Filed February 20, 2017
2 The Ninth Circuit has consistently rejected the argument an actor might voluntarily provide more process than the statute provides. See Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 789 (9th Cir. 2014) (where statute failed to provide for individualized determination before setting bail, declining to consider whether officials might decide to provide such determination voluntarily and holding entire statute unconstitutional). Case 2:15-cv-01705-MMD-PAL Document 73 Filed 02/20/17
Filed March 9, 2015
See, e.g., State v. Blake, 642 So. 2d 959, 966-67 (Ala. 1994) (striking down a rule that forced indigent arrestees to stay in jail for up to 72 hours prior to an initial hearing when wealthier arrestees were allowed to pay bond for their release because the Alabama Supreme Court could find no rational basis for such disparate 10 Following Salerno’s heightened scrutiny, federal circuit courts have applied strict scrutiny when considering the government deprivation of bodily liberty. Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 779-81 (9th Cir. 2014) (“We apply heightened scrutiny here because the Proposition 100 laws infringe a ‘fundamental’ right.”); Pugh v. Rainwater, 557 F.2d 1189, 1190 (5th Cir. 1977) (vacated on other grounds).
Filed February 13, 2015
It is impossible to read Salerno and believe that the Court would have upheld a new federal bail system in which all minor misdemeanor arrestees were detained based on their wealth. The Ninth Circuit, sitting en banc, recently issued a definitive and thorough analysis of this issue in Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 779-81 (9th Cir. 2014) (“We apply heightened scrutiny here because the Proposition 100 laws infringe a ‘fundamental’ right.”).