FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL LOPEZ-VALENZUELA; ISAAC

CASTRO-ARMENTA,

Plaintiffs-Appellants,

v.

JOSEPH M. ARPAIO, Maricopa

County Sheriff, in his official

capacity; COUNTY OF MARICOPA;

WILLIAM GERARD MONTGOMERY,

Maricopa County Attorney, in his

official capacity,

Defendants-Appellees.

No. 11-16487

D.C. No.

2:08-cv-00660-

SRB

OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted En Banc

March 18, 2014—San Francisco, California

Filed October 15, 2014

Before: Alex Kozinski, Chief Judge, and Diarmuid

O’Scannlain, Sidney R. Thomas, M. Margaret McKeown,

Raymond C. Fisher, Marsha S. Berzon, Richard C.

Tallman, Jay S. Bybee, Milan D. Smith, Jr., Jacqueline H.

Nguyen, and Paul J. Watford, Circuit Judges.
2 LOPEZ-VALENZUELA V. ARPAIO

Opinion by Judge Fisher;

Concurrence by Judge Nguyen;

Dissent by Judge Tallman;

Dissent by Judge O’Scannlain

SUMMARY*

Civil Rights

The en banc court reversed the district court’s summary

judgment in a class action challenging Proposition 100, a

ballot measure passed by Arizona voters that amended the

state constitution to preclude bail for certain serious felony

offenses if the person charged has entered or remained in the

United States illegally and if the proof is evident or the

presumption great as to the charge.

The en banc court held that Proposition 100, and its

implementing laws and rules, violate the substantive

component of the Due Process Clause of the Fourteenth

Amendment. Applying the heightened substantive due

process scrutiny set forth in United States v. Salerno, 481

U.S. 739, 746-48 (1987), the en banc court held that the

Proposition 100 laws do not address an established

“particularly acute problem,” are not limited to “a specific

category of extremely serious offenses,” and do not afford the

individualized determination of flight risk or dangerousness

that Salerno deemed essential. Rather, the laws represent a

scattershot attempt at addressing flight risk and are not

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LOPEZ-VALENZUELA V. ARPAIO 3

narrowly tailored to serve a compelling interest. In addition,

the en banc court held that the challenged laws are excessive

in relation to the state’s legitimate interest in assuring

arrestees’ presence for trial. 

Concurring, Judge Nguyen agreed with the majority that

Proposition 100 violates substantive due process. She wrote

separately to address the record of legislative intent, which

she believed demonstrates that Proposition 100 was

intentionally drafted to punish undocumented immigrants for

their “illegal” status, even if they pose no flight risk or danger

to the community. 

Dissenting, Judge Tallman, joined by Judge O’Scannlain,

stated that Proposition 100 is not excessive in relation to

Arizona’s compelling regulatory interest in ensuring that

illegal aliens who commit serious felony offenses stand trial.

Dissenting, Judge O’Scannlain stated that the question of

whether denying bail to illegal immigrants based on flight

risk is unconstitutionally excessive should have been

analyzed under the Eighth Amendment’s Excessive Bail

Clause. Judge O’Scannlain tentatively concluded that the

Eighth Amendment does not restrict legislative discretion to

declare certain crimes nonbailable. 
4 LOPEZ-VALENZUELA V. ARPAIO

COUNSEL

Andre I. Segura and Esha Bhandari, American Civil Liberties

Union Foundation, Immigrants’ Rights Project, New York,

New York; Cecillia D. Wang (argued) and Kenneth J.

Sugarman, American Civil Liberties Union Foundation,

Immigrants’ Rights Project, San Francisco, California; Daniel

Pochoda, ACLU Foundation of Arizona, Phoenix, Arizona,

for Plaintiffs-Appellants.

Timothy J. Casey (argued), Schmitt Schneck Smyth Casey &

Even, P.C., Phoenix, Arizona, for Defendants-Appellees

Maricopa County and Joseph M. Arpaio.

Bruce P. White and Anne C. Longo, Deputy County

Attorneys, Maricopa County Civil Services Division,

Phoenix, Arizona, for Defendant-Appellee Maricopa County

Attorney William Montgomery.

AnthonyO’Rourke, Associate Professor, SUNY Buffalo Law

School, for Amici Curiae Constitutional Criminal Law and

Immigration Law Professors.

Kathleen E. Brody, Osborn Maledon,P.A., Phoenix, Arizona;

Amy Kalman and Mikel Steinfeld, Office of the Maricopa

County Public Defender, Phoenix, Arizona; David Euchner,

Office ofthe Pima CountyPublic Defender, Tucson, Arizona,

for Amicus Curiae Arizona Attorneys for Criminal Justice.
LOPEZ-VALENZUELA V. ARPAIO 5

OPINION

FISHER, Circuit Judge,with whom KOZINSKI, Chief Judge,

and THOMAS, McKEOWN, BERZON,BYBEE, M. SMITH

and NGUYEN, Circuit Judges, join in full, and with whom

WATFORD, Circuit Judge, joins except as to section III.B.2:

Arizona law categoricallyforbids granting undocumented

immigrants arrested for a wide range of felony offenses any

form of bail or pretrial release, even if the particular arrestee

is not a flight risk or dangerous. We must decide whether

such an absolute denial comports with the substantive

component of the Due Process Clause of the Fourteenth

Amendment. We hold that it does not.

I.

In 2006, Arizona voters overwhelmingly approved an

amendment to their state constitution known as Proposition

100.1 Proposition 100 mandates that Arizona state courts

may not set bail “[f]or serious felony offenses as prescribed

by the legislature if the person charged has entered or

remained in the United States illegally and if the proof is

evident or the presumption great as to the present charge.” 

Ariz. Const. art. 2, § 22(A)(4). In a separate enactment, the

Arizona legislature defined “serious felony offenses” as any

class 1, 2, 3 or 4 felony or aggravated driving-under-theinfluence offense. See Ariz. Rev. Stat. Ann. § 13-

3961(A)(5)(b).

1 The Arizona legislature passed the legislation and referred it to the

voters in May 2005. The voters approved Proposition 100 in November

2006.
6 LOPEZ-VALENZUELA V. ARPAIO

The Proposition 100 bail determination is made at an

initial appearance, which under Arizona law occurs within 24

hours of arrest. See Ariz. R. Crim. P. 4.1(a). At the initial

appearance, the court must deny bail, irrespective of whether

the arrestee poses a flight risk or a danger to the community,

“if the court finds (1) that the proof is evident or the

presumption great that the person committed a serious

offense, and (2) probable cause that the person entered or

remained in the United States illegally.” Ariz. R. Crim. P.

7.2(b). An arrestee deemed ineligible for bail at the initial

appearance may move for reexamination, and a hearing on

such motion “shall be held on the record as soon as

practicable but not later than seven days after filing of the

motion.” Ariz. R. Crim. P. 7.4(b). At the follow-up

proceeding, known as a Simpson/Segura hearing,see Simpson

v. Owens, 85 P.3d 478 (Ariz. Ct. App. 2004); Segura v.

Cunanan, 196 P.3d 831 (Ariz. Ct. App. 2008), the arrestee

can dispute whether there is probable cause that he or she

entered or remained in the United States illegally, but may

not refute Proposition 100’s irrebuttable presumption that he

or she poses an unmanageable flight risk. Once the court

determines that there is probable cause to believe an arrestee

has entered or remained in the United States unlawfully, the

court has no discretion to release the arrestee under any

circumstances, even if the court would find – and the state

would concede – that the particular arrestee does not pose a

flight risk or danger to the community.

In 2008, plaintiffs Angel Lopez-Valenzuela and Isaac

Castro-Armenta filed a class action complaint against

Maricopa County, the MaricopaCountySheriff, the Maricopa

County Attorney and the Presiding Judge of the Maricopa

County Superior Court, challenging the constitutionality of

Proposition 100 and its implementing laws and rules (“the
LOPEZ-VALENZUELA V. ARPAIO 7

Proposition 100 laws”). At the time the complaint was filed,

both plaintiffs were charged with state crimes and held in

Maricopa County jails as a result of orders finding that they

had entered or remained in the United States illegally. The

complaint proposed a plaintiff class consisting of “All

persons who have been or will be held ineligible for release

on bond by an Arizona state court in Maricopa County

pursuant to Section 22(A)(4) of the Arizona Constitution and

Ariz. Rev. Stat. § 13-3961(A)(5).”

The plaintiffs alleged that the Proposition 100 laws

violate the United States Constitution in a number of ways. 

As relevant here, they alleged that the Proposition 100 laws

violate the substantive due process guarantees of the

Fourteenth Amendment on two theories: (1) arrestees have a

liberty interest in being eligible for release on bond pending

resolution of criminal charges and the Proposition 100 laws

are not narrowly tailored to serve a compelling governmental

interest; and (2) the laws impermissibly impose punishment

before trial. The plaintiffs also alleged violations of the

procedural due process guarantees of the Fourteenth

Amendment, the Fifth Amendment right against selfincrimination, the Sixth Amendment right to counsel, the

Excessive Bail Clause of the Eighth Amendment and the

SupremacyClause, alleging that the Proposition 100 laws are

preempted by federal law. They sought an order declaring

the Proposition 100 laws unconstitutional, enjoining the

enforcement of those laws and affording each of them an

individualized bail hearing at which they may be considered

for release, taking into account particularized facts about

whether release would pose an unacceptable risk of flight or

danger to the community.
8 LOPEZ-VALENZUELA V. ARPAIO

In a December 2008 order, the district court granted the

plaintiffs’ motion for class certification, certifying a class

under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 

The court also granted the defendants’ motion to dismiss the

plaintiffs’ preemption claims under Rule 12(b)(6).

The parties filed cross motions for summary judgment. 

In a March 2011 order, the district court denied the plaintiffs’

motion for summary judgment and granted the defendants’

motion for partial summary judgment on the plaintiffs’

substantive due process, procedural due process, Eighth

Amendment and Sixth Amendment claims. See Fed. R. Civ.

P. 56. The plaintiffs thereafter voluntarily dismissed their

Fifth Amendment claim. The district court then entered a

final judgment, from which the plaintiffs timely appealed,

challenging the Rule 12(b)(6) dismissal of their preemption

claims and the adverse summary judgment rulings on their

substantive due process, procedural due process, Eighth

Amendment and Sixth Amendment claims.

After a divided three-judge panel of this court affirmed

the judgment of the district court, a majority of nonrecused

active judges voted in favor of rehearing en banc. See

Lopez-Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054, 1073

(9th Cir. 2013), reh’g en banc granted, 741 F.3d 1015 (9th

Cir. 2014). We have jurisdiction under 28 U.S.C. § 1291, and

we now reverse.2

2 Although we assume that the named plaintiffs are no longer in pretrial

detention, no one has suggested that this case has become moot as a

consequence. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 987

(9th Cir. 2007) (en banc) (“With regard to mootness, the Supreme Court

held that the ‘cases or controversies’ requirement of Article III – which

requires a plaintiff with a live case or controversy, not only at the time of

filing and at the time of class certification, but also when a court reviews
LOPEZ-VALENZUELA V. ARPAIO 9

II.

We review de novo a district court’s grant or denial of

summary judgment. See Russell Country Sportsmen v. U.S.

Forest Serv., 668 F.3d 1037, 1041 (9th Cir. 2011). We also

review de novo a district court’s grant of a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6). See Cousins

v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). We review

a challenge to the constitutionality of a statute de novo as

well. See United States v. Gonzales, 307 F.3d 906, 909 (9th

Cir. 2002).

III.

The plaintiffs contend that the Proposition 100 laws

violate substantive due process. We agree.

A.

The Supreme Court has long recognized constitutional

limits on pretrial detention. The Court has prohibited

excessive bail, see Stack v. Boyle, 342 U.S. 1, 4–5 (1951),

required a judicial determination of probable cause within 48

hours of arrest, see Cnty. of Riverside v. McLaughlin,

500 U.S. 44, 56 (1991); Gerstein v. Pugh, 420 U.S. 103, 114

(1975), barred punitive conditions of pretrial confinement,

see Bell v. Wolfish, 441 U.S. 520, 535–37 (1979), prohibited

pretrial detention as punishment, see United States v. Salerno,

481 U.S. 739, 746–48 (1987); Schall v. Martin, 467 U.S. 253,

the case – is satisfied by ‘a named defendant and a member of the class

represented by the named plaintiff, even though the claim of the named

plaintiff has become moot.’” (quoting Sosna v. Iowa, 419 U.S. 393, 402

(1975))).
10 LOPEZ-VALENZUELA V. ARPAIO

269–74 (1984), and held that restrictions on pretrial release of

adult arrestees must be carefullylimited to serve a compelling

governmental interest, see Salerno, 481 U.S. at 748–51.

In the first of these cases, Stack v. Boyle, the Court

observed that the “traditional right to freedom before

conviction permits the unhampered preparation of a defense,

and serves to prevent the infliction of punishment prior to

conviction.” 342 U.S. at 4. The Court noted that, “[u]nless

this right to bail before trial is preserved, the presumption of

innocence, secured only after centuries of struggle, would

lose its meaning,” id., and it held that “[b]ail set at a figure

higher than an amount reasonably calculated to fulfill [its]

purpose [of assuring the presence of the accused at trial] is

‘excessive’ under the Eighth Amendment,” id. at 5.

In Gerstein v. Pugh, the Court recognized that “[p]retrial

confinement may imperil the suspect’s job, interrupt his

source of income, . . . impair his family relationships” and

affect his “ability to assist in preparation of his defense.” 

420 U.S. at 114, 123. The Court held “that the Fourth

Amendment requires a judicial determination of probable

cause as a prerequisite to extended restraint of liberty

following arrest.” Id. at 114. This probable cause

determination is “necessary to effect limited postarrest

detention,” Salerno, 481 U.S. at 752, and ordinarily must

occur within 48 hours of arrest, see McLaughlin, 500 U.S. at

56.

A few years later, in Bell v. Wolfish, the Court

emphasized that, “under the Due Process Clause, a detainee

may not be punished prior to an adjudication of guilt.” 

441 U.S. at 535. Accordingly, the Court held that “the Due

Process Clause protects a detainee from . . . conditions and
LOPEZ-VALENZUELA V. ARPAIO 11

restrictions of pretrial detainment” that “amount to

punishment of the detainee.” Id. at 533, 535. The Court

outlined a two-pronged test for determining when conditions

and restrictions of pretrial detention amount to punishment,

focusing first on whether the restrictions were imposed for a

punitive purpose and, if not, on whether the restrictions are

excessive in relation to a legitimate regulatory purpose:

A court must decide whether the disability is

imposed for the purpose of punishment or

whether it is but an incident of some other

legitimate governmental purpose. Absent a

showing of an expressed intent to punish on

the part of detention facility officials, that

determination generally will turn on whether

an alternative purpose to which the restriction

may rationally be connected is assignable for

it, and whether it appears excessive in relation

to the alternative purpose assigned to it. Thus,

if a particular condition or restriction of

pretrial detention is reasonably related to a

legitimate governmental objective, it does not,

without more, amount to “punishment.” 

Conversely, if a restriction or condition is not

reasonably related to a legitimate goal – if it is

arbitrary or purposeless – a court permissibly

may infer that the purpose of the

governmental action is punishment that may

not constitutionally be inflicted upon

detainees qua detainees.

Id. at 538–39 (alterations, footnotes, citations and internal

quotation marks omitted).
12 LOPEZ-VALENZUELA V. ARPAIO

Five years later, in Schall v. Martin, the Court considered

the substantive due process implications of a state law

authorizing pretrial detention of juvenile offenders found to

present “a serious risk” of committing a crime pending their

juvenile court proceedings. 467 U.S. at 255. As it would

later do in Salerno, the Court applied a two-part substantive

due process inquiry. First, relying on general due process

principles, the Court considered whether the law constituted

an impermissible infringement of the juveniles’ liberty

interest. See Schall, 467 U.S. at 263–68. The Court

recognized that juveniles have a “substantial” interest in

“freedom from institutional restraints,” id. at 265, but that

interest had to be “qualified by the recognition that juveniles,

unlike adults, are always in some form of custody,” id.

Accordingly, in lieu of heightened scrutiny, the Court

required the state to show only that the challenged law served

a “legitimate interest.” Id. at 266. This standard was

satisfied because “[s]ociety has a legitimate interest in

protecting a juvenile from the consequences of his criminal

activity – both from potential physical injury which may be

suffered when a victim fights back or a policeman attempts to

make an arrest and from the downward spiral of criminal

activity into which peer pressure may lead the child.” Id.

Second, relying on the two-pronged test articulated in

Bell, the Court considered whether the challenged law

violated substantive due process by imposing confinement as

punishment. See id. at 269–74. Applying the first prong of

the Bell test, the Court found no evidence that the law was

intended as punishment. See id. at 269. Turning to the

second prong, the Court concluded that the law was not

excessive in relation to the state’s legitimate regulatory

purpose in protecting juveniles from the consequences of

their criminal activity, because the detention was “strictly
LOPEZ-VALENZUELA V. ARPAIO 13

limited in time” (to a maximum possible detention of 17

days) and the conditions of confinement were regulatory

rather than punitive. Id. at 269–71. The Court also found

persuasive that every state in the country permitted

preventive detention of juveniles accused of crime, see id. at

267, 274, citing “the widely shared legislative judgment that

preventive detention serves an important and legitimate

function in the juvenile justice system,” id. at 272.

Three years later, in United States v. Salerno, the Court

rounded out this series of pretrial detention cases by

considering the substantive due process implications of a

federal law authorizing pretrial detention of adult arrestees. 

Salerno involved a challenge to a provision of the federal Bail

Reform Act of 1984 requiring pretrial detention of arrestees

charged with certain serious felonies if the government

demonstrated by clear and convincing evidence after an

adversary hearing that no release conditions “will reasonably

assure . . . the safety of any other person and the community.” 

18 U.S.C.§ 3142(e). As it had in Schall, the Court applied a

two-part substantive due process inquiry, albeit in the reverse

order.

First, relying on Bell and Schall, the Court considered

whether the Act violated substantive due process by

authorizing “punishment before trial.” Salerno, 481 U.S. at

746. Under the first Bell prong, the Court found no evidence

that Congress had authorized pretrial detention for a punitive

purpose. See id. at 747. Rather, Congress had authorized

detention for the legitimate regulatory purpose of “preventing

danger to the community.” Id. Turning to Bell’s second

prong, the Court held that “the incidents of pretrial detention”

were not “excessive in relation to the regulatory goal

Congress sought to achieve,” because: (1) the Act “carefully
14 LOPEZ-VALENZUELA V. ARPAIO

limits the circumstances under which detention may be

sought to the most serious of crimes,” including “crimes of

violence, offenses for which the sentence is life imprisonment

or death, serious drug offenses, or certain repeat offenders”;

(2) “[t]he arrestee is entitled to a prompt detention hearing”

at which the arrestee could seek bail; and (3) “the maximum

length of pretrial detention is limited by the stringent time

limitations of the Speedy Trial Act.” Id. Accordingly, the

Court held “that the pretrial detention contemplated by the

Bail Reform Act is regulatory in nature, and does not

constitute punishment before trial in violation of the Due

Process Clause.” Id. at 748.

Second, as in Schall, the Court also applied general due

process principles and considered whether the law constituted

an impermissible infringement of arrestees’ liberty interest. 

See id. at 748–51. Whereas Schall had applied a deferential

standard of review, however, Salerno applied heightened

scrutiny. The Court noted that, “[i]n our society liberty is the

norm, and detention prior to trial or without trial is the

carefully limited exception.” Id. at 755. It cited “the ‘general

rule’ of substantive due process that the government may not

detain a person prior to a judgment of guilt in a criminal

trial.” Id. at 749. It recognized that the Act implicated “the

individual’s strong interest in liberty.” Id. at 750. And it was

careful “not [to] minimize the importance and fundamental

nature of this right.” Id. But the Court concluded that the

Bail Reform Act satisfied heightened scrutiny because it both

served a “compelling” and “overwhelming” governmental

interest “in preventing crime by arrestees” and was “carefully

limited” to achieve that purpose. Id. at 749–50, 755. The Act

was sufficiently tailored because it “careful[ly] delineat[ed]

. . . the circumstances under which detention will be

permitted.” Id. at 751. It: (1) “narrowly focuse[d] on a
LOPEZ-VALENZUELA V. ARPAIO 15

particularly acute problem in which the Government interests

are overwhelming,” id. at 750; (2) “operate[d] only on

individuals who have been arrested for a specific category of

extremely serious offenses” – individuals that “Congress

specifically found” were “far more likely to be responsible

for dangerous acts in the community after arrest,” id.; and

(3) afforded arrestees “a full-blown adversary hearing” at

which the government was required to “convince a neutral

decisionmaker by clear and convincing evidence that no

conditions of release can reasonably assure the safety of the

community or any person,” id. It satisfied heightened

scrutiny because it was a “carefully limited exception,” id. at

755, not a “scattershot attempt” at preventing crime by

arrestees, id. at 750.

B.

Salerno and Schall establish the substantive due process

framework that governs here. We first consider whether the

Proposition 100 laws satisfy general substantive due process

principles. Because the Proposition 100 laws regulate adults

rather than juveniles, we apply Salerno’s heightened scrutiny

rather than Schall’s more deferential review. We then

consider in the alternative whether the Proposition 100 laws

violate due process, under Bell, Schall and Salerno, by

imposing punishment before trial. To succeed on their facial

challenge, the plaintiffs must show that the Proposition 100

laws are unconstitutional in all of their applications. See

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442, 449 (2008) (citing Salerno, 481 U.S. at 745);

see also id. (“While some Members of the Court have

criticized the Salerno formulation, all agree that a facial

challenge must fail where the statute has a plainly legitimate
16 LOPEZ-VALENZUELA V. ARPAIO

sweep.” (internal quotation marks omitted)); United States v.

Stevens, 559 U.S. 460, 472 (2010).

1.

We first consider whether the Proposition 100 laws satisfy

general substantive due process principles.

The governing substantive due process standard is a

familiar one. “The Due Process Clause . . . provides

heightened protection against government interference with

certain fundamental rights and liberty interests,” Washington

v. Glucksberg, 521 U.S. 702, 719–20 (1997), “forbid[ding]

the government to infringe certain ‘fundamental’ liberty

interests at all, no matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling state

interest,” Reno v. Flores, 507 U.S. 292, 302 (1993).

We apply heightened scrutiny here because the

Proposition 100 laws infringe a “fundamental” right. 

Salerno, 481 U.S. at 750. The defendants’ brief suggests that

the Proposition 100 laws do not implicate a fundamental

right, because “[b]ail . . . is not a fundamental . . .

constitutional right,” but Salerno made clear that what is at

stake here is “the individual’s strong interest in liberty,” and

the Court was careful “not [to] minimize the importance and

fundamental nature of this right.” Id. (emphasis added). If

there was any doubt about the level of scrutiny applied in

Salerno, it has been resolved in subsequent Supreme Court

decisions, which have confirmed that Salerno involved a

fundamental liberty interest and applied heightened scrutiny. 

See Flores, 507 U.S. at 301–02; id. at 316 (O’Connor, J.,

concurring); Foucha v. Louisiana, 504U.S. 71, 80–83 (1992);
LOPEZ-VALENZUELA V. ARPAIO 17

id. at 93 (Kennedy, J., dissenting). Salerno and the cases that

have followed it have recognized that “[f]reedom from bodily

restraint has always been at the core of the liberty protected

by the Due Process Clause from arbitrary governmental

action.” Foucha, 504 U.S. at 80. Thus, “[t]he

institutionalization of an adult by the government triggers

heightened, substantive due process scrutiny.” Flores,

507 U.S. at 316 (O’Connor, J., concurring). As the Court

explained in Salerno, 481 U.S. at 755, “liberty is the norm,

and detention prior to trial or without trial is the carefully

limited exception.” See also Zadvydas v. Davis, 533 U.S.

678, 690 (2001) (“Freedom from imprisonment – from

government custody, detention, or other forms of physical

restraint – lies at the heart of the liberty that [the Due

Process] Clause protects.”); Foucha, 504 U.S. at 90

(Kennedy, J., dissenting) (“As incarceration of persons is the

most common and one of the most feared instruments of state

oppression and state indifference, we ought to acknowledge

at the outset that freedom from this restraint is essential to the

basic definition of liberty in the Fifth and Fourteenth

Amendments of the Constitution.”). Thus, the Proposition

100 laws will satisfy substantive due process only if they are

“narrowly tailored to serve a compelling state interest.” 

Flores, 507 U.S. at 302 (citing Salerno, 481 U.S. at 746).3

That the Proposition 100 laws regulate persons when

there is probable cause to believe they have “entered or

remained in the United States illegally,” Ariz. Const. art. 2,

§ 22(A)(4), does not alter the analysis, as the defendants

concede. The Due Process Clauses of the Fifth and

Fourteenth Amendments protect every person within the

3 At oral argument, the defendants conceded that Salerno applied

heightened scrutiny and that heightened scrutiny applies here.
18 LOPEZ-VALENZUELA V. ARPAIO

nation’s borders from deprivation of life, liberty or property

without due process of law. See Mathews v. Diaz, 426 U.S.

67, 77 (1976). “Even one whose presence in this country is

unlawful, involuntary, or transitory is entitled to that

constitutional protection.” Id.4

We also bear in mind that, regardless of whether an

arrestee is a citizen, a lawful resident or an undocumented

immigrant, the costs to the arrestee of pretrial detention are

profound. “Pretrial confinement may imperil the suspect’s

job, interrupt his source of income, and impair his family

relationships.” Gerstein, 420 U.S. at 114. And it may affect

“the defendant’s ability to assist in preparation of his

defense.” Id. at 123. As the Supreme Court stated in Stack,

342 U.S. at 4, the “traditional right to freedom before

conviction permits the unhampered preparation of a defense.” 

See alsoABAStandards for Criminal Justice: Pretrial Release

29 (3d. ed. 2007) (citing “considerable evidence that pretrial

custody status is associated with the ultimate outcomes of

cases, with released defendants consistently faring better than

defendants in detention”).

In this case, the defendants argue that the Proposition 100

laws satisfy substantive due process because they serve the

state’s substantial interest in ensuring that persons accused of

crimes are available for trial. They argue that pretrial

detention is a constitutionally acceptable means of furthering

4

See also Zadvydas, 533 U.S. at 718 (Kennedy, J., dissenting) (“As

persons within our jurisdiction, . . . aliens are entitled to the protection of

the Due Process Clause.”); cf. Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our

gates, even illegally, may be expelled only after proceedings conforming

to traditional standards of fairness encompassed in due process of law.”).
LOPEZ-VALENZUELA V. ARPAIO 19

that interest. And they contend that Proposition 100’s

categorical denial of bail to undocumented immigrants,

without any individualized determination of flight risk, is

justified because undocumented immigrants in general pose

an unmanageable flight risk. The district court accepted this

rationale, concluding that “[t]he Arizona legislature and

Arizona voters made the logical assumption that a person

who is unlawfully present in the United States may not appear

for trial.” We disagree.

We do not question that Arizona has a compelling interest

in ensuring that persons accused of serious crimes, including

undocumented immigrants, are available for trial. See

Salerno, 481 U.S. at 749 (noting that “an arrestee may be

incarcerated until trial if he presents a risk of flight”); Bell,

441 U.S. at 534 (recognizing the government’s “substantial

interest in ensuring that persons accused of crimes are

available for trials and, ultimately, for service of their

sentences,” and “that confinement of such persons pending

trial is a legitimate means of furthering that interest”). The

plaintiffs properly conceded this point at oral argument.

We do, however, reject the proposition that the

Proposition 100 laws are carefully limited, as Salerno

requires. Salerno concluded that the challenged provisions of

the Bail Reform Act satisfied the tailoring requirement of

heightened scrutiny because they created a “narrowly

focuse[d],” “carefully limited exception” to the “‘general

rule’ of substantive due process that the government may not

detain a person prior to a judgment of guilt in a criminal

trial.” Salerno, 481 U.S. at 749–50, 755 (emphasis added). 

The Act thus satisfied the heightened scrutiny standard

because Congress had chosen a “careful delineation of the

circumstances under which detention will be permitted”
20 LOPEZ-VALENZUELA V. ARPAIO

rather than adopting a “scattershot attempt” at advancing the

government’s interest in preventing crime by arrestees. Id. at

750–51 (emphasis added).

In holding the Act sufficiently tailored to satisfy

heightened scrutiny, Salerno focused on three considerations. 

First, that the challenged provisions addressed “a particularly

acute problem.” Id. at 750. Second, that “[t]he Act operates

only on individuals who have been arrested for a specific

category of extremely serious offenses,” where Congress had

“specifically found that these individuals are far more likely

to be responsible for dangerous acts in the community after

arrest.” Id. Third, that the Act required “a full-blown

adversary hearing” at which the government was required to

“convince a neutral decisionmaker by clear and convincing

evidence that no conditions of release can reasonably assure

the safety of the community or any person.” Id. None of

those considerations exist here.

a. The Proposition 100 Laws Do Not

Address a Particularly Acute Problem.

First, the record does not support the argument that the

Proposition 100 laws addressed “a particularly acute

problem.” Salerno, 481 U.S. at 750. The Bail Reform Act at

issue in Salerno addressed an “alarming problem of crimes

committed by persons on release.” Id. at 742 (quoting S.

Rep. No. 98-225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N.

3182, 3185) (internal quotation marks omitted). The record

in Salerno contained empirical evidence establishing that the

legislation addressed “a pressing societal problem,” id. at 747

(citing S. Rep. No. 98-225, at 4–8, 1984 U.S.C.C.A.N. at

3186–91), and the law operated only on individuals

“Congress specifically found . . . are far more likely to be
LOPEZ-VALENZUELA V. ARPAIO 21

responsible for dangerous acts in the community after arrest,”

id. at 750 (citing S. Rep. No. 98-225, at 6–7, 1984

U.S.C.C.A.N. at 3188–90). This evidence figured

prominently in the Court’s decision to uphold the Bail

Reform Act.

Similarly, in Demore v. Kim, 538 U.S. 510 (2003), where

the Court upheld a federal immigration statute providing for

mandatory detention of certain convicted criminal aliens

during the brief period of their civil removal proceedings, the

record contained evidence that the legislation addressed a

particularly acute problem. The Court emphasized and

discussed at length the considerable evidence in the record,

much of it quantitative, showing that the legislation applied

to persons who were both dangerous and at risk of flight. See

id. at 518–21, 528.5

Here, there is no evidence that the Proposition 100 laws

were adopted to address a particularly acute problem. In

contrast to Salerno and Demore, the record contains no

findings, studies, statistics or other evidence (whether or not

part of the legislative record) showing that undocumented

immigrants as a group pose either an unmanageable flight

risk or a significantly greater flight risk than lawful residents. 

The absence of such evidence both distinguishes this case

 

5

 “One 1986 study showed that, after criminal aliens were identified as

deportable, 77% were arrested at least once more and 45% – nearly half

– were arrested multiple times before their deportation proceedings even

began.” Demore, 538 U.S. at 518. Another study showed that “[o]nce

released, more than 20% of deportable criminal aliensfailed to appear for

their removal hearings.” Id. at 519. Congress also had empirical evidence

that, “even with individualized screening, releasing deportable criminal

aliens on bond would lead to an unacceptable rate of flight.” Id. at 520;

see also id. at 528. Such evidence is lacking here.
22 LOPEZ-VALENZUELA V. ARPAIO

from Salerno and supports the conclusion that Proposition

100 laws are not carefully limited, as they must be to survive

heightened scrutiny under Salerno.

6

6

In arguing that Proposition 100 addressed a particularly acute problem,

Judge Tallman focuses on two factors: (1) statements made in support of

Proposition 100 by then-Maricopa CountyAttorneyAndrew Thomas; and

(2) that Arizona voters approved the Proposition by a wide margin. 

Neither argument is persuasive.

As part of the 2006 campaign in favor of Proposition 100, County

Attorney Thomas asserted that “[f]ar too many illegal immigrants accused

of serious crimes have jumped bail and slipped across the border in order

to avoid justice in an Arizona courtroom.” He also told Lou Dobbs

Tonight that Arizona had a “tremendous problem with illegal immigrants

coming into the state, committing serious crimes, and then absconding,

and not facing trial for their crimes, either because they jump bail after

they are out, or because, when they are let out on bail, the federal

government deports them.” The record does not substantiate Thomas’

claims, however, and he is not a credible source. He was disbarred in

2012 for using his office to destroy political enemies, filing malicious and

unfounded criminal charges, committing perjury and engaging in a host

of other crimes, and the state bar committee found that he had

“outrageously exploited power,” “flagrantly fostered fear,” “disgracefully

misused the law” and “dishonored, desecrated, and defiled” the public

trust. In re Thomas, No. PDJ-2011-9002 (Before the Presiding

Disciplinary Judge of the Supreme Court of Arizona, Apr. 10, 2012)

(Opinion and Order Imposing Sanctions), at p. 245, available at

http://www.azcourts.gov/mediaroom/HighProfileCaseUpdate.aspx (last

visited July 10, 2014). Although Judge Tallman relies heavily on

Thomas’ comments (Dissent at 53–54, 58 & n.4), the defendantstellingly

do not even mention them.

That Arizona voters approved Proposition 100 by a large margin

(Dissent at 53, 58 & n.5, 59, 61) also does not show that the legislation

addressed a particularly acute problem. At most, the vote shows that

voters perceived a problem, not that one actually existed. Moreover, as

discussed below in part III.B.2 and in Judge Nguyen’s concurrence, there

is substantial evidence that Arizona voters approved Proposition 100 at
LOPEZ-VALENZUELA V. ARPAIO 23

Contrary to Judge Tallman’s reading of our opinion, we

neither “demand” findings, studies, statistics or other

evidence showing that undocumented immigrants pose an

unmanageable flight risk nor impose an “empirical data

requirement” on the defendants. Dissent at 60–61. We do

not hold Proposition 100 “void . . . for want of evidence,”

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000),

but rather that the Proposition 100 laws are not “carefully

limited” under Salerno. Whether Proposition 100 “narrowly

focuses on a particularly acute problem” is part of that

inquiry. Salerno, 481 U.S. at 750; see also Foucha, 504 U.S.

at 81. Thus, although we do not require the defendants to

produce evidence or point to legislative findings, the absence

of any credible showing that the Proposition 100 laws

addressed a particularly acute problem is one factor quite

relevant to demonstrating that the laws are not carefully

limited.

b. The Proposition 100 Laws Are Not

Limited to a Specific Category of

Extremely Serious Offenses.

Second, the Proposition 100 laws are not limited to “a

specific category of extremely serious offenses.” Salerno,

481 U.S. at 750; cf. Demore, 538 U.S. at 517–18, Kansas v.

Hendricks, 521 U.S. 346, 357 (1997). Instead, they

encompass an exceedingly broad range of offenses, including

not only serious offenses but also relatively minor ones, such

as unlawful copying of a sound recording, altering a lottery

ticket with intent to defraud, tampering with a computer with

least in part for reasons other than a perceived problem of flight risk – to

punish undocumented immigrants for perceived immigration and criminal

violations.
24 LOPEZ-VALENZUELA V. ARPAIO

the intent to defraud and theft of property worth between

$3,000 and $4,000.

c. The Proposition 100 Laws Do Not

Require a Full-blown Adversary

Hearing at Which the State Is Required

to Prove that an Individual Arrestee

Presents an Unmanageable Flight Risk.

Finally, even if some undocumented immigrants pose an

unmanageable flight risk or undocumented immigrants on

average pose a greater flight risk than other arrestees,

Proposition 100 plainly is not carefully limited because it

employs an overbroad, irrebuttable presumption rather than

an individualized hearing to determine whether a particular

arrestee poses an unmanageable flight risk. In Salerno, the

regulatory scheme was limited to arrestees who actually

posed a danger to the community. First, it was limited to

“individuals who have been arrested for a specific category

of extremely serious offenses” – who Congress found were

“far more likely to be responsible for dangerous acts in the

community after arrest.” Salerno, 481 U.S. at 750. Second,

even for arrestees falling within that specific category, the

scheme provided case-by-case determinations of the need for

pretrial detention. Each arrestee was entitled to a “full-blown

adversary hearing,” at which the government was required to

prove by “clear and convincing evidence” that the individual

presented “a demonstrable danger to the community” and that

“no conditions of release c[ould] reasonably assure the safety

of the community.” Id. It was only “[u]nder these narrow

circumstances” that the Court held that society’s interest was

sufficient to outweigh the “individual’s strong interest in

[pretrial] liberty.” Id.
LOPEZ-VALENZUELA V. ARPAIO 25

In contrast, Proposition 100 is not narrowly focused on

those arrestees who actually pose the greatest flight risk. 

Demonstrably, many undocumented immigrants are not

unmanageable flight risks. The record includes examples of

undocumented immigrants who were arrested before

Proposition 100, granted bail or released on their own

recognizance, and appeared at their court dates and trials. Yet

even these individuals were needlessly remanded into state

custody following Proposition 100’s passage.

In Hernandez v. Lynch, 167 P.3d 1264 (Ariz. Ct. App.

2007), for example, police found a social security card and a

resident alien card in Hernandez’s wallet after arresting him

for possessing an open container of alcohol within the

passenger compartment of a motor vehicle. See id. at 1265. 

Hernandez admitted that the cards were forged, that he had

purchased them for $5,000 and that he had procured them in

order to work and buy food. See id. at 1266. The state

charged him with two counts of knowingly possessing forged

instruments with intent to defraud, a class 4 felony. See id.

He was released on his own recognizance after an initial

appearance hearing. When he appeared voluntarily for his

preliminary hearing, however, he was automatically denied

bail by operation of Proposition 100. See id. He ultimately

pled guilty to solicitation to commit forgery, a class 6 felony,

and was placed on probation for one year. See id. 

Proposition 100 categorically eliminates any opportunity for

persons such as Mr. Hernandez to show that, notwithstanding

their immigration status, they do not pose a flight risk. 
26 LOPEZ-VALENZUELA V. ARPAIO

Indeed, it mandates pretrial detention even when the state

concedes that the arrestee does not pose a flight risk.7

Whether a categorical denial of bail for noncapital

offenses could ever withstand heightened scrutiny is an open

question. See United States v. Scott, 450 F.3d 863, 874 (9th

Cir. 2006) (“Neither Salerno nor any other case authorizes

detaining someone in jail while awaiting trial, or the

imposition of special bail conditions, based merelyon the fact

of arrest for a particular crime. To the contrary, Salerno . . .

upheld the constitutionality of a bail system where pretrial

defendants could be detained only if the need to detain them

was demonstrated on an individualized basis.”). Lawmakers

may rely on “reasonable presumptions and generic rules,”

Demore, 538 U.S. at 526; Flores, 507 U.S. at 313, when a

regulation “involves no deprivation of a ‘fundamental’ right,”

Flores, 507 U.S. at 311, but “‘administrative convenience’ is

a thoroughly inadequate basis for the deprivation of core

constitutional rights,” id. at 346 (Stevens, J., dissenting); see

Stanley v. Illinois, 405 U.S. 645, 656–58 (1972). As the

defendants conceded at oral argument, irrebuttable

presumptions are disfavored.

Thus, at minimum, to survive heightened scrutiny any

such categorical rule, requiring pretrial detention in all cases

without an individualized determination of flight risk or

dangerousness, would have to be carefully limited. The

state’s chosen classification would have to serve as a

7 Proposition 100, for example, covers foreign citizens who have no

legal right to return to their home countries. Conversely, Proposition 100

excludes from coverage individuals who would seem more likely to flee

– such as foreign citizens who are in this country lawfully as tourists and

persons having dual citizenship.
LOPEZ-VALENZUELA V. ARPAIO 27

convincing proxy for unmanageable flight risk or

dangerousness. It has generally been thought, for example,

that capital offenses may be made categorically nonbailable

because “most defendants facing a possible death penalty

would likely flee regardless of what bail was set.” United

States v. Kennedy, 618 F.2d 557, 558-59 (9th Cir. 1980) (per

curiam).8

There is no evidence that undocumented status correlates

closely with unmanageable flight risk. The defendants

speculate that undocumented immigrants pose a greater flight

risk than lawful residents because theysupposedlylack strong

ties to the community and have a “home” in another country

to which they can flee. But this assumption ignores those

8 We do not, as Judge Tallman writes, “effectively preclud[e] the use of

irrebuttable presumptions in the bail context.” Dissent at 62. Rather, we

conclude that whether a categorical denial of bail for noncapital offenses

could ever withstand heightened scrutiny is an open question, and then

assume without deciding that such a rule would be constitutional were it

adequately tailored. Our conclusion that this is an open question is clearly

correct, given that neither the Supreme Court nor any federal court of

appeals has addressed the question. The closest case is Hunt v. Roth,

648 F.2d 1148 (8th Cir. 1981), vacated as moot sub nom. Murphy v. Hunt,

455 U.S. 478 (1982), where the Eighth Circuit held that a provision of the

Nebraska Constitution categorically denying bail to persons charged with

certain sexual offenses violated the Excessive Bail Clause of the Eighth

Amendment because it employed an irrebuttable presumption rather than

requiring an individualized determination of flight risk. In language that

one might apply here as well, the Eighth Circuit held that “[t]he fatal flaw

in the Nebraska constitutional amendment is that the state has created an

irrebuttable presumption that every individual charged with this particular

offense is incapable of assuring his appearance by conditioning it upon

reasonable bail or is too dangerous to be granted release.” Hunt, 648 F.2d

at 1164. Hunt, however, was later vacated as moot, so it remains the case

that no federal appellate court has yet addressed in a precedential decision

whether a categorical denial of bail comports with the Constitution.
28 LOPEZ-VALENZUELA V. ARPAIO

undocumented immigrants who do have strong ties to their

community or do not have a home abroad. As our own

court’s immigration docket reveals, many undocumented

immigrants were brought here as young children and have no

contacts or roots in another country. Many have “children

born in the United States” and “long ties to the community.” 

Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). A

recent study of undocumented immigrants in California,

published by the Center for the Study of Immigrant

Integration at the University of Southern California, found

that, “contrary to popular misperceptions,” undocumented

immigrants are “a fairly settled population.” M. Pastor & E.

Marcelli, What’s at Stake: Undocumented Californians,

Immigration Reform, and Our FutureTogether 9 (May2013),

available at http://csii.usc.edu/undocumentedCA.html (last

visited July 28, 2014). The researchers found that “nearly 50

percent of undocumented immigrants have been in the

country for more than 10 years, and over 17 percent of

household heads are homeowners.” Id.

Moreover, although the defendants consistently refer to

undocumented immigrant arrestees as “flight risks,” the

pertinent inquiry is whether the arrestee is an unmanageable

flight risk. There are a variety of methods to manage flight

risk, such as bond requirements, monitoring and reporting

requirements. See, e.g., Ariz. Rev. Stat. Ann. § 13-3967(D). 

Proposition 100 completely ignores these tools for managing

flight risk, instead mandating incarceration in every case.

Before Proposition 100 passed, Arizona had an extensive

bail scheme designed to help ensure that arrestees appear for

trial. See Ariz. Const. art. 2, § 22(A)(3); Ariz. Rev. Stat.

Ann. § 13-3967(B). These procedures already required

judges to consider factors such as “[t]he accused’s family
LOPEZ-VALENZUELA V. ARPAIO 29

ties, employment, financial resources,” “length of residence

in the community,” “[w]hether the accused has entered or

remained in the United States illegally” and “[w]hether the

accused’s residence is in this state, in another state or outside

the United States.” Ariz. Rev. Stat. Ann. § 13-3967(B)(4),

(8), (11)–(12). There is no evidence that this set of

regulations, addressing flight risk on a case-by-case basis,

was inadequate to protect the state’s compelling interest in

ensuring undocumented immigrant arrestees’ appearance at

trial. Cf. Demore, 538 U.S. at 520, 528 (noting that Congress

chose a mandatory detention rule only after evidence showed

that individualized screening had failed to address the

problem of convicted criminal detainees in large numbers

failing to appear at their removal hearings). Furthermore,

Arizona added the last two of these considerations –

“[w]hether the accused has entered or remained in the United

States illegally” and “[w]hether the accused’s residence is in

this state, in another state or outside the United States,” Ariz.

Rev. Stat. Ann. § 13-3967(B)(11)–(12) – only in June 2006,

a few months before Proposition 100 was submitted to the

state’s voters. See 2006 Ariz. Legis. Serv. Ch. 380 (H.B.

2580) (West). Arizona gave these provisions no chance to

succeed before resorting to mandatory detention in every

case. Thus, although Judge Tallman’s dissent asserts that

individualized assessments of flight risk have been tried and

failed (Dissent at 53, 62, 65), neither assertion is borne out by

the record.

The Proposition 100 laws also do not reflect a “widely

shared legislative judgment.” Schall, 467 U.S. at 272. The

federal criminal justice system does not categorically deny

bail to undocumented immigrant arrestees. See generally
30 LOPEZ-VALENZUELA V. ARPAIO

18 U.S.C. § 3142; see id. § 3142(d).9 Most states that

categorically prohibit bail at all do so only for capital

offenses10or for other very serious crimes.11 Other than

9 Pre-adjudication eligibility for bail is also the norm in federal removal

proceedings. See 8 U.S.C. § 1226(a). Federal law mandates detention

during removal proceedings only for “a limited class of deportable aliens

– including those convicted of an aggravated felony.” Demore, 538 U.S.

at 517–18; see 8 U.S.C. § 1226(c).

10

See Ala. Const. art. I, § 16; Alaska Const. art. I, § 11; Ark. Const. art.

2, § 8; Cal. Const. art. I, § 12; Colo. Const. art. II, § 19; Conn. Const. art.

I, § 8; Del. Const. art. I, § 12; Idaho Const. art. I, § 6; Kan. Const. Bill of

Rights § 9; Ky. Const. § 16; La. Const. art. I, § 18; Me. Const. art. I, § 10

(current or former capital offenses nonbailable); Minn. Const. art. I, § 7;

Miss. Const. art. 3, § 29; N.J. Const. art. I, ¶ 11; N.D. Const. art. I, § 11;

Ohio Const. art. I, § 9; Okla. Const. art. 2, § 8; Tenn. Const. art. I, § 15;

Tex. Const. art. I, § 11; Wash. Const. art. I, § 20; Wyo. Const. art. 1, § 14.

11 See Fla. Const. art. I, § 14 (capital offenses and offenses punishable

by life imprisonment nonbailable); Ill. Const. art. I, § 9 (capital offenses

and offensespunishable bylife imprisonment nonbailable); Ind. Const. art.

1, § 17 (murder and treason nonbailable); Md. Code Ann., Crim. Proc.

§ 5-202 (prohibiting pretrial release for an arrestee charged with escaping

from a correctional facility); Mass. Gen. Laws ch. 276, § 20D (capital

offenses and offenses punishable bylife imprisonment nonbailable); Mich.

Const. art. I, § 15 (murder, treason, repeat violent felonies and felonies

committed while out on bail, probation or parole for a prior violent felony

nonbailable); Neb. Const. art. I, § 9 (murder, treason and serious sexual

offenses nonbailable); Nev. Const. art. 1, § 7 (capital offenses or murders

punishable by life imprisonment without possibility of parole

nonbailable); N.H. Rev. Stat. Ann. § 597:1-c (offenses “punishable by up

to life in prison” nonbailable); N.M. Const. art. II, § 13 (capital offenses

and certain repeat felony offenders nonbailable); Or. Const. art. I, § 14

(murder and treason nonbailable); Pa. Const. art. I, § 14 (capital offenses

or offenses punishable by life imprisonment nonbailable); R.I. Const. art.

I, § 9 (offenses punishable by life imprisonment, offenses involving

dangerous weapons by arrestees previously convicted of other offenses

and certain controlled substance offenses nonbailable); S.C. Const. art. I,
LOPEZ-VALENZUELA V. ARPAIO 31

Arizona, onlyMissouri singles out undocumented immigrants

for the categorical denial of bail. See Mo. Ann. Stat.

§ 544.470(2).12 The American Bar Association’s Standards

for Criminal Justice do not make any offenses categorically

nonbailable. They provide that “only defendants charged

with dangerous or violent crimes or, in certain cases, with

other serious crimes, may even be considered for detention,”

and they state that “[a] decision to detain should be made

only upon a clear showing of evidence that the defendant

poses a danger to public safety or a risk of non-appearance

that requires secure detention.” ABA Standards for Criminal

Justice: Pretrial Release 35, 51 (3d ed. 2007).

In an attempt to establish that the Proposition 100 laws

satisfy due process, the defendants rely heavily on Demore v.

Kim. This reliance is misplaced. Demore did uphold a

categorical denial of bail without an individualized

determination of flight risk or dangerousness for certain

§ 15 (capital offenses, offenses punishable by life imprisonment and

certain violent offenses nonbailable); Utah Const. art. I, § 8 (capital

offenses and felony offenses committed while out on bail, probation or

parole for prior felony offense nonbailable).

12 Alabama formerly categorically denied bail to undocumented

immigrants as well, see Ala. Code § 31-13-18(b), but the state has

concluded that § 31-13-18(b) violates the Alabama Constitution, and the

law is no longer in force. See Dismissal Order and Stipulated Permanent

Injunction, Hispanic Interest Coal. of Alabama v. Bentley, No. 5:11-CV2484-SLB (N.D. Ala. Nov. 25, 2013), at 2 n.4 (“The State Defendants

further represent that in light of Article 1, Section 16, of the Alabama

Constitution, they understand that Section 19(b) of H.B. 56 (Ala. Code

§ 31-13-18(b)) can only be applied to deny bail to persons arrested for a

capital crime, and cannot be applied to deny bail to individuals arrested for

or charged solely with non-capital crimes, regardless of their immigration

status.”).
32 LOPEZ-VALENZUELA V. ARPAIO

convicted criminal aliens briefly detained during their civil

deportation proceedings. Demore, however, applied rational

basis review, not heightened scrutiny, because it involved

federal regulation of immigration. See Demore, 538 U.S. at

521–28. Such regulations have to meet only “the

(unexacting) standard ofrationallyadvancing some legitimate

governmental purpose,” Flores, 507 U.S. at 306; see also

Fiallo v. Bell, 430 U.S. 787, 793 (1977); Mathews, 426 U.S.

at 79–80, not the heightened scrutiny required under Salerno. 

Demore, moreover, involved a class of detainees who had

already been convicted of serious crimes, see 538 U.S. at 513,

a “very limited” period of detention, id. at 529–30 & n.12,

and extensive evidence and findings establishing the need for

the policy, see id. at 513, 518–20, 528.

In sum, we hold that the Proposition 100 laws do not

satisfy the heightened substantive due process scrutiny

Salerno requires. Although the state has a compelling interest

in assuring that arrestees, including undocumented

immigrants, appear for trial, Proposition 100 is not carefully

limited to serve that interest.

We further hold that the laws are faciallyunconstitutional. 

See Wash. State Grange, 552 U.S. at 449. Because

Proposition 100 is not “carefully limited” as Salerno’s

heightened scrutiny test requires, “the entire statute fails

[Salerno’s] decision rule and would thus be invalid in all of

its applications.” Scott A. Keller & Misha Tseytlin, Applying

Constitutional Decision Rules Versus Invalidating Statutes in

Toto, 98 Va. L. Rev. 301, 331 (2012) (emphasis added). 

Even persons who could be detained consistent with due

process under a different categorical statute, or who would be

detained under Proposition 100 if it afforded an

individualized determination, could successfully challenge
LOPEZ-VALENZUELA V. ARPAIO 33

the Proposition 100 laws on the same grounds relied on in our

opinion, namely, failure to provide either a valid categorical

exclusion from bail or an individualized determination. See

Foucha, 504 U.S. at 80–83 (invalidating in toto a statute that

categorically required commitment of all people found not

guilty by reason of insanity as a violation of substantive due

process (citing Salerno, 481 U.S. at 747–51, 755)); Citizens

United v. Fed. Election Comm’n, 558 U.S. 310, 376 (2010)

(Roberts, C.J., concurring)(explaining that facial invalidation

is appropriate when, “[g]iven the nature of th[e] claim and

defense, . . . any other [plaintiff] raising the same challenge

would also win”); Keller & Tseytlin, supra, at 322 (“[E]very

person has the right not to be subject to an unconstitutional

law – that is, a law that violates a textual decision rule.”).13

There exists, therefore, “‘no set of circumstances . . . under

which [the Proposition 100 laws] would be valid.’” Wash.

State Grange, 552 U.S. at 449 (quoting Salerno, 481 U.S. at

745).

13 Keller and Tseytlin explain that “the Supreme Court has created

various constitutional decision rules to enforce the Constitution’s

provisions and constrain lower courts as they adjudicate constitutional

disputes.” Keller & Tseytlin, supra, at 320. The authors identify “two

broad categories of decision rules: textual decision rules and enforcement

decision rules.” Id. at 322. Textual decision rules “require courts to

examine the statutory text enacted by the legislature or the circumstances

surrounding that text’s enactment.” Id. Enforcement decision rules, by

contrast, “direct courts to examine the particular facts surrounding the

executive’s or the judiciary’s enforcement of a statute instead of the

statutory text itself.” Id. at 324. Salerno’s heightened scrutiny substantive

due process test, which we apply here, is a textual decision rule, and

application of such a rule will lead to in toto invalidation where, as here,

“the litigants’ arguments and the courts’ inquiries focused on the entire

statutory coverage.” Id. at 339.
34 LOPEZ-VALENZUELA V. ARPAIO

Furthermore, the Proposition 100 laws have been fully

implemented, so there is no possibility that Arizona or

Maricopa County will implement them in a narrower,

constitutional manner, cf. Wash. State Grange, 552 U.S. at

450, and the defendants have not suggested any “reasonable”

or “readily apparent” narrowing construction that would

make the laws constitutional, Stenberg v. Carhart, 530 U.S.

914, 944 (2000) (quoting Boos v. Barry, 485 U.S. 312, 330

(1988)) (internal quotation marks omitted)). Accordingly, the

laws are facially unconstitutional.

2.

We next consider whether the Proposition 100 laws

violate substantive due process by imposing punishment

before trial. See Salerno, 481 U.S. at 746. “To determine

whether a restriction on liberty constitutes impermissible

punishment or permissible regulation, we first look to

legislative intent.” Id. at 747. “Unless [the legislature]

expressly intended to impose punitive restrictions, the

punitive/regulatorydistinction turns on whether an alternative

purpose to which the restriction may rationally be connected

is assignable for it, and whether it appears excessive in

relation to the alternative purpose assigned to it.” Id.

(alterations and internal quotation marks omitted).

To discern legislative intent, the district court considered

both (1) the legislative record before the Arizona legislature

that passed and referred Proposition 100 to the voters and

(2) statements made during the referendum drive and in

election materials. The court concluded that the legislative

record “suggests that Proposition 100 may have been

motivated by a desire to punish for past crimes, but there is

also evidence that legislators considered the issue of flight
LOPEZ-VALENZUELA V. ARPAIO 35

risk.” Similarly, the court concluded that the “voter materials

contained some official statements reflecting a punitive

purpose, but ultimately the message was mixed.” And the

court ultimately concluded that “the record as a whole does

not support a finding that Proposition 100 was motivated by

an improper punitive purpose.” Given the mixed nature of

the evidence of legislative and voter intent, and the difficulty

in attributing motives to the electorate, we see no reason to

revisit those conclusions on appeal. By assuming without

deciding that Proposition 100 does not have a punitive

purpose, however, we do not minimize the considerable

evidence of punitive intent found in this record.14 There is

14 A partial summary of that evidence: State Representative Russell

Pearce, the bill’s sponsor, stated that Proposition 100 “just simply bridges

the gap, a loophole in the law that would allow people who are not in this

country [ ]legally who have no business to be released if they commit any

crime, they have no business being released if they commit no crime, no

additional crime [be]cause they’re already in this country illegally.” 

Senate Judiciary Committee Meeting on H.B. 2389 and HCR 2028, 47th

Leg., 1st Regular Sess. (Ariz. 2005). Said Pearce, “[B]ad enough you’re

illegal but you commit a serious crime you ought not to be bondable.” Id. 

He added: “[T]his bill targets very simply those who commit serious,

serious [criminal] acts in our community. A very responsible bill to

protect our citizens from those who would enter our country illegally and

commit serious crimes against us . . . .” Id. Rep. Pearce promoted the bill

on the ground that “all illegal aliens in this country ought to be detained,

debriefed and deported.” Id. He reiterated: “If you’re in this country

illegally you ought to be detained [and] deported[.] [E]nd of story,” and

he defended the bill as a “reasonable approach” to border security. Id.

State Representative Ray Barnes expressly promoted the bill on the

assumption that “the mere fact that they’re here undocumented [means]

that the crime has already been committed.” House Judiciary Committee

Meeting on H.B. 2389, 47th Leg., 1st Regular Sess. (Ariz. 2005). State

Senator Jack Harper said, “what part of illegal don’t we understand?

Illegal aliens shouldn’t be able to get bond for anything.” Senate

Judiciary Committee Meeting on H.B. 2389 and HCR 2028, 47thLeg., 1st

Regular Sess. (Ariz. 2005). In a hearing on a bill to implement
36 LOPEZ-VALENZUELA V. ARPAIO

strong evidence that Proposition 100 was motivated at least

in significant part by a desire to punish undocumented

immigrants for (1) entering and remaining in the country

without authorization and (2) allegedly committing the

charged offense.15

Nevertheless, assuming that Proposition 100 was adopted

for the permissible regulatory purpose of managing flight

risk, “the punitive/regulatory distinction turns on whether”

Proposition 100 “appears excessive in relation to the

alternative purpose assigned to it.” Salerno, 481 U.S. at 747

(alterations and internal quotation marks omitted). As

discussed earlier, Salerno held that the Bail Reform Act was

not excessive where it addressed a “pressing societal

Proposition 100 after its passage, State Representative John Kavanagh

said: “I’m amazed that we provide bail to anybody who’s arrested for a

crime that’s an illegal alien . . . . I therefore support this bill as a first step

to what we should be really doing and that’s deporting anybody here

illegally.” House Floor Meeting on S.B. 1265, 48th Leg., 1st Regular

Sess. (Ariz. 2007).

15 Denying an arrestee bail for either of these reasons would be

impermissible. Being present in the United States without authorization

is not a crime, see Arizona v. United States, 132 S. Ct. at 2505 (“As a

general rule, it is not a crime for a removable alien to remain present in the

United States.”), and even if it were, only the federal government would

be permitted to impose punishment for it, see id. at 2509 (“[I]t would

disrupt the federal framework to put state officers in the position of

holding aliens in custody for possible unlawful presence without federal

direction and supervision.”). And bail could not be denied to punish

arrestees for their charged, but unproven, crimes. See Bell, 441 U.S. at

535 (“[U]nder the Due Process Clause, a [defendant] may not be punished

prior to an adjudication of guilt in accordance with due process of law.”);

Salerno, 481 U.S. at 746 (citing Bell for the proposition that pretrial

detention violates substantive due process when it constitutes

“impermissible punishment before trial”).
LOPEZ-VALENZUELA V. ARPAIO 37

problem,” “carefullylimit[ed]the circumstances under which

detention may be sought to the most serious of crimes” and

entitled the arrestee to “a prompt detention hearing” at which

an individualized determination of dangerousness was

required. Id. By contrast, Proposition 100 is excessive in

relation to its stated legitimate purpose because it purports to

deal with a societal ill – unmanageable flight risk posed by

undocumented immigrants as a class – that has not been

shown to exist. Even if we assume that a problem exists,

Proposition 100 employs a profoundly overbroad irrebuttable

presumption, rather than an individualized evaluation, to

determine whether an arrestee is an unmanageable flight risk. 

As discussed, this mechanism necessarily results in the

deprivation of liberty even where not necessary to ensure

appearance at trial, because undocumented immigrants who

do not pose a flight risk or who pose a manageable one are

categorically denied bail based solely on their status. Given

this severe lack of fit between the asserted nonpunitive

purpose and the actual operation of the law, we conclude that

Proposition 100’s bail provisions are punitive rather than

regulatory. Thus, the Proposition 100 laws facially violate

substantive due process by imposing punishment before trial.

IV.

To conclude, Proposition 100 categorically denies bail or

other pretrial release and thus requires pretrial detention for

every undocumented immigrant charged with any of a broad

range of felonies, regardless of the seriousness of the offense

or the individual circumstances of the arrestee, including the

arrestee’s strong ties to and deep roots in the community. 

The defendants maintain that this unusual, sweeping pretrial

detention statute, directed solely at undocumented

immigrants, comports with substantive due process. It does
38 LOPEZ-VALENZUELA V. ARPAIO

not. The Supreme Court has made clear that “[i]n our society

liberty is the norm, and detention prior to trial or without trial

is the carefully limited exception.” Salerno, 481 U.S. at 755. 

The “narrowly focuse[d]” pretrial release statute upheld in

Salerno provided a “careful delineation of the circumstances

under which detention will be permitted.” Id. at 750–51. In

contrast, the Proposition 100 laws do not address an

established “particularly acute problem,” are not limited to “a

specific category of extremely serious offenses,” and do not

afford the individualized determination of flight risk or

dangerousness that Salerno deemed essential. Id. at 750. 

These laws represent a “scattershot attempt” at addressing

flight risk and are not narrowly tailored to serve a compelling

interest. Id. In addition, and for the same reasons, the

challenged laws are excessive in relation to the state’s

legitimate interest in assuring arrestees’ presence for trial. 

They therefore impermissibly impose punishment before an

adjudication of guilt. For these reasons, we hold that the

Proposition 100 laws violate the substantive component ofthe

Due Process Clause of the Fourteenth Amendment on these

two independent grounds. Because we hold that the laws

facially violate substantive due process, we do not reach the

plaintiffs’ procedural due process, Eighth Amendment, Sixth
LOPEZ-VALENZUELA V. ARPAIO 39

Amendment and preemption claims.16 The judgment of the

district court is reversed.

REVERSED AND REMANDED.

NGUYEN, Circuit Judge, concurring:

I agree with the majority that Proposition 100 violates

substantive due process. However, the majority assumes,

without deciding, that Proposition 100 was not motivated by

an improper punitive purpose. I write separately to address

the extraordinary record of legislative intent, which I believe

demonstrates that Proposition 100 was intentionally drafted

to punish undocumented immigrants for their “illegal” status,

even if they pose no flight risk or danger to the community. 

This record also sheds light on why the law’s provisions are

excessive in so many respects. Acknowledging the improper

16 We disagree with Judge O’Scannlain’s argument that the Proposition

100 laws must be evaluated under the Excessive Bail Clause of the Eighth

Amendment rather than the substantive component of the Due Process

Clause of the Fourteenth Amendment. Dissent at 66–70. The Supreme

Court applied substantive due process review to bail-denial schemes in

Salerno and Schall. Judge O’Scannlain would distinguish those cases on

the ground that they involved the denial of bail for dangerousness rather

than flight risk, but the Supreme Court has never recognized – or even

suggested – that distinction. See, e.g., Zadvydas, 533 U.S. at 690 (citing

Salerno as setting out the general standard for detention in criminal cases);

Foucha, 504 U.S. at 83 (citing Salerno as setting out the general standard

for the “pretrial detention of arrestees”). As Judge O’Scannlain

recognizes, Dissent at 71, the parties also have not “thorough[ly]

brief[ed]” the Eighth Amendment issues. For these reasons, we properly

rely on substantive due process rather than the Eighth Amendment to

address Proposition 100’s constitutionality.
40 LOPEZ-VALENZUELA V. ARPAIO

legislative purpose in this case not only aids our substantive

due process analysis, but also reaffirms our constitutional

commitment to provide due process to all, regardless of

immigration status.

I

The Supreme Court has instructed that “[t]o determine

whether a restriction on liberty constitutes impermissible

punishment or permissible regulation, we first look to

legislative intent.” United States v. Salerno, 481 U.S. 739,

747 (1987) (citing Schall v. Martin, 467 U.S. 253, 269

(1984)). Absent evidence of express intent to punish, the

analysis depends on whether the restrictions are reasonably

connected to a legitimate purpose, and whether they appear

excessive in relation to that purpose. Bell v. Wolfish,

441 U.S. 520, 538–39 (1979); Salerno, 481 U.S. at 747. 

However, whether a statute is intended as punitive, or

excessive in relation to some legitimate purpose, are not

analytically distinct inquiries. One informs the other:

Thus, if a particular restriction of pretrial

detention is reasonably related to a legitimate

governmental objective, it does not, without

more, amount to “punishment.” Conversely,

if a restriction or condition is not reasonably

related to a legitimate goal—if it is arbitrary

or purposeless—a court permissiblymay infer

that the purpose of the governmental action is

punishment that may not constitutionally be

inflicted upon detainees qua detainees.

Bell, 441 U.S. at 539 (footnote omitted). Conceptually, this

makes sense. Because the ultimate question is whether or not
LOPEZ-VALENZUELA V. ARPAIO 41

a statute constitutes impermissible punishment, we may

consider both what legislators had to say about the law they

crafted, and the extent to which the law was drawn

accordingly.

Significantly, “the mere invocation of a legitimate

purpose will not justify particular restrictions and conditions

of confinement amounting to punishment.” Schall, 467 U.S.

at 269. Even if the restrictions “serve legitimate regulatory

purposes, it is still necessary to determine whether the terms

and conditions of confinement under [the challenged statute]

are in fact compatible with those purposes.” Id. (citing

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69

(1963)).

These inquiries do not lend themselves to a rigid,

formulaic approach. Rather, “each case has turned on its own

highly particularized context.” Flemming v. Nestor, 363 U.S.

603, 616 (1960). Where the record of legislative intent is

inconclusive, the Supreme Court has not hesitated to

consider—rather expansively, in fact—the nature and history

of the restraint, among other factors. Mendoza-Martinez,

372 U.S. at 168–69. See also Bell, 441 U.S. at 538 (“The

factors identified in Mendoza-Martinez provide useful

guideposts in determining whether particular restrictions and

conditions accompanying pretrial detention amount to

punishment in the constitutional sense of that word.”).

The facts of this case illustrate precisely why legislative

intent and tailoring have been considered two sides of the

same coin. I therefore turn to some of the record evidence

that informs my judgment regarding the unconstitutionality

of Proposition 100.
42 LOPEZ-VALENZUELA V. ARPAIO

II

A

Proposition 100 was sponsored by former State

Representative Russell Pearce. Introducing the bill to the

Senate JudiciaryCommittee, Representative Pearce noted that

a majority of Americans “want the border secured, [and] our

laws enforced,” and described Proposition 100 as a “very

reasonable approach” to accomplishing those ends.1Senate

Judiciary Committee Meeting on H.B. 2389 and H.C.R. 2028,

Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). He

described the purpose of Proposition 100: “[W]hen people are

in this country illegally and they commit a serious felony they

ought not to be bondable . . . .” Id. Although he alluded

generally to the supposed dangers that “violent aliens” pose

to the public, he did not cite a single example or any other

evidence of the problem,2 and instead elaborated:

1 According to Pearce, Proposition 100 was originally part of a package

of legislation intended to “secure the borders.” The package also

included: the Fair and Legal Employment Act, Ariz. Rev. Stat. § 23-212,

which imposes penalties on employers for hiring undocumented

immigrants; Proposition 102, Ariz. Const. art. II, § 35, a constitutional

amendment to deny undocumented immigrants standing to recover in civil

suits; Proposition 103, Ariz. Const. art. XXVIII, § 2, declaring English as

the official language of Arizona; and Proposition 300, Ariz. Rev. Stat.

§§ 15-191.01, 15-232, 15-1803, 15-1825, 46-801, 46-803,which prohibits

undocumented aliens from receiving child care assistance, and those

enrolled in public community colleges and universities from receiving the

benefit of in-state tuition rates and financial aid, or participating in adult

education classes.

2 The record reflects that Proposition 100’s sponsors and supporters also

presumed that undocumented immigrants are categorically more

dangerous than other arrestees. In these proceedings, however, appellees
LOPEZ-VALENZUELA V. ARPAIO 43

I mean, you know bad enough you’re illegal

but you commit a serious crime you ought not

to be bondable unless you’re released after

prosecution, after you do your time to ICE

and then to be deported. In fact, all illegal

aliens in this country ought to be detained,

debriefed, and deported . . . .

Id. He continued:

Violent criminals in our society who, again,

may not be brought to justice if they’re

released and should not be released first of all,

according to federal law, but they’re to be

deported, so seriously, they’ve committed [a]

serious crime, I think that this just simply

bridges the gap, a loophole in the law that

would allow people who are not in this

country [ ]legally who have no business to be

released if they commit any crime, they have

no business being released if they commit no

crime, no additional crime [be]cause they’re

already in this country illegally.

Id. (emphasis added). Maricopa County Attorney Andrew

Thomas, whose office played a central role in drafting

Proposition 100, also testified before the Committee. Thomas

explained the purpose of the bill as follows:

I believe it is time to end the first class tickets

that we have been giving from our jails for

have wisely abandoned this premise because it is completely

unsubstantiated.
44 LOPEZ-VALENZUELA V. ARPAIO

serious criminals. . . . [C]ertain serious

criminals currently enjoy this simply because

of their status as illegal immigrants and I

believe that we need to take action to put an

end to this.

Id. In his testimony, Thomas, much like Representative

Pearce, alluded to “numerous examples of serious and violent

criminals that Maricopa County Attorney’s Office has

prosecuted in the past that have escaped justice”—but also

could not cite a single case to support his position.3

Testifying later in these proceedings, Thomas again could not

identify a single such case, and further conceded that his

office did not possess any data or information illustrating the

problem.

During the same Judiciary Committee hearing, State

Senator Bill Brotherton raised concerns about the breadth of

the bill. Senator Brotherton gave an example—a student who

overstayed his or her visa and was charged with pirating

music online would automaticallybe denied bail, even though

a judge might not consider such a defendant a flight risk. 

Senate Judiciary Committee Meeting on H.B. 2389 and

H.C.R. 2028, Mar. 28, 2005, 47th Leg., 1st Regular Sess.

(Ariz. 2005). Representative Pearce dismissed this concern

3 The only specific case Thomas discussed was that of Oscar Garcia

Martinez, who, according to Thomas, was released on bail, and deported

by the federal government, rendering him unavailable to the state. Id. 

Sometime later Martinez apparently reentered, and was present at a

confrontation that resulted in the shooting of a police officer by a third

party. Id. However troubling Martinez’s case may be, it certainly does

not demonstrate that undocumented immigrants pose a greater flight risk,

given that it was the federal government that rendered Martinez absent.
LOPEZ-VALENZUELA V. ARPAIO 45

as an attempt to “muddy the waters,” id., and reiterated the

intent of the bill:

The fact that we would continue to try to put

some veil over what’s really happening and

try to paint this face of this poor student who

overstays his visa, everybody knows what this

is targeting. This is, you know, and my issue

is very simple. This bill doesn’t go as far as it

ought to go. This is a very modest bill. If

you’re in this country illegally you ought to be

detained, deported[,] end of story.

Id. Similarly, when SenatorBrotherton expressed his concern

that altering a lottery ticket ought not to be a non-bondable

offense, State Senator Jack W. Harper interjected:

To that point, what part of illegal don’t we

understand? Illegal aliens shouldn’t be able

to get bond for anything let alone a Class 1, 2,

or 3 felony. . . . We need to just get off the

subject of lottery ticket[s] because

fraudulently altering lottery tickets is a crime

and they shouldn’t make bail for anything, so

let’s just move on.

Id. (emphases added). Ultimately, the Committee amended

the legislation to specify that, should the ballot measure pass,

the Legislature would reserve to itself the task of defining

“serious felony offense.” To that end, Representative Pearce

introduced legislation that would define “serious felony

offense” as entailing any class 1, 2, 3, or 4 felony, as well as

aggravated driving under the influence. House Floor Meeting

on H.B. 2580, Mar. 7, 2006, 47th Leg., 2nd Regular Sess.
46 LOPEZ-VALENZUELA V. ARPAIO

(Ariz. 2006). That bill was eventually passed by the

Legislature, and signed into law.

Months later, Proposition 100 was referred to the state’s

voters. The ballot materials did not inform voters of the

definition of “serious felony offense,” or that it included

many non-violent offenses. Instead, in a statement of support

on the ballot, Representative Pearce warned voters of

“[l]arge, well-organized gangs of illegal aliens,” and the need

to keep such “dangerous thugs in jail rather than releasing

them onto the streets.” Publicity Pamphlet Issued by Janice

K. Brewer, then-Arizona Secretary of State, Ballot

Propositions & Judicial Performance Review, General

Election, Nov. 7, 2006, available at http://www.azsos.gov/

election/2006/info/pubpamphlet/english/Prop100.htm.

Maricopa County Attorney Thomas urged voters4:

Thanks to an amendment approved

overwhelmingly by voters in 2002, the

Arizona Constitution now denies bail to

defendants accused of rape and child

molestation. This proposition similarlywould

deny bail to illegal immigrants who pose a

clear danger to society and who too often use

4 Thomas also claimed: “Other examples of illegal immigrants who

made bail and avoided prosecution for serious crimes include accused

child predators, armed robbers, drug dealers and other accused criminals.” 

Id. The only example Thomas provided, however, was the case of Oscar

Martinez. See supra at note 3. And, as another legislator later correctly

noted, “[t]hose individuals who are accused of committing heinous crimes

[such as those cited by Proposition 100’s supporters] are already denied

bail under current state statutes . . . .” House Floor Meeting on S.B. 1265,

June 7, 2007, 48th Leg., 1st Regular Sess. (Ariz. 2007) (statement of Rep.

Krysten Sinema).
LOPEZ-VALENZUELA V. ARPAIO 47

our border as an escape route. Our state

constitution was not intended to “bail out”

illegal immigration. I urge you to vote yes to

end this abuse of our criminal justice system.

Id. Don Goldwater, a gubernatorial candidate, placed this

statement on the ballot:

I commit to you that, as your Governor, I will

apply all legal measures to protect and defend

Arizonans from the illegal invasion. This

Ballot Measure addresses one area that needs

to be resolved in this fight to secure our

borders and reduced the level of crime in our

neighborhoods.

It is embarrassing to have our state lead the

nation in crime. Unfortunately, the current

governor has vetoed ten separate bills sent to

her desk the legislature that were written to

protect you from illegal immigration.

Id. By contrast, the sole statement of opposition to

Proposition 100, signed by several individuals, cautioned:

Prop 100 would . . . create a sub-class of

people within the justice system based solely

on race or national origin, and unnecessarily

penalize people who pose little or no risk to

the community. This proposition would do

nothing more than institutionalize bias and
48 LOPEZ-VALENZUELA V. ARPAIO

discrimination in the justice system, at

taxpayer expense.

Id. Voters approved the constitutional amendment.

After the popular vote, follow-on legislation was

introduced that would have lowered the standard of proof

applicable to the determination of immigration status from

“proof evident and presumption great,” to “preponderance of

the evidence.” Pearce rose on the floor of the House to

oppose the bill because, in his view, it did not lower the

standard even further, to “probable cause.” In his opposition,

Pearce repeatedly emphasized the immigrants’ “illegal”

status:

You don’t need to make that kind of a

standard for preponderance or anything else to

the charge[,] they are here illegally . . . . they

are here illegally, they have no business being

released no [matter] what the charge in reality

because they’re a flight risk. They’re here

illegally. They need to be turned over to ICE

. . . .

House Floor Meeting on S.B. 1265, June 7, 2007, 48th Leg.,

1st Regular Sess. (Ariz. 2007). Representative John

Kavanagh raised similar arguments. Id. Ultimately, the

measure to set the burden of proof at “preponderance of the

evidence” failed. Days later, discussing an amendment to

lower the standard to “probable cause,” Representative

Kavanagh explained his support for the latter:

I’m amazed that we provide bail to anybody

who’s arrested for a crime that’s an illegal
LOPEZ-VALENZUELA V. ARPAIO 49

alien. I think anybody, regardless if it’s

serious or a minor crime[,] should be denied

bail . . . . We should deny bail to anybody

here illegally who’s picked up. I therefore

support this bill as a first step to what we

should be really doing and that’s deporting

anybody here illegally.

House Floor Meeting on S.B. 1265, June 13, 2007, 48th Leg.,

1st Regular Sess. (Ariz. 2007). The amendment lowering the

standard of proof to “probable cause” passed.

While this is by no means an exhaustive survey of the

evidence of punitive intent to be found in the record, the

foregoing summary at least conveys the tenor of the

legislative debates and ballot materials. The hostility directed

toward undocumented immigrants based solelyon their status

could not be more obvious.

B

I acknowledge, of course, that there are references in the

record to flight risk—indisputably, a legitimate objective of

regulation, Salerno, 481 U.S. at 749; Bell, 441 U.S. at

534—and more specifically, the unsupported premise that

undocumented immigrants inherently pose a greater flight

risk than other arrestees.5 But there is nothing unusual about

5 For example, in one exchange, Representative Pearce asked:

“[W]ouldn’t you agree that somebody that’s not in this country legally

probably is a greater flight risk than somebody who is, who has roots here

and is a citizen here?” House Floor Meeting on S.B. 1265, June 7, 2007,

48th Leg., 1st Regular Sess. (Ariz. 2007). State Representative Pete Rios,

who previously served as the first Latino president of Arizona’s State

Senate, responded: “I know ofsome people in this country who don’t have
50 LOPEZ-VALENZUELA V. ARPAIO

a “mixed” legislative record; legislators and voters often take

positions for diverse reasons.

Indeed, the very concept of legislative intent can be

“elusive,” Mendoza-Martinez, 372 U.S. at 168, and

[j]udicial inquiries into [legislative] motives

are at best a hazardous matter, and when that

inquiry seeks to go behind objective

manifestations it becomes a dubious affair

indeed. Moreover, the presumption of

constitutionality with which this enactment,

like any other, comes to us forbids us lightly

to choose that reading of the statute’s setting

which will invalidate it over that which will

save it.

Flemming, 363 U.S. at 617. But recognizing the perils of

second-guessing legislative intent does not relieve us of the

responsibility to ascertain the law’s purpose, particularly here

because, in my view, the overriding legislative intent is so

apparent. See Salerno, 481 U.S. at 747 (in evaluating

restrictions on liberty, “we first look to legislative intent”).

That there are references to flight risk, as noted by the

dissent, illustrates why the Supreme Court has prescribed a

mutually-reinforcing, twin-pronged framework for analysis. 

See Bell, 441 U.S. at 539. To the extent there is any doubt

about the purpose of Proposition 100, the statements in the

proper documentation that probably have deeper roots in the state of

Arizona than I do. They’ve been here for a couple of generations, they’ve

got grandkids, so I mean that, in itself, I think does not determine whether

or not one is a flight risk.” Id.
LOPEZ-VALENZUELA V. ARPAIO 51

legislative record further support the conclusion, consistent

with the majority’s analysis of its various provisions, that the

law was intended as punishment.

This principle rings true at a general level—naturally, the

law’s drafting and design sheds light on its purpose, and vice

versa—but it also informs my analysis of the law’s specific

provisions. For example, a number of Proposition 100’s

excesses, including the evident overbreadth of the critical

term “serious felony offense,” were pointed out to the bill’s

sponsors in Committee. As noted above, Senator Brotherton

drew attention to the specific examples of illegal

downloading and alteration of a lottery ticket to emphasize

the law’s excessive reach. See Senate Judiciary Committee

Meeting on H.B. 2389 and H.C.R. 2028, Mar. 28, 2005, 47th

Leg., 1st Regular Sess. (Ariz. 2005). Yet, Proposition 100’s

sponsors declined to narrow the definition of covered “serious

felonies,” which renders “an exceedingly broad range of

offenses” non-bondable. Maj. Op. at 23. Why Senator

Brotherton’s concerns regarding Proposition 100’s

excessiveness were brushed aside is plain from the

record—because, as expressed by the bill’s supporters,

“illegal aliens” “shouldn’t make bail for anything.” Senate

Judiciary Committee Meeting on H.B. 2389 and H.C.R. 2028,

Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). The

legislative debate over the standard of proof is also

illustrative. Statements such as, “I’m amazed that we provide

bail to anybody who’s arrested for a crime that’s an illegal

alien,” House Floor Meeting on S.B. 1265, June 13, 2007,

48th Leg., 1st Regular Sess. (Ariz. 2007), strongly suggest

that the standard of proof was lowered in order to target

undocumented immigrants as such, without respect to flight

risk.
52 LOPEZ-VALENZUELA V. ARPAIO

I agree with the majority that we do not affirmatively

require formal legislative findings or other evidence, yet may

find the absence of such a record to be significant.6 Maj. Op.

at 23. I also readily acknowledge that there may be many

cases where the mixed record renders legislative intent too

elusive, or otherwise unknowable. This case, however, is not

one of them. Intentionally meting out pretrial punishment for

charged but unproven crimes, or the nonexistent crime of

being “in this country illegally,”7

is without question, a

violation of due process principles. Mendoza-Martinez,

372 U.S. at 167; Bell, 441 U.S. at 539.

III

“[I]t is not on slight implication and vague conjecture that

the legislature is to be pronounced to have transcended its

powers, and its acts considered to be void,” Fletcher v. Peck,

6 Cranch 87, 128 (1810) (Marshall, C.J.), and I do not reach

that conclusion lightly. However, the unequivocal

expressions of penal intent in the record, viewed together

with the excesses of the law’s various provisions, lead me to

conclude that Proposition 100 is facially unconstitutional.

6 Nobody disputes that there is no such evidence in the record. The

dissent observes that undocumented immigrants reportedly commit a

disproportionate share of felonies in Arizona. Tallman dissent at 59

(citing Arizona v. United States, 132 S. Ct. 2492, 2500 (2012)). But even

assuming that is true, it does not suggest undocumented immigrants

overall are more likely to flee than other arrestees, nor does it shed light on

the flight risk posed by any given individual defendant.

7 The majority correctly points out that, “[a]s a general rule, it is not a

crime for a removable alien to remain present in the United States.”

Arizona, 132 S. Ct. at 2505.
LOPEZ-VALENZUELA V. ARPAIO 53

TALLMAN, Circuit Judge, with whom Circuit Judge

O’SCANNLAIN joins, dissenting:

In striking down Proposition 100, the majority sets aside

the policy judgment of the Arizona legislature and nearly 80

percent of Arizona’s voting electorate, telling the State it

really doesn’t have an illegal immigration problem adversely

affecting its criminal justice system. But Arizonans thought

Proposition 100 was the solution to an ineffective bail system

that was letting too many illegal aliens avoid answering for

their serious felony charges. They were concerned that these

offenders, who often lack community ties, too often skirt

justice by fleeing the state or the country before trial. 

Plaintiffs-Appellants Lopez-Valenzuela and Castro-Armenta

are good examples. Between the two of them they were

charged with aggravated assault with a deadly weapon,

kidnapping, theft by extortion, assisting a criminal syndicate,

and transportation of a dangerous drug.

Today’s holding leaves Arizona nowhere to turn. For

years before Arizona passed Proposition 100, it tried to assess

flight risk based on family ties, employment, and length of

residency in the community on an individualized basis. 

Immigration status was assuredly a critical consideration in

this assessment, even well before Proposition 100’s

enactment. The majority ignores reality to suggest otherwise. 

Yet despite these individualized flight-risk assessments, the

Maricopa County Attorney explained in 2006 that Arizona

still had a “tremendous problem with illegal immigrants

coming into the state, committing serious crimes, and then

absconding, and not facing trial for their crimes.” Lou Dobbs

Tonight (CNN television broadcast Oct. 13, 2006). Faced

with this continuing problem, Arizona took a logical next step

by denying bail to illegal aliens who commit serious felony
54 LOPEZ-VALENZUELA V. ARPAIO

offenses. Because Proposition 100 is not excessive in relation

to Arizona’s compelling regulatory interest in ensuring that

illegal aliens who commit serious felony offenses stand trial,

I respectfully dissent.

I

A

The majority’s errors begin with its substantive due

process framework. It applies what it calls “Salerno’s

heightened scrutiny” to Proposition 100. Maj. Op. at 15; see

United States v. Salerno, 481 U.S. 739 (1987). Under this

test, it says, the law survives only when it is “narrowly

tailored to serve a compelling state interest.” Maj. Op. at 17. 

This is strict scrutiny. See, e.g., Green v. City of Tucson, 340

F.3d 891, 896 (9th Cir. 2003) (Fisher, J.) (Under “strict

scrutiny,” “the statute will be upheld only if the state can

show that the statute is narrowly drawn to serve a compelling

state interest.”). However, you will not find strict scrutiny

mentioned, let alone applied, anywhere in Salerno.

1

The majority mistakenly applies strict scrutiny by

misreading Salerno, which addressed the consideration of

danger to the community in bail determinations, as holding

that the Bail Reform Act implicated a fundamental liberty

interest. Salerno held just the opposite. The Court

1

If you find it peculiar that the Supreme Court would apply strict

scrutiny without telling us, you have good reason. It certainly knows how

to say that it is applying strict scrutiny when it does so. See, e.g., Johnson

v. California, 543 U.S. 499, 507 (2005) (explaining that it is applying

“strict scrutiny”); Bush v. Vera, 517 U.S. 952, 976 (1996) (same); Miller

v. Johnson, 515 U.S. 900, 920 (1995) (same); Bernal v. Fainter, 467 U.S.

216, 227 (1984) (same).
LOPEZ-VALENZUELA V. ARPAIO 55

acknowledged that liberty, in its broadest sense, is a

fundamental right. Salerno, 481 U.S. at 750. It explained,

however, that the right asserted in Salerno was more limited;

it was the right to bail after “the Government proves by clear

and convincing evidence that an arrestee presents an

identified and articulable threat to an individual or the

community.” Id. at 751. As to that right, the Court said: “we

cannot categorically state that pretrial detention ‘offends

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.’” 

Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105

(1934)). Thus, rather than holding that liberty is a

fundamental right in all instances, the Court held that the

liberty right “under the[] circumstances” of the Bail Reform

Act was not fundamental. Id.

The Court’s narrow construction of the liberty interest at

stake in Salerno is consistent with its instruction that

“‘[s]ubstantive due process’ analysis must begin with a

careful description of the asserted right, for the doctrine of

judicial self-restraint requires us to exercise the utmost care

whenever we are asked to break new ground in this field.” 

Reno v. Flores, 507 U.S. 292, 302 (1993) (citations and

internal quotations omitted). Thus, we must “carefully

formulat[e]” the liberty interest, Washington v. Glucksberg,

521 U.S. 702, 722 (1997), and define it “narrowly,” Flores v.

Meese, 913 F.2d 1315, 1330 (9th Cir. 1990) (emphasis

supplied). Only then can we determine whether the asserted

right is fundamental.

The majority ignores that instruction and concludes that

the Bail Reform Act and Proposition 100 impinge on some

generalized fundamental liberty right. In fact, the majority

makes no effort to even define the right at stake. But it isn’t
56 LOPEZ-VALENZUELA V. ARPAIO

simply “liberty” as the majority would have it. Rather,

Proposition 100 implicates an arrestee’s alleged right to bail

where the proof is evident or the presumption great that the

arrestee committed a serious felony offense,2and there is

probable cause to believe the arrestee has entered or remained

in the United States illegally. That is, the right is not merely

to be free from detention, but to be free from detention “under

these circumstances.” Salerno, 481 U.S. at 751.

In my view, this asserted right is not “so rooted in the

traditions and conscience of our people as to be ranked

fundamental.” Id.; see, e.g., Demore v. Kim, 538 U.S. 510,

522 (2003) (stating, in approving the detention of aliens

awaiting deportation, that “this Court has firmly and

repeatedly endorsed the proposition that Congress may make

rules as to aliens that would be unacceptable if applied to

citizens”); Carlson v. Landon, 342 U.S. 524, 545 (1952)

(“The bail clause was lifted with slight changes from the

English Bill of Rights Act. In England that clause has never

been thought to accord a right to bail in all cases[.]”); United

States v. Edwards, 430 A.2d 1321, 1327 (D.C. App. 1981)

(“[A] fundamental right to bail was not universal among the

colonies or among the early states;” “the language of several

state constitutions explicitly limiting the power of the

judiciary to set excessive bail negates any suggestion that the

excessive bail clause was intended to restrict the definition of

bailable offenses by the legislature.”), cert. denied, 455 U.S.

 

2

 “Serious felony offense” is statutorily defined as “any class 1, 2, 3 or

4 felony or [aggravated driving under the influence].” Ariz. Rev. Stat.

Ann. § 13-3961(A)(5)(b).
LOPEZ-VALENZUELA V. ARPAIO 57

1022 (1982). Because the right is not fundamental, strict

scrutiny does not apply.

3

B

Whatever substantive due process standard Salerno

provides—and I concede that there is some ambiguity—

Proposition 100 meets it. Nobody disputes that “Arizona has

a compelling interest in ensuring that persons accused of

serious crimes, including undocumented immigrants, are

available for trial.” Maj. Op. at 19. And Proposition 100 is

3 Given that the Court in Salerno said that the right at issue was not

fundamental, id. at 751, and never applied strict scrutiny, how does the

majority divine that strict scrutiny applies to Proposition 100? Apparently

from a couple of fractured Supreme Court opinions that hint, but do not

hold, that Salerno may have meant something it never said. See Flores,

507 U.S. at 302 (including Salerno in a string cite about defining

“substantive due process”); Foucha v. Louisiana, 504 U.S. 71, 80–83

(1992) (discussing Salerno but not elucidating its standard). I am not

convinced.

Flores cited Salerno merely for the proposition that there is “a

substantive component” to the Constitution’s due process guarantee. 

Flores, 507 U.S. at 302–03. Surely the majority would not suggest that

the other cases cited in the same string cite—Collins v. City of Harker

Heights, Tex., 503 U.S. 115 (1992), and Bowers v. Hardwick, 478 U.S.

186 (1986)—applied strict scrutiny to any fundamental right. Moreover,

the page of Salerno cited simply defines “substantive due process”; it does

not mention fundamental rights or strict scrutiny. See 481 U.S. at 746. 

Similarly, Foucha cites the same page of Salerno for the same limited

proposition, surrounded by citations to cases that merely describe

substantive due process. 504 U.S. at 80 (citing Zinermon v. Burch,

494 U.S. 113 (1990); Salerno, 481 U.S. at 746; and Daniels v. Williams,

474 U.S. 327 (1986)). True, Foucha discusses Salerno at greater length,

but for the circumstances in which a person can be detained because he

poses “a danger to others or to the community,” not because of flight risk. 

Id. at 81.
58 LOPEZ-VALENZUELA V. ARPAIO

“careful[ly] delineat[ed]” and “carefully limited”—it is even

“narrowly focuse[d].” Salerno, 481 U.S. at 750–51, 755. 

Several fundamental errors in the majority’s opinion lead it

to conclude otherwise.

First, by ignoring all evidence to the contrary, the

majority concludes that “unmanageable flight risk posed by

undocumented immigrants . . . has not been shown to exist.” 

Maj. Op. at 37. Tell that to the Maricopa County Attorney

who, from his vantage on the front line just a month before

the Proposition 100 vote, thought flight risk among illegal

aliens in Arizona was “a tremendous problem.” Lou Dobbs

Tonight (CNN television broadcast Oct. 13, 2006) (emphasis

supplied).4 The majority insists that the record does not

substantiate this claim, but the claim—by the Maricopa

County Attorney no less—is part of the record.5It is one

thing for my colleagues to declare that Proposition 100 is an

excessive measure to address Arizona’s flight problem;

reasonable minds can disagree. It is quite another for an

Article III court to tell Arizona, based on this record and

considering the majority vote of the Arizona legislature and

electorate in favor of Proposition 100, that its perceived

4 The prosecutor also testified before the Arizona Senate Judiciary

Committee, explaining that there were “numerous examples ofserious and

violent criminals that [the] Maricopa County Attorney’s Office has

prosecuted in the past that have escaped justice because they have []

slipped back across the border after they’ve been released.” Senate

Judiciary Committee Meeting on H.B. 2389, Mar. 28, 2005, 47thLeg., 1st

Regular Sess. (Ariz. 2005).

5 The majority responds to the Maricopa County Attorney’s statements

by attempting to discredit his testimony through extra-record evidence not

cited to or relied on by any party. Maj. Op. at 22–23, n.6. Of course, the

majority cannot so easily impeach the four out of five Arizona voters who

must live with the problem the majority concludes does not exist.
LOPEZ-VALENZUELA V. ARPAIO 59

problem is not really a problem. Maj. Op. at 37. Even the

Arizona courts have concluded that “Proposition 100 reflects

that [the Arizona] electorate and Legislature perceived

pretrial detention as a potential solution to a pressing societal

problem.” Hernandez v. Lynch, 167 P.3d 1264, 1274 (Ariz.

Ct. App. 2007) (internal quotations and citations omitted). 

They are the ones who have to live with it.

Second, the majority takes issue with Proposition 100 not

being a widely shared legislative judgment because few states

categorically deny bail for illegal aliens. Maj. Op. at 29–30. 

While factually true, perspective here is critical. As an initial

matter, novelty alone does not render a law unconstitutional. 

See Ewing v. California, 538 U.S. 11, 24 (2003) (holding that

defendant’s sentence under California’s novel “three strikes”

law was not unconstitutional). In Ewing, the Supreme Court

explained that “[t]hough three strikes laws may be relatively

new, our tradition of deferring to state legislatures in making

and implementing such important policy decisions is

longstanding.” Id. My colleagues give no deference to the

policy judgment of the Arizona legislature or the democratic

views of the electorate.

Moreover, we cannot judge this case with blinders on. 

Arizona faces unique challenges as one of four states

bordering Mexico. Indeed, “Arizona bears many of the

consequences of unlawful immigration . . . . Unauthorized

aliens who remain in the State comprise, by one estimate,

almost six percent of the population.” Arizona v. United

States, 132 S. Ct. 2492, 2500 (2012). “[I]n the State’s most

populous county, these aliens are reported to be responsible

for a disproportionate share of serious crime.” Id. I find it

hardly surprising that other states have not enacted their own

Proposition 100 laws. Kansas, for example, may have its
60 LOPEZ-VALENZUELA V. ARPAIO

share of illegal immigrants, but certainly not to the extent of

Arizona. More importantly, only four states—Arizona

among them—provide serious felony offenders with such a

quick and convenient route into Mexico.6 Thus, while

Proposition 100 may be relatively unique among the fifty

states, that’s nothing more than a reflection of Arizona’s

unique flight risk problem and geography.

Third, the majority mistakenly demands “findings,

studies, statistics or other evidence . . . showing that

undocumented immigrants as a group pose either an

unmanageable flight risk or a significantly greater flight risk

than lawful residents.” Maj. Op. at 21. Arizona is not

required to support its legislative judgment with empirical

studies. This is a slippery slope on which the majority is

quick to tread, and one which threatens the delicate balance

between the judiciary and the people we serve.

While we have imposed empirical fact-finding

requirements in a few contexts,7those are the exceptions to

6 The majority’s argument also ignores a host of practical concerns

facing border states like Arizona, such as the time and expense in trying

to apprehend felony fugitives in Mexico and elsewhere, and the

cumbersome and lengthy extradition process required to bring fugitives

back to Arizona to face justice.

7 The most prevalent example is in the context of content-based

regulations under the First Amendment. See Video Software Dealers

Ass’n v. Schwarzenegger, 556 F.3d 950, 962 (9th Cir. 2009). But even in

the First Amendment context, the Supreme Court has explained that “[t]he

quantum of empirical evidence needed to satisfy heightened judicial

scrutiny of legislative judgments will vary up or down with the novelty

and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov’t

PAC, 528 U.S. 377, 378 (2000). I find it neither novel nor implausible

that a border state struggles to prevent serious felony offenders who are
LOPEZ-VALENZUELA V. ARPAIO 61

the rule. See, e.g., Gonzales v. Raich, 545 U.S. 1, 21 (2005)

(“[W]e have never required Congress to make particularized

findings in order to legislate, absent a special concern such as

the protection of free speech.” (citations omitted)). Indeed,

the Supreme Court has explained that “[w]hile Congressional

findings are certainly helpful . . . the absence of particularized

findings does not call into question Congress’ authority to

legislate.” Id. We have never held that a state legislature—

let alone a state’s voting electorate, as here—must prove its

flight-risk concerns with empirical data. Nor have we been

instructed to require supporting data in connection with

pretrial detention schemes—not in Salerno and not in

Demore.

8 The majority’s empirical data requirement,

imposed today by judicial fiat, is particularly inappropriate

and dangerous in this case, where Arizona voters passed

Proposition 100 by a whopping 78 percent. See Nixon, 528

U.S. at 394 (observing, even under the heightened

requirements of First Amendment challenges, that a 74-

percent statewide vote passage rate “certainly attested to the

in the country illegally fromfleeing before trial. The majority decrees that

Arizonans will just have to live with it.

8

In Salerno, the Supreme Court merely mentioned, in a single sentence

and without any hint of a requirement, that Congress made findings in

enacting the Bail Reform Act. 481 U.S. at 750. In Demore, the

respondent argued that Congress had no evidence that individualized bond

hearings would be ineffective, but the Court observed that Congress had

evidence suggesting that permitting discretionary release of aliens pending

their removal hearings would lead to large numbers of deportable criminal

aliens absconding. 538 U.S. at 528. Demore did not hold that

congressional fact-finding was required; but even if we read in such a

requirement, Arizona’s legislators met that requirement by taking

testimony to that effect. See Senate Judiciary Committee Meeting on H.B.

2389, Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005).
62 LOPEZ-VALENZUELA V. ARPAIO

perception” that the challenged law was necessary to remedy

the state’s identified concern).

Finally, the majority errs by effectivelyprecluding the use

of irrebuttable presumptions in the bail context. Proposition

100 “plainly is not carefully limited,” says the majority,

“because it employs an overbroad, irrebuttable presumption

rather than an individualized hearing” to assess flight risk. 

Maj. Op. at 24. That conclusion relies on the premise that

individualized hearings would solve Arizona’s troubles. In

Demore, the Supreme Court upheld a categorical bail

prohibition in part because individualized hearings had

proven unsuccessful. 538 U.S. at 528. Here, like in Demore,

Arizona has already tried determining flight risk on an

individualized basis, considering factors such as family ties,

employment, and length of residency in the community. If

you believe the record—and Plaintiffs-Appellants have given

us no reason not to—the pressing problem of illegal aliens

absconding before trial survived these individualized

hearings. Thus, Proposition 100’s lack of individualized

flight risk determinations cannot render its irrebuttable

presumption excessive. See Demore, 538 U.S. at 528.

Applying well-established substantive due process

principles to this record reveals that Proposition 100—while

distasteful to some—survives substantive due process review.

II

The majority also errs by finding Proposition 100

impermissibly punitive, although it purports to leave

untouched the district court’s factual conclusion that

Proposition 100 was not intended to impose punitive

restrictions. Salerno provides the two-part test to determine
LOPEZ-VALENZUELA V. ARPAIO 63

whether the pretrial detention scheme at issue constitutes

“impermissible punishment or permissible regulation.” 

Salerno, 481 U.S. at 747. First, we look to legislative intent

to determine whether the legislature “expressly intended to

impose punitive restrictions.” Id. Second, we ask “whether

an alternative purpose to which the restriction may rationally

be connected is assignable for it, and whether it appears

excessive in relation to the alternative purpose assigned to it.” 

Id. (alterations and internal quotation marks omitted). In

other words, in the absence of an express punitive intent, “the

punitive/regulatory distinction turns on” whether the pretrial

detention scheme is “excessive in relation to the regulatory

goal [the legislature] sought to achieve.” Id.

Reviewing the record as a whole, including legislative

history and election-related materials, it is clear that Arizona

legislators and voters passed Proposition 100 as a regulatory

measure to ensure illegal aliens who commit serious felony

offenses stand trial. But don’t just take my word for it, see

Lopez-Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054,

1060–61 (9th Cir. 2013) (reviewing the record de novo);

District Judge Susan Bolton and the Arizona Court of

Appeals conducted their own independent review of the

record and reached the same conclusion, Lopez-Valenzuela v.

Maricopa Cnty., No. 08-00660, at 10 (D. Ariz. March 29,

2011) (“Having reviewed the voluminous evidence submitted

in this case, the Court finds that the record as a whole does

not support a finding that Proposition 100 was motivated by

an improper punitive purpose.”); Hernandez, 167 P.3d at

1273 (“[W]e hold that the purpose behind Proposition 100

was not to punish illegal aliens, but to prevent them from

fleeing before trial.”). The majoritywisely declines to disturb

these findings. Maj. Op. at 35 (“[W]e see no reason to revisit
64 LOPEZ-VALENZUELA V. ARPAIO

those conclusions on appeal.”). Yet my colleagues spend

several pages attempting to impeach them.

Turning to the second step, we all agree that “Arizona has

a compelling interest in ensuring that persons accused of

serious crimes, including undocumented immigrants, are

available for trial.” Maj. Op. at 19. But the majority

concludes that Proposition 100 is excessive in relation to its

purpose. Maj. Op. at 37. It isn’t.

Proposition 100, like the Bail Reform Act, “carefully

limits the circumstances under which detention may be

sought.” Salerno, 481 U.S. at 747. Two threshold

requirements must be met before an individual can be denied

bail pursuant to Proposition 100. First, the court must find,

at the arrestee’s initial appearance, that there is probable

cause to believe that the arrestee has entered or remained in

the United States illegally. Ariz. R. Crim. P. 7.2(b). But

more than that, the court must also find that the proof is

evident or the presumption great that the individual

committed a “serious felony offense.” Id.; Ariz. Const. art.

II § 22(4).

An arrestee is also able to challenge this initial

determination by “mov[ing] for reexamination of the

conditions of release.” Ariz. R. Crim. P. 7.4(b). Upon such

a motion—and whether or not the arrestee alleges new

facts—a hearing must be held on the record “as soon as

practicable but not later than seven days after filing of the

motion.” Id. These procedural and substantive protections

make Proposition 100 far from a “scattershot attempt to

incapacitate those who are merely suspected” of being in the

country illegally or of committing a serious felony offense. 

Salerno, 481 U.S. at 750 (emphasis supplied).
LOPEZ-VALENZUELA V. ARPAIO 65

For years, Arizona tried making individualized flight-risk

determinations for aliens alleged to have committed serious

felony offenses. That system didn’t solve Arizona’s

particularly acute flight-risk problem. Its voters then

overwhelmingly approved Proposition 100 as a measured

response in light of the state’s prior efforts. How can that be

excessive?

III

The majority does not reach Plaintiffs-Appellants’

remaining claims because it doesn’t have to. However, I

remain convinced that the district court properly awarded

Defendants-Appellees summary judgment on those claims as

well. I stand by the reasons set forth in that opinion. See

Lopez-Valenzuela, 719 F.3d at 1064–73. For all these

reasons, I respectfully dissent.

O’SCANNLAIN, Circuit Judge, dissenting:

Today, the majority divines, under the rubric of

substantive due process, that Arizona’s categorical denial of

bail is “excessive” notwithstanding the State’s interest in

mitigating flight risk. Remarkably, the majority scarcely

mentions the Constitution’s command that “[e]xcessive bail

shall not be required.” U.S. Const. amend. VIII.

I respectfully dissent from our expansion of substantive

due process and neglect of express constitutional text.1

1 Because I believe that the majority’s substantive due process analysis

is wrong as well as unnecessary, I also join Judge Tallman’s dissent.
66 LOPEZ-VALENZUELA V. ARPAIO

I

A

“[R]eluctant to expand the concept of substantive due

process,” Collins v. City of Harker Heights, Tex., 503 U.S.

115, 125 (1992), the Supreme Court held in Graham v.

Connor, 490 U.S. 386 (1989), that “[w]here a particular

Amendment provides an explicit textual source of

constitutional protection against a particular sort of

government behavior, that Amendment, not the more

generalized notion of substantive due process, must be the

guide for analyzing these claims.” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 842 (1998) (alteration in original)

(quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)

(plurality opinion of Rehnquist, C.J.)). “Graham . . . requires

that if a constitutional claim is covered by a specific

constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of

substantive due process.” United States v. Lanier, 520 U.S.

259, 272 n.7 (1997) (emphasis added) (citing Graham,

490 U.S. at 394).

The majority flouts this requirement. It “first” analyzes

the Proposition 100 laws under “general substantive due

process principles,” Maj. Op. at 15, 15–34, then considers

whether the Proposition 100 laws violate the specific due

process prohibition on imposing punishment before trial, id.

at 15, 34–37. My colleagues in the majority decline to

consider—ever—whether the Proposition 100 laws violate

the Eighth Amendment. Id. at 38–39 & n.16.
LOPEZ-VALENZUELA V. ARPAIO 67

One would hardly know, after reading the majority’s

forty-three page opinion—analyzing whether Arizona’s

denial of bail was excessive in light of the flight risk posed by

illegal immigrants—that, under the Eighth Amendment of the

Constitution itself, “[e]xcessive bail shall not be required.”2

Indeed, one might think that “[t]he Court has prohibited

excessive bail.” Maj. Op. at 9 (emphasis added).

B

To be sure, specific constitutional provisions do not

preclude recognition of substantive due process rights that

touch on related subjects. Lewis, 523 U.S. at 843

(“Substantive due process analysis is therefore inappropriate

in this case only if respondents’ claim is ‘covered by’ the

Fourth Amendment.”); see, e.g., Lanier, 520 U.S. at 272 n. 7

(Graham did “not hold that all constitutional claims relating

to physically abusive government conduct must arise under

either the Fourth or Eighth Amendments.”). Not every

conceivable constitutional dispute regarding bail is resolved

by the Eighth Amendment. But the question whether denying

bail to illegal immigrants based on flight risk is

unconstitutionally excessive is posed, precisely, by the

Excessive Bail Clause. See Stack, 342 U.S. at 4–5.

The majority relies primarily on United States v. Salerno,

481 U.S. 739 (1987), to justify its substantive due process

inquiry, but I suggest that it has not read that case carefully

enough. Salerno does not excuse the majority’s disregard of

2 A sharp-eyed reader might spot the majority’s brief gestures toward the

Eighth Amendment’s prohibition in its discussion of Stack v. Boyle,

342 U.S. 1 (1951). Maj. Op. at 9–10.
68 LOPEZ-VALENZUELA V. ARPAIO

the Eighth Amendment, because this case, unlike Salerno,

concerns detention based on flight risk.

Two substantive due process arguments against the Bail

Reform Act of 1984 were rejected in Salerno: The Court

analyzed whether “the Due Process Clause prohibits pretrial

detention on the ground of danger to the community.” Id. at

748. And the Court considered whether it was

unconstitutional “because the pretrial detention it authorizes

constitutes impermissible punishment before trial.” Id. at

746. Both claims were grounded in the Court’s substantive

due process precedents; they required the Court to decide

whether the Bail Reform Act violated already established due

process rights. See id. at 749–51 (detention based on

dangerousness) (citing, inter alia, Schall, 467 U.S. 253,

Addington v. Texas, 441 U.S. 418 (1979), and Carlson v.

Landon, 342 U.S. 524 (1952)); id. at 746–47 (punishment

before trial) (citing Bell v. Wolfish, 441 U.S. 520 (1979) and

Schall v. Martin, 467 U.S. 253 (1984)). Neither claim

implicated the Eighth Amendment inquiry proper to this

case—whether the Proposition 100 bail laws are

constitutionally “excessive” based on flight risk.

1

As to its “general substantive due process principles,” the

majority misreads Salerno by conflating detention based on

dangerousness, which the Court considered, with detention

based on flight risk, which the Court did not. In Salerno, the

Court rejected the “categorical imperative”—advanced bythe

Second Circuit—that the Due Process Clause “prohibits

pretrial detention on the ground of danger to the community.” 

Id. at 748 (emphasis added). Because due process does not

“erect[] an impenetrable ‘wall’” to such detention, the Court
LOPEZ-VALENZUELA V. ARPAIO 69

reasoned “that the present statute providing for pretrial

detention on the basis of dangerousness must be evaluated in

preciselythe same manner”—applyingmeans-end scrutiny—

“that we evaluated the laws in the cases discussed above.” Id.

at 748–49 (emphasis added).

Nothing in Salerno suggests that detention based on flight

risk should be evaluated in the same manner. See id. at 749

(Detainees “concede and the Court of Appeals noted that an

arrestee may be incarcerated until trial if he presents a risk of

flight.”).3

Indeed, the Eighth Amendment secures the specific

right not to be required to post excessive bail in light of flight

risk. See Stack, 342 U.S. at 4–5. The majority’s substantive

due process inquiry is thus inappropriate under Graham. See,

e.g., John Corp. v. City of Houston, 214 F.3d 573, 582 (5th

Cir. 2000) (“The purpose of Graham is to avoid expanding

the concept of substantive due process where another

constitutional provision protects individuals against the

challenged governmental action.”).

2

The Court’s substantive due process jurisprudence indeed

secures the specific right to be free from punishment before

trial. E.g., Schall, 467 U.S. at 269. But the majority

misapplies that jurisprudence, asking under substantive due

process questions properly considered under the Eighth

Amendment and thereby displacing specific constitutional

text.

3 Thus, the distinction between denial of bail for dangerousness and

denial of bail based on flight risk is “recognized” in Salerno itself, contra

Maj. Op. at 39 n.16, the majority’s misinterpreted dicta notwithstanding,

cf. Tallman Dissent at 57 n.3.
70 LOPEZ-VALENZUELA V. ARPAIO

Our role is to question whether a particular “disability is

imposed for the purpose of punishment.” Bell v. Wolfish,

441 U.S. 520, 538 (1979). To decide whether the legislative

purpose was punitive, in the absence of an “express intent to

punish,” we must discern whether pretrial detention is

“excessive in relation to the alternative purpose assigned [to

it].” Id. Answering that question, Salerno considered the

“incidents of pretrial detention” under the Bail Reform Act—

such as prompt detention hearings and whether pretrial

detainees were housed separately from postconviction

detainees—and concluded that they did not reveal an

improper punitive purpose. 481 U.S. at 747 (emphasis

added). By contrast, the majority here considers the

substance of Proposition 100—categorical denial of

bail—and decides it is excessive notwithstanding the

heightened risk of flight, the very question properly

considered under the Eighth Amendment.4

C

The Supreme Court tells us not to rely on generalized

substantive due process “because guideposts for responsible

decisionmaking in this unchartered area are scarce and

open-ended.” Collins, 503 U.S. at 125. The majority’s

incautious expansion of substantive due process confirms the

4 The majority’s confusion is also evident in what meaning it affords a

finding of “excessiveness.” In Schall, 467 U.S. at 269, and in Salerno,

481 U.S. at 747, excessiveness may indicate an improper punitive purpose. 

In the majority’s view, however, “excessiveness” is an independent

constitutional violation under substantive due process. See Maj. Op. at

36–37. Here, the majority assumes “that Proposition 100 was adopted for

the permissible regulatory purpose of managing flight risk.” Id. at 36. 

Under substantive due process, that should have been the end of the

inquiry.
LOPEZ-VALENZUELA V. ARPAIO 71

wisdom of such advice. Grounded in neither text nor history,

the majority’s due process inquiry simply replaces legislative

and popular judgment with its own, at least until Arizona

provides sufficiently robust statistical analysis to suit.

If we must remove “a difficult question of public policy

. . . from the reach of the voters” of Arizona, Schuette v. Coal.

to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014),

we should pay them the respect of grounding our decision in

the textual guarantees of the Constitution, not the nebulous

haze of substantive due process.

II

The question we ought to have considered is whether the

Eighth Amendment contains any substantive restrictions on

Arizona’s authority to declare certain classes of crimes or

criminals nonbailable, and, if so, whether Proposition 100

violates such restrictions.5 Without thorough briefing on such

questions from the parties, but guided by sparse discussion in

Supreme Court precedent, I offer a tentative answer.

In Carlson, the Supreme Court rejected the proposition

that the Eighth Amendment required certain detainees to be

admitted to bail:

The bail clause was lifted with slight

changes from the English Bill of Rights Act. 

5 For the purposes of this dissent, I assume the Excessive Bail Clause

has been incorporated against the States. See McDonald v. City of

Chicago, 130 S. Ct. 3020, 3034 & n.12 (2010) (citing Schilb v. Kuebel,

404 U.S. 357, 365 (1971) (noting that the Excessive Bail Clause “has been

assumed to have application to the States”)).
72 LOPEZ-VALENZUELA V. ARPAIO

In England that clause has never been thought

to accord a right to bail in all cases, but

merely to provide that bail shall not be

excessive in those cases where it is proper to

grant bail. When this clause was carried over

into our Bill of Rights, nothing was said that

indicated any different concept. The Eighth

Amendment has not prevented Congress from

defining the classes of cases in which bail

shall be allowed in this country.

342 U.S. 524, 545–46 (1952) (emphasis added) (footnotes

omitted). In Salerno, the Court reserved the question

“whether the Excessive Bail Clause speaks at all to Congress’

power to define the classes of criminal arrestees who shall be

admitted to bail.” 481 U.S. at 754.6

As noted in Carlson, the Eighth Amendment echoes the

English Bill of Rights of 1689. Compare U.S. Const. amend.

VIII (“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishmentsinflicted.”),

with English Bill of Rights 1689 (declaring that “excessive

bail ought not to be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted”). But “bail was

not an absolute right in England.” William F. Duker, The

Right to Bail: A Historical Inquiry, 42 Albany L. Rev. 33, 77

(1977). The English Bill of Rights did not restrain Parliament

6 Lopez and Castro rely, as did the detainees in Salerno, on Stack’s

dictum that “[b]ail set at a figure higher than an amount reasonably

calculated to [to assure the presence of the accused] is ‘excessive’ under

the Eighth Amendment.” 342 U.S. at 5. But that standard addresses how

the Eighth Amendment constrains courts. It does not answer how, if at all,

the Amendment constrains legislatures.
LOPEZ-VALENZUELA V. ARPAIO 73

from declaring which classes of crimes were bailable. See

Hermine Herta Meyer, Constitutionality of Pretrial

Detention, 60 Geo. L. J. 1139, 1155–58 (1972); see also

Duker, supra, at 81. Of course, “that Parliament classified

certain offenses as nonbailable is not an absolute indication

that Congress was to enjoy the same power” under the Eighth

Amendment, “to define bailable and nonbailable offenses.” 

Hunt v. Roth, 648 F.2d 1148, 1159 (8th Cir. 1981), vacated

sub nom. Murphy v. Hunt, 455 U.S. 478 (1982).

Early American constitutions suggest, nonetheless, that

their prohibitions of “excessive bail” limited the judiciary, not

the legislature. E.g., Md. Const. of 1776, § 22 (“That

excessive bail ought not to be required . . . by the courts of

law.”); N.H. Const. of 1784, art. I, § 33 (“No magistrate or

court of law shall demand excessive bail or sureties . . . .”);

see generally, Duker, supra, at 79–83. “[B]y the time of the

formulation of the Bill of Rights by the first Congress of the

United States, the experience in America had been to grant

bail in cases which were bailable, as determined by the

legislature.” Id. at 83 (emphasis added). Legislatures were

free to declare horse stealing, for example, bailable or not. 

Compare Caleb Foote, The Coming Constitutional Crisis:

Part I, 113 U. Pa. L. Rev. 959, 976–77 (1965) (describing the

failure by one vote of Jefferson’s bill to render horse theft

bailable), with Duker, supra, at 82 & n. 293 (noting that

Georgia’s legislature denied bail for horse stealing despite

constitutional guarantee that “excessive bail” shall not be

“demanded”).

The First Congress’s debates over the Bill of Rights

contain no hint that the originally understood meaning of the

Eighth Amendment’s Excessive Bail Clause was any

different from the right guaranteed by the same words in the
74 LOPEZ-VALENZUELA V. ARPAIO

English Bill of Rights or the State constitutions. Carlson,

342 U.S. at 545 & n. 44; see also Duker, supra, at 85–86.

I tentatively conclude, therefore, based on the text of the

Constitution and the history of the right to bail, that the

Eighth Amendment secures a right to reasonable bail where

a court has discretion to grant bail. Cf. Ex parte Watkins,

32 U.S. (7 Pet.) 568, 573–74 (1833) (Story, J.) (“The [E]ighth

[A]mendment is addressed to courts of the United States

exercising criminal jurisdiction, and is doubtless mandatory

to them and a limitation upon their discretion.”). It does not,

however, restrict legislative discretion to declare certain

crimes nonbailable. See Duker, supra, at 86–87 (“Although

the amendment limits the discretion of the courts in setting

bail, Congress is free to determine the cases for which bail

shall be allowed, or whether it shall be allowed at all.”);

Meyer, supra, at 1194 (The Constitution “reserved for

Congress the right to make legislative changes [to bail]

whenever required by changed circumstances.”). I have

found no evidence to suggest that the Excessive Bail Clause,

as originally understood, limited legislative discretion.7

7 Even Professor Foote, foremost proponent of the view that the Eighth

Amendment was “meant to provide a constitutional right to bail,”

conceded that “the underlying right to the remedy of bail itself . . . was

omitted” from the Constitution, albeit through “inadvertence.” Foote, 

supra, at 968, 987. I agree with the perceptive law student who dismissed

Foote’s argument as supported by “little more than speculation about the

workings of the minds of George Mason and the Framers,” and “flawed”

speculation at that. Donald B. Verrilli, Jr., Note, The Eighth Amendment

and the Right to Bail: Historical Perspectives, 82Colum. L. Rev. 328, 340

(1982).
LOPEZ-VALENZUELA V. ARPAIO 75

III

During Congress’s debates on the Bill of Rights, the only

comment on the Excessive Bail Clause was by Samuel

Livermore, Representative for New Hampshire, “who

remarked: ‘The clause seems to have no meaning to it, I do

not think it necessary. What is meant by the terms excessive

bail? Who are the judges . . . ?’”

8

Ignoring the first question,

regrettably, the majority firmly answers the second: “We

are.”

On the majority’s chosen ground, Judge Tallman has the

better of the argument, so I happily join his dissent. But I

regret the majority’s impulse to clash in the terra incognitia

of substantive due process. Guided by text and history, we

might have found surer footing by applying the Excessive

Bail Clause.

I respectfully dissent.

8

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

1834)).