PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MARIANO MOYA; LONNIE PETRY, on behalf of themselves and all others similarly situated, Plaintiffs - Appellants,

v. ROBERT GARCIA, Santa Fe County Sheriff; MARK CALD WELL, Warden of Santa Fe County Adult Correctional Facility; MARK GALLEGOS, former Warden Santa F e County Adult Correctional Facility, in their individual capacities; BOARD OF COMMISSIONERS OF SANTA FE COUNTY, Defendants - Appellees. No. 17-2037 (D.C. No. 1:16-CV -01022-WJ-KBM) (D. N.M.)

________________ _________________ ORDER

________________ _________________ Before TYMKOVICH , Chief Judge, BRISCOE , LUCERO , HARTZ , HOLMES , MATHESON , BACHARACH , PHILLIPS , McHUGH , MORITZ , EID , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on the appellants’ Petition for Rehearing En Banc

. We also have a response from the appellees. Upon consideration, a majority o f the original panel members gr ant panel rehearing in part and only to the extent of the limited changes made to the attached FILED United States Court of Appeals Tenth Circuit 

### July 10, 2018
Elisabeth A. Shumaker Clerk of Court2 revised opinion. Panel rehearing is otherwise denied. The Clerk is directed to file the amended decision, with the origi nal separate writing from Judge McHugh, effective the date of this order. In addition, however, the petition and the response were circul ated to all of the judges of the court who are in re gular active service. A poll w as called, and a majority voted to deny the en banc petition. See Fed. R. App. P. 35(a). C onsequently, the request for en banc consideration is denied. Chief Judge Tymkovich, as well as Judges Lucero, McHugh and Mor itz voted to grant rehearing en banc.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkPUBLISH
UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

__________________ _______________ MARIANO MOYA, LONNIE PETRY, on behalf of themselves and all others similarly situated, Plaintiffs -Appellants,

v. ROBERT GARCIA, Santa Fe County Sheriff; MARK CALDWELL, Warden of Santa Fe County Adult Correctional Fa cility; MARK GALLEGOS, former Warden of Santa Fe County A dult Correctional Facility, in their individual capacities; BOARD OF COMMISSIONERS OF SANTA FE COUNTY, Defendant s-Appellees. No. 17-2037

__________________ _______________ Appeal from the United S tates District Court for the District of New Mexico (D.C. No. 1:16- CV-01022-WJ-KBM)

__________________ _______________ A. Nathaniel Chakeres (Todd A. C oberly with him on the briefs), of Coberly & Martinez, LLL P, Santa Fe, New Mexico, for PlaintiffsAppellants. Brandon Huss of The N ew Mexico Associatio n of Counties, Santa F e, New Mexico, for Defendants-Appellees.

__________________ _______________ Before MATHESON , BACHARACH , and McHUGH , Circuit Judges. FILED United States Court of Appeals Tenth Circuit 

### July 10, 2018
Elisabeth A. Shumaker Clerk of Court2 __________________ _______________ BACHARACH , Circuit Judge.

__________________ _______________ This appeal involves claims of overdetention by M r. Mariano Moy a and Mr. Lonnie Petry. Both men were arrested based on outstandi ng warrants and detained in a county jail for 30 days or more prio r to their arraignments. These arraignment delays violated New Mexico law, which requires arraignment of a defenda nt within 15 days of arrest. N .M. Stat. Ann. § 31-1-3; Rul e 5-303(A) NMRA. The arraignment delays led Mr. Moya and Mr . Petry to sue under 42 U.S.C. § 1983 for deprivation of due process, alleging claims a gainst

 Sheriff Robert Garcia, Warde n Mark Caldwell, and former Warden Mark Gallegos in thei r individual capacities under theories of personal participa tion and supervisory liability an d

 the Board of Commissioners of S anta Fe County under a theory of municipal liability. The district court granted the defendants’ motion to dismiss fo r failure to state a valid claim. We affirm b ecause Mr. Moya and Mr. Petry f ailed to plausibly allege a factua l basis for liability. 1

1 The complaint contains claims based on both substantive and procedural due process. Based on our disposition, we need not d istinguish between the claims involving proc edural and subst antive due pro cess.3 I. Standard of Review We engage in de novo r eview of the dismissa l under Federal Rule of Civil Procedure 12(b)(6). Albers v. Bd. of Cty. Comm’rs , 771 F.3d 697, 700 (10th Cir. 2014). In e ngaging in this review , we credit the wel l-pleaded allegations in the complaint and construe them favorably to the plaintiffs.
Thomas v. Kaven , 765 F.3d 1183, 1190 (10th Cir. 2014). To withstand dismissal, the plaintiffs’ allegations must “state a claim to r elief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). The claim is plausible on ly if it contains sufficient f actual allegations to allow the court to reasonably infer liability. Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009).
II. Supervisory Liability The individual defenda nts served as the sher iff and wardens of the jail where Mr. Moya and Mr. Petry were detained. These defendan ts could potentially incur liab ility under § 1983 if they had acted unde r color of state law. 42 U. S.C. § 1983. But individu al officials enjoy qua lified immunity when their conduct does not violate “‘clearly establis hed statutory or constitutional rights of which a reasonable person would have known.’” Cordova v. City of Albuquerque , 816 F.3d 645, 655 (10th Cir. 2016) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009)). To avoid qualified immunity at the motion-to-dismiss stage, a plaintiff must show that4  “‘the defendant’s [alleged condu ct] violated a c onstitutional o r statutory right’” and

 “the right was ‘clearly esta blished at the time of the [violation].’”
Thomas v. Kaven , 765 F.3d 1183, 1194 (10t h Cir. 2014) (quoting Archuleta v. Wagner , 523 F.3d 1278, 1283 (10t h Cir. 2008)). Ther e are two question s at the first step:
1. whether the plaintiff has adequately alleged the violation of a constitutional or st atutory right and
2. whether the defendant ’s alleged conduct dep rived the plaintiff of that right.
See Dodds v. Richardson , 614 F.3d 1185, 1192-94 (10th Cir. 2010) (engaging in this two-part analysis of the first step of qualif ied immunity). The first question is whether Mr. Moya and M r. Petry have adequately alleged a deprivation of due process. We need not de cide this question because of our answer to the second question: in our v iew, the complaint does not plausibly alle ge facts attributing the poten tial constitutional violation to the sheriff or wardens. 2 To prevail, Mr. Moya and Mr. Petry must have alleged facts show ing that the sheriff and wardens had been personally involved in th e underlying violations through thei r own participation or supervisory contr ol. Dodds v.

2 Even in the absence of qualified immunity , Mr. Moya and Mr. P etry would have needed to adequately allege facts attributing the po tential constitutional violati on to the defendants.5 Richardson , 614 F.3d 1185, 1195 (10th Cir. 2010); see also Brown v. Montoya , 662 F.3d 1152, 1163 ( 10th Cir. 2011) (“A § 1983 defendant sue d in an individual cap acity may be subject t o personal liability and/or supervisory liability.”). The di strict court rejected both theo ries of liability. Here, though, Mr. Moya a nd Mr. Petry re ly only on th eir theory of supervisory liability. For thi s theory, Mr. Mo ya and Mr. Pet ry blame the sheriff and wardens for the dela ys in the arraignments. In our view, however, the sheriff and wardens did not cause the arraignment delays. 3 A plaintiff may suc ceed on a § 1983 superv isory-liab ility claim by showing that the defendant

 “promulgated, created, implemente d or possessed responsibility for the continued operation of a policy that . . . caused the complained of cons titutional harm” and

 “acted with the state of mind requ ired to establis h the alleged constitutional deprivation.”
Dodds , 614 F.3d at 1199. Bu t the arraignments could not be scheduled by anyone working for the sheriff or wardens; scheduling of the ar raignments lay solely with the state trial court. Mr. Moya and Mr. Petry disagree, relying on Wilson v. Montano , 715 F.3d 847 (10th Cir. 2013). There two sheri ff’s deputies arreste d Mr. Wilson without a warrant. Wilson , 715 F.3d at 850. He was taken to jail

3 The dissent disagrees with our causation analysis. In our vie w, however, the dissent stretches bot h the plaintiffs’ theory of l iability and the standard of causation ap plicable to § 1983 claims.6 and detained for eleven days wit hout the filing o f a complaint or an opportunity for a probable -cause determination. Id. Mr. Wilson sued the sheriff and the warden, alleging that they (1) had routinely al lowed deputies to make arrests without warrants and (2) had failed to file criminal complaints or bri ng the arrestees to court. Id. at 851. The Wilson court upheld superviso ry liability, reasoni ng that under New Me xico law the sheriff and the wa rden were responsibl e for running the jai l and ensuring prompt probable-cause d eterminations. Id. at 856-58.
Wilson differs from our case on who co ntrolled the situation causing the overdetention. In Wilson , the sheriff and the wa rden were in control because (1) deputy sheriffs had arrested Mr. Wilson and (2) the warden’s staff had detained M r. Wilson without a wa rrant. These facts pr oved decisive because (1) New Mexico law requires the sheriff to “di ligently file a complaint or in formation,” N.M. Stat. Ann. §§ 4-37-4, 29 -1-1, and (2) the sheriff’s staff had never filed a complaint against Mr. Wilson.
Wilson , 715 F.3d at 851, 853 . Without a complaint , the court could no t make a probable-cause determination. By preventing a probable-c ause determination, the sheriff impeded the criminal-justice process ; and the warden exacerbated the delay by detaining Mr. Wilson for eleven days without a court order. Id. at 857-59. In contrast, the court was firml y in control here. Grand juries indicted Mr. Moya and Mr. Petry, and both individuals were arre sted based7 on outstanding warrant s issued by the court. And after these ar rests, jail officials notified the court that Mr. Moya and Mr. Petry were i n custody. The arrests triggered New Mexico ’s Rules of Criminal Procedure, which entitled Mr. Mo ya and Mr. Petry to a rraignments within fi fteen days. Rule 5-303(A) NMRA. Compliance w ith this requirem ent lay solely with the court, for an arraignment is a court proceedi ng that takes place only when scheduled by the court. See People v. Carter , 699 N.E.2d 35, 38 (N.Y. 1998) (“Responsibility for scheduling an arraignment date and securing a defendant’s appearan ce lies with the court, not the People.”). The court failed to comply with this requirement, resulting in overdetention of Mr. Moya and Mr . Petry. These overdetentions w ere caused by the court’s failure to schedule and conduct timely ar raignments rather than a lapse by the sheriff or wardens. See Webb v. Thompson , 643 F. App’x 718, 726 (10t h Cir. 2016) (unpublis hed) (Gorsuch, J., concurring in part and dissenting in part) (“[T]he on ly relevant law anyon e has cited to us comes from state law, and it indicates that the duty to e nsure a constitutionally timely arra ignment in Uta h falls on the arresting officer—

not on correctional officers.”). Mr. Moya and Mr. Petry argue that the sheri ff and wardens could have mitigated the risk of overdetention by keeping track of wh ether detainees had been timely arraigne d, requesting arraignments fo r those who had been overdetained, or bringing detainees to court prior to a scheduled8 arraignment. But even if the sheriff and wa rdens had taken these actions, the allegations in the complaint give us no reason to think tha t the state trial court would have conducted the arraignments and ordered r elease any earlier than it did. Thus, the sheriff and wardens did not caus e the overdetention. At most, the sheriff and wardens failed to remind the court tha t it was taking too long to arraign Mr. Moya and Mr. Petry. But even with such a reminder, the arraignments could only be scheduled by the cou rt itself. See Estate of Brooks ex rel. Brooks v. United States , 197 F.3d 1245, 1248 (9th Cir. 1999) (holding that the coun ty did not cau se the over detention, reasoning that the coun ty could only ask for federal help and t hat the county lacked the “ability itself to bring the prisoner before the appropriate judic ial officer”). 4

4 The dissent points out that (1) Estate of Brooks involved a federal detainee’s claim agains t a county and (2) o ur case involves a s tate detainee. Dissent at 14 n.7. This differen ce shrouds the underl ying rationale in Estate of Brooks . There the court reaso ned that the county’s policies did not cause the overd etention because the county lac ked authority to release th e detainee or bring him before a federal magistrate judge. Estate of Brooks , 197 F.3d at 1248. Here the defen dants did not cause the overdetention because th ey could not have initiated a n arraignment and, as discussed below, the plaintiffs have disavo wed any argument that the sheriff or wardens could have ordered release

. See pp. 10-11, below. Although the circumstances differed in Estate of Brooks , the court reasoned that the jailers’ limite d powers prevented causation. That rationale is applicab le and persuasive.9 The plaintiffs r ely in part on Armstrong v. Squadrito , 152 F.3d 564 (7th Cir. 1998), and Oviatt ex rel. Waugh v. Pearce , 954 F.2d 1470 (9th Cir. 1992). In those cases, a clerical error prevented the cour t from discovering the arrests and the need to sch edule arraignments. 5 But here, Mr. Moya and Mr. Petr y do not allege a fai lure to tell the cour t of their arrests in sufficient time to c onduct the arraignments within fifteen days. Mr. Moya and Mr. Pe try also rely on Jauch v. Choctaw County , 874 F.3d 425 (5th Ci r. 2017), and Hayes v. Faulkner County , 388 F.3d 669 (8th Cir. 2004). But the conclusions in Jauch and Hayes are not precedential, pertinent, or persuasive.
In Jauch , the sheriff’s office adopte d a procedure of holding defendants in jail without any c ourt proceeding u ntil the recon vening of the circuit court that had i ssued the capias warrants. Jauch , 874 F.3d at 430, 435. This procedur e resulted in detenti on for 96 days, wit h jail officials rejecting the defenda nt’s requests to be brought befo re a judge.
Id. at 428. The Fifth Circuit Court of Appeals held that the sherif f could

5 Oviatt arguably implies that jailers can cause an arraignment delay by failing to remind a court to s chedule the arraignment. To th e extent that Oviatt draws this implication, we disagree.10 incur liability for the institu tion of this unconstitutional po licy. Id. at 436-
37. 6 In our view, Jauch bears limited applicability. Jauch rested on Mississippi law and the jailers’ a uthority to release detainees when they had been detained to o long without an oppo rtunity for bail. Id . In interpreting Mississippi l aw, the court pointed to Sheffield v. Reece , 28 So. 2d 745, 748 (Miss. 1947 ), which had require d sheriffs to preven t detention “‘for an unreasonable length of time.’” Jauch , 874 F.3d at 437 (quoting Sheffield , 28 So. 2d at 748). As Jauch pointed out, Sheffield had recognized the respon sibility of the sher iff to release an arre stee who has been detained too long without bail. Id. at 437. Here, however, Mr. Moy a and Mr. Petry have not alleged that the y could have been released. To the contrary, they expressly disav owed this theory in their opening brief: [The district court] . . . not ed that the [county jail] was leg ally prohibited from releasing deta inees without a va lid court order

. Yet Mr. Moya and Mr. Petry never argued that Defendants should have uncondi tionally released them from jail, so the fact that the [county jail] may have been prohibit ed from releasing them absent a court order is irrelevant.

6 On the basis of the sheriff’s p olicy, the county also incurre d liability. Jauch , 874 F.3d at 436.11 Appellants’ Opening Br. at 29 (c itation omitted) . In light of t his disavowal of an argument that Mr. Moya and Mr. Petry should have been rel eased,
Jauch provides little guidance on what the sheriff and wardens could have done to avoid the due process violations other than remind the state trial court of its failure to schedule timely arraignments. 7 Hayes , too, provides little that is pertin ent or persuasive. There an arrestee alleged that (1) he shou ld have been br ought before a judge in a timely manner and (2) no one fro m the jail had told him when hi s court date was (even though one had bee n set at the time of arrest). Hayes v. Faulkner Cty ., 388 F.3d 669, 672 (8th Cir. 2004 ). The Eighth Circuit Court

7 In Jauch , the Fifth Circuit Court of Appeals recen tly denied a petition for rehearing en banc. See Jauch v. Choctaw Cty. , 886 F.3d 534 (5th Cir. 2018). Judge Southwick—joined by five other judges—di ssented from the denial, arguing that the sheriff should h ave obtained qualified immunity. Id. at 535 (Southwick, J., dissenting). In making this argument, the dissent concluded that

 under Mississippi law, the state district court had the sole responsibility to schedule an arraignment and

 no federal law clearly establish ed that the sheriff would viola te the U.S. Constitution by following state law.
Id. at 538-41. In reaching these conc lusions, the di ssent observed that under Mississippi law, the jailers could not prev ent the overde tention because the state district court had the exclusiv e authority to schedule and conduct arraignments. See id. at 535 (“I cannot d iscern how these defendants had any eff ect on when this plaintiff was considered for release.”); id. at 539 (“There was no obligation on the sheriff to have Jauch arraigned because that is a du ty that falls elsewhere.”); id. at 538 (“The clear responsibilities relevant to this case are those of the c ounty’s circuit court judges.”).12 of Appeals concluded that an exte nded detention w ithout a first appearance, after an arrest by wa rrant, violated the Due Proces s Clause of the Fourteenth Amendment. Id. at 673. The court added that responsibility for the arrestee’s over detention fell on the jailers, who could not delegate responsibility for the first appearance to the court. Id. at 674.
But Hayes sheds no light on wh at the jailers here could have done to ensure timely cour t proceedings. In Hayes , the Eighth Circuit apparently relied on a state procedural rule: Arkansas Rule of Criminal Pr ocedure 8.1. This rule requires arrestees to be brought before the court “‘w ithout unnecessary delay.’” Id. at 675 (quoting Ark. R . Crim. P. 8.1). Like Arkansas, New Mexico requ ires “[e]very accused” to be “brought before a court . . . wit hout unnecessary delay.” N.M. Stat. Ann. § 31-1-5(B). Arkansas’s version goes no further, omitting any m ention of
who is required to bri ng the arrestee to cour t. Ark. R. Crim. P. 8 .1. New Mexico takes a different approach , clarifying elsewhere that th e arresting officer is obligated to bring the def endant to court “without unnecess ary delay.” N.M. Stat. Ann. § 31-1-4(C). 8
Unlike the Arkansas ru le, New Mexico’s ver sion of the rule does not impose any duties on the sheriff or warde n to bring an arrestee to court in

8 This statute did not apply here, for the plaintiffs do not al lege that they were arrested by officers subject to the defendants’ super visory authority. We thus hav e no occasion to decid e whether a cause o f action could have been asserted against the arresting officers or thei r supervisors.13 the absence of a scheduled arraignment. In light of this differ ence between the Arkansas and N ew Mexico rules, w e see nothing in Hayes to tell us what the sheriff or wardens cou ld have done to provide timely arraignments for Mr. M oya and Mr. Petry. The approach taken in Hayes is also inconsistent with our own precedent. The Hayes court attributed responsib ility to the jailers based solely on federal law, not state law. By contras t, our preceden t directs us to focus on state law when determining the scope of the defendants’ responsibility to ensur e prompt hearings. See Wilson v. Montano , 715 F.3d 847, 854 (10th Cir. 2013 ) (“We consider New Mexico state law in sofar as it bears on the scope of each appellant’s responsibility to ens ure a prompt probable cause det ermination.”). And as we have discussed, New Mexico law did not require the sheriff or wardens to bring Mr. Moya and Mr. Petr y to court. Ac cordingly, once the arresting officers brough t Mr. Moya and Mr. Petry to t he jail and the court was notified of the arrests, New Mexico law required the court (not the sheriff or wardens) to schedule timely arraignments. Under New Mexico law, Jauch and Hayes provide little g uidance to us in addressing the issue framed by Mr. Moya and Mr. Petry. Th ey allege that the state trial court faile d to schedule timely arraignmen ts and that the sheriff and wardens told the c ourt about the arrests early enou gh for timely arraignments. But Mr. Moya and Mr . Petry did not sue the court; they sued14 the sheriff and warden s, officials that cou ld not have caused t he arraignment delays bec ause of their inability to schedule the a rraignments.
III. The Dissent’s Theory The dissent argues that we have analyzed the wrong right. Acco rding to the dissent, the rig ht to an arraignment within fifteen days is “‘an expectation of receivi ng process,’” which c annot alone be a pro tected liberty interest. Dissent at 4-5, 8, 13 (quoting Olim v. Wakinekona , 461 U.S. 238, 250 n.12 (1983)). Thus , the dissent reasons that the right at issue must be the righ t to freedom from pretri al detention rather tha n the right to a timely arraignment. Based on this reasoning, the dissent conc ludes that our misplaced focus on the arraignments has caused us to improp erly focus on the state district court’s ro le and overlook a ctions that th e defendants could have taken, such as releasing Mr. Moya and Mr. Petry. We have focused on the plaintiffs’ right to timely arraignment because that’s what the plaintiffs have alleged. As the dissent admits, Mr. Moya and Mr. Petry are imprecise about their asserted right, co nflating the right to an arraignment within f ifteen days of arrest and the r ight to pretrial release (or bail). Thi s conflation is understandable b ecause the rights are coextensive under their theory o f the case. Mr. Moya and Mr. Petr y recognize freedom from detention as an applicable liberty interest. See, e.g. , Joint App’x at 7 (stating in the complaint that the New Mexico Constitution creates a right to p retrial15 liberty); id. at 83 (asserting in district c ourt briefing tha t Mr. Moya and Mr. Petry “have a liberty intere st in not being unnecessarily d etained without the opportunity to post bail”); App ellants’ Opening Br. at 16 (“The principal protected liberty inter est that may be created by sta te law is the freedom from detention.”). But Mr. Moya and Mr. Petry also alle ge a right to an arraignment within fifteen days of arrest. See, e.g. , Joint App’x at 14 (alleging in the compla int that “[b] ecause detainees charged in New Mexico district courts . . . are g uaranteed the right under sta te law to have their conditions of release set at the least restrictive level to assure their appearance and the safety of . . . the community within fifteen days of their indictment or arrest, they have a federally prote cted liberty i nterest in this right”); id. at 69 (asserting in district c ourt that “Plaint iffs had a libe rty interest in having bail set within fifteen days of their arrest ”); Appellants’ Opening Br. at 36 (“In summary, under settled procedural due pr ocess principles, Defendants deprived Mr. Moya and Mr. Petry of their liberty interest in a prompt pretr ial arraignment . . . .”). Under the theory articulated b y Mr. Moya and Mr. Petry, the defendants violated th e right to freedom fro m detention by fail ing to ensure timely arraignments. See, e.g. , Appellants’ Opening Br. at 41 (“The Complaint alleged that the failure to impl ement any policies en suring that detainees appear before a distri ct court within f ifteen days of indictment or arrest caused Mr. Moya and Mr. Pe try to be injured.”). The righ ts are16 coextensive to Mr. Moya and Mr. Petry because to them, a violat ion of the right to a timely arraignment re sulted in violation of their ri ght to freedom from prolonged detention. 9 Yet the dissent disregards the cl aim of delay in the arraignmen t because this claim woul d founder based on th e absence of a due- process violation. The dissent may be right about the absence of a due- process violation from a delay in an arraignment. 10 But in our view, we should interpret the claim and appeal b ased on what the plaintiffs hav e actually said rather than which possible interpretation could succeed. I n district court, the plaintiffs b ased their claim on the delays in arraig nments. And on appeal, the plaintif fs have consistently framed their argume nt based on the arraignment delays. The dissent’s theory is not the theory presented by the plaintiffs. 11

9 This link is illustrated by th e plaintiffs’ de finition of the class. In the complaint, Mr. Moya and Mr. Petry identified the class to inclu de everyone detained at the same facility as the named plain tiffs within th e previous three years “who [had not been] brought befo re a district court within fifteen days of their indictment or arrest to have their condit ions of release set or reviewed.” Joint App’x at 12-13. Timely arraignment is s o fundamental to Mr. Moya and Mr. Petry’s claims that the fifteen -day demarcation defines class membership.

10 As noted above, we have assumed for the sake of argument that the arraignment delays would result in a deprivation of due process

. See p. 4, above.

11 For this reason, we need not decide whether Mr. Moya and Mr. Petry would have stated a valid claim if they had alleged a broader r ight to17 As discussed above, the defendant s were powerless to cause time ly arraignments because arraignments are scheduled by the court ra ther than jail officials. The dissent agrees. But the dissent theorizes that jail officials could have simply released Mr. Moya and Mr. Petry. This theory is not only new bu t also contrary to what Mr. Moya and Mr. Petry have told us, for they expressly disavowed this theory: “Mr. Moya and Mr. Petry never argued tha t Defendants shoul d have unconditi onally released them from jail . . . .” Appellants’ Opening Br. at 29; see pp. 10-11, above. T hus, Mr. Moya and Mr. Petry have waived reliance on that theory as a basis for re versal. See
Modoc Lassen Indian Hous. Auth. v. U.S. Dep’t of Hous. & Urban Dev. , 864 F.3d 1212, 1224 n .8 (10th Cir. Jul. 25, 2017) (stating that a theory never raised was waived as a basis for reversal). Even if it were otherw ise appropriate to rai se the issue sua sp onte, the dissent’s theory would create a Catch-22 for jailers. Under New Mexico law, jailers commit a misdemeanor and must be removed fr om office if they deliberately releas e a prisoner absent a court o rder. N.M. Stat. Ann. § 33-3-12. Thus, a jailer would be forced to choose between committing a crime and facing c ivil liability under § 1983.

freedom from pretrial detention (unrelated to Rule 5-303(A)’s f ifteen-day requirement). We are d eciding only the validity of the theory a dvanced by Mr. Moya and Mr. Petry.18 According to the dissent, jailers can eventually defend themsel ves based on the Supremacy Clause. But Mr. Moya and Mr. Petry do no t challenge the constitu tionality of the stat e law preventing rel ease in the absence of a court order. See Estate of Brooks ex rel. Brooks v. United
States , 197 F.3d 1245, 1248 (9 th Cir. 1999) (affir ming the dismissal of a § 1983 claim involving overdetenti on when the county defendant was required under state law to hold the plaintiff detainee until r eceiving an order from the United States and the plaintiff made no allegati on that the statute was unconstitutional). Even if Mr. Moya and Mr. Petry had challe nged the constitutiona lity of the state law, the Supremacy C lause would supp ly cold comfor t to a jailer facing this dilemma, partic ularly in light of the dissen t’s acknowledgment that there is no br ight-line rule for when a del ayed arraignment becomes a due-process violation. See Dissent at 5-11. We need not decide whether t he Constitution would s ubject jailers to th is Catch-22.
* * * The state trial court’ s alleged failure to schedule timely arra ignments cannot be attributed to the sheriff or wardens. Thus, the compl aint does not plausibly allege a bas is for supervisory l iability of the sheri ff or wardens.
IV. Municipal Liability Mr. Moya and Mr. Petry also ass ert § 1983 claims against the co unty, alleging that it failed to adopt a policy to ensure arraignment s within19 fifteen days. These claims are b ased on the alleged inaction by the sheriff and wardens. But, as discussed a bove, the sheriff and wardens d id not cause the arraignment delays. Thu s, the county could not incur liability under § 1983 on the basis of the alleged inaction. See Schneider v. City of
Grand Junction Police Dep’t , 717 F.3d 760, 777 ( 10th Cir. 2013). Therefore, we affirm the dismissa l of the claims against the co unty. V. Leave to Amend In opposing dismissal, M r. Moya and Mr. Petr y stated genericall y that amendment would not be futile and tha t they should have th e opportunity to amend if an element were deemed missing from the complaint. The district court di smissed the complaint without g ranting leave to amend. Mr. Moy a and Mr. Petry argu e that the district court erred by refusing to allow amendment of the complaint. Generally, leave to amend should be freely granted when justice requires, but amendment may be denied when it would be futile. Full Life Hospice, LLC v. Sebelius , 709 F.3d 1012, 1018 (10th Cir. 2013). We conclude that the district court did not err because amendment would have been futile based on the plaintiffs’ submissions. We ordinarily apply the abuse-of-discretion standard when revie wing a denial of leave to amend. Fields v. City of Tulsa , 753 F.3d 1000, 1012 (10th Cir. 2014). But here, the d istrict court denied leave to amend based on futility. In this circumstance , “our review for abuse of dis cretion20 includes de novo review of the le gal basis for th e finding of f utility.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs. , 565 F.3d 1232, 1249 (10th Cir. 2009). The complaint fails to allege a f actual basis for supervisory o r municipal liabilit y. To cure the pleading defect, the plaintiff s needed to add factual allegations tying th e arraignment delays to a lapse by the sheriff or wardens. The plaintiffs did not say how they could c ure this pleading defect. Inste ad, they stated only that amendment would not be futile if the complain t had omitted an eleme nt. They did not te ll the district court what they could have added to attribut e the arraignment d elays to the sheriff or wardens. Mr. Moya and Mr. Petry have failed to say even now how they cou ld have cured this defect in the complaint. As a result, the distr ict court did not abuse its discretion in denyi ng leave to amend the complain t. See Hall
v. Witteman , 584 F.3d 859, 868 (10t h Cir. 2009) (holding that the district court did not abuse its discretion in denying leave to amend wh en the claimant had failed to explain how an amendm ent would cure the deficiencies identified by the district court).
VI. Conclusion Mr. Moya and Mr. Petry allege a deprivation of due process when they were detained for more than fifteen days without arraignme nts. We can assume, without de ciding, that this alle gation involved a c onstitutional21 violation. But Mr. Moya and Mr. Petry sued the sheriff, wardens , and county, and these parties did no t cause the arraignment delays. Thus, the district court did not err in dismissing the complaint or in de nying leave to amend.17-2037, Moya v. Garcia McHUGH , Circuit Judge, concurring in the result in part and dissentin g in part.

Mariano Moya was arrested pursuan t to a valid bench warrant and booked into a Santa Fe County jail. The warra nt, issued by New Mexico’s FirstJudicial District Court, commanded any authorized office r to (1) arrest Mr. Moya and (2) bring him “forthwith” before said court. New Mexico’s law enforcement officers compli ed with the first directive, but not the second. As a result, Mr. Moya sat in jai l for more than two months. 1 When finally brought be fore a judge—sixty-three days after he w as first detained—the judge set bond at $5,000 and dir ected the state to release Mr. Moya from custody immediately. The same thing happ ened to Lonnie Petry, except th at his jail stay was only about half as long. Believing their prolong ed detentions to be systemic of a policy and practice affecting dozens, if not hundred s, of similarly situated arrest ees, Mr. Moya and Mr. Petry brought this § 1983 action agains t the Board of Commissioners o f Santa Fe County (“the County”) and three County offici als who were responsible for im plementing policy at the jail. The majority affirms the di smissal of Plaintiffs’ claims for failure to allege plausibly that any of these defendants vi olated their constitutional righ ts. Respectfully, I disagree. I would reverse the district cour t’s order dismissing Plaintiffs’ claims against the County.

1 Because the district court dismissed Plaintiffs’ claims on a R ule 12(b)(6) motion, we presume Plaintiffs’ fact ual allegations are true. See Dahn v. Amedei , 867 F.3d 1178, 1185 (10th Cir. 2017).2 But because the Defend ants did not violate c learly established law, I would hold that the individual defendants are entitle d to qualified immunity and, o n that basis alone, partially affirm the district court’s order.
I. PLAINTIFFS’ THEORIES OF HARM To begin, it is important to be clear about the nature of the a lleged constitutional violations. Plaintiffs’ claims fa ll “into a category of claims which unfortunately have become so common that they have a cquired their own term of art: ‘overdetention,’ i.e. , when the plaintiff has been imprisoned by t he defendant for lon ger than legally authorized, whether because the plaintiff’s incarcerative sente nce has expired or otherwise.” Dodds v. Richardson , 614 F.3d 1185, 1192 (10th Cir. 2010) (some internal quotation marks omitted). In thi s case, Plaintiffs argue that t heir overdetention supports both a procedural due process clai m and a substantive due proce ss claim. Although the majority does not distinguis h between these theories, see Maj. Op. at 2 n.1, I think it worthwhile to consider how Pla intiffs’ allegations fit within e ach framework.
A. Procedural Due Process “Procedural due process imposes c onstraints on governmental dec isions which deprive individuals of liberty o r property interests within the meaning of the Due Process Clause of the . . . Fourteenth Amendment.” Mathews v. Eldridge , 424 U.S. 319, 332 (1976) (quotations omitted). “To a ssess whether an individual w as denied procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were a pplicable; and, if so, then3 (2) was the individual afforded an appropriate level of process .” Merrifield v. Bd. of Cty.
Comm’rs , 654 F.3d 1073, 1078 (10th Cir. 2011). 2 Starting with the first prong, “ [p]rotected liberty interests m ay arise from two sources—the Due Process Clause itself and the laws of the State s.” Kentucky Dep’t of Corr. v. Thompson , 490 U.S. 454, 460 (1989) (int ernal quotation marks omitted). We have already held that the “right of an accused to freedom pend ing trial is inherent in the concept of a liberty interest pr otected by the due process clau se of the Fourteenth Amendment.” Dodds , 614 F.3d at 1192; Meechaicum v. Fountain , 696 F.2d 790, 791–92 (10th Cir. 1983). 3

2 In Jauch v. Chocraw Cty. , 874 F.3d 425, 431 (5th Cir. 2017), the Fifth Circuit analyzed a comparable procedur al due process claim under the fr amework set forth in Medina v. California , 505 U.S. 437, 443 (1992), rathe r than the framework set forth in Mathews v. Eldridge , 424 U.S. 319, 332 (19 76). In this case, both parties have ass umed that the Mathews framework applies. For purposes of this dissent, I will presume without deciding that the Mathews framework is applicable.

3 There is no serious question th at Plaintiffs have a protected liberty interest arising from the Due Process Clau se itself. “[T]o determine whe ther due process requirements apply in the first pl ace, we must look not to the ‘weight’ but to the nature of the interest at stake.” Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 570–71 (1972) (citation omitted). The liberty gua ranteed by the Fourteenth Am endment “denotes not merely freedom from bodily restra int but also the right of the individual to contract, to engage in any of the common oc cupations of life, to acquire use ful knowledge, [and so on]. In a Constitution for a free pe ople, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” Id. at 572 (citation omitted) (quoting Meyer v. Nebraska , 262 U.S. 390, 399 (1923)). In thi s case, the Plaintiffs allege they were deprived of freedom from bodily restraint —the very core of liberty itself. This a state cannot do without affording adequate process. See, e.g. , Ingraham v. Wright , 430 U.S. 651, 674 (1977) (“It is fundamental tha t the state cannot hold . . . an individual except in accordance with due p rocess of law.”).4 In this case, however, Plaintiffs assert that the protected lib erty interest grounding their procedural due process clai ms arises not from the Due Pro cess Clause itself, but rather from New Mexico law. This is fine. See Sandin v. Conner , 515 U.S. 472, 483–84 (1995) (“States may under certain c ircumstances create liberty interests which are protected by the Due Process Cl ause[, b]ut these interests will be generally limited to freedom from restraint . . . .” (citation omitted)). But it is imperative that we accurately identify the exact nature of the s tate-created liberty interest Plaintiffs seek to protect. In presenting their case, Plaintiffs have tended to conflate the r ight to freedom (or bail) with the right to procedures requiri ng timely bail hearings. Althoug h both are rights created by New Mexico law, see State v. Brown , 338 P.3d 1276, 1282 (N.M. 2014) (“The New Mexico Constitution affords crim inal defendants a right to bail . . . .”); Rule 5–303(A) NMRA (providing that defendants shall be arraigned within fifte en days of a triggering event, such as an arrest), only the former can be a protected l iberty interest. That is because “an expectation of recei ving process is not, without mo re, a liberty interest protected by the Due Process Clause.” Olim v. Wakinekona , 461 U.S. 238, 250 n.12 (1983); accord Cordova v. City of Albuquerque , 816 F.3d 645, 657 (10th Cir. 2016) (“[N]ot all state laws create c onstitutionally protected liberty interests.”). To the extent Plaintiffs argue t hat New Mexico’s fifteen-day ru le “creates a liberty interest protected by constitutio nal procedural due process,” their position “reflects a confusion between what is a liber ty interest and what procedure s the government must follow before it can restrict or deny that interest.” See Elliott v. Martinez , 675 F.3d 1241, 1245 (10th Cir. 2012). In other words, “[t]h ey ‘collapse the di stinction between the5 interest protected and the pr ocess that protects it.’” Id. (quoting Town of Castle Rock v. Gonzales , 545 U.S. 748, 772 (2005) (Sou ter, J., concurring) (alteration s omitted)). And Plaintiffs are inconsistent in how they frame their protected l iberty interest, sometimes relying on New Mexico’s fifteen- day rule as an end unto itself and sometimes hinting at the fundamental underlying ri ght to be free of restraint. Compare Aplt. Br. at 16 (“New Mexico[] . . . guaranteed Mr. Moyaand Mr. Petry the opportunit y to obtain pretrial release no later than fifteen days after arrest.”), and id. at 32 (“[I]t should have been clear to Defendants that, based on New Mexico law and settled due pro cess principles, pretrial detainees have procedural due process rights to adequate procedures allowing them to timely obtain bail.”) (emphasis added)), with id. at 16 (“The principal protected liberty interest that may be created by state law is the freedom from d etention.”), and id. at 18 (“Mr. Moya and Mr. Petry . . . had aprotected liberty interest in obtaining a prompt bail determination”). I would, accordingly, b egin the procedural due process analysis by clarifying that Plaintiffs’ only relevant protect ed liberty interest is in thei r right to “freedom pending trial.” Dodds , 614 F.3d at 1192; see Baker v. McCollan , 443 U.S. 137, 144 (1979) (finding that arrestee was “depri ved of his liberty” when detai ned in county jail for three days). That right may be duly hono red via a timely bail determi nation, but the timely bail determination is a means, not a n end. The source of Plaintiffs’ liberty interest does not much matter, but it can be said t o arise from either the United States Constitution, see Baker , 443 U.S. at 144; Dodds , 614 F.3d at 1192, the N ew Mexico Constitution, see Brown , 338 P.3d at 1282, or both. Alth ough New Mexico is free to cre ate procedural6 rights protecting the underlying right to bail, as it has done here, see Rule 5–303 NMRA, the failure of its state officials to protect state-law procedural rights is not a Fourteenth Amendment violation, so long a s federal due process requirement s (which may well be lower) are satisfied. We would not be the first court to note t he irony that, were the rule otherwise, its effect would be to subject states offering more procedural protections to stricter federal oversight. See Hewitt v. Helms , 459 U.S. 460, 471 (1983); Fields v. Henry County , 701 F.3d 180, 186 (6 th Cir. 2012) (noting that such a policy could even discourage states from creating their own systems of procedural rights for fear of triggering federal liability). The sufficiency of the process afforded Pla intiffs—the adequacy and timeliness of their bail determinations—implicat es the second prong of the pr ocedural due process test, not the first. As to this latter question, we ask whether Plain tiffs were afforded all the process that was their due. See Thompson , 490 U.S at 460. I wouldhave no difficulty holding that Plaintiffs have plau sibly alleged that they were n ot afforded an appropriate level of process. See Jauch v. Choctaw Cty. , 874 F.3d 425, 434 (5th Cir. 2017) (“[B]lithely waiting months befor e affording the defendant acce ss to the justice system is patently unfair in a society wh ere guilt is not presumed.”); Oviatt ex rel. Waugh v.
Pearce , 954 F.2d 1470, 1476 (9th Cir. 1992) (applying the Mathews v. Eldridge balancing test and finding a c ounty jail’s procedures for avoid ing overdetention to be inadequate); cf. Porter v. Epps , 659 F.3d 440, 445 (5th Cir. 2011) (“Detention of a prisoner for over thirty days beyon d the expiration of his sent ence in the absence of a7 facially valid court order or wa rrant constitutes a deprivationof due process.” (internal quotation marks omitted)).
B. Substantive Due Process “Substantive due process bars ‘cer tain government actions regar dless of the fairness of the procedures u sed to implement them.’” Brown v. Montoya , 662 F.3d 1152, 1172 (10th Cir. 2011) (quoting Cty. of Sacramento v. Lewis , 523 U.S. 833, 840 (1998)). Under our precedent there are “t wo strands of the substantive d ue process doctrine. One strand protects an individual’s f undamental liberty interests, while the other protects against the exercise of governmen tal power that shocks the cons cience.” Seegmiller v. LaVerkin City , 528 F.3d 762, 767 (10th Cir. 2008) (citing Chavez v. Martinez , 538 U.S. 760, 787 (2003) (Stevens, J., conc urring in part and dissenting in part)). “A fundamental right or liberty interest is one that is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concep t of ordered liberty.’” Id. (quoting Chavez , 538 U.S. at 775 (plurality opinion)). “Conduct th at shocks the judicial conscie nce, on the other hand, is deliberate government action that is ‘arbitrary’ and ‘unrestrai ned by the established principles of private right a nd distributive justice.’” Id. (quoting Lewis , 523 U.S. at 845). From this point in the analysis , our precedent is decidedly les s clear. Substantive due process limits wha t the government may do in bo th its legislative and executive capacities. And the Su preme Court has said that t he doctrinal strand to be applied “differ[s] depending on w hether it is legislation or a specific act of a governmental officer that is at issue.” Lewis , 523 U.S. at 846. Here, Plaintiffs challenge executive action, which the Court has said violates substantive due process “ only when it8 can properly be characterized a s arbitrary, or conscience shock ing, in a constitutional
sense.” Id. at 847 (emphasis added) (interna l quotation marks omitted). In Seegmiller , however, we refused to read Lewis as “establish[ing] an infl exible dichotomy” between cases challenging legislative a nd executive action. 528 F.3d at 768. In that case, which also involved executive action, t he district court had found “t hat the only appropriate standard with which to measure [the substantive due process] cl aim is the shocks the conscience standard.” Id. at 767. We held that was error. Id. Although we had “no qualms agreeing with the district court that the [Defendant’s] conduct would not meet the requirements of the shocks the con science test,” we proceeded t o analyze the challenged executive action under the “fund amental liberty” framework. See id. at 769–72 & 769 n.2. “[T]he distinction between legislative and executive actio n,” we explained, “is ancillary to the real issue in s ubstantive due process cases: w hether the plaintiff suffered from governmental action that e ither (1) infringes upon a funda mental right, or (2) shocks the conscience.” Id. at 768. Those two tests, we cont inued, “are but two separate approaches to analyzing governm ental action under the Fourteent h Amendment.” Id. at 769. “They are not mutually exclu sive,” we concluded, and “[c]o urts should not unilaterally choose to consider o nly one or the other of the tw o strands. Both approaches may well be applied in any given case.” Id. More recent opinions from th is court have called the Seegmiller framework into doubt. See Browder v. City of Albuquerque , 787 F.3d 1076, 1078–79 (10th Cir. 2015) (“If the infringement is the result o f executive action, the Supreme Court has instructed us to ask whether that action bears a ‘reasonable justification in th e service of a legitimate9 governmental objective’ or if instead it might be ‘characterize d as arbitrary, or conscience shocking.’” (quoting Lewis , 523 U.S. at 846, 847)); id. at 1079 n.1 (“[W]e can say with certainty . . . that Chavez did not expressly overrule Lewis ’s holding that the ‘arbitrary or conscience shocking’ test is the appropriate one for executive action so we feel obliged to apply it.”); Dias v. City & Cty. of Denver , 567 F.3d 1169, 1182 (10th Cir. 2009) (clarifying that “when legislative action is at issue, . . . only the traditional [fundamental rights] substantive due process framework is appli cable”). Neither Browder

nor Dias was heard by the full court. “Be cause one panel of our court c annot overrule prior panel decisions and earlier p anel decisions control over later ones,” Storagecraft Tech. Corp. v. Kirby , 744 F.3d 1183, 1191 n.2 (10th Cir. 2014), I would normally tr eat Seegmiller ’s gloss on Lewis as binding and ask whether Plain tiffs’ complaint alleges that they “suffered from governmental action that either (1) infring es upon a fundamental right, or (2) shocks the conscience.” Seegmiller , 528 F.3d at 768 (emphasis added). Notwithstanding our normal rule a bout favoring earlier panel de cisions, it is an open question in my mind whether Seegmiller is binding on this point. First, our published decision in Brower characterizes Seegmiller ’s analysis as dicta. Browder , 787 F.3d at 1079, n.1. Seco nd, in a recent unpublished opinion, Ch ief Judge Tymkovich, who wrote for the panel in Seegmiller and joined then-Judge Gorsuch’s panel opinion in
Browder , explained that he is in accord with Browder and Dias and that, to the extent Seegmiller is inconsistent, the earlier case is properly dismissed as dict a. See Dawson v. Bd. of Cty. Comm’rs , No. 17-1118, 2018 WL 1256477, at *9–10 (10th Cir. Mar. 9, 201 8) (Tymkovich, C.J., concurring) (“ Our Circuit has settled on the following solution: if the10 case involves a legislative act , only the ‘rights’ strand app lies. On the other hand, when the case involves executive action by a government official or entity, we apply the ‘shocks the conscience’ tes t.” (citations omitted)). Following Lewis , the district court in this ca se applied only the “shocks the conscience” test. See Moya v. Garcia , No. 1:16-CV-010 22-WJ-KBM, 2017 WL 4536080, at *4 (D.N.M. F eb. 13, 2017) (“To establish a substant ive due process violation, Plaintiffs must show D efendants’ behavior was ‘so eg regious, so outrageous, that it may fairly be said to sh ock the contemporary conscience .’” (quoting Lewis , 523 U.S. at 847 n.8)). On appeal, the parties have argued past each other without ever focusing on the tension in our case law. Neither side cited either Seegmiller or Broward

. Plaintiffs’ opening brief did not even reference the “shocks th e conscience” test at all, asserting instead a “fundamental liberty interest in pretrial r elease” as the basis for their substantive due process claim. A plt. Br. at 21. Defendants in t urn did not engage with Plaintiffs’ “fundamental liberty ” analysis, urging instead that the district court be affirmed because Plaintiffs “fa iled to allege conscience-shocki ng conduct on the part of the defendants.” Aplee. Br. at 34– 36. Plaintiffs then asserted in their reply brief that their “allegations, if proven, shock the conscience.” Aplt. Reply Br. at 21. And at oral argument Plaintiffs effectively adopted the Seegmiller view, stating “there’s two ways you can get to substantive due p rocess violations,” Oral Arg. 2 :30–2:57. That is, either the “shocks the conscience” st andard or the fundamental rights standard will do. Id. I need not and, writing only for myself, cannot resolve the cro sswinds in our case law. I have already explained th at Plaintiffs have plausibly pl eaded a deprivation of their11 procedural due process rights. T hat is grist enough for me to e ngage with the majority’s causation analysis. 4
II. CAUSATION Properly understood, Plaintiffs’ a lleged injury is the unconsti tutional deprivation of their liberty through overdet ention. As to causation, Plaint iffs’ argument is straightforward: they allege t he sheriff and wardens jointly he ld the keys to their jail cells. By keeping Plaintiffs behin d bars—day after day after da y—the sheriff and wardens were deliberately indi fferent to their constitutional r ight to freedom pending trial. In finding causation lacking, the majority focuses on the state court’s conduct, rather than the Defendants’ con duct. As portrayed by the majori ty, Mr. Moya and Mr. Petry “blame the sheriff and ward ens for the delays in the arra ignments.” Maj. Op. at 5. Because the sheriff and wardens ha d no power to schedule the ar raignments, the majority’s thinking goes, the s heriff and wardens had no power to prevent or cure the alleged constitutional violations. See id. (“the sheriff and wardens did not cause the arraignment delays”); id. at 8 (“[T]he sheriff and wardens did not cause the

4 Defendants argue that Plaintiffs should be permitted to litiga te their claims only under the rubric of procedural d ue process. We have previously said that “[w]here a plaintiff has recourse to an ‘explicit textual source of consti tutional protection,’ a more general claim of substantive due process is not available.” Shrum v. City of Coweta , 449 F.3d 1132, 1145 (10th Cir. 2006) (quoting Graham v. Connor , 490 U.S. 386, 395 (1989)). Our sister circuits are div ided as to whether overdete ntion claims sound in procedural or substantive due process. See Jauch , 874 F.3d at 430 (collecting cases). Although I would hold th at Plaintiffs have pleaded a plausible procedural due process claim, I decline to opine on wh ether a substantive due process claim might also be viable.12 overdetention. At most, the sheri ff and wardens failed to remin d the court that it was taking too long to arraign Mr. Moya and Mr. Petry.”); id. at 19 (“The state trial court’s alleged failure to schedule timel y arraignments cannot be attri buted to the sheriff or wardens.”). But, in my view, c ausation follows from the constit utionally cognizable injury that Plaintiffs alleged . Here we see why “a ‘careful des cription’ of the allegedly violated right,” Browder , 787 F.3d at 1078, is so crucial . On my reading of the complai nt, Plaintiffs are not seeking to h old the sheriff and wardens acco untable for the court’s scheduling decisions; instead, the y are seeking to hold them ac countable for the lengthy detentions that no court authorized. 5 Again, a timely bail heari ng is a means to securing Plaintiffs’ protected liberty int erests, not an end unto itself

. The majority explains that it focused on the right to a timely bail hearing “because that’s what the plaintiffs have alleged,” Maj. Op. at 14, all t he while conceding that Plaintiffs have also alleged a violation of their “ right to freedom from detention, ” id. at 16. Under the majority’s framing , these rights “are coextensive to Mr. Moya and Mr. Petry because to them, a violati on of the right to a timely arr aignment resulted in violation of their right to free dom from prolonge d detention.” Id. But the majority’s own description demonstrates that th ese rights are not one and the same. 6 The state-law

5 Recall the Complaint a lleges that the bench warrants authorizi ng Plaintiffs’ arrests “commanded any authorized officer to ‘arrest [Plaintiff ], and bring him forthwith before this court.’” Joint A pp’x 10–11, Compl. ¶¶ 26, 33; see Forthwith , Black’s Law Dictionary (10th ed. 2014) (“1. I mmediately; without delay. 2. Directly; promptly; within a reasonable time under the circums tances; with all convenient dispatch.”).

6 According to the majority, the interchangeability of the liberty interests is illustrated by Plaintiffs’ definiti on of the putative class, wh ich would include only those13 procedural right to a timely arra ignment is protective of, not coextensive with, the right to liberty. The majority assumes wit hout deciding that Plaintiffs alleged a violation of the state-law procedural right to a timely arraignment and then con cludes that their constitutional claims fail becaus e the warden and sheriffs did not cause the violation of state procedural law. That analy sis works fine as far as it goe s, but it is incomplete. The majority never considers whether t he complaint adequately alleg es a violation of the more fundamental right. Nor does it consider whether the indivi dual defendants’ alleged conduct deprived Plaintiffs of t hat right. In my view, this mor e fundamental question is fairly alleged in the complaint and presented in Plaintiffs’ br iefing. Therefore, I think this court is obliged to consider it , not least because it is an “in terpretation [that] could succeed.” Maj. Op. at 17. By focusing on the arraignment ra ther than the detention, the m ajority naturally finds that the causal force lies with the state court’s conduct , rather than with the jailers’ conduct. And by focusing on the st ate court’s conduct, rather t han the jailers’ conduct, the majority reaches a result here tofore unseen in an overdeten tion case. As best I can tell, our decision today puts us at odds with every circuit to consider the apportionment of blame between state courts and st ate jailers where a § 1983 pla intiff alleges that he or she was overdetained. See Jauch , 874 F.3d at 430, 436 (count y’s policy of indefinitely detaining arrestees until the c ourt next convened was “the movi ng force” behind the detainees held for longer than th e fifteen days allowed under N ew Mexico law. Maj. Op. at 16 n.9. This is a non sequ itur. Plaintiffs’ proposed class d efinition tells us nothing about whether their complaint plausibly alleges individual due process claims on any theory fairly presented.14 constitutional injury); Hayes v. Faulkner Cty. , 388 F.3d 669, 674 (8th Cir. 2004) (county’s policy of waiting for t he court to schedule a hearing “ignore[d] the jail’s authority for long-term confinemen t” and was “deliberately indi fferent to detainees’ due process rights”); Armstrong v. Squadrito , 152 F.3d 564, 579 (7th Cir. 1998) (“[J]ailers hold not only the keys to the ja il cell, but also the knowledge of who sits in the jail and for how long they have sat there . They are the ones directly de priving detainees of liberty.”); Oviatt , 954 F.2d at 1476–77 (holding that due process required sherif f to enact reasonable procedures for decreas ing erroneous incarcerations). 7 The majority distinguishes Armstrong and Oviatt because, in those cases, “a clerical error prevented the court from discovering the ar rests and the need to schedule arraignments,” so there would have been no basis for pl acing blame on the state court. Maj. Op. at 9. And in our case, by contrast, “Mr. Moya and Mr. Petry do not allege a fail ure to tell the court of their arrests in sufficient time to c onduct the arraignments within” the time required under state law. Id. at 9. I agree with the majority that Armstrong and Oviatt are distinguishable. But that distinction does not c hange the underlying reasoning t hat the jailers are the ones directly depriving the detainees of their protected liberty int erest in freedom pending trial. And, in any event, Jauch and Hayes are not so easily distinguished.

7 Estate of Brooks ex rel. Brooks v. United States , 197 F.3d 1245 (9th Cir. 1999), is not to the contrary. That ca se also involved an overdetentio n claim brought under § 1983 against a county, but the re the county acted pursuant to an order from the United States Marshals Service. Id. at 1246. Distinguishing Oviatt , the Ninth Circuit held that “[w]hereas Oviatt was a case involving whether t he left hand knew what the right hand was doing, this is a case involving whether my left hand knows what your right hand is doing.” Id. at 1248. In this case, we consid er only state actors, and so Brooks is easily distinguishable.15 In Jauch , the plaintiff, Jessica Jauch, was indicted by a grand jury, a rrested, and put in jail, where she waited for ninety-six days before she wa s brought before a judge. 874 F.3d at 428. She later bro ught suit under § 1983 against th e county and the sheriff, alleging, inter alia , violations of both procedural a nd substantive due process. Id. The district court denied Ms. Jauch’s motion for summary judgment a nd instead ordered judgment in favor of the defendants. Id. The Fifth Circuit revers ed, holding that (a) the sheriff was not entitled to qualif ied immunity and (b) Ms. Jauc h was entitled to judgment in her favor on her procedur al due process claim. Id. at 429, 437. The majority distinguishes Jauch on the ground that its cau sation analysis “rested on Mississippi law,” which “recognize[s] the responsibility of the sheriff to release an arrestee who has been detained t oo long without bail.” Maj. Op. at 10 (citing Jauch , 874 F.3d at 437). As the Fifth Circu it explained, however, it merel y cited Mississippi law for the unremarkable propositions t hat (1) the sheriff is responsib le for those incarcerated in his jail, see Jauch , 874 F.3d at 436–37 (citing Miss. Code. A nn. § 19-25-69), and (2) county sheriffs are responsible “ to hold detainees in a manner consistent with their oaths to uphold the federal and state constitutions,” id. at 437 (citing Sheffield v. Reece , 28 So. 2d 745, 748 (Miss. 1947)). New Mex ico law does not differ on ei ther point, except perhaps that it extends those re sponsibilities to its wardens a s well. See N.M. Stat. Ann. § 33–3–1 (“The common jails shall be under the control of the r espective sheriffs. . . .”);
id. § 33–1–2(E) (stating “‘warden ’ . . . means the administrative director of a correctional facility”); Wilson v. Montano , 715 F.3d 847, 856– 57 (10th Cir. 2013) (re lying on these provisions to conclude that, und er New Mexico law, wardens and sheriffs share16 responsibility for the policies a nd customs at county jails and for any failure to adequately train their subordinates); see also N.M. Const. art. XX, § 1 (requiring “[e]very person elected or appointed to any office” to tak e an oath to s upport the federal and state constitutions). Next, the majority finds Jauch of limited guidance because Mr. Moya and Mr. Petry expressly disavowed any ar gument that the sheriff and war dens could have or should have releasedthem from custody w ithout a valid court or der. Maj. Op. at 10–11. Respectfully, I am not p ersuaded. Mr. Moya and Mr. Petry argue there was “plenty Defendants could, and should, have done short of releasing Mr. Moya and Mr. Petry to ensure that they received prompt b ail determinations.” Aplt. Br . at 29. For instance, they suggest, the sheriff and wardens could have review ed court dock ets to determine whether arraignments were being timely scheduled, and if not, they coul d have requested immediate arraignments. Or they could have physically brought M r. Moya or Mr. Petry before a judicial officer at a ny time. But alas “we cannot know what . . . could have [been] done to allow bail, because [the jailers] did nothing at all.” Jauch , 874 F.3d at 437
n.10. 8 Even on the majority’s view o f Plaintiffs’ alleged liberty int erest, its causation

8 The Fifth Circuit recently decided against rehearing Jauch en banc. See Jauch v. Choctaw Cty. , No. 16-60690, 2018 WL 1542262 (5th Cir. Mar. 29, 2018). Six j udges voted in favor of rehearing; they would have held that qualifie d immunity applies. Id. at *6 (Southwick, J., dissenting from denial of rehearing en banc) . But the dissenting judges seemingly were not in agreement as to whether Jauch ’s holding as to Choctaw County also should have been reconsidered. See id. at *7. In any event, they were not blind to the possibility that jailers have th e power to prevent constitution al violations in cases like these. See id. (“[A] a county should not be a llowing a prisoner’s pretrial re lease to be unaddressed for extended period s. Judges and jailers could coop erate to minimize delays in consideration. . . . Even a sher iff, though not having the p ower to schedule a hearing,17 analysis is “overly rigid.” Estate of Brooks ex rel. Brooks v. United States , 197 F.3d 1245, 1250 (9th Cir. 1 999) (Hawkins, J., dissenting) (noting th at the county could have reminded the relevant authoritie s of the detainee’s right to se e a magistrate; thus, “the County was not helpless to avoid the injury to [t he detainee] a nd so was a legal cause of his injury”). Nor does the majority meaningful ly distinguish the Eighth Circu it’s opinion in Hayes . In that case, the plaintiff, Jame s M. Hayes, was ticketed for not having automobile tags and vehicle insurance. Hayes , 388 F.3d at 672. Mr. Hayes failed to appear at his municipal court hearing, and so bench warrants were issued for his arrest. Id. On April 3, 1998, he was stopped for a traffic violation, arrested on the w arrants, given a court date of May 11, and jailed. Id. Mr. Hayes did not post a $593 ca sh-only bond and remained in jail until appearing before the c ourt on May 11, thirty-eight d ays after his arrest. Id. He too brought suit under § 1983 ag ainst the county and sheriff. Id. The Eighth Circuit affirmed the district court’s en try of judgment against the she riff in his individual capacity, finding that a “law enforcement officer cannot reason ably believe that holding a person in jail for 38 days without bringing him before a judici al officer for an initial appearance is constitutional.” Id. at 675. The majority expl ains that it cannot follow Hayes because the Eighth Circuit’s a pproach, which “attributed respo nsibility to the jailers based solely on federal law, not state law,” is “incons istent” with Tenth Circuit precedent that “directs us to fo cus on state law when determini ng the scope of the might rattle the cage on behalf of such a prisoner so that thos e who have the authority to do something will hear.” (emphasis deleted)).18 defendants’ responsibility to ensu re prompt hearings.” Maj. Op. at 13 (emphasis deleted) (citing Wilson , 715 F.3d at 854). 9 Again, I differ with the maj ority, which in my view focuses on the wrong deprivatio n and thus the wrong actor. Nothing in Wilson requires us to adopt the major ity’s analytical approach. Nor does Wilson preclude us from follo wing our sister circuit s’ persuasive rea soning in comparable cases. In Wilson , the plaintiff, Michael Wilson Sr., was arrested without a warrant and booked into a New M exico county jail. 715 F.3d at 8 50. He was detained for eleven days before he was releas ed by order of a magistrate jud ge. Id. Because Mr. Wilson was arrested without a j udicial finding of probable caus e, his ensuing § 1983 action sounded in the Fourth Ame ndment, rather than the Fourtee nth. Id. We held that the district court correctly denied the sheriff’s and warden’s moti ons to dismiss for failure to state a claim and for qualified immunity. Id. at 857–58. In reaching that conclusion, as

9 I agree with the majority that Hayes “attributed responsibility to the jailers based solely on federal law, not sta te law.” Maj. Op. at 13. And for that reason, the majority’s comparative analysis o f Arkansas and New Mexico criminal proced ure rules is but a distraction. See id. at 12–13. True, under N ew Mexico law, “[w]hen a warrant is iss ued in a criminal action, . . . the defen dant named in the warrant sha ll, upon arrest, be brought by the [arresting] officer before the court without unnecessary delay.” N.M. Stat. Ann. § 31-1-4(C). The majority reads that rule and apparently conclu des that, because the arresting officer is vested with statutory resp onsibility to en sure a prompt hearing, the arresting officer (and, one sup poses, that officer’s supervisor s) is alone responsible for ensuring the state court promptly schedules a hearing. But § 31 -1-4(C) does not make the arresting officer responsible fo r protecting a defendant’s cons titutional rights to the exclusion of anyone else’s res ponsibility. Nor is it clear why the arresting officer would be the proximate cause of an overdetention violation, which will not ripen until some indeterminate amount of time has passed and in which, typically , the detainee will no longer be held under the arres ting officer’s authority. Under t he majority’s approach, there is no § 1983 remedy to be had, no matter how long an arre stee is unconstitutionally held without an arraignment.19 the majority rightly notes, we “c onsider[ed] New Mexico state l aw insofar as it bears on the scope of [a defendant’s] re sponsibility to ensure a prompt probable cause determination.” Id. at 854. Likewise, here, we ought to consider New Mexico law in sofar as it bears on the scope of Def endants’ responsibility to ensur e that detainees are not deprived of their right to freedom pending trial. The majority puts it somewhat differently. My colleagues look t o New Mexico law only insofar as it bears on the scope of the Defendants’ responsibility to ensure a prompt bail heari ng. Finding no such requirement in state law, the m ajority concludes the Defendants did nothing unconstitutional. But ensuring a prompt bail hearing is just on e possible means of ensuring that Plaintiffs’ constitu tional rights are not violate d. Other means will also suffice. Most obviously, the Defenda nts could have simply relea sed Mr. Moya and Mr. Petry from custody. 10 To the extent doing so would have been inconsistent with Defendants’ duties under state law, it is no matter, because fe deral constitutional law trumps. See U.S. Const. art. VI, cl. 2.
Wilson is not in tension with Jauch or Hayes . The New Mexico sheriff and warden
in Wilson could no more force the state court to make a probable cause de termination than the sheriffs in Mississippi ( Jauch ) or Arkansas ( Hayes ) could force their state courts to make a bail determination. Any reference in Wilson to a duty to “ensure” a state court

10 I recognize that Plaintiffs have expressly disavowed that argu ment, see Maj. Op. at 10–11 (citing Aplt. Br. at 29 ), but I comment on it anyway t o acknowledge the reach of my reasoning. In any case, Plaintif fs identified tactics short of outright release that the defendants in this cas e could have adopted. See supra . In my view they have sufficiently alleged causation at this stage of the proceedings.20 proceeding must simply mean that state officials have a duty to seek the state court’s cooperation. And should the stat e court fail to cooperate, it w ill be left to the sheriff and warden to desist from holding de tainees when they lack continue d constitutional authority to do so. See Wilson , 715 F.3d at 8 53 n.6 (noting that it is settled law that defendants “who effected the p laintiffs’ arrests and detentions [ ] could be held liable for the plaintiffs’ prol onged detentions without probable cause” (e mphasis added)). Again, in my view it is the “prolonged dete ntions,” not the absence of a bail hearing or probablecause hearing, that is the funda mental due process concern. The majority’s chosen approach, moreover, comes with troubling implications. By (a) looking to state law to determ ine the scope of state offici als’ responsibility to ensure prompt bail hearings, and (b) con ceptualizing Plaintiffs’ liberty interest as an interest in a state court proceeding, rather t han in liberty itself, the majo rity sanctions a system by which states could regularly vi olate detainees’ constitutional rights by holding them indefinitely on account of untim ely state courts, without any f ear of their collaborating municipalities or state officials ever incurring monetary penal ties under § 1983. Such an outcome is not farfetched. We know from Jauch that, in at least one part of Mississippi, the only court empowered to set bail would sometimes go months between sessions. And, accepting Plaintiffs’ allegations a s true, as we must, we can i nfer that courts in Santa Fe County—New Mexico’s th ird-most populous—routinely fail to sched ule arraignments with any earnest. The majority’s causation analys is also lacks a logical endpoint . What if the state court had scheduled Mr. Moya’s a rraignment a month later than i t did? What about a year21 later? As I read the majority o pinion, even then Mr. Moya wouldhave no actionable § 1983 claim. See supra , n.9. To be sure, I agree with t he majority that New Mexico sheriffs and wardens are powerless to force New Mexico courts t o schedule bail hearings in a timely fashion. Only New Me xico courts can do that. But th e solution is not to grant jailers refuge behind judges clo aked with absolute immunity, en abling the jailers to violate the Constitution with impunity. 11 The better solution is to hold state officials and municipalities responsible for the constitutional violations th ey themselves commit. True, the effect could be that New Me xico sheriffs and wardens respon d by releasing pre-trial detainees, some of whom may have been arrested fo r alleged viol ent acts or pose a risk of flight, without the deterrence o f bail. But it is our role to a ssure that New Mexico runs its criminal-justice system with the timeliness that the Fourteenth Amendment commands. If it does not, there should be cons equences: either pre-trial det ainees go free pending trial, or they will be entitled to civil damages against the state’s o fficials and municipalities so that they may be compensated fo r the violations of their civil rights.
III. QUALIFIED IMMUNITY As the Supreme Court recently reite rated, state officials “are entitled to qualified immunity under § 1983 unless (1 ) they violated a federal statut ory or constitutional right, and (2) the unlawfulness of the ir conduct was ‘c learly establis hed at the time.’” District of Columbia v. Wesby , 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards , 566 U.S.

11 It is no answer to say that Pla intiffs’ complaint was deficien t for not alleging that they were arrested by office rs subject to the defendants’ supervisory authority, as the majority opinion could be read to suggest. See Maj. Op. at 12 n.8. The arresting officer can no more force the court to act than can the sheriff or ward en.22 658, 664 (2012)). “Ordinarily, i n order for the law to be clear ly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clea rly established weight of authority from other courts must ha ve found the law to be as th e plaintiff maintains.”
Becker v. Bateman , 709 F.3d 1019, 102 3 (10th Cir. 2013) (quotation omitted). The Supreme Court has “repeatedly s tressed that courts must not def ine clearly established law at a high level of generality , since doing so avoids the cr ucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby , 138 S. Ct. at 590 (internal quotatio n marks omitted). “This demandi ng standard protects ‘all but the plainly incompetent or t hose who knowingly violate the law.’” Id. at 589 (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). In my view, the complaint plaus ibly alleges that Sheriff Garcia , Warden Caldwell, and Warden Gallegos violatedPlaintiffs’ constitutional rights. But I recognize that conclusion is not fore told. No opinion from this court or the S upreme Court has ever clearly established that a jaile r violates the Constitution by detaining an individual lawfully arrested in anticipati on of an untimely scheduled arra ignment. That principle of law, to be sure, is clearly established in at least two of our sister circuits, but that is not enough for the law to be clear ly established here. I would thus affirm the district court’s order insofar as it dismissed P laintiffs’ claims against the sh eriff and wardens on the basis of qualified immunity, and so I pa rtially concur in the majorit y’s result. But because municipalities are not entitled to qualified immunity, I would reverse and remand to the district court for further proceed ings against the County. Thus, as to the County, I respectfully dissent.