Angel LOPEZ-VALENZUELA; Isaac Castro-Armenta, Plaintiffs-Appellants, v. COUNTY OF MARICOPA; Joseph M. Arpaio, Maricopa County Sheriff, in his official capacity; William G. Montgomery, Maricopa County Attorney, in his official capacity, Defendants-Appellees.
No. 11-16487.
United States Court of Appeals, Ninth Circuit.
June 18, 2013.
Argued and Submitted Oct. 19, 2012.
VI
Western Watersheds seeks injunctive relief to limit grazing in riparian areas until the BLM complies with NEPA for the Woodhawk Allotment. Before a court may issue a permanent injunction, a party must show “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Monsanto Co., 130 S.Ct. at 2756; Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir.2011); see also Winter, 555 U.S. at 32, 129 S.Ct. 365 (stating that the standard for issuing a permanent injunction is essentially the same as for a preliminary one except for the need to succeed on the merits). This standard applies equally in NEPA cases—we put no thumb on the scale in favor of an injunction. Monsanto Co., 130 S.Ct. at 2757.
Because the district court concluded that the EA complied with NEPA, it did not consider injunctive relief. We have reached a conclusion on the EA different from that of the district court, but we decline to reach a decision in the first instance on the appropriate remedy and, specifically, whether injunctive relief is proper. We remand to the district court to determine on an appropriate record whether injunctive relief is warranted under the traditional four-factor test. See Ocean Advocates, 402 F.3d at 871 (remanding to the district court to consider injunctive relief in the first instance); see also Natural Res. Def. Council, 421 F.3d at 816–17 (remanding to the district court to consider a permanent injunction when a Forest Service EIS violated NEPA).
VII
We hold that BLM reasonably interpreted the Proclamation to not require programmatic changes to grazing management policies in the Breaks Resource Plan and that the Breaks EIS complied with NEPA by taking a hard and careful look at grazing impacts. By contrast, we hold that the EA for the Woodhawk Allotment violated NEPA by not considering a reasonable range of alternatives that included a no- or reduced-grazing option. We reverse and remand for the district court to enter an appropriate order requiring BLM to remedy the deficiencies in the EA for the Woodhawk Allotment or to prepare a more detailed EIS, whichever is considered appropriate, in a timely matter.
Because this is a mixed judgment, each party shall bear its own costs.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Cecillia D. Wang (argued) and Kenneth J. Sugarman, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, CA; Andre I. Segura and Esha Bhandari, American Civil Liberties Union Foundation Immigrants’ Rights Project, New York, NY; Daniel Pochoda, American Civil Liberties Foundation of Arizona, Phoenix, AZ, for Plaintiffs-Appellants.
Timothy J. Casey (argued), Schmitt Schneck Smyth Casey & Even, P.C., Phoenix, AZ, 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, AZ, for Defendant-Appellee William Montgomery.
Before: RAYMOND C. FISHER, RICHARD C. TALLMAN, and CONSUELO M. CALLAHAN, Circuit Judges.
OPINION
TALLMAN, Circuit Judge:
I
Voters approved the November 2, 2006, ballot measure by a margin of 78 percent to 22 percent. Prior to passage of Proposition 100, Article II, Section 22 set forth several exceptions to the general presumption that persons charged with crimes are entitled to bail. These exceptions were for particularly serious offenses such as murder or sexual abuse of children or other indicia of dangerousness. To ensure the defendant‘s presence throughout his criminal prosecution, amended Article II, Section 22 now provides that no bail may be set “[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.”
In the early days after Proposition 100‘s enactment there was confusion over the
Before Administrative Order 2007-30 could be implemented, however, the Arizona Legislature passed Senate Bill 1265, codifying the probable cause standard for the immigration status determination.
Plaintiff-Appellant Angel Lopez-Valenzuela was arrested and charged with the crime of dangerous drug transportation and/or offer to sell, a Class 2 felony under Arizona criminal law.
II
We review de novo a district court‘s grant or denial of summary judgment. 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
A
We must first determine whether Proposition 100 bail laws create an impermissible scheme of punishment in violation of the federal Constitution‘s Due Process Clause. We evaluate substantive due process challenges to bail statutes under the framework articulated in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Supreme Court there instructed us that “[t]o determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent.” Id. at 747, 107 S.Ct. 2095. Absent an express intent on the part of the legislature to punish, “the punitive/regulatory distinction 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. (internal citations and quotation marks omitted). In other words, under this two-pronged approach, even where a legislature does not express a clear punitive intent a bail regulation may still be unconstitutional if it is excessive in relation to its legitimate alternative purpose.
The Arizona Legislature made no formal findings on the purpose of Proposition 100. Absent such findings, courts can look to the legislative record as well as to statements made in election materials circulated to the voters who approved it to determine legislative intent. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196–97, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003). Having reviewed all of the evidence, we are convinced, as was the district court, that the record as a whole does not show that
It is undisputed that during committee hearings on the Proposition 100 laws, several legislators made statements about controlling illegal immigration. For example, then-Representative Russell Pearce, the sponsor of the Proposition 100 bill, speaking in a March 2005 Arizona Senate Judiciary Committee hearing, stated: “[B]ad 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.” Senate Judiciary Committee Meeting on H.B. 2389, Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). Senator Jack Harper, speaking at the same hearing, declared: “[W]hat 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.” Id. However, in this March 28 committee meeting alone, Pearce mentioned flight risk and public safety as the primary reasons behind the Proposition 100 laws three different times. For example:
The aim of the bill is to keep those folks who are a threat to our society, again there‘s several criteria for release on bail as you know currently.... This simply adds to that criteria because one of the risks, one of the factors involv[ed] in setting bond currently is flight risk. If you are not in this country legally and have no roots ... their flight risk is a much greater risk.
Id.
Representative Pearce again discussed flight risk during a House Floor Meeting. House Floor Meeting on H.B. 2580, Mar. 7, 2006, 47th Leg., 2nd Regular Sess. (Ariz. 2006). He mentioned flight risk and public safety five times during the June 7, 2007, House Floor Meeting on the companion Senate Bill. House Floor Meeting on S.B. 1265, June 7, 2007, 48th Leg., 1st Regular Sess. (Ariz. 2007). Other Representatives mentioned flight risk and public safety as motiving factors three more times in the same legislative meeting. Thus, while it is clear from the record that Arizona lawmakers were concerned with the effects of illegal immigration when they were debating the Proposition 100 laws, a fair reading of the record does not support Plaintiffs-Appellants’ argument that Proposition 100‘s primary purpose is to punish and deter immigration offenses.5
Nor do the materials provided to voters demonstrate a clear punitive purpose. The official voter information guide contained four statements in favor and one against Proposition 100. Publicity Pamphlet Issued by Janice K. Brewer, then Arizona Secretary of State, Ballot Propo-
Likewise, the media coverage of Proposition 100 leading up to the November 2006 election cited in the record does not establish a punitive purpose. Although one Arizona newspaper piece described Proposition 100 as one of “a foursome of ballot measures aimed at curbing illegal immigration,” Brady McCombs, Four Propositions on Entrants Out in Front, ARIZ. DAILY STAR, Oct. 29, 2006, at B2, another editorial stated that “An illegal immigrant is, without a doubt, a high [flight] risk because of the ability to come and go out of the country when they please.” Moses Sanchez, Research Immigration Issues Before Voting, ARIZ. REPUBLIC, Oct. 11, 2006, at 19. And in the same video where a CNN correspondent discussed “four ballot measures that will further crack down on illegal aliens in the state,” the Maricopa County Attorney said: “Well, Arizona has 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 let out, or because, when they are let out on bail, the federal government deports them.” Lou Dobbs Tonight (CNN television broadcast Oct. 13, 2006). Reviewing the record, neither the legislative history nor the voter materials and media coverage would support the argument that Proposition 100 was motivated by a punitive rather than a regulatory purpose. Proposition 100 survives the first prong of the Salerno substantive due process test.
B
The second prong of the Salerno substantive due process test asks that we examine whether Proposition 100 is excessive in relation to its legitimate alternative purpose. 481 U.S. at 747, 107 S.Ct. 2095. Proposition 100‘s legitimate—indeed its compelling—purpose is ensuring that defendants remain in the United States to stand trial for alleged felony violations of Arizona‘s criminal laws. Thus, the correct inquiry under Salerno is whether Proposition 100 is “reasonably related to [the] legitimate governmental objective” of controlling the flight risk of defendants accused of certain state-law felonies. Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). We hold that it is.
Plaintiffs-Appellants argue that Proposition 100 is excessive in relation to its goal because it precludes any individualized determinations of flight risk and covers a broad range of offenses, including some that might result in non-custodial sentences. In essence, they argue, a Proposition 100 status determination serves as a proxy for an individualized finding of flight risk because while a defendant held nonbondable under Proposition 100 can seek an individualized Simpson/Segura hearing,
Denial of bail without individualized consideration of flight risk or dangerousness is not unusual. After all, the vast majority of states categorically deny the right to bail to persons charged with capital crimes, and at least eight states categorically deny bail to those charged with crimes punishable by life imprisonment.7 Missouri has a bail provision similar to Arizona‘s Proposition 100 laws whereby judges are to presume that no set of bail conditions can reasonably assure a defendant‘s appearance if the judge reasonably believes that the defendant “is an alien unlawfully present in the United States.”
Arizona‘s substantial interest in ensuring that those charged with serious state-law crimes are available to answer for them is undeniable. To strike down Proposition 100 on the grounds that it violates substantive due process would require us to find that Proposition 100 “is not reasonably related to a legitimate goal” and is “arbitrary and purposeless” such that we “may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted.” Bell, 441 U.S. at 539, 99 S.Ct. 1861. Although Salerno requires an individualized determination of dangerousness for nonbondability decisions under the federal Bail Reform Act of 1984, our analysis of Arizona‘s Proposition 100 need not parallel Salerno‘s analysis of the federal Act. This is so because Proposition 100 seeks to target flight risk rather than dangerousness.
In pursuit of this undeniably legitimate goal, Proposition 100 reaches a larger number of crimes than the Bail Reform Act and allows for denial of bail on a showing of unlawful presence. However, simply because the decision to deny bail pursuant to Proposition 100 is arrived at differently than it would be under federal law does not mean that Proposition 100 necessarily violates substantive due process. Balancing the individual‘s right to liberty with Arizona‘s compelling interest in assuring appearance at trial, “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.’ ” Salerno, 481 U.S. at 751, 107 S.Ct. 2095 (citing Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). Because Proposition 100 is reasonably related to the legitimate goal of controlling flight risk, we hold that it is not excessive in violation of substantive due process under the Constitution of the United States.
III
“When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.... This requirement has traditionally been referred to as ‘procedural’ due process.” Salerno, 481 U.S. at 746, 107 S.Ct. 2095 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18
A
“[A] judicial determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime.” Schall v. Martin, 467 U.S. 253, 274–75, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (citing Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Plaintiffs-Appellants ask us to hold that immigration status inquiries in Proposition 100 cases are fundamentally incompatible with a probable cause standard of proof because immigration status is a technical legal question requiring application of the federal Immigration and Nationality Act rather than a probabilistic inquiry. They request the use of a heightened standard “that takes into account the complexity of the question and the exceptionally strong liberty interest at stake.” Corrected Brief of Appellants at 46, No. 11–16487 (Nov. 2, 2011). The argument asks too much at the initial appearance and ignores the procedural protections should a request be made for a review hearing seven days later.
Where the United States seeks to hold a dangerous defendant without bail, the federal Bail Reform Act places the burden of proof on the government to show by clear and convincing evidence that the defendant poses a danger such that “no condition or combination of conditions will reasonably assure the safety of any other person and the community....”
The district court here found that the difference between Arizona‘s probable cause standard for Proposition 100 status determinations and the federal “clear preponderance” standard for flight risk determinations does not amount to a procedural due process violation, and we agree. States are entitled to determine the laws that govern their criminal justice systems, and the Arizona Legislature spoke clearly when it passed Senate Bill 1265 codifying the probable cause standard. This is especially true in light of the prior confusion that had surrounded the standard of proof for Proposition 100 status determinations. Taking account of this confusion, as well as the complexity of status determinations and the strong liberty interests at stake, the Arizona Legislature nevertheless felt that the probable cause standard was constitutionally adequate. The fact that Congress chose to set a higher standard of proof for dangerousness determinations under federal bail law does not render any less legitimate Arizona‘s choice regarding the standard of proof that best achieves its goal of preventing flight before trial. Arizona‘s probable cause standard for Proposition 100 status determinations does not violate the United States Constitution.
In Simpson v. Owens, the Court of Appeals of Arizona established that due process requires an accused “be provided a [bail] hearing, ... during which he [or she] must be given an opportunity to be heard at a meaningful time and in a meaningful manner,” 85 P.3d at 487 (internal citations and quotation marks omitted). Drawing from the procedures outlined in Salerno, the Simpson court explained that in an Arizona bail hearing the accused is entitled to counsel, has the right to examine and cross-examine witnesses, to review in advance witnesses’ prior written statements, and that the court must make a determination on the record. Id. at 492–93.
Plaintiffs-Appellants nevertheless claim that procedures employed both at initial appearances and bail hearings in Arizona violate procedural due process guarantees and lead to incorrect status determinations. Specifically, they note that in Maricopa County sheriff‘s deputies question arrestees, check various databases including federal immigration databases, and then list on Post-It notes the docket numbers of those they deem nonbondable, delivering those notes to the prosecution and the court who generally give the notes conclusive effect at initial appearances. Proposition 100 defendants are not permitted to see the evidence the deputies submit in support of a finding of nonbondability under Proposition 100, either at the initial appearance or at the Simpson/Segura hearing (if one is requested), and arrestees are not informed during the initial appearance of their right to an evidentiary hearing on bondability.
The concern with the procedures employed by sheriff‘s deputies at initial appearances is best addressed by looking to the remedial procedures already in place in Arizona via Simpson/Segura hearings. The Court of Appeals of Arizona struck a balance between the state‘s interest in detaining certain arrestees and the arrestees’ fundamental liberty interests when it declared that “[i]nitial appearances serve the limited function of providing some check on the ability of the state to hold a defendant, but they continue to be ill-suited to support conclusive findings affecting a defendant‘s liberty.” Segura, 196 P.3d at 841. Simpson/Segura hearings are available in Arizona precisely because
[i]t would be a rare occasion when an adequate bail hearing could be conducted at the initial appearance for a [Proposition 100] offense.... [I]t is not feasible for the bail hearing to take place at the time of the initial hearing if for no other reason than that the accused must be given adequate notice to prepare for the hearing.
Simpson, 85 P.3d at 495. Thus, any deficiencies in the probable cause determination made at an initial appearance—due to deputies’ Post-It notes or otherwise—can be cured at a Simpson/Segura hearing. Indeed, that is exactly what such hearings are for.
Plaintiffs-Appellants contend that Proposition 100 defendants are not permitted to see the evidence submitted in support of a finding of nonbondability under Proposition 100. A review of the record reveals that Maricopa County‘s Section 287(g)-certified deputies12 must refuse to provide
Plaintiffs-Appellants also claim that arrestees are not informed during the initial appearance of their right to an evidentiary hearing on bondability. That may well be true. It does not appear that the IA commissioners regularly inform the arrestees of their right to such hearings. Although translations are provided at the hearings, some arrestees do not speak English. Many are unrepresented at their initial appearances, and if indigent they may not meet with appointed counsel for some time after their Proposition 100 status determinations. During this period they will be detained pursuant to Proposition 100 while they wait to meet with their appointed attorneys, and may not know that they can request a Simpson/Segura hearing to challenge their status determinations until they speak with their lawyers.
Nevertheless, whether or not they are immediately aware of it, Arizona Rule of Criminal Procedure 7.4(b) provides detainees a right to request a prompt bond hearing, and the hearing must take place within seven days of the request. Arizona‘s Rules of Criminal Procedure give criminal trials priority over civil trials, so even a detainee who fails to request a Simpson/Segura hearing is entitled to be tried within 150 days of arraignment. Hernandez, 167 P.3d at 1275. The Supreme Court in Demore approved detention of illegal aliens for periods longer than that. 538 U.S. at 529–31, 123 S.Ct. 1708. In light of Arizona‘s legitimate and compelling interest in controlling flight risk, the pretrial detention of arrestees who, it bears repeating, the government must demonstrate by a proof evident/presumption great standard committed Class 1 through 4 state-law felonies, does not violate procedural due process simply because arrestees are not informed at their initial appearances of the existence of Rule 7.4(b).13 While Arizona‘s initial appearance procedures may not be ideal, they are not fundamentally unfair so as to violate the Constitution.
IV
We turn next to Plaintiffs-Appellants’ argument that Proposition 100‘s categorical bail prohibition is arbitrary and unreasonable in violation of the Eighth Amendment. The Excessive Bail Clause of the Eighth Amendment provides that, “[e]xcessive bail shall not be required,”
Plaintiffs-Appellants point to pre-Salerno authority as support for their position that Proposition 100 categorically denies bail arbitrarily and unreasonably. Hunt v. Roth, 648 F.2d 1148, 1162 (8th Cir.1981), vacated as moot sub nom. Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982), held that the Nebraska constitution‘s categorical denial of bail to those charged with certain sex offenses violated the Eighth Amendment because it did not allow for individualized determinations of suitability for pretrial release. But Hunt, just as Salerno, dealt with a case in which the government‘s interest was “protecting society from [persons accused of offenses],” id. at 1163, and “[t]he state [did] not contend that an absolute denial of bail to all persons charged with forcible rape is rationally related or necessary to assuring their appearance at trial.” Id. at 1162. Thus, unlike Proposition 100, the Nebraska law was focused on dangerousness rather than flight risk. Plaintiffs-Appellants point to no cases holding that a legislature‘s decision to categorically deny bail in the interest of assuring presence at trial is arbitrary or unreasonable in violation of the Eighth Amendment. Because Proposition 100 bail conditions are not excessive in light of Arizona‘s legitimate interests and bail is not denied arbitrarily or unreasonably, the Proposition 100 laws do not violate the Eighth Amendment Excessive Bail Clause.
V
Plaintiffs-Appellants contend that Proposition 100 has complicated initial appearances in Arizona to such a degree that they have become an adversarial and critical stage of proceedings triggering the Sixth Amendment right to counsel. The Maricopa County Attorney‘s Office staffs IA proceedings, although prosecutors are only called in to the IA courtroom if needed. Maricopa County sheriff‘s deputies occasionally testify at IAs to address questions from the court regarding an arrestee‘s Proposition 100 status. After the passage of Proposition 100, the indigent defense agency in Maricopa County began sending attorneys to IAs, but the practice was halted after Maricopa County decided not to fund county-paid counsel for that purpose.
Initial appearances in Arizona must take place within 24 hours of an arrest.
Both we and the Supreme Court of Arizona have held that there is no constitutional right to an attorney at initial appearances. See United States v. Perez, 776 F.2d 797, 800 (9th Cir.1985), overruled on
We employ a three-factor test to determine whether an event constitutes a critical stage of a prosecution. If (1) “failure to pursue strategies or remedies results in a loss of significant rights,” (2) “skilled counsel would be useful in helping the accused understand the legal confrontation,” or (3) “the proceeding tests the merits of the accused‘s case,” then the proceeding is a critical stage triggering the right to counsel. United States v. Bohn, 890 F.2d 1079, 1080–81 (9th Cir.1989) (citing Menefield v. Borg, 881 F.2d 696, 698–99 (9th Cir.1989)). Applying this test, IAs in Arizona—even those that include Proposition 100 status determinations—do not trigger the right to counsel.
Given the administrative nature of Arizona‘s IA proceedings, it is unlikely that a defendant unrepresented by counsel would fail to pursue a strategy or remedy during the initial appearance and thereby lose significant rights. The only strategies or remedies available to a defendant who seeks to avoid pretrial detention are to deny either the crime(s) alleged or that the defendant has entered or remained in the United States illegally. But, as no plea is entered at an IA and the “initial appearance provides no opportunity for a defendant to present evidence or make any argument regarding the law or evidence,” Segura, 196 P.3d at 841, these are not remedies available at the initial appearance. Rather, these are remedies available after the initial appearance at a Simpson/Segura hearing, by which point counsel will have been appointed. Thus, Proposition 100 initial appearances do not run afoul of the first factor of the Bohn test.
Likewise, due to the administrative nature of IAs in Arizona, skilled counsel would not be useful in helping the accused understand the legal confrontation. Record transcripts of Maricopa County IAs demonstrate that IA commissioners are doing what
Finally, Proposition 100 status determinations at IAs do not test the merits of the accused‘s case such that Bohn‘s third factor is implicated. No plea is entered, and any discussion of immigration status is undertaken for the sole purpose of determining whether a defendant is nonbondable under Proposition 100. The IA transcripts cited to by Plaintiffs-Appellants support this reading. For example, when one defendant‘s interpreter said that “[defendant] has spoken to his solicitor and she is getting the case ready for asylum,” the commissioner responded, “You can certainly discuss that matter with your solicitor and until your asylum petition is approved ... there is probable cause to believe that you‘re in the country illegally at this time.... [A]t this time, because of your immigration status, you‘re not entitled to bond....” Plaintiffs-Appellants have not put forward any evidence demonstrating that a defendant‘s statements about immigration status at an IA are being used in subsequent federal criminal prosecutions
VI
Proposition 100 laws are neither expressly nor impliedly preempted by federal immigration law. While it is true that many state laws addressing immigration are preempted by federal law, the Supreme Court has said that not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted” by the federal government‘s broad and exclusive constitutional power to regulate immigration. De Canas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). Plaintiffs-Appellants argue that Proposition 100 is preempted because it attempts to regulate immigration, intrudes into fields exclusively occupied by federal congressional action, and conflicts with the federal Immigration and Nationality Act. Each of these arguments is unavailing.
A
It is “[a] fundamental principle of the Constitution ... that Congress has the power to preempt state law.” Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). And it is beyond doubt that “[t]he authority to control immigration—to admit or exclude aliens—is vested solely in the Federal government.” Takahashi v. Fish & Game Comm‘n, 334 U.S. 410, 416, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) (citing Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 37 L.Ed. 905 (1893)); see
Plaintiffs-Appellants argue that Proposition 100 is nevertheless preempted because it creates a state-law category of persons who have “entered or remained in the United States illegally.”
In Equal Access Education v. Merten, 305 F.Supp.2d 585, 603 (E.D.Va.2004), the court held that a Virginia higher education admissions policy denying admission to illegal aliens would violate the Supremacy Clause only if the institutions implementing the policy were relying on state rather than federal immigration standards. In League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 772 (C.D.Cal.1995), the court deemed parts of a California voter-approved initiative preempted, reasoning that portions of the initiative were an impermissible regulation of immigration because “the [immigration status] classification ... is not in any way tied to federal standards.” Likewise, in Hispanic Interest Coalition of Alabama v. Bentley, No. 5:11-cv-02484-SLB, 2011 WL 5516953, at *23 (N.D.Ala. Sept. 28, 2011), vacated as moot in part by 691 F.3d 1236, 1242 (11th Cir.2012), the court preliminarily enjoined some provisions of Alabama‘s House Bill 56 because their implementation would impermissibly create state classifications of aliens.
Although it is true that Arizona‘s implementing statute directs courts making Proposition 100 status determinations to consider “any relevant information,” it also commands consideration of “[w]hether a hold has been placed on the arrested person by the United States immigration or customs enforcement.”
This evidence demonstrates that Arizona state officials are not attempting to create a new state-law classification for those who have “entered or remained in the United States illegally,” but rather are seeking to determine whether arrestees are in violation of federal immigration law. As the Supreme Court recently held in Arizona v. United States, 132 S.Ct. 2492, 2508, 183 L.Ed.2d 351 (2012), Con-
B
Plaintiffs-Appellants next argue that Proposition 100 intrudes on a field exclusively occupied by federal law because it imposes mandatory detention under state law of persons suspected of committing federal immigration law offenses. In support of this claim, Plaintiffs-Appellants cite to myriad federal Immigration and Nationality Act provisions related to federal immigration detention and removal. De Canas v. Bica, 424 U.S. 351, 357, 96 S.Ct. 933, provides the framework for the resolution of this argument. De Canas teaches, “we will not presume that Congress, in enacting the INA, intended to oust state authority to regulate ... in a manner consistent with pertinent federal laws.” Id. Instead, “[o]nly a demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was the clear and manifest purpose of Congress would justify that conclusion.” Id. (internal citations and quotation marks omitted).
The INA provisions cited by Plaintiffs-Appellants regulate detention for immigration violations, while Proposition 100 regulates pretrial detention for those arrested for committing Class 1 through 4 state felonies and aggravated driving-under-the-influence offenses. Plaintiffs-Appellants have not shown that Congress intended to effect a “complete ouster of state power” with respect to bail determinations for state-law crimes. Accordingly, we hold that Proposition 100 is not field preempted.
C
Finally, Plaintiffs-Appellants argue that even if Proposition 100 is not field preempted, it nevertheless “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363, 96 S.Ct. 933 (internal citations and quotation marks omitted). Following the Supreme Court‘s directive that “[i]mplied preemption analysis does not justify a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives” and that “a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act,” Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968, 1985, 179 L.Ed.2d 1031 (2011), we hold that Proposition 100 does not conflict with federal law.
Plaintiffs-Appellants claim that the Proposition 100 laws impose incarceration for unlawful presence in the United States in opposition to Congress‘s judgment as to when aliens should or should not be detained for immigration violations. But Proposition 100 regulates only the bail determinations for state-law crimes and does not impose incarceration for federal immigration law violations. While it is true that in certain instances Proposition 100 may mandate the pretrial detention of a person who would be deemed bondable by a federal immigration judge, such detention is not meant to punish an alleged immigration violation but rather to ensure presence in Arizona to stand trial for alleged state-law crimes.
Plaintiffs-Appellants cite to Arizona v. United States as support for their argument that state officers cannot deprive noncitizens of their liberty based upon pur-
VII
The Arizona Legislature and Arizona voters passed the Proposition 100 laws to further the state‘s legitimate and compelling interest in seeing that those accused of serious state-law crimes are brought to trial. At oral argument, counsel for both sides urged us to rule on the constitutional issues presented by passage and implementation of Arizona‘s constitutional amendment based on the record presented to the district court. After reviewing the record, we are satisfied that Plaintiffs-Appellants have not succeeded in raising triable issues of fact as to whether Proposition 100 and its implementing procedures violate the substantive and procedural due process guarantees of the United States Constitution‘s Fourteenth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the Sixth Amendment right to counsel, nor whether the Proposition 100 laws are preempted by federal immigration law.
Accordingly, the judgment of the district court is AFFIRMED.
FISHER, Circuit Judge, dissenting:
Due process guarantees that individuals arrested for a crime are entitled to bail pending determination of their guilt or innocence, with some limited exceptions. Arizona, however, has decided to deny pretrial bail to all persons arrested for a range of felony crimes who are in the United States without authorization, theorizing they are likely to flee the country solely because of their immigration status. Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona‘s unsupported assertion that all unauthorized immigrants necessarily pose an unmanageable flight risk, such that a blanket denial of bail is not an “excessive” tool to combat flight risk. As revealed by Proposition 100‘s legislative history and scope, however, Arizona is plainly using the denial of bail as a method to punish “illegal” immigrants, rather than simply as a tool to help manage arrestees’ flight risk. “It is axiomatic that ‘due process requires that a pretrial detainee not be punished.’ ” Schall v. Martin, 467 U.S. 253, 269, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (alteration omitted) (quoting Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Because this bail-denial scheme contravenes the Constitution‘s fundamental prohibition on punishment before determination of guilt in a criminal trial, I dissent.
I. SUBSTANTIVE DUE PROCESS
Proposition 100 categorically denies bail and thus requires pretrial detention for
Under United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), a restriction on bail violates substantive due process if it either (1) has a punitive purpose or (2) imposes an excessive restriction on liberty in relation to a permissible regulatory purpose.
To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. Unless [the legislature] expressly intended to impose punitive restrictions, the punitive/regulatory distinction 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. at 747, 107 S.Ct. 2095 (citation, alterations and internal quotation marks omitted). Although preventing flight risk is a permissible regulatory purpose, see id. at 749, 107 S.Ct. 2095; Bell, 441 U.S. at 536, 99 S.Ct. 1861, Arizona‘s indiscriminate pretrial detention law is unconstitutionally punitive under both prongs of Salerno. I address each in turn.
A. Legislative Purpose
First, the record plainly shows that lawmakers designed Proposition 100—at least in large part—to punish undocumented immigrants for being in the United States unlawfully:
• 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, Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005). Notably, and contrary to Pearce‘s suggestion, being “in this country illegally” is not a crime. See Arizona v. United States, 132 S.Ct. 2492, 2505, 183 L.Ed.2d 351 (2012).
• 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 defended the bill as a “reasonable approach” to border security.1 Id.
• 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, Mar. 28, 2005, 47th Leg., 1st Regular Sess. (Ariz. 2005).
• In a hearing on a bill to implement 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, June 13, 2007, 48th Leg., 1st Regular Sess. (Ariz. 2007).
The majority correctly observes that some statements in the legislative record refer to flight risk rather than punishment. Fairly viewed, however, the legislative record as a whole clearly shows that legislators were motivated at least in large part by an overriding desire to punish undocumented immigrants for being in the country unlawfully—i.e., that lawmakers “intended to impose punitive restrictions” on undocumented immigrants. Salerno, 481 U.S. at 747, 107 S.Ct. 2095.2 The plaintiffs therefore have established a due process violation under Salerno‘s first prong.3
Nor can it be denied to punish them for charged, but unproven, crimes. See Bell, 441 U.S. at 535, 99 S.Ct. 1861 (“[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, 107 S.Ct. 2095 (citing Bell for the proposition that pretrial detention violates substantive due process when it constitutes “impermissible punishment before trial“). As the Supreme Court has recognized, “Arizona may have understandable frustrations with the problems caused by illegal immigration,” Arizona v. United States, 132 S.Ct. at 2510, but punishing undocumented immigrants by denying them bail is not a permissible expression of that frustration.
B. Excessiveness
Even if Proposition 100 were enacted for the regulatory purpose of managing flight risk, it would still violate substantive due process under Salerno‘s second prong, because it restricts substantially more liberty
To conduct a meaningful excessiveness analysis, we must compare the magnitude of the societal problem being addressed against the severity of the chosen remedy. The societal ill Proposition 100 targets is not flight risk generally, but rather the increased flight risk supposedly posed by undocumented immigrants, the only individuals the proposition covers.4 The defendants have failed to establish that this societal problem exists, much less demonstrate its magnitude.
Unlike the defendants in Salerno and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)—who presented data to back up their claims that the bail schemes under review addressed “a particularly acute problem,” Salerno, 481 U.S. at 750, 107 S.Ct. 2095; see also Demore, 538 U.S. at 518–20, 123 S.Ct. 1708—the defendants here have failed to present any findings, studies, statistics or other evidence showing that undocumented immigrants actually posed a significantly greater flight risk than lawful residents before implementation of Proposition 100.5 Despite the lack of any supporting data, Arizona, the district court and the majority have all assumed that undocumented immigrants pose a greater flight risk than other arrestees. When the chosen remedy is so draconian as to categorically deny bail to anyone who is probably an undocumented immigrant, the justification should be demonstrated factually, rather than supported by only unsubstantiated assumptions and anecdotes. If undocumented immigrants actually demonstrated a substantially greater flight risk before Proposition 100, defendants had five years
On the other side of the scale from the state‘s interest in ensuring appearance at trial is a profound infringement on liberty interests: automatic detention in jail without the possibility of bail, simply based on an arrestee‘s presumed status as an undocumented immigrant. Such a denial of bail implicates “a basic and significant liberty interest in not being confined pending trial.” United States v. Motamedi, 767 F.2d 1403, 1414 (9th Cir.1985) (Boochever, J., concurring in part and dissenting in part). “The consequences of prolonged [pretrial] 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.” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). “Pretrial detention may hamper the preparation of a defense by limiting the defendant‘s access to his attorney and to potential witnesses for the defense.” Motamedi, 767 F.2d at 1414 (Boochever, J., concurring in part and dissenting in part) (citing Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951)).
Even if the defendants could show that undocumented immigrants pose a greater flight risk on average than lawful residents, Proposition 100 is fatally flawed because it uses the disfavored mechanism of an irrebuttable presumption, rather than an individualized hearing, to determine whether an arrestee is 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, 107 S.Ct. 2095. 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.
In contrast, Proposition 100 is not narrowly focused on those arrestees who actually pose the greatest flight risk. Plainly, some undocumented immigrants do not pose unmanageable flight risks. The record includes examples of undocumented immigrants who were arrested before Proposition 100, granted bail and appeared at their court dates and trials. Yet even these individuals were needlessly remanded into state custody following Proposition 100‘s passage.6 Proposition 100 eliminates
The Arizona legislature surmised that undocumented immigrants pose a greater flight risk than lawful residents because they supposedly lack strong ties to the community and have a “home” in another country to which they can flee, but this ignores those undocumented immigrants who have strong ties to their community and no home abroad. Many undocumented immigrants, for example, have “children born in the United States” and “long ties to the community.” Arizona v. United States, 132 S.Ct. at 2499.8 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.,
The Constitution disfavors irrebuttable presumptions like Proposition 100‘s categorical denial of bail. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 645–46, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), an unwed father‘s children were removed by the state after the children‘s mother died, based on the state‘s use of a conclusive presumption that unwed fathers were unsuitable, neglectful parents. See id. at 646–47, 92 S.Ct. 1208. The Court acknowledged that “[i]t may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents,” but it noted that even if true on average, there were exceptions: “all unmarried fathers are not in this category; some are wholly suited to have custody of their children.” Id. at 654, 92 S.Ct. 1208. So too here. Even assuming undocumented immigrants pose a greater flight risk on average (not established, as discussed above), some by definition do not. Proposition 100 therefore results in far more arrestees being denied bail than necessary, making it plainly excessive in relation to its stated purpose.
havior in the face of criminal charges is not as homogeneous as Arizona assumes it to be.
Even before Proposition 100, Arizona went further than most states in restricting bail, categorically denying bail not only to those arrested for capital crimes or crimes subject to life in prison, but also to those arrested for certain sexual crimes not subject to life imprisonment. Maj. Op. at 1063 (citing
In sum, Proposition 100 is excessive in relation to its stated legitimate purpose for two independent reasons. First, it purports to deal with a societal ill that has not been shown to exist at all. Second, even if we assume that undocumented immigrants pose a greater flight risk on average than lawful residents, Proposition 100 is fatally flawed because it uses the disfavored mechanism of an irrebuttable presumption, rather than an individualized hearing, to determine whether an arrestee is an unmanageable flight risk. This mechanism necessarily results in the deprivation of far more liberty than necessary to ensure appearance at trial, because even undocumented immigrants who do not pose a flight risk or who pose a manageable one will be categorically denied bail based on their status alone. Proposition 100 fails Salerno‘s second prong and facially violates substantive due process.
II. REMAINING CLAIMS
Because I conclude that Proposition 100 on its face violates substantive due process, I do not address the plaintiffs’ procedural due process, Eighth Amendment, Supremacy Clause and as-applied claims, though some of them appear meritorious.
III. CONCLUSION
“Procedure by presumption is always cheaper and easier than individualized de-
I would hold that Proposition 100 violates substantive due process because it fails both prongs of the Salerno test, either one of which is sufficient to find Arizona‘s categorical denial of bail here unconstitutional. I therefore respectfully dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Mark J. AVERY, Defendant-Appellant.
No. 12-35209.
United States Court of Appeals, Ninth Circuit.
June 18, 2013.
Argued and Submitted May 22, 2013.
Notes
A person shall be released on bail by sufficient sureties, except for:
(b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person‘s release would result in great bodily harm to others.
The record in this case includes committee hearing discussions on the “numerous examples of serious and violent criminals that [the] Maricopa County Attorney‘s Office has prosecuted in the past that have escaped justice because they have either slipped back across the border after they‘ve been released on bail or they‘ve been deported by the federal government after they were released on bail....” If the dissent is not satisfied by the anecdotal evidence presented in the Arizona Legislature on this subject, it is unclear why it is comfortable with the anecdotal evidence in the record of “examples of undocumented immigrants who were arrested before Proposition 100, granted bail and appeared at their court dates and trials.” Dissent at 1077.
10. Of course, even if Arizona‘s bail scheme were better represented among the states, a challenged law does not become constitutional simply because it has company. See, e.g., Lawrence v. Texas, 539 U.S. 558, 570, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (striking down a Texas law criminalizing homosexual intercourse, even though similar laws existed in nine states); Loving v. Virginia, 388 U.S. 1, 6, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (striking down a Virginia statute prohibiting interracial marriages, although Virginia was one of 16 states to have such a prohibition).