IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DYLAN MITCHELL, DAYNA SCHULTZ, )

LARISSA WALSTON, MICHAEL RIGGS, )

IVAN HOLLAND, ANDREW EHRHARDT, )

ROSS WAGNER, and JAYLEN BUTLER, )

individually and on behalf of all others )

similarly situated, )

)

Plaintiffs, )

) No. 20 C 50285

v. )

) Judge John Z. Lee

EUGENE DOHERTY, in his official )

capacity as the Chief Judge of the 17th )

Judicial Circuit Court of Illinois; )

GARY CARUANA, in his official capacity )

as the Sheriff of Winnebago County; and )

WINNEBAGO COUNTY, )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

Winnebago County, Illinois, does not conduct bail hearings over a normal

weekend. The question is whether that practice is constitutional. 

Plaintiffs are individuals who, at various times during the summer of 2020, 

were arrested in Winnebago County between Friday night and Saturday morning. 

Each Plaintiff was jailed over the weekend until Monday afternoon, when a court

determined that each was eligible for release. Plaintiffs argue that Winnebago 

County’s failure to hold bail hearings within 48 hours of their arrests violates the 

Fourth Amendment as interpreted by the Supreme Court in Gerstein v. Pugh, 420 

U.S. 103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991). 

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To remedy this, Plaintiffs have filed a putative class action seeking

injunctive relief that would require Winnebago County to conduct a bail hearing 

within 48 hours for individuals who are arrested and held without a warrant. 

Plaintiffs also seek damages on an individual basis for violations of their rights 

caused by their weekends in jail. At this stage, Plaintiffs have filed motions 

seeking a preliminary injunction and class certification; Defendants, in turn, have 

moved to dismiss the complaint. For the reasons explained below, the Court 

dismisses Plaintiffs’ first amended complaint without prejudice. Plaintiffs’

motions are denied as moot. 

I. Background1

A. Facts

On the night of Friday, July 31, 2020, Plaintiffs Dylan Mitchell, Dayna 

Schultz, and Larissa Walston were attending a protest in support of Black Lives 

Matter when they were arrested without warrants by the Rockford police. 1st Am. 

Class Action Compl. (“Am. Compl.”) ¶¶ 25–45, ECF No. 17. Plaintiff Ivan Holland 

also was arrested that night (although the complaint does not specify whether he 

was a protester). Id. ¶¶ 53–58. The police arrested Plaintiff Michael Riggs at 

another demonstration the following day, id. ¶¶ 46–52, and Plaintiffs Ross 

Wagner, Andrew Ehrhardt, and Jaylen Butler during yet another protest on the 

 1 Unless otherwise noted, the following facts are taken from the complaint and are 

accepted as true at this stage. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 

2008).

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night of Friday, August 21. Id. ¶¶ 59–80. All were arrested without warrants. Id.

¶¶ 26, 33, 40, 47, 53, 60, 67, 74. 

After their arrests on a Friday night or a Saturday afternoon, each of the

Plaintiffs was transported to the Winnebago County Jail and detained over the 

weekend before appearing in court the following Monday at 1:30 p.m. to determine 

whether and under what conditions he or she would be released on bond. Id. ¶¶ 28, 

35, 42, 49, 55, 64, 71, 78. Mitchell, Schultz, Walston, and Riggs were released on 

their own recognizance after their bail hearings. Id. ¶¶ 29, 36, 43, 50. Bail for 

Holland was set at $50,000. Id. ¶ 56. And, although detained when this action 

was filed, Wagner, Ehrhardt, and Butler have since been released on their own 

recognizances as well. See Pls.’ Combined Resp. Opp. Def. Chief Judge Doherty’s 

Mot. Dismiss and Reply Supp. Mot. Prelim. Inj. (“Pls.’ Combined Resp.”) at 2, ECF 

No. 48. 

As Plaintiffs elaborate in their declarations in support of their motion for a 

preliminary injunction, their weekends in jail caused each of them to suffer, not 

only a loss of liberty, but “physical pain and suffering, lost wages, and emotional 

distress.” See Am. Compl. at ¶¶ 31, 38, 45, 52, 58, 65, 72, 80 (alleging damages); 

Mitchell Decl. ¶¶ 3, 6, ECF No. 35-1; Riggs Decl. ¶¶ 4–5, ECF No. 35-1; Wagner 

Decl. ¶¶ 3–5, 7–9, ECF No. 35-1; Walston Decl. ¶¶ 3, 6, ECF No. 35-1 (collectively, 

“Decls. Pls. Walston, Mitchell, Riggs, and Wagner”) (elaborating). For example, 

while detained, Wagner did not receive any medical treatment for a concussion 

and a bleeding head wound that he had sustained during his arrest. Wagner Decl. 

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¶¶ 3–5. Walston was not permitted to take her prescription medication. Walston 

Decl. ¶ 6. And Mitchell was fired from a job she had held for over two years after 

the police informed her employer of her arrest; she has lost ten to fifteen pounds 

as a result of anxiety stemming from her detention. Mitchell Decl. ¶ 6. 

B. Procedural History

Plaintiffs bring claims under 42 U.S.C. § 1983, seeking redress for violations 

of their Fourth Amendment rights. Because Winnebago County falls within 

Illinois’s 17th Judicial Circuit, Plaintiffs sue Eugene Doherty, Chief Judge of the 

17th Judicial Circuit Court, in his official capacity as the individual responsible

for establishing the schedule for probable cause and bond hearings. Am. Compl. 

¶¶ 2–4. Plaintiffs also assert a claim against Winnebago County Sheriff Gary 

Caruana in his official capacity as the individual responsible for managing the 

Winnebago County Jail and setting policies regarding the custody of pre-trial 

detainees. Id. ¶¶ 21, 81–86. And Plaintiffs have joined Winnebago County as a 

defendant pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th 

Cir. 2003), as the entity financially responsible for the jail and the 17th Judicial 

Circuit Court. Id. ¶ 22. (Except where it is necessary to distinguish among them, 

the Court will refer to Defendants collectively as “Winnebago County,” “the 

County,” or “Defendants.”) 

Mitchell, Holland, Riggs, Schultz, and Walston initially filed their complaint

on August 2, 2020, claiming that the County had failed to make a probable cause

determination within 48 hours of their warrantless arrests, in violation of the 

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Supreme Court’s mandate in County of Riverside v. McLaughlin. Class Action 

Compl. ¶ 4, ECF No. 1 (citing Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 57 

(1991)). In McLaughlin, the Supreme Court held that “the Fourth Amendment 

requires a prompt judicial determination of probable cause as a prerequisite to an 

extended pretrial detention following a warrantless arrest,” and that “a 

jurisdiction that provides judicial determinations of probable cause within 48 

hours of arrest will, as a general matter, comply with the promptness 

requirement.” 500 U.S. at 47, 56. 

However, after filing their complaint, Plaintiffs learned that the County, in 

fact, does arrange for a judge to make probable cause determinations (albeit on an 

ex parte basis) within 48 hours of an arrest, even on the weekends. Pls.’ Am. Mot. 

Prelim. Inj. (“Mot. Prelim. Inj.”) at 2 n.1, ECF No. 19. So, on August 21, Plaintiffs 

filed an amended complaint. 

In addition to adding Plaintiffs Butler, Ehrhardt, and Wagner, Plaintiffs 

now claim that the Fourth Amendment, as interpreted in McLaughlin, not only 

requires a probable cause determination without 48 hours of a warrantless arrest, 

but also mandates a judicial determination of bail eligibility within the same time 

period. Am. Compl. ¶¶ 2–4, 104–05. And so, in Count I, Plaintiffs name Chief 

Judge Doherty and seek a class-wide injunction that would require the 17th

Judicial Circuit Court to hold bail hearings within 48 hours of a warrantless 

arrest. Id. ¶ 105. In Count II, Plaintiffs seek damages against Sheriff Caruana 

for the named Plaintiffs on an individual basis for their loss of physical liberty, 

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physical pain and suffering, lost wages, and emotional distress as a result of the 

alleged constitutional violations. Id. ¶ 108. 

In conjunction with the amended complaint, Plaintiffs also moved for class 

certification and a preliminary injunction. See Pls.’ Am. Mot. Class Cert., ECF No. 

18; Mot. Prelim. Inj. Chief Judge Doherty opposed both motions and moved to 

dismiss Count I. See Def. Chief Judge Doherty’s Mot. Dismiss Count I, ECF 

No. 38. Sheriff Caruana moved to dismiss Count II. See Def. Sheriff Caruana’s

Mot. Dismiss Count II, ECF No. 28. The Court held a hearing on Plaintiffs’ motion 

for a preliminary injunction, see 11/5/20 Min. Entry, ECF No. 52, and at the Court’s 

direction, Chief Judge Doherty submitted a supplemental filing outlining the 

schedule for bond hearings in Winnebago County, see Suppl. Filing Regarding 

Bond Hearings, ECF No. 55. 

II. Legal Standard

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must 

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009).

When considering motions to dismiss, the Court accepts “all well-pleaded 

factual allegations as true and view[s] them in the light most favorable to the 

plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). At 

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the same time, “allegations in the form of legal conclusions are insufficient to 

survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 

873, 885 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678). For that reason, 

“[t]hreadbare recitals” that a cause of action exists, “supported by mere conclusory 

statements, do not suffice.” Iqbal, 556 U.S. at 678.

Here, Plaintiffs ground their claims in the Fourth Amendment. The Fourth

Amendment protects “[t]he right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures.” U.S. Const. 

amend. IV. It also “establishes the standards and procedures governing pretrial 

detention in criminal cases.” Williams v. Dart, 967 F.3d 625, 632 (7th Cir. 2020)

(quoting Manuel v. City of Joliet, 137 S. Ct. 911, 914 (2017)) (cleaned up). 

In determining whether a particular governmental action violates this 

Amendment, courts “inquire first whether the action was regarded as an unlawful 

search or seizure under the common law when the Amendment was framed.” 

Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999); see also Gerstein, 420 U.S. 

at 114 (noting that historical “common law . . . has guided [our] interpretation of 

the Fourth Amendment”). If that inquiry yields no answer, courts “must evaluate

the search or seizure under traditional standards of reasonableness.” Houghton, 

526 U.S. at 299–300. That evaluation balances “the individual’s right to liberty 

and the State’s duty to control crime.” Gerstein, 420 U.S. at 112. 

III. Analysis

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Plaintiffs assert that the Fourth Amendment requires Winnebago County to 

hold a bail hearing within 48 hours of a warrantless arrest. In support, they rely 

principally on three sets of cases. First, Plaintiffs posit that the Supreme Court’s 

decisions in Gerstein and McLaughlin contemplate that a bail determination be 

made within the same 48-hour period that the Court required for probable cause 

determinations. Second, they read two cases from the Seventh Circuit as 

endorsing this interpretation of Gerstein and McLaughlin. Third, they rely on 

recent decisions from the Fifth and Tenth Circuits—evaluating claims under the 

Fourteenth Amendment—for additional support. The Court will address these in 

turn. 

A. The Supreme Court’s Decisions in Gerstein and McLaughlin

In Gerstein v. Pugh, the Supreme Court considered a challenge to the 

practice of Dade County, Florida, that permitted prosecutors to charge non-capital 

offenses by information, without a preliminary hearing and without obtaining 

leave of court. 420 U.S. at 105. As a result of this practice, any arrestee charged 

by information could be held “for a substantial period solely on the decision of a 

prosecutor.” Id. at 106. 

Dade County argued that “the prosecutor’s decision to file an information is 

itself a determination of probable cause that furnishes sufficient reason to detain 

a defendant pending trial.” Id. at 117. The Supreme Court disagreed. Although 

recognizing that a police officer’s on-the-scene assessment of probable cause can 

justify a warrantless arrest and a “brief period of detention to take the 

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administrative steps incident to arrest,” the Court held that, once a suspect is in 

custody “the reasons that justify dispensing with the magistrate’s neutral 

judgment evaporate.” Id. at 114. The Supreme Court explained:

The consequences of prolonged detention may be more 

serious than the interference occasioned by arrest. 

Pretrial confinement may imperil the suspect’s job, 

interrupt his source of income, and impair his family 

relationships. Even pretrial release may be accompanied 

by burdensome conditions that effect a significant 

restraint of liberty. When the stakes are this high, the 

detached judgment of a neutral magistrate is essential if 

the Fourth Amendment is to furnish meaningful 

protection from unfounded interference with liberty. 

Accordingly, we hold that the Fourth Amendment 

requires a judicial determination of probable cause as a 

prerequisite to extended restraint of liberty following 

arrest.

Id. (internal citations omitted). 

At the same time, the Supreme Court noted that “adversary safeguards are 

not essential for the probable cause determination required by the Fourth 

Amendment.” Id. at 120. Thus, states are free to employ “a nonadversary 

proceeding [based] on hearsay and written testimony,” id., as long as probable 

cause is determined by “a judicial officer either before or promptly after arrest,” 

id. at 125. 

As to what it meant by “promptly after arrest,” the Supreme Court answered 

that question sixteen years later, in McLaughlin. 500 U.S. at 47. There, the 

plaintiffs challenged the policies of Riverside County, California, which had 

combined probable cause determinations with its arraignment procedures. Id. 

Riverside required arraignments to be conducted “without unnecessary delay and, 

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in any event, within two days of arrest,” but it excluded weekends and holidays

from that count. Id. As a result, a person arrested late in the week could wait up 

to five days for a probable cause determination, and a person arrested over the 

Thanksgiving weekend could wait as long as seven days. Id. 

In a majority opinion written by Justice O’Connor, the Supreme Court held 

that Riverside’s policy violated the Fourth Amendment. Id. at 58–59. More salient 

for present purposes, in an effort to provide additional guidance on the matter, the 

Court announced that a probable cause determination is presumptively 

constitutional if it is made within 48 hours of an arrest—unless the arrestee can 

demonstrate that the delay was “unreasonabl[e].” Id. at 56. A delay is

unreasonable if, for example, it was “for the purpose of gathering additional 

evidence to justify the arrest, [was] motivated by ill will against the arrested 

individual, or [was] delay for delay’s sake.” Id. After 48 hours, “the burden shifts

to the government to demonstrate the existence of a bona fide emergency or other 

extraordinary circumstance” to justify the delay. Id. at 57. The Supreme Court 

specifically noted that an intervening weekend does not qualify as an 

extraordinary circumstance. Id. 

Justice Marshall filed a dissenting opinion in which Justices Blackmun and 

Stevens joined. Justice Scalia also dissented, writing separately. He argued that 

“promptly after arrest” means “upon completion of the ‘administrative steps 

incident to arrest.’” Id. at 65 (Scalia, J., dissenting) (quoting Gerstein, 420 U.S. at 

114). As such, Justice Scalia believed that 

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absent extraordinary circumstances, it is an 

“unreasonable seizure” within the meaning of the Fourth 

Amendment for the police, having arrested a suspect 

without a warrant, to delay a determination of probable 

cause for the arrest either (1) for reasons unrelated to 

arrangement of the probable-cause determination or 

completion of the steps incident to arrest, or (2) beyond 

24 hours after the arrest.

Id. at 70. 

But the majority of the Court rejected this 24-hour rule, noting that, while 

Gerstein required every state to provide prompt determinations of probable cause, 

Gerstein also stood for the proposition that “the Constitution does not impose on 

the States a rigid procedural framework. Rather, individual States may choose to 

comply in different ways.” Id. at 53 (majority opinion). Imposing a 24-hour rule, 

in the Court’s view, would leave “no room whatsoever for ‘flexibility and 

experimentation by the States.’” Id. at 54 (quoting Gerstein, 420 U.S. at 123). For 

instance, it would make it impossible to “[i]ncorporat[e] probable cause 

determinations ‘into the procedure for setting bail or fixing other conditions of 

pretrial release’—which Gerstein explicitly contemplated.” Id. (quoting Gerstein, 

420 U.S. at 124).

By contrast, the majority observed, a period of 48 hours would be sufficient 

to permit States to balance (on the one hand) the burden of “introducing further 

procedural complexity into an already intricate system,” id. at 53, against (on the 

other) the interest of an arrestee in a prompt determination of probable cause, see 

id. at 55 (noting that a state “has no legitimate interest in detaining for extended 

periods individuals who have been arrested without probable cause”). That said, 

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where States choose to combine probable cause determinations with other 

proceedings, such proceedings still must be performed “promptly.” Id. at 58. And 

so, “[o]nly those proceedings that arise very early in the pretrial process—such as 

bail hearings and arraignments”—are “candidates for combination” with the 

probable cause determination. Id. And, “[e]ven then, every effort must be made 

to expedite the combined proceedings.” Id. 

Plaintiffs read McLaughlin to say that a bail determination must be held 

within 48 hours of an arrest. See Pls.’ Combined Resp. at 5–6 (“McLaughlin is 

properly read as holding that the reason a shorter time frame than 48 hours isn’t 

required for a probable cause determination was that there would be 

administrative efficiency in combining probable cause determinations with bail 

determinations—the presumption being that bail determination must also occur 

within 48 hours”). But this is incorrect. 

The Supreme Court in McLaughlin did not say that a bail hearing must be 

held within 48 hours of an arrest. Rather, the Court said that a bail hearing must 

occur within 48 hours of an arrest, if it is combined with a probable cause 

determination. This is because Gerstein requires that a probable cause 

determination be made “promptly” after an arrest. Neither Gerstein nor 

McLauglin addressed the timing of a bail hearing where, as here, a probable cause 

determination is made separately within the 48-hour time period. 

Furthermore, to the extent that Plaintiffs take issue with Winnebago 

County’s practice of allowing judicial officers to make probable cause 

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determinations over the weekend on an ex parte basis, this too is unavailing. After 

all, Gerstein explicitly held that ex parte determinations of probable cause based 

on hearsay and written testimony are constitutionally acceptable. 420 U.S. at 120. 

For their part, Plaintiffs rely heavily on Gerstein’s commentary on the ills 

of unnecessary pretrial detention (concerns that are reiterated in McLaughlin).

Pls.’ Combined Resp. at 13 (citing McLaughlin, 500 U.S. at 52). In particular, the 

Supreme Court worried that “prolonged detention based on incorrect or unfounded 

suspicion may unjustly ‘imperil [a] suspect’s job, interrupt his source of income, 

and impair his family relationships.’” McLaughlin, 500 U.S. at 52 (quoting

Gerstein, 420 U.S. at 114)). But the Supreme Court was primarily concerned with 

such consequences flowing to “those so blameless that there was not even good 

reason to arrest them,” McLaughlin, 500 U.S. at 71 (Scalia, J., dissenting)

(emphasis added); those whose arrests were “based on [an] incorrect . . . suspicion,” 

id. at 52 (majority opinion) (emphasis added); and those whose liberty was 

subjected to “unfounded interference,” Gerstein, 420 U.S. at 114 (emphasis added). 

In other words, the Supreme Court in these cases was addressing individuals 

whose arrests were not supported by probable cause—not individuals, like 

Plaintiffs, who have had a probable cause determination and were awaiting a 

judicial determination as to pretrial release. Cf. 725 Ill. Comp. Stat. 5/110-5

(instructing courts to consider, for example, “the nature and circumstances of the 

offense charged,” the “conditions necessary to reasonably assure the appearance 

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of the defendant for further court proceedings,” and “the financial ability of the 

accused.”). 

As the Supreme Court urged, “police should make every attempt to minimize 

the time a presumptively innocent individual spends in jail.” McLaughlin, 500 

U.S. at 58. And there is no doubt that this case demonstrates how pretrial 

detention can have serious consequences for all detainees. See generally Decls. 

Pls. Walston, Mitchell, Riggs, and Wagner. But on their own terms, Gerstein and 

McLaughlin do not require a bail hearing within 48 hours of an arrest, as Plaintiffs 

claim.2 

B. The Seventh Circuit’s Decisions in Paine and Bridewell

Plaintiffs next argue that the Seventh Circuit has twice interpreted

McLaughlin as mandating a bail determination within 48 hours—first in Paine v. 

Cason, 678 F.3d 500 (7th Cir. 2012), as amended on denial of reh’g and reh’g en 

banc (May 17, 2012); and then in Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013). 

Defendants respond that the passages upon which Plaintiffs rely are dicta

and, thus, nonprecedential. A dictum is “a statement in a judicial opinion that 

could have been deleted without seriously impairing the analytical foundations of 

the holding—that, being peripheral, may not have received the full and careful 

 2 Plaintiffs also point to a comment in Atwater v. City of Lago Visa, a more recent 

Supreme Court case, that upheld the constitutionality of custodial arrests for misdemeanors. 

532 U.S. 318, 323 (2001). In that decision, the Court noted that it was not “atypical” for 

individuals arrested for misdemeanor offenses to be given “a prompt opportunity to request 

release.” Id. at 352. But that proposition falls short of requiring a bail hearing to take place 

within 48 hours of an arrest. 

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consideration of the court that uttered it.” United States v. Crawley, 837 F.2d 291, 

292 (7th Cir. 1988). When determining whether a statement is a dictum, it is 

important to “ask what reasons there are against . . . giving weight to [the] 

passage.” Id. “One is that the passage was unnecessary to the outcome of the 

earlier case and therefore perhaps not as fully considered as it would have been if 

it were essential to the outcome.” Id. “[A]nother reason is that the passage was 

not grounded in the facts of the case and the judges may therefore have lacked an 

adequate experiential basis for it; another, that the issue . . . was not refined by 

the fires of adversary presentation.” Id. at 292–93. These reasons all address the 

core issue: whether the statement was a “fully measured judicial pronouncement.” 

Id. at 293.

Turning to the two cases cited by Plaintiffs, in Paine v. Cason, the plaintiff, 

Christina Eilman,3 brought a civil rights action under 42 U.S.C. § 1983. 678 F.3d 

at 507–09. She had been arrested by the Chicago police as a result of erratic 

behavior she had displayed while experiencing a manic bipolar episode. Id. at 503. 

About a day and a half after her arrest, Eilman—still in the throes of her manic 

episode—was released on her own recognizance in a high-crime neighborhood

ninety minutes before sunset. Id. at 504–05. Due to her impaired state, Eilman 

was raped at knifepoint in a seventh-floor apartment approximately five hours 

after her release. Id. at 505–06. When she attempted to flee, Eilman fell from the 

 3 Technically, Eilman’s mother brought the suit on her daughter’s behalf, because 

Eilman suffered brain damage due to the events giving rise to the case. Paine, 678 F.3d at 

506. 

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apartment window and suffered permanent brain damage. Id. at 506. In her suit 

against the police, Eilman argued, among other things, that she had a right to be 

detained at the jail until her manic episode had passed or until she had received 

appropriate medical treatment. Id. at 507–09. 

The Seventh Circuit concluded that the qualified immunity doctrine 

precluded liability under Eilman’s “right to be detained” theory. Id. at 509. In 

reaching that conclusion, the court noted that such a right would conflict with the 

plaintiff’s rights under McLaughlin, reasoning that 

a “right to be detained for medical care” would put police 

in a bind. Evidence in Portis v. Chicago, 613 F.3d 702, 

704 (7th Cir. 2010), suggests that 10% of all persons 

arrested in Chicago are drunk or high on drugs, and a 

similar portion may have some mental illness. Existing 

law creates a right to be released on bail (for bailable 

crimes) as promptly as possible, with 48 hours as the 

outside time before presentation to a judicial officer who 

can make an authoritative decision. See County of 

Riverside v. McLaughlin, 500 U.S. 44 (1991). When it is 

possible, police who do not need to hold someone for an 

appearance in court must release people faster . . . . A 

competing “right to be detained” would put police in a 

damned-if-you-do, damned-if-you-don’t situation.

Id. at 508. 

Plaintiffs point to this passage to argue that the Seventh Circuit has 

adopted their preferred reading of McLaughlin. But, a page later, the Paine court 

explicitly stated that it “need not and [does] not decide whether—and, if so, when—

there is a constitutional right to have custody prolonged so that more or better 

medical care may be provided.” Id. at 509. This is so, noted the court, because 

“[t]his is a qualified-immunity appeal, and the critical question is whether 

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plaintiff's claim rests on a ‘clearly established’ right.” Id. Thus, the Paine court’s 

interpretation of McLaughlin is “not addressed to the question before the court or 

necessary for its decision”; in other words, it is a dictum. See Crawley, 837 F.2d 

at 292. 

In Bridewell v. Eberle, the plaintiff, an arrestee, filed a § 1983 claim, 

asserting that the police had waited too long to present her to a court after her 

arrest. 730 F.3d at 676. Plaintiff sought damages under McLaughlin for the 63 

hours that she had waited in jail before her initial appearance and probable cause 

determination. Id. But, despite the clear McLaughlin violation, the Seventh 

Circuit rejected her claim, holding that she could not prove an injury because she 

was not entitled to bail, and there was probable cause to support her arrest. Id.

at 676–77. The court reasoned that “[i]f the police had complied with 

[McLaughlin], she would have learned these things a little sooner but would have 

remained in jail. This means that she was not injured by the delay.” Id. 

In reaching that conclusion, the Seventh Circuit made two statements that 

Plaintiffs highlight. First, it noted that “[McLaughlin] holds that the fourth 

amendment allows no more than 48 hours for the police to get a magistrate’s 

approval of a suspect’s continued detention.” Id. at 676. Given McLaughlin’s 

holding, however, the Seventh Circuit in writing “approval of . . . detention” was 

likely referring to a probable cause determination, so this sentence does not help 

Plaintiffs. 

In another passage cited by Plaintiffs, the court in Bridewell also noted:

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The Supreme Court observed in [McLaughlin] that the 

reason for requiring suspects in custody to be taken 

before a magistrate promptly is to ensure that detention 

based on “incorrect or unfounded suspicion” is shortlived, 500 U.S. at 52, and that persons properly arrested 

but entitled to bail can be released promptly. 

Id. But it is notable that the citation to McLaughlin is placed before the Seventh 

Circuit’s comment about release on bail, which suggests that the panel did not 

believe that McLaughlin stands for the second proposition. What is more, the 

court’s mention of bail “could have been deleted without seriously impairing the 

analytical foundations of the holding”—there, that the plaintiff could not prove 

injury—meaning that this remark, too, is a dictum. See Crawley, 837 F.2d at 292. 

And, in case there was any doubt, the Seventh Circuit in Bridewell (as it did in 

Paine) explicitly declined to decide the merits of the plaintiff’s timeliness claims. 

See Bridewell, 730 F.3d at 676 (“We need not decide whether Bridewell has 

adequately demonstrated that her claim differs from the one resolved in Dunn [v. 

City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005)], because she cannot show injury.”). 

Furthermore, the Supreme Court has expressed significant unease with the 

potential intrusion into state government that claims challenging the timeliness 

of criminal proceedings could bring. In McLaughlin, for example, the Supreme 

Court emphasized that courts must give “proper deference to the demands of 

federalism” when considering the widely varied and “intricate system[s]” of state 

criminal procedures. 500 U.S. at 53. Indeed, one goal of McLaughlin was to get 

federal judges out of the business of “making legislative judgments and overseeing 

local jailhouse operations.” Id. at 56. 

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Thus, given that the Seventh Circuit has yet to directly consider the 

question of when the Constitution requires a bail hearing and the question raises 

significant issues of federalism, the Court finds that substantial reasons caution

against “giving weight” to the dicta in Paine and Bridewell on which Plaintiffs

rely. See Crawley, 837 F.2d at 292. 

C. The Fifth and Eleventh Circuits’ Decisions in Walker and ODonnell

Finally, Plaintiffs turn to two out-of-circuit cases to support their reading of 

McLaughlin—Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018), cert. 

denied, 139 S. Ct. 1446 (2019); and ODonnell v. Harris County, 892 F.3d 147 (5th 

Cir. 2018). Neither does so. 

In Walker, the plaintiff filed a lawsuit against the city on behalf of a putative 

class of indigent individuals who had been arrested on misdemeanor charges, 

challenging the city’s practice of requiring misdemeanor arrestees to pay a 

standard $160 cash bond or be detained. 901 F.3d at 1251–52. Favoring nonindigent arrestees in this manner, the plaintiff claimed, violated the Fourteenth 

Amendment by “jailing the poor.” Id. at 1252. 

But the Eleventh Circuit rejected this claim, ruling that the city could 

permissibly hold indigent arrestees for up to 48 hours before setting bail at a

judicial hearing—even if other arrestees could have obtained their release sooner 

by paying a bond. Id. at 1266. The Eleventh Circuit reasoned:

Under McLaughlin, the City can presumptively hold a 

person for 48 hours before even establishing probable 

cause—that is, without even proving that it has evidence 

that he has committed a crime. It stands to reason that 

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that the City can take the same 48 hours to set bail for 

somebody held with probable cause . . . . [Thus,] 

indigency determinations for purposes of setting bail are 

presumptively constitutional if made within 48 hours of 

arrest.

Id. Contrary to Plaintiffs’ contention, then, the Eleventh Circuit in Walker did not 

hold that McLaughlin requires a bail hearing within 48 hours of an arrest, only 

that a bond hearing within that timeframe would be presumptively constitutional. 

Similarly, in ODonnell, the plaintiff filed a class action alleging that the 

county’s system for setting bail for indigent misdemeanor arrestees violated Texas 

statutory and constitutional law, as well as the due process and equal protection 

clauses of the Fourteenth Amendment. 892 F.3d at 152. The Fifth Circuit first 

found that the Texas constitution creates a liberty interest in bail by providing 

that “[a]ll prisoners shall be bailable by sufficient sureties” (with limited 

exceptions that did not apply). Id. at 158 (citing Tex. Const. art. 1, § 11). And it 

agreed with the plaintiff that Harris County’s existing procedures were not 

sufficient to protect that state right because “secured bail orders [we]re imposed 

almost automatically on indigent arrestees . . . . [in an] amount that detain[ed] the 

indigent.” Id. at 159. 

That said, the Fifth Circuit went on to hold that the district court’s 

injunction, which required a bail hearing within 24 hours, was “too strict under 

federal constitutional standards.” Id. at 160. In so doing, the Fifth Circuit noted 

that McLaughlin had interpreted Gerstein “as establishing a right to a probable 

cause hearing within 48 hours.” Id. The Fifth Circuit then added that

“McLaughlin explicitly included bail hearings within this deadline,” and concluded 

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that “the federal due process right entitles detainees to a [bail] hearing within 48 

hours,” attributing that proposition to McLaughlin. Id. 

Although these two sentences from ODonnell appear to support Plaintiffs’

reading of McLaughlin, the Court respectfully declines to follow it for two reasons. 

First, for the reasons explained, this is an erroneous reading of McLaughlin. 

Second, the issue before the court was whether the district court’s injunction 

requiring a bail hearing within 24 hours of an arrest was constitutionally 

mandated. Having answered in the negative, the Fifth Circuit had no occasion to 

fully consider what period beyond the 24 hours would pass constitutional muster. 

And so, the Fifth Circuit’s truncated treatment of Gerstein and McLaughlin (and 

its misapprehension of McLaughlin) is understandable within the posture of that 

case. 

In sum, for the reasons explained, the Court rejects Plaintiffs’ arguments 

that existing authority establishes a Fourth Amendment right to a bail hearing 

within 48 hours of a warrantless arrest. 

D. Remaining Arguments 

Given the absence of controlling law, the Court is left to consider whether 

the delays Plaintiffs experienced between their arrests and subsequent bail 

hearings in this case were “unreasonable” under the Fourth Amendment. See U.S. 

Const. amend. IV; Houghton, 526 U.S. at 299–300 (courts “must evaluate the 

search or seizure under traditional standards of reasonableness”). 

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In considering what is reasonable, the interpretation of the Fourth 

Amendment is often guided by historical common law. See Gerstein, 420 U.S. at 

114. For example, in McLaughlin, Justice Scalia noted that one of the most 

important “traditional protections against unlawful arrest afforded by the common 

law . . . . was that a person arresting a suspect without a warrant must deliver the 

arrestee to a magistrate ‘as soon as he reasonably can.’” 500 U.S. at 60–61 (Scalia, 

J., dissenting) (quoting 2 M. Hale, Pleas of the Crown 95 n.13 (1st am. ed. 1847)). 

But the historical analysis in McLaughlin and Gerstein was focused on the 

lawfulness of the arrest—in other words, whether the arrest was supported by 

probable cause—not the timing of bail. See id.; Gerstein 420 U.S. at 114–15. And 

Plaintiffs do not make a separate historical argument to support their claim. Cf.

United States v. Barr, 960 F.3d 906, 916 (7th Cir. 2020) (“It is not [the court’s] job 

to do the legal research that [Plaintiffs] ha[ve] omitted.” (citation omitted)). 

In fact, Plaintiffs’ only argument that does not rely on McLaughlin is that 

some upper time limit must be necessary to protect presumptively innocent 

arrestees from “continued detention for multiple days.” See Pls.’ Combined Resp. 

at 13. Plaintiffs’ brief does not specify what it means by “multiple days,” but the 

amended complaint provides a more precise timeframe, alleging that the named 

Plaintiffs were detained for between 48.5 and 67.25 hours.4 Am. Compl. ¶¶ 25–

 4 Plaintiff Riggs was arrested at approximately 1:00 p.m. on Saturday, August 1, 2020, 

and he was brought before a judge at 1:30 p.m. on Monday, August 3, 2020, resulting in a 

48.5-hour detention. Am. Compl. ¶¶ 47, 49. Plaintiff Holland was arrested at approximately 

6:20 p.m. on Friday, July 31, 2020, and he was brought before a judge at 1:30 p.m. on Monday, 

August 3, 2020, resulting in a 67.25-hour detention. Id. ¶¶ 53, 55. The Court also directed 

the County to submit an affidavit regarding its bond schedule. That affidavit indicates that 

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80. The question raised by the amended complaint, then, is whether a period of 

67.25 hours between an individual’s arrest and his or her bail hearing, without 

more, is unreasonable under the Fourth Amendment.

Guidance on this topic can be found in decisions by the Supreme Court and 

Seventh Circuit addressing the length of detentions that are permissible under the 

Fourteenth Amendment. In Baker v. McCollan, the plaintiff was arrested on a 

warrant that had been issued for the arrest of his brother. 443 U.S. 137, 140–41

(1979). The plaintiff brought a § 1983 claim under the Fourteenth Amendment, 

arguing that his detention for three days without an initial court appearance,

where he could argue that his arrest was incorrect, was unconstitutional. Id. at 

141–42. The Supreme Court disagreed. 

Discussing Gerstein, the Supreme Court first noted that “[s]ince an 

adversary hearing [to evaluate probable cause] is not required, and since the 

probable cause standard for pretrial detention is the same as that for arrest, a 

person arrested pursuant to a warrant issued by a magistrate on a showing of 

probable-cause is not constitutionally entitled to a separate judicial determination 

that there is probable cause to detain him pending trial.” Id. at 143. 

As for the plaintiff’s argument that the state had a constitutional duty to 

assess his protests of mistaken identity before detaining him for three days, the 

Supreme Court found that, absent an attack on the validity of the warrant, a three-

 

72 hours is the longest that an arrestee could go without a bail hearing. See Decl. Chief Judge 

Eugene Doherty at 1–2, ECF No. 55-1. 

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day deprivation of liberty did not violate the Fourteenth Amendment. Id. at 143–

44. As the Supreme Court explained, 

mere detention pursuant to a valid warrant but in the 

face of repeated protests of innocence will after the lapse 

of a certain amount of time deprive the accused of 

“liberty . . . without due process of law.” But we are quite 

certain that a detention of three days over a New Year’s 

weekend does not and could not amount to such a 

deprivation.

Id. at 145. 

The Seventh Circuit addressed a similar issue in Holloway v. Delaware 

County Sheriff, 700 F.3d 1063 (7th Cir. 2012). There, the plaintiff was arrested 

without a warrant on a Tuesday; a probable cause determination was made on 

Wednesday; and he appeared in an initial hearing on Thursday, where the court 

ordered him detained and provided the prosecutor with more time to investigate 

the crime before filing charges. Id. at 1066. In the end, however, the prosecutor 

never filed charges against the plaintiff, and he was released nine days after his 

arrest. Id. at 1067. The plaintiff then filed suit, claiming that his nine-day 

detention without charges violated the Fourteenth Amendment’s due process 

clause. Id. at 1067–68.

“Like in Baker,” the Seventh Circuit observed, “the Sheriff detained 

Holloway for only three days without a hearing and without any further 

investigation into his case.” Id. at 1070 (citing Baker, 443 U.S. at 145). As a result, 

neither Holloway’s 72-hour detention before an initial hearing nor the other 

actions by the Sheriff violated the Fourteenth Amendment. Id. at 1071. 

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Finally, in Bailey v. City of Chicago, a probable cause determination was not 

made until 47 hours after the plaintiff’s arrest, and bail was not denied until the 

day after that. 779 F.3d 689, 693 (7th Cir. 2015). In that case, the plaintiff argued 

that waiting until the forty-seventh hour to make a probable cause determination 

should be unconstitutional, because McLaughlin’s 48-hour presumption should be 

reconsidered in light of technological developments since 1991. Id. at 696. But 

the Seventh Circuit rejected that argument—and made no comment about the 

timing of the plaintiff’s bail hearing, which took place many hours later. Id. 

Rather than supporting Plaintiffs’ position that the Constitution mandates 

a bail hearing for an arrestee within 48 hours of his or her arrest, these decisions 

suggest that a longer period—something in the realm of 72 hours—might be 

constitutionally permissible, when the detention is supported by a timely

determination of probable cause. Other courts have agreed. See, e.g., Edwards v. 

Cofield, 301 F. Supp. 3d 1136, 1149 (M.D. Ala. 2018) (indigent plaintiff failed to 

show substantial likelihood of success on the merits of claim that a maximum delay 

of 72 hours before a bond hearing is unconstitutional under the Fourteenth 

Amendment); Farrow v. Lipetzky, No. 12-cv-06495, 2013 WL 1915700, *22 (N.D. 

Cal. May 8, 2013) (plaintiffs failed to cite any authority holding that a delay of five 

to thirteen days for bail hearing violates the Fourteenth Amendment); Burton v. 

McCormick, No. 3:11 CV 026, 2011 WL 1157557, *3 (N.D. Ind. Mar. 29, 2011) (no 

violation of plaintiff’s due process or equal protection rights for failing to hold bail 

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hearing where an initial hearing was held and plaintiff posted bail three days after 

arrest). 

In the end, what is reasonable under the Fourth Amendment depends on 

the particular circumstances. See Ohio v. Robinette, 519 U.S. 33, 39 (1996) (noting 

that the Fourth Amendment reasonableness standard is a “fact-specific” inquiry).

The examples of unreasonable delay that the Supreme Court named in 

McLaughlin—delay in order to gather additional evidence, delay motivated by 

individual animus, delay for delay’s sake, see 500 U.S. at 56—may apply equally 

to bail hearings as probable cause determinations. But, rather than alleging any 

specific facts to call into question the reasonableness of Winnebago County’s 

procedures, Plaintiffs ask the Court to adopt a categorical rule mandating a bail 

hearing within 48 hours of a warrantless arrest. For the reasons stated, Plaintiffs’ 

request is unsupported by the law or the factual allegations in this case. 

IV. Conclusion

For the reasons set forth above, the Court concludes that Plaintiffs have 

failed to adequately allege that Winnebago County’s procedure of providing a bail 

hearing more than 48 hours after Plaintiffs’ weekend arrests was unreasonable 

under the Fourth Amendment. As a result, the Court dismisses Count I for failure 

to state a claim under 42 U.S.C. § 1983 and the Fourth Amendment. And, because 

Count II depends on the existence of a Fourth Amendment violation, it also must 

be dismissed. With the operative complaint dismissed, Plaintiffs’ motions for a 

preliminary injunction and class certification are denied as moot. If Plaintiffs 

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believe they can file an amended complaint that is consistent with this order, they 

may seek leave to file an amended complaint within 21 days. 

IT IS SO ORDERED. ENTERED: 3/30/21

___________________________

 JOHN Z. LEE

United States District Judge

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