Angel Lopez-Valenzuela v. County of Maricopa

*775 Opinion by Judge FISHER; Concurrence by Judge NGUYEN; Dissent by Judge TALLMAN; Dissent by Judge O’SCANNLAIN.

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 categorically forbids 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,…

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 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 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) (citing Schall v. Martin, 467 U.S. 253, 269 , 104 S.Ct. 2403 , 81 L.Ed.2d 207 (1984)). Absent evidence of…

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…

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 “[ejxcessive bail shall not be required.” U.S. Const, amend. VIII.

*805 I respectfully dissent from our expansion of substantive due process and neglect of express constitutional text.

I

A

“[Rjeluctant to expand the concept of substantive due process,” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992), the Supreme Court held in Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (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 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998) (alteration in original) (quoting Albright v. Oliver, 510 U.S. 266, 273 , 114 S.Ct. 807 ,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL LOPEZ-VALENZUELA; ISAAC No. 11-16487

CASTRO-ARMENTA,

Plaintiffs-Appellants, D.C. No. 2:08-cv-00660- v. SRB

JOSEPH M. ARPAIO, Maricopa County Sheriff, in his official OPINION capacity; COUNTY OF MARICOPA;

WILLIAM GERARD MONTGOMERY,

Maricopa County Attorney, in his official capacity, Defendants-Appellees.

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. 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…