick, Robert Sims, Tyler Young, Aaron Chu

Attorney for Defendant: Jeremy Goldman, Ron Flynn, Neha Gupta

07/24/2019 07/25/2019
07/29/2019 07/29/2019
07/30/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019

(klhS, COURT STAFF) (Date Filed: 7/19/2019) (Entered: 07/24/2019)
348 Joint NOTICE Regarding Settlement Discussion Status by Riana Buffin, Crystal Patterson and Sheriff Vicki Hennessy. (Attachments: # 1 Exhibit A)(Huseny, Sadik) (Filed on 7/24/2019) Modified on 7/24/2019 (jmlS, COURT STAFF). (Entered: 07/24/2019)
349 ORDER RE: BRIEFING ON FINAL JUDGMENT AND RELIEF re 348 Notice (Other). Set/Reset Deadlines : Each party to file an opening brief no later than 8/2/2019. Each party to file response brief no later than 8/13/2019. Hearing on parties' submissions is set for Friday, 8/23/2019 10:00 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. The Friday 8/2/2019 compliance hearing is VACATED. Signed by Judge Yvonne Gonzalez Rogers on 7/25/2019. (fs, COURT STAFF) (Filed on 7/25/2019) (Entered: 07/25/2019)
350 MOTION for Extension of Time to File Response/Reply BRIEFS RE FINAL JUDGMENT AND RELIEF UNDER LOCAL RULE 6−3; DECLARATION OF JEREMY GOLDMAN IN SUPPORT THEREOF as to 349 Order,,, Set Motion and Deadlines/Hearings,, filed by Vicki Hennessy. (Goldman, Jeremy) (Filed on 7/29/2019) Modified on 7/30/2019 (jmlS, COURT STAFF). (Entered: 07/29/2019)
351 Proposed Order RE DEFENDANT SHERIFF VICKI HENNESSY'S MOTION TO CHANGE DATE FOR FILING RESPONSE BRIEFS RE FINAL JUDGMENT AND RELIEF UNDER LOCAL RULE re 350 MOTION for Extension of Time to File Response/Reply as to 349 Order,,, Set Motion and Deadlines/Hearings,, by Vicki Hennessy. (Goldman, Jeremy) (Filed on 7/29/2019) Modified on 7/30/2019 (jmlS, COURT STAFF). (Entered: 07/29/2019)
352 ORDER [*AS MODIFIED BY THE COURT*] by Judge Yvonne Gonzalez Rogers granting 350 Motion to Change Date for Filing Response Briefs re Final Judgment and Relief. Opening brief filed 8/2/19. Response brief due by 8/16/2019 at 10:00 AM. Hearing set Friday 8/23/19 at 10:00 AM.(fs, COURT STAFF) (Filed on 7/30/2019) (Entered: 07/30/2019)
353 Brief re 352 Order on Motion for Extension of Time to File Response/Reply, CBAAS OPENING BRIEF REGARDING APPROPRIATE RELIEF AND FINAL JUDGMENT filed byCalifornia Bail Agents Association. (Related document(s) 352 ) (Baughman, Krista) (Filed on 8/2/2019) (Entered: 08/02/2019)
354 Proposed Order Plaintiffs' [Proposed] Final Judgment Remedying the Sheriff's Constitutional Violation by Riana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/2/2019) (Entered: 08/02/2019)
355 Brief re 354 Proposed Order Plaintiffs' [Proposed] Final Judgment Remedying the Sheriff's Constitutional Violation filed byRiana Buffin, Crystal Patterson. (Related document(s) 354 ) (Huseny, Sadik) (Filed on 8/2/2019) (Entered: 08/02/2019)
356 Declaration of Tyler P. Young in Support of 355 Brief regarding Plaintiffs' [Proposed] Final Judgment Remedying the Sheriff's Constitutional Violation filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 355 ) (Huseny, Sadik) (Filed on 8/2/2019) (Entered: 08/02/2019)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 36 of 38

08/02/2019 08/16/2019 08/16/2019 08/16/2019 08/16/2019 08/23/2019 08/23/2019
08/23/2019 08/26/2019 08/27/2019
08/28/2019

357 Brief Sheriff Vicki Hennessy's Brief Regarding Final Judgment and Relief filed byVicki Hennessy. (Goldman, Jeremy) (Filed on 8/2/2019) (Entered: 08/02/2019)
358 RESPONSE re 355 BRIEF REGARDING FINAL JUDGMENT by Vicki Hennessy. (Goldman, Jeremy) (Filed on 8/16/2019) Modified on 8/18/2019 (cpS, COURT STAFF). (Entered: 08/16/2019)
359 Declaration of KATHERINE JOHNSON in Support of 358 RESPONSE TO PLAINTIFFS BRIEF REGARDING FINAL JUDGMENT filed byVicki Hennessy. (Attachments: # 1 Exhibit A)(Related document(s) 358 ) (Goldman, Jeremy) (Filed on 8/16/2019) Modified on 8/18/2019 (cpS, COURT STAFF). (Entered: 08/16/2019)
360 Declaration of DAVID MAUROFF in Support of 358 RESPONSE TO PLAINTIFFS BRIEF REGARDING FINAL JUDGMENT filed byVicki Hennessy. (Related document(s) 358 ) (Goldman, Jeremy) (Filed on 8/16/2019) Modified on 8/18/2019 (cpS, COURT STAFF). (Entered: 08/16/2019)
361 RESPONSE to re 357 Brief regarding Final Judgment and Injunctive Relief by Riana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 8/16/2019) Modified on 8/18/2019 (cpS, COURT STAFF). (Entered: 08/16/2019)
362 TRANSCRIPT ORDER for proceedings held on March 21, 2019 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Raynee Mercado. (Huseny, Sadik) (Filed on 8/23/2019) Modified on 8/25/2019 (cpS, COURT STAFF). (Entered: 08/23/2019)
363 Notice and Order Setting Further Settlement Conference before Chief Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 8/28/2019 09:30 AM in San Francisco, Courtroom G, 15th Floor. Signed by Chief Magistrate Judge Joseph C. Spero on 8/23/19. (klhS, COURT STAFF) (Filed on 8/23/2019) (Entered: 08/23/2019)
364 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 8/23/2019. Total Time in Court: 1:11. Court Reporter: Raynee Mercado. (fs, COURT STAFF) (Date Filed: 8/23/2019) (Entered: 08/23/2019)
365 TRANSCRIPT ORDER for proceedings held on August 23, 2019 before Judge Yvonne Gonzalez Rogers by Vicki Hennessy, for Court Reporter Raynee Mercado. (Goldman, Jeremy) (Filed on 8/26/2019) (Entered: 08/26/2019)
366 Declaration of Tyler P. Young in Support of 354 Plaintiffs' [Proposed] Final Judgment Remedying the Sheriff's Constitutional Violation filed byRiana Buffin, Crystal Patterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 354 ) (Young, Tyler) (Filed on 8/27/2019) Modified on 8/28/2019 (cpS, COURT STAFF). (Entered: 08/27/2019)
367 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Settlement Conference held on 8/28/2019. Further Settlement Conference set for 8/30/2019 09:00 AM in San Francisco, Courtroom G, 15th Floor.

FTR Time: Not Reported.

Attorney for Plaintiff: Robert Sims, Sadik Huseny, Tyler Young, Aaron Chu

Attorney for Defendant: Jeremy Goldman, Ron Flynn, Neha Gupta

08/30/2019 08/30/2019

(klhS, COURT STAFF) (Date Filed: 8/28/2019) (Entered: 08/29/2019)
368 NOTICE of Stipulated Final Judgment Remedying Constitutional Violation by Riana Buffin, Crystal Patterson, Vicki Hennessy (Attachments: # 1 Exhibit A)(Huseny, Sadik) (Filed on 8/30/2019) Modified on 9/1/2019 (cpS, COURT STAFF). (Entered: 08/30/2019)
370 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Settlement Conference held on 8/30/2019.

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 37 of 38

FTR Time: Not Reported.

Attorney for Plaintiff: Sadik Huseny, Tyler Young, Aaron Chu

Attorney for Defendant: Jeremy Goldman, Neha Gupta

09/03/2019

(klhS, COURT STAFF) (Date Filed: 8/30/2019) (Entered: 09/03/2019)
369 CLERK'S NOTICE: Counsel are to appear today, Tuesday, 9/3/2019 at 2:00 PM to discuss the Injunction. Hearing set for Tuesday, 9/3/2019 02:00 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers.

09/03/2019 09/03/2019 09/10/2019 09/12/2019 10/08/2019
10/16/2019 10/22/2019
10/24/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 9/3/2019) (Entered: 09/03/2019)
371 Minute Entry for proceedings held before Judge Yvonne Gonzalez Rogers: Hearing regarding Injunction held on 9/3/2019. Total Time in Court: 26 minutes. Court Reporter: Raynee Mercado. (fs, COURT STAFF) (Date Filed: 9/3/2019) (Entered: 09/03/2019)
372 FINAL JUDGMENT AND INJUNCTION. The Court shall retain jurisdiction over this matter until eighteen (18) months after the terms of this Injunction go into full effect. Compliance hearing is set for 11/22/2019 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint statement with status update filed by 11/15/2019. Signed by Judge Yvonne Gonzalez Rogers on 9/3/2019. (fs, COURT STAFF) (Filed on 9/3/2019) (Entered: 09/03/2019)
373 STIPULATION WITH PROPOSED ORDER to Extend Time for Plaintiffs to File Motion for Attorneys' Fees and Bill of Costs filed by Riana Buffin, Crystal Patterson, Vicki Hennessy. (Attachments: # 1 S. Huseny Decl. in Support)(Huseny, Sadik) (Filed on 9/10/2019) Modified on 9/11/2019 (cpS, COURT STAFF). (Entered: 09/10/2019)
374 STIPULATION AND ORDER TO EXTEND TIME FOR PLAINTIFFS TO FILE MOTION FOR ATTORNEYS FEES AND BILL OF COSTS by Judge Yvonne Gonzalez Rogers granting 373 Stipulation. Motion due by 11/1/2019. (kcS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
375 Transcript of Proceedings held on August 23, 2019, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−565−7228, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporteruntil the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 365 Transcript Order, 362 Transcript Order ) Release of Transcript Restriction set for 11/18/2019. (Related document(s) 365 , 362 ) (rhm) (Filed on 10/8/2019) (Entered: 10/08/2019)
376 TRANSCRIPT ORDER for proceedings held on September 3, 2019 before Judge Yvonne Gonzalez Rogers by Riana Buffin, Crystal Patterson, for Court Reporter Raynee Mercado. (Huseny, Sadik) (Filed on 10/16/2019) (Entered: 10/16/2019)
377 Transcript of Proceedings held on September 3, 2019, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, telephone number 510−565−7228, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 376 Transcript Order ) Release of Transcript Restriction set for 1/21/2020. (Related document(s) 376 ) (rhm) (Filed on 10/22/2019) (Entered: 10/22/2019)
378 STIPULATION WITH PROPOSED ORDER to Extend Time for Plaintiffs to File Motion for Attorneys' Fees and Bill of Costs filed by Riana Buffin, Crystal Patterson and Sheriff Vicki Hennessy. (Attachments: # 1 Declaration of S. Huseny in Support)(Huseny, Sadik) (Filed on 10/24/2019) Modified on 10/25/2019 (jmlS, COURT STAFF). (Entered: 10/24/2019)

Case: 4:15-cv-4959 As of: 01/14/2020 11:08 AM PST 38 of 38

10/25/2019 11/15/2019 11/19/2019

379 ORDER by Judge Yvonne Gonzalez Rogers granting 378 Stipulation to Extend. Motions filed by 11/22/2019. (fs, COURT STAFF) (Filed on 10/25/2019) (Entered: 10/25/2019)
380 Joint Statement Regarding Compliance with Final Judgment by Riana Buffin, Crystal Patterson, Vicki Hennessey. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Huseny, Sadik) (Filed on 11/15/2019) Modified on 11/18/2019 (cpS, COURT STAFF). (Entered: 11/15/2019)
381 CLERK'S NOTICE CONTINUING COMPLIANCE HEARING. In light of the filing at Dkt. no. 380 the Friday 11/22/19 at 9:01 AM Compliance hearing is CONTINUED to Friday, 5/1/2020 09:01 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Joint Statement filed by 4/24/2020.

11/22/2019 12/03/2019 12/03/2019 12/17/2019 01/07/2020 01/07/2020
01/07/2020 01/08/2020

(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 11/19/2019) (Entered: 11/19/2019)
382 NOTICE of Agreement and Proposed Order Regarding Plaintiffs' Attorneys' Fees and Costs Pursuant to 42 U.S.C. § 1988 by Riana Buffin, Crystal Patterson (Attachments: # 1 Exhibit A)(Huseny, Sadik) (Filed on 11/22/2019) Modified on 11/24/2019 (cpS, COURT STAFF). (Entered: 11/22/2019)
383 ORDER RE: ATTORNEYS' FEES AND COSTS. Signed by Judge Yvonne Gonzalez Rogers on 12/3/2019. (fs, COURT STAFF) (Filed on 12/3/2019) (Entered: 12/03/2019)
384 CERTIFICATE OF SERVICE by Riana Buffin, Crystal Patterson re 383 Order re: Attorneys' Fees and Costs (Huseny, Sadik) (Filed on 12/3/2019) (Entered: 12/03/2019)
385 Response and Opposition to Parties' Stipulated Request to Enter Fees Order Against State of California by The State of California, Xavier Becerra. (Zelidon−Zepeda, Jose) (Filed on 12/17/2019) Modified on 12/18/2019 (cpS, COURT STAFF). (Entered: 12/17/2019)
386 REPLY TO RE 385 STATE OF CALIFORNIA'S RESPONSE TO STIPULATED REQUEST FOR ENTRY OF FEES ORDER by Vicki Hennessy. (Goldman, Jeremy) (Filed on 1/7/2020) Modified on 1/7/2020 (cpS, COURT STAFF). (Entered: 01/07/2020)
387 Declaration of JEREMY M. GOLDMAN in Support of 386 REPLY TO STATE OF CALIFORNIAS RESPONSE TO STIPULATED REQUEST FOR ENTRY OF FEES ORDER filed byVicki Hennessy. (Related document(s) 386 ) (Goldman, Jeremy) (Filed on 1/7/2020) Modified on 1/7/2020 (cpS, COURT STAFF). (Entered: 01/07/2020)
388 Plaintiffs' Response to the State of California's Submission regarding the Parties' Stipulated Request to Enter Attorneys' Fees Order by Riana Buffin, Crystal Patterson. (Huseny, Sadik) (Filed on 1/7/2020) Modified on 1/7/2020 (cpS, COURT STAFF). (Entered: 01/07/2020)
389 CLERK'S NOTICE re withdrawal of exhibits in accordance with Local Rule 79−4(b). (cpS, COURT STAFF) (Filed on 1/8/2020) (Entered: 01/08/2020)