COUNTY OF RIVERSIDE and COIS BYRD, SHERIFF OF
RIVERSIDE COUNTY, Petitioners,
v.
Donald MCLAUGHLIN, et al., Respondents.
No. 89-1817.
United States Supreme Court Petitioner's Brief.
October Term, 1990.
November 15, 1990.
On Writ Of Certiorari To The United States Court Of Appeals For
The Ninth
Circuit
BRIEF FOR THE PETITIONERS
FERGUSON, PRAET & SHERMAN PETER J. FERGUSON 333 South Anita, Suite 630 Orange, California 92668 (714)
978-9549
FIDLER & BELL MICHAEL A. BELL 3666 University Ave., Suite 308
Riverside, California 92502 (714) 683-6014
GREINES, MARTIN, STEIN & RICHLAND MARTIN STEIN [FN*] TIMOTHY
T. COATES 9601 Wilshire Boulevard, Suite 544 Beverly Hills, California 90210
(213) 859-7811
Attorneys for Petitioners County of Riverside and Cois Byrd,
Sheriff of Riverside County
FN* Counsel of Record
1. Does a plaintiff
arrested without a warrant and allegedly held without receiving a
constitutionally prompt probable cause determination possess article III
standing for purposes of obtaining an injunction requiring a public entity to
provide warrantless arrestees with constitutionally prompt probable cause
hearings when (a) the time in which to provide plaintiff with a
constitutionally prompt hearing has passed and (b) there is no allegation that
the plaintiff will again be subjected to the allegedly unconstitutional
practices of the public entity?
2. Where a state, pursuant
to this Court's invitation in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 859 (1975) incorporates probable cause determinations
for warrantless arrestees into existing pre-trial procedures such as arraignment
that afford the arrestee additional constitutional protections, must the
additional time necessary to provide these more extensive proceedings be
factored into any determination as to whether the probable cause hearing is
sufficiently "prompt" under Gerstein?
*ii LIST OF PARTIES
The parties to the proceeding below were the petitioners County of
Riverside and Riverside County Sheriff Cois Byrd and respondents Donald Lee McLaughlin,
John E. Jones, Diane Simon, Michael Scott Hyde, Bret
Hale, David Keiser, Sharon Sweeney and Lavonne Hinds, on behalf of themselves
and as representatives of a similarly situated class.
*iii TABLE OF CONTENTS
QUESTIONS PRESENTED ... i
LIST OF PARTIES ... ii
OPINIONS BELOW ... 1
JURISDICTION ... 1
STATUTES INVOLVED ... 1
STATEMENT OF THE CASE ... 2
A. Overview Of The Action ... 2
B. The Initial Proceedings ... 3
C. The Motion For Preliminary Injunction ... 5
D. Appeal To The Ninth Circuit ... 8
SUMMARY OF ARGUMENT ... 9
ARGUMENT ... 14
I. THE NAMED PLAINTIFFS LACK ARTICLE III
STANDING TO SEEK INJUNCTIVE RELIEF IN FEDERAL COURT BECAUSE THE ALLEGATIONS OF
THE COMPLAINT MAKE IT CLEAR THAT ISSUANCE OF THE INJUNCTION SOUGHT COULD AT NO
POINT HAVE REMEDIED THE ALLEGED PAST CONSTITUTIONAL VIOLATIONS THAT FORM THE
BASIS OF THE COMPLAINT ... 14
*iv II. THE
PRELIMINARY INJUNCTION SHOULD HAVE BEEN DENIED BECAUSE THE COUNTY OF
RIVERSIDE'S COMPLIANCE WITH CALIFORNIA PENAL CODE SECTIONS 825 AND 991 IN
PROVIDING WARRANTLESS ARRESTEES WITH THE OPPORTUNITY TO RECEIVE PROBABLE CAUSE
DETERMINATIONS AT THE TIME OF ARRAIGNMENT, WITHIN TWO DAYS OF ARREST, EXCLUDING
WEEKENDS AND HOLIDAYS, CONSTITUTES A CONSTITUTIONALLY PROMPT HEARING UNDER THE FOURTH AMENDMENT, AS INTERPRETED BY THIS COURT IN
GERSTEIN V. PUGH. ... 29
A. The Fourth Amendment Does Not Prohibit
Delays In Providing Probable Cause Hearings To Warrantless Arrestees Resulting
From The Incorporation Of Such Hearings Into Existing Proceedings That Afford
The Arrestees Substantially Greater Constitutional Protections ... 31
B. Consistent With The Fourth Amendment As
Interpreted In Gerstein v. Pugh, The County Of Riverside, Within The Framework
Of California Law, Has Incorporated Probable Cause Determinations Into
Arraignment Proceedings Which By Their Nature Necessitate Some Delay In The
Processing Of Arrestees, But Afford Pre-Trial Detainees Additional
Constitutional Protections And Avoid The Severe Disruption Of State Criminal
Justice Systems Which Would Result From The Creation Of A Separate Tier Of Judicial
Proceedings Devoted Solely To Determining Probable Cause ... 39
CONCLUSION ... 50
*v TABLE OF AUTHORITIES
CASES
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ... 15, 23
Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ... 13, 47, 49
Bernard v. City of Palo
Alto, 699 F.2d 1023 (9th Cir. 1983) ... 29
City of Los Angeles v.
Lyons, 461 U.S. 95, 103 S.Ct. 1660 (1983) ... passim
Dragna v. White, 45 Cal.2d 469, 289 P.2d 428 (1955) ... 44
Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 214 (1975) ... 21, 24
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 859 (1975) ... passim
Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) ... 19
In re Walters, 15 Cal.3d 738, 126 Cal.Rptr. 239, 543 P.2d 607 (1975) ... passim
Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ... 23
Lewis v. Continental Bank
Corp., ___ U.S. ___, 110 S.Ct. 1249 (1990) ... 22, 28
O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ... 11, 13, 20, 25, 49
People v. Carlon, 161 Cal.App.3d 1193, 208 Cal.Rptr. 18 (1984) ... 41
People v. Chambers, 276 Cal.App.2d 89, 80 Cal.Rptr. 672 (1969), cert. denied, 402 U.S. 999, 91 S.Ct. 2175 (1971) ... 43
*vi People v. Johnson, 85 Cal.App.3d 684, 149 Cal.Rptr. 661 (1978) ... 44
People
v. Lee, 3 Cal.App.3d 514, 83 Cal.Rptr. 715 (1970) ... 43
People v. Powell, 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137 (1967) ... 40, 44
People v. Ross, 236 Cal.App.2d 364, 46 Cal.Rptr. 41 (1965) ... 43
Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ... 25
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) ... 13, 49
Robinson v. City of
Chicago, 868 F.2d 959 (7th Cir. 1989) ... 28
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ... 26
Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ... passim
Simon v. Eastern Ky.
Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ... 11, 14, 15, 22, 27
Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553 (1974) ... 15, 27
Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951) ... 49
Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ... 14, 15
*vii Williams v. Ward, 845 F.2d 374 (2d Cir. 1988), cert. den. 488 U.S. 1020, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989) ... 36, 37
Youngblood v. Gates, 200 Cal.App.3d 1302, 246 Cal.Rptr. 775 (1988) ... 43
STATUTES
28 U.S.C. section 1254(1) ... 1
42 U.S.C. section 1983 ... 2
California Penal Code
section 145 ... 43
California Penal Code
section 825 ... passim
California Penal Code
section 849 ... 42
California Penal Code
section 859 ... 1, 41
California Penal Code
section 859b ... 1, 41
California Penal Code
section 871 ... 41
California Penal Code
section 987 ... 41
California Penal Code
section 988 ... 41
California Penal Code
section 991 ... passim
California Penal Code
section 1270 ... 41
California Penal Code
section 1271 ... 41
California Penal Code
section 1430 ... 41
CONSTITUTIONS
California Constitution,
article I, section 12 ... 41
California Constitution,
article I, section 14 ... 40
*viii United States Constitution, article III ... passim
United States Constitution,
Fourth Amendment ... passim
OTHER AUTHORITIES
ALI Model Code of
Pre-Arraignment Procedure (American Law Institute 1975), section
310.1(6) ... 35
ALI Model Code of
Pre-Arraignment Procedure (American Law Institute 1975), section 310.1(8) ...
35
ALI Model Code of
Pre-Arraignment Procedure (American Law Institute 1975), section 310.2(2) ...
35
ALI Model Code of
Pre-Arraignment Procedure (American Law Institute 1975), ... 34, 35
*1 OPINIONS BELOW
The opinion of the Court of Appeals (Pet., App. pp. 1-10) is
reported at 888 F.2d 1276. The memorandum order of the
United States District Court for the Central District of California granting a
preliminary injunction in the case (Pet., App. pp. 11-13) is not reported.
JURISDICTION
The judgment of the Ninth Circuit (Pet., App. pp. 1-10) was
entered on November 8, 1989. The
petition for rehearing with a suggestion for rehearing en banc was denied on
April 10, 1990. (Pet., App. p. 15.) On April 30, 1990, the
Ninth Circuit granted petitioners' emergency motion for stay of mandate for 30
days pending the filing of a petition for writ of certiorari. (Pet., App. p. 16.) The petition for certiorari was filed on May
17, 1990, and granted on October 1, 1990.
The jurisdiction of this Court to review the judgment of the Ninth
Circuit is invoked under 28 U.S.C. section 1254(1).
STATUTES INVOLVED
The following statutes are involved in the case and, due to their
length, are set forth verbatim in the Appendix hereto.
California Penal Code sections 825, 859, 859b, and 991
United States Constitution, Article III, sections 1 and 2
United States Constitution, Fourth Amendment
*2 STATEMENT OF THE CASE
A. Overview Of The Action.
This is a class action suit under 42 U.S.C. section 1983 seeking injunctive and declaratory relief with
respect to the manner in which the County of Riverside provides warrantless
arrestees with probable cause hearings following arrest. Specifically, plaintiffs sought an injunction
requiring the County of Riverside and its Sheriff, Cois Byrd, to provide
warrantless arrestees with probable cause hearings within 36 consecutive hours
of arrest. The County opposed the
motion for preliminary injunction, arguing that (1) the named plaintiffs lacked standing under article III of the United
States Constitution to pursue an action for injunctive relief since, according
to the allegations of the complaint, their rights had already been violated and
they would in no way benefit from the relief sought; and (2) the County provided
warrantless arrestees with a constitutionally "prompt" probable cause
hearing within two days of arrest excluding weekends and holidays, at the time
of arraignment as required by California Penal Code sections 991 and 825. The district court granted the preliminary
injunction and the Ninth Circuit affirmed the order, finding that the named
plaintiffs possessed article III standing to pursue the action for injunctive
relief and that the two day time period provided by California Penal Code
sections 991 and 825 for providing probable cause determinations at arraignment
was not "constitutionally prompt" within the meaning of this Court's
decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 859 (1975).
*3 B. The Initial
Proceedings.
On August 24, 1987, plaintiff Donald Lee McLaughlin filed a
Complaint for declaratory and injunctive relief on behalf of himself and
"all others similarly situated" in the United States District Court
for the Central District of California.
CR 1. [FN1] Named as defendants
were the County of Riverside and Cois Byrd, as Sheriff of the County of
Riverside and individually. Id. The Complaint
purported to state a claim under 42 U.S.C. section 1983 for violation of civil rights, predicated upon the
County of Riverside's alleged failure to provide "prompt probable
cause" determinations for arrestees.
The Complaint requested "an order and judgment requiring that
defendants and the County of Riverside provide "in-custody arrestees,
arrested without warrants, prompt probable cause, bail and arraignment
hearings." Id. [p. 5]. The Complaint asserted that Mr. McLaughlin
could properly represent the interest of the class members in that he was
currently incarcerated in the Riverside County Jail and had not received a
probable cause determination.
FN1 CR refers to the docket
number assigned to the document in the district court. References to the Joint Appendix filed in
this Court will be denominated "JA".
On October 13, 1987, plaintiffs moved to certify the class. CR 5.
On October 16, 1987, plaintiffs filed a First Amended Complaint. CR
6. On November 20, 1987, the County of
Riverside and Sheriff Byrd moved to dismiss the First Amended Complaint on the
grounds that the named plaintiff lacked standing to prosecute the lawsuit in that
there were no allegations that the named plaintiff *4 would again be
subject to the allegedly unconstitutional conduct,
i.e., detention without a probable cause hearing, at any time in the future,
citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660 (1983). CR
14. In light of the pending motion to
dismiss, the district court continued the hearing on the motion to certify the
class. CR 12. On December 4, 1987, plaintiff filed his opposition to the motion
to dismiss the First Amended Complaint.
CR 21. The motion to dismiss was
taken under submission on December 21, 1987. CR 22.
The district court did not rule on the motion to dismiss the First
Amended Complaint. CR 27. Rather, on July 25, 1988, pursuant to
plaintiffs' request, the court accepted for filing a Second Amended Complaint. 1 JA 2; CR 28. The Second Amended Complaint
alleged that plaintiff Donald Lee McLaughlin was arrested without a
warrant, taken to Riverside County Jail, and was not arraigned for five
days. 1 JA 3. It added as plaintiffs, Johnny E. Jones, Diana Rae Simon, and
Michael Scott Hyde, asserting that they had been arrested without warrants,
taken to Riverside County Jail, and "did not receive and have not received
prompt probable cause and bail hearings and are still in custody." 1 JA 3.
The Second Amended Complaint also added as defendants Brett Hale, David
Keiser, who were "pre-trial detainees in Riverside County Jail."
[FN2] The new complaint further
asserted *5 that "[a]t all times plaintiffs who were arrested
without warrants were held in Riverside County Jail
without prompt probable cause hearings, bail hearings or arraignment,"
that defendants "are violating Constitutional standards for prompt post
arrest, judicial determinations of probable cause, and for bail and for
arraignment" in that "Plaintiffs, but not defendants, believe there
should be no delay between the time of arrest and presentation to a magistrate
that is not necessary." 1 JA 5-6.
The prayer requested issuance of an injunction directing the defendants
to "provide in-custody arrestees, arrested without warrants, prompt
probable cause, bail and arraignment hearings...." 1 JA 7.
FN2 The Second Amended
Complaint also added plaintiffs Sharon Sweeney and Lavonne Hinds who were
alleged to be "pregnant women prisoners," in an attempt to assert a
new cause of action predicated upon alleged inadequate conditions for such
prisoners. 1 JA 3. The district court subsequently refused to
certify the class for purposes of these claims or the basic jail condition
claims of the plaintiffs, thus limiting the action to the Gerstein claim. See CR 41, 42.
In light of the filing of the Second Amended Complaint, the motion
to dismiss the First Amended Complaint was taken off calendar. CR 32.
On August 23, 1988, defendants filed an answer to the Second Amended
Complaint. CR. 36. On November 14,
1988, the court granted plaintiffs' motion to certify the class. CR 41, 42. [FN3]
FN3 As previously noted,
the class was certified only with respect to those prisoners purportedly held
without receiving a prompt probable cause determination. CR 41, 42.
The court did not certify the action for purposes of pursuing either the
jail conditions or treatment of pregnant prisoners issues. Id.
C. The Motion For
Preliminary Injunction.
On March 3, 1989, plaintiffs filed a motion for preliminary
injunction. 1 JA 16; CR 42. Based upon data *6 collected almost a
year and one-half earlier, in 1987, plaintiffs asserted that persons arrested
without warrants in the Central Riverside County Jail were not receiving a
prompt probable cause determination upon completion of the administrative steps
necessary to complete an arrest as required by Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 859 (1975). Specifically, plaintiffs asserted that
warrantless arrestees arrested "on a Thursday or a Friday do not see a
Judge (or are not released for excessive detention before their first
arraignment) until, at least, the following Monday or Tuesday, a delay of 72
hours or, on three-day weekends, 96 hours or
more...." 1 JA 17. Plaintiffs requested the court to issue a
preliminary injunction requiring inmates in the Central Riverside County Jail
to receive a probable cause determination within 36 hours of arrest, to be
conducted by an appropriate judicial officer.
1 JA 21. The 36-hour time frame
was based upon a stipulated order entered in a separate case before the same
judge involving another County. 1 JA
22.
On April 7, 1989, defendants filed their opposition to the motion
for preliminary injunction. 1 JA
86. Defendants argued that the named
plaintiffs lacked standing in the lawsuit because there was no evidence that
any of the named plaintiffs would again be subject to the allegedly
unconstitutional policy and practice of the County of Riverside which formed
the basis of their complaint.
Specifically, there was no evidence to indicate that these individuals
would again be arrested and subjected to detention without a prompt probable
cause hearing. Defendants further
argued that, based upon data collected in March 1989, prisoners detained in the
Central Riverside County Jail were receiving a prompt probable *7 cause
determination consistent with Gerstein v. Pugh. Pursuant to the California Supreme Court's interpretation of
Gerstein, as well as consistent with California Penal Code sections 825 and
991, inmates were advised prior to arraignment of their right to have a
probable cause hearing at that time. 1
JA 105-116; 120-129. Arraignments, in turn, were
conducted within two days of arrest, i.e., Monday through Friday, excluding
Saturdays, Sundays and holidays. 1 JA
120-121; 125-126. Defendants also
offered booking records (2 JA 170-275) demonstrating that the majority of
arrestees were released within 24 hours of arrest and that individuals held
beyond the maximum two day statutory period without receiving arraignment were
the exception and not the rule. 2 JA
161-164; 276-277.
On April 13, 1989, plaintiffs filed their reply to the opposition
to the motion for preliminary injunction.
2 JA 278. Plaintiffs reiterated
their argument that under Gerstein, a probable cause determination must be made
within hours of arrest, and specifically asserted that felony arrestees in
Riverside County could not obtain probable cause hearings until 14 days after
arrest. 2 JA 281.
On April 17, 1989, the motion for preliminary injunction came on
for hearing before the district court.
CR 54. The motion was taken under
submission. Id. On April 19, 1989, the
court issued a preliminary injunction directing inmates at the Central
Riverside County Jail to be taken before a "judge, Magistrate, Court
Commissioner, or other authorized judicial officer" for a probable cause
determination within 36 hours of arrest.
2 JA 332-334. Defendants were given 60 days in which to comply with the
order. 2 JA 334. The
order further stated that the court *8 would retain jurisdiction to
review procedures adopted by the County pursuant to the order, and to monitor
implementation of the procedures in the Riverside County branch jails "as
soon as practicable." 2 JA
333-334.
D. Appeal To The Ninth
Circuit
On May 11, 1989, defendants filed a notice of appeal from the
district court's order granting the preliminary injunction. CR 56. Defendants then moved for a stay pending
appeal in the district court, which was denied. Defendants then requested the Ninth Circuit to grant a stay
pending appeal, and on June 20, 1989, the Ninth Circuit granted the request for
stay and expedited the appeal. [FN4]
FN4 On appeal this action
was consolidated with McGregor v. County of San Bernardino, Ninth Circuit Case
No. 89-55542, a case arising from a virtually identical injunction issued as to
the County of San Bernardino.
On November 8, 1989, in a published opinion, the Court of Appeals
affirmed the order granting a preliminary injunction, expressly finding that
under City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the named plaintiffs had standing to
prosecute the action for injunctive relief since, at
the time the complaint was filed, they were still in custody and thus still
suffering injury as a result of the defendants' alleged unconstitutional
action. The Court additionally found
that providing probable cause determinations within the *9 arraignment
time frame of two days provided by California Penal Code sections 825 and 991
was not in accord with Gerstein's requirement that a determination be made
promptly after arrest, i.e., upon completion of the administrative steps
incident to arrest such as booking and completion of paper work. [FN5] This Court then granted certiorari.
FN5 The Ninth Circuit
reversed the district court's order granting a preliminary injunction as to the
County of San Bernardino insofar as it required an arrestee to be present at
the time the probable cause determination takes place. The Court found that the presence of the arrestee
was not required at the probable cause hearing. That issue has not been presented to this Court by the parties.
SUMMARY OF ARGUMENT
1. The motion for
preliminary injunction should have been denied because the named plaintiffs
lacked article III standing to prosecute the instant action. In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, this Court reaffirmed the principle that in order
to establish standing to assert a claim for injunctive relief under article III
of the Constitution, a plaintiff must establish that he or she will again be
subject to the very conduct that the injunction seeks to prevent and will thus
benefit from the relief sought. The
Court expressly rejected the notion that the mere fact that the plaintiff
suffered an injury as a result of the alleged unconstitutional actions of a
defendant provided a basis for seeking injunctive relief to prevent future
deprivations of rights. In the *10
instant case, the Second Amended Complaint specifically alleged that the named
plaintiffs did not receive prompt probable cause determinations and requested
the court to issue an order requiring the County of Riverside to provide prompt
probable cause hearings. Yet, it is manifest that the named plaintiffs had no
"personal stake" in the action for purposes of the equitable relief
sought. Once they had been denied a prompt probable cause hearing, their rights
had already been violated and to the extent they sought injunctive relief to
prevent future violations, they would have to allege that they would again be
subject to warrantless arrest without receiving a prompt probable cause
determination. While the Ninth Circuit
determined that it was simply enough that the named plaintiffs were all in
custody and hence suffering injury at the time the complaint was filed even if injunctive relief could not remedy that injury, as
noted above, in City of Los Angeles v. Lyons, this Court rejected precisely
that theory. Here, as in Lyons, the
constitutional violation asserted as the basis for the plaintiffs' equitable
complaint was, as to the named plaintiffs, concluded at the time the complaint
was filed, regardless of whether any injury lingered on. Any relief sought was solely prospective in
nature. If the named plaintiffs had not yet received a prompt probable cause
determination, the County of Riverside could not give them one because, under
plaintiffs' theory of the case, the time in which to do so had already expired. Absent the allegation that they would again
be subject to a warrantless arrest without probable cause and be held an
impermissibly lengthy time without receiving a probable cause determination,
the named plaintiffs clearly lacked standing to prosecute an action *11
for injunctive relief under article III.
Moreover, the fact that this action has been brought as a class action
does nothing to confer article III standing on the plaintiffs since, as this
Court has repeatedly held, if the named plaintiffs do not possess article III
standing to prosecute the action, they may not seek relief on behalf of
themselves or any other member of the class. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, n. 20, 96 S.Ct. 1917, 1925, n. 20, 48
L.Ed.2d 450 (1976). Nor is
the "capable of repetition, yet evading
review" doctrine applicable to the instant case. That doctrine applies
only where the plaintiff possessed standing in the first place and the claim,
by its nature, will be moot before the matter is resolved on appeal. As this Court noted in Lyons, it has no
application where, as here, the plaintiff lacked standing to begin with and any
claim can itself be reviewed in the context of a damage action. Plainly, the named plaintiffs lacked article
III standing to prosecute the instant action for injunctive relief and the
motion for preliminary injunction should have been denied.
2. The motion for
preliminary injunction should have been denied, because providing warrantless
arrestees with probable cause determinations at the time of arraignment within
two days of arrest, excluding weekends and holidays, meets the requirements of
the Fourth Amendment. In Gerstein v.
Pugh, 420 U.S. 103, this Court found that individuals arrested without a warrant were
entitled to a prompt probable cause determination as a prerequisite to extended
pre-trial detention. However, the Court
declined to mandate a specific timetable *12 for providing probable
cause determinations to arrestees, expressly inviting the states to exercise
flexibility in incorporating the probable cause determinations into existing
pre-trial procedures, such as arraignment.
In Gerstein and later in Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), the Court suggested that probable cause determinations held during pre-trial proceedings taking
place anywhere from two days to six full days after arrest were permissible
under the Constitution. Consistent with Gerstein, in In re Walters, 15 Cal.3d 738, 126 Cal.Rptr. 239, 543 P.2d 607 (1975), the California Supreme Court found that
probable cause determinations would be required at the time of arraignment,
i.e., within two days of arrest - a requirement codified by the California
Legislature in Penal Code section 991.
The County of Riverside provides the opportunity for probable cause determinations
to warrantless arrestees at the time of arraignment, within two days of arrest,
in compliance with California Penal Code sections 991 and 825. This is precisely the sort of incorporation
of probable cause determinations into existing pre-trial procedures that this
Court invited in Gerstein. To require
probable cause determinations to be provided to warrantless arrestees based
solely upon the time necessary to complete paper work attending the arrest,
effectively prevents a public entity from merging a probable cause hearing into
any pre-existing judicial procedure. As
this Court has recognized, providing additional constitutional protections in
the context of such hearings necessarily requires additional time. In California, and specifically in the
County of Riverside, these hearings are delayed no longer than necessary to
allow hearing before a full judicial officer at the *13 time of
arraignment, with the additional protections these more
elaborate proceedings involve. While an intervening weekend or holiday may
delay arraignment, as this Court's decisions in Gerstein and Schall make plain,
the Fourth Amendment permits a state to delay a probable cause hearing for a
reasonable period of time in order to provide an arrestee with greater
constitutional protections than available in an ex parte proceeding. Plainly, a state or other public entity has
a legitimate interest in avoiding needless multiplicity of pre-trial criminal
proceedings which unnecessarily consume judicial time and resources that may
slow the process to the detriment of all who pass through it without providing
any concomitant benefit to any category of arrestee. Nor is there anything illegitimate about a public entity's desire
to provide warrantless arrestees with greater procedural and substantive
protections at a hearing that offers benefits beyond a simple determination of
probable cause. Absent compelling
evidence that the pre-trial detention in question is predominantly punitive in
nature, a federal court should not substitute its judgment for that of local officials
as to the appropriate time and manner in which probable cause determinations
are to be made. Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979).
Indeed, these are precisely the sort of policy decisions that under our
system of federalism are most properly delegated to local officials and federal
courts must exercise particular caution when attempting to intervene
in the day-to-day operation of local criminal justice systems. Rizzo v. Goode, 423 U.S. 362, 370-379, 96 S.Ct. 598, 603-608, 46
L.Ed.2d 561 (1976); O'Shea
v. Littleton, 414 U.S. 448, 502, 94 S.Ct. at 679. Since the County *14 of Riverside was fully
in compliance with the dictates of the Fourth Amendment as interpreted by this
Court in Gerstein, the motion for preliminary injunction should have been
denied.
ARGUMENT
I.
THE NAMED PLAINTIFFS LACK ARTICLE III STANDING TO SEEK INJUNCTIVE
RELIEF IN FEDERAL COURT BECAUSE THE ALLEGATIONS OF THE COMPLAINT MAKE IT CLEAR
THAT ISSUANCE OF THE INJUNCTION SOUGHT COULD AT NO POINT HAVE REMEDIED THE
ALLEGED PAST CONSTITUTIONAL VIOLATIONS THAT FORM THE BASIS OF THE COMPLAINT.
As this Court has observed, "[n]o principle is more
fundamental to the judiciary's proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or controversies."
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450. The
"concept of standing is part of this limitation." Id. The essential inquiry for purposes of
determining whether there is standing to prosecute an action under article III
is "whether the plaintiff has 'alleged such a personal stake in the
outcome of the controversy' as to warrant his
invocation of federal court jurisdiction and to justify exercise of the court's
remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d
343, 354 (1975); emphasis in
original. To determine whether a
plaintiff has a "personal stake" in the lawsuit so as to *15
confer standing under article III, the "relevant inquiry is whether,
assuming justiciability of the claim, the plaintiff has shown an injury to
himself that is likely to be redressed by a favorable decision. Absent such a
showing, exercise of its power by a federal court would be gratuitous and thus
inconsistent with the Art. III limitation." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 38, 96 S.Ct. at 1924; emphasis added.
Indeed, it is only through insistence that the plaintiff prosecuting an
action possess a "personal stake" in the outcome that the
"concrete adverseness which sharpens the presentations of issues upon
which the court so largely depends for illumination of difficult ...
questions" can be assured. Baker
v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663,
678 (1962).
Thus, standing under article III is a threshold determination
going squarely to the ability of a federal court to adjudicate a dispute. As this Court has recognized, this is true
regardless of whether the action is brought by an individual or on behalf of a
class. As the Court observed in
Simon: "That a suit may be a class
action ... adds nothing to the question of standing, for even
named plaintiffs who represent a class 'must allege and show that they
personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and which they purport
to represent."' Simon v. Eastern
Ky. Welfare Rights Org., 426 U.S. at 40, fn. 20, 96 S.Ct. at1925, fn. 20, quoting Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343. See also
Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559 (1974) ["A named plaintiff in a class action
must show that the threat of injury in a case such as this is 'real *16
and immediate,' not 'conjectural' or 'hypothetical.' A litigant must be a member of the class which he or she seeks to
represent at the time the class action is certified by the district
court"].
This case involves a claim for injunctive relief by named
plaintiffs in a class action who, at the time the complaint was filed and the
class certified, clearly lacked any "personal stake" in obtaining the
injunctive relief sought. Specifically, the Second Amended Complaint alleged
that the named plaintiffs were "arrested without warrants, were taken to
the Riverside County Jail, did not receive and have not received prompt
probable cause and bail hearings and are still in custody." 1 JA 3.
The prayer of the Second Amended Complaint then requests an "order
and judgment requiring that the defendant and the County of Riverside provide
in-custody arrestees, arrested without warrants, prompt
probable cause, bail and arraignment hearings...." 1 JA 7.
In sum, the Second Amended Complaint alleges the named plaintiffs did
not receive prompt probable cause determinations and asks the Court to issue an
order requiring the County of Riverside to provide prompt probable cause
hearings.
The problem with plaintiffs' position is, however, that once they
did not receive a prompt probable cause hearing, their rights had already been
violated, i.e., no prompt determination had taken place. Because plaintiffs had already allegedly
been held without a prompt probable cause determination, the equitable relief
sought would in no way be able to redress their injuries - the alleged
transgression had already occurred. To
the extent they seek injunctive relief to prevent future violations, they would
have to allege that they would again be *17 subject to warrantless
arrest and prolonged detention without receiving a prompt probable cause
determination. In its opinion affirming
the district court's order granting a preliminary injunction, however, the
Ninth Circuit determined that it was simply enough that the named plaintiffs
were all suffering an injury, i.e., in custody, at the time the complaint was
filed, even if the injunctive relief could not cure that injury. See Pet. for
Cert., App. 6 ["[N]amed plaintiffs in this suit against Riverside County
were jail inmates arrested without warrants who had not yet received prompt
probable cause determinations, and were still in custody at the time they filed their complaint. Rather than complaining of a past constitutional violation,
plaintiffs in McLaughlin were actually suffering the harm for which they
sought injunctive relief"]. Yet,
the Ninth Circuit's conclusion in this regard is flatly inconsistent with the
decisions of this Court which make it clear that, with respect to determining
standing to invoke injunctive relief, it is not sufficient that the plaintiff
suffered an injury as a result of the alleged improper conduct; rather, the
plaintiff must be in a position where injunctive relief would remedy the injury
which spawned the lawsuit.
This Court's decision in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) is directly on point. In Lyons, the plaintiff brought an action
for damages and injunctive relief challenging the policy of the Los Angeles
Police Department in their use of chokeholds on arrestees, except in situations
where deadly force was threatened. In support of his claims, Lyons alleged that
he had been stopped by Los Angeles police officers for a Vehicle Code
violation, that he had *18 offered no resistance, and that he was
subjected to a chokehold. While the Ninth
Circuit had initially determined that Lyons alleged facts sufficient to
establish article III standing to seek injunctive relief by asserting that he
had been subjected to the challenged chokehold procedure, this Court granted
certiorari and reversed. The Court found that regardless of whether plaintiff's
constitutional rights had been violated by the
defendants' alleged illegal chokehold policy, he could not seek injunctive
relief absent the allegation that he would again be detained by police officers
and be subjected to the alleged improper use of force:
"Lyons' standing to seek the injunction requested depended
on whether he was likely to suffer future injury from the use of the chokeholds
by police officers. Count V of the
complaint alleged the traffic stop and choking incident five months
before. That Lyons may have been
illegally choked by the police on October 6, 1976, while presumably affording
Lyons standing to claim damages against the individual officers and perhaps
against the city, does nothing to establish a real and immediate threat that he
would again be stopped for a traffic violation, or for any other offense, by an
officer or officers who would illegally choke him into unconsciousness without
any provocation or resistance on his part." 461 U.S. at 105; 103 S.Ct. at 1667.
Thus, the Court was careful to recognize the distinction between
standing for purposes of asserting a damage claim and the standing necessary to
assert a claim for injunctive relief; in the latter instance, the plaintiff
lacks any personal stake in the litigation absent proof that he or *19
she will again be exposed to the alleged unconstitutional action:
"The Court of Appeal ... asserted that Lyons had a 'live and
active claim' against the city 'if only for a period of
a few seconds' while the stranglehold was being applied to him and that for two
reasons the claim had not become moot so as to disentitle Lyons to injunctive
relief.... We agree that Lyons had a
live controversy with the City. Indeed,
he still has a claim for damages against the City that appears to meet all Art.
III requirements. Nevertheless, the issue here is not whether that claim has
become moot but whether Lyons meets the preconditions for asserting an
injunctive claim in a federal forum. The equitable doctrine that the cessation
of the challenged conduct does not bar any injunction is of little help in this
respect for, Lyons' lack of standing does not rest on the termination of the
police practice but on the speculative nature of his claim that he will again
experience injury as a result of that practice even if continued." 461 U.S. at 109, 103 S.Ct. at 1669.
As the Court recognized in Lyons, it has always required a
plaintiff seeking equitable relief with respect to an alleged improper law
enforcement practice or criminal statute, to demonstrate that he or she would
again be subjected to the alleged unconstitutional practice and hence be able
to benefit from the relief sought.
Thus, in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), this Court reversed a declaratory judgment
for the plaintiff invalidating a New York statute that prohibited distribution
of anonymous handbills pertaining to election
campaigns, based upon the absence of any evidence that the plaintiff would
again be subject to prosecution under the statute. Specifically, the plaintiff
had *20 been convicted under the statute with respect to distributing
handbills in opposition to the candidacy of a particular Congressman. Since that candidate was subsequently
appointed to the bench and thus unlikely to run again, the Court found that
plaintiff had failed to establish that he would again necessarily distribute
handbills in violation of the statute. See 394 U.S. at 109 ["Since the New York statute's prohibition of
anonymous handbills applies only to handbills directly pertaining to election
campaigns, and the prospect was neither real nor immediate of a campaign
involving the Congressman, it was wholly conjectural that another occasion
might arise when Zwickler might be prosecuted for distributing the handbills referred
to in the complaint. His assertion in
his brief that the former Congressman can be 'a candidate for Congress again'
is hardly a substitute for evidence that this is a prospect of immediacy and
reality"].
Similarly, in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, the Court found that the named plaintiffs lacked
standing to prosecute a claim for injunctive relief seeking to correct alleged
discriminatory enforcement of criminal laws against the class members. The plaintiffs asserted
that a county magistrate and judge subjected class members to particularly
severe sentences and inflated bail requirements and committed other acts which
resulted in the discriminatory enforcement of laws. The Court noted, however, that the class members did not allege
that they were presently subjected to such conduct or that they would again be
the victim of these practices. Rather,
the prospect of future exposure to the defendants' alleged improper conduct
rested "on the likelihood that [plaintiffs] will again be arrested for and
charged with *21 violations of the criminal law and will again be
subjected to bond proceedings, trial, or sentencing before
petitioners." Id. at 496, 94 S.Ct. at 676. Thus, this Court observed that it would be assumed
that in the future the plaintiffs "will conduct their activities within
the law and so avoid prosecution and conviction as well as exposure to the
challenged course of conduct said to be followed by petitioners." Id. at 497, 94 S.Ct. at 677.
In Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 214 (1975), the Court declined to reach
the merits of plaintiffs' contention that a Texas statute rendering loitering a
crime was unconstitutionally vague. It
noted that the criminal proceedings against the plaintiffs had been concluded,
and, in the absence of any information concerning whether the plaintiffs would
again be subject to prosecution under the statute, the Court could not
determine whether the plaintiffs possessed standing
under article III. See 421 U.S. at 434, 95 S.Ct. 1696 ["[O]n remand the District Court will find it
desirable to examine the current enforcement scheme in order to determine
whether, indeed, there is now a credible threat that petitioners, assuming they
are physically present in Dallas, might be arrested and charged with
loitering. A genuine threat must be
demonstrated if a case or controversy within the meaning of article III of the
Constitution and of the Declaratory Judgment Act may be said to exist"].
Here, too, the named plaintiffs failed to allege, much less
establish, that they would again be subjected to the alleged improper conduct
of the County in processing criminal defendants so that injunctive relief would
benefit them. As in Lyons, the constitutional violation asserted as the basis
for the plaintiffs' equitable complaint was, as *22 to the named
plaintiffs, concluded at the time the complaint was filed and any relief sought
was solely prospective in nature. If
the named plaintiffs had not yet received a prompt probable cause
determination, the County of Riverside could not give them one because,
according to plaintiffs' allegations, the time in which to do so had already
expired. Despite the Ninth Circuit's conclusion, even if the plaintiffs were
still in custody at the time the complaint was filed, the mere fact that the
injury stemming from the alleged constitutional violation continues cannot provide a basis for injunctive relief if the relief sought
does not cure the injury. If that were
so, then the plaintiff in Lyons would have had standing to assert a claim for
equitable relief simply by alleging that he suffered personal injuries by
reason of application of the chokehold.
Yet, as the Court held in Lyons, the existence of a damage claim which
may allow redress for injuries resulting from alleged constitutional action is
entirely different from a complaint for equitable relief seeking termination of
the alleged practice. Standing requires
not simply that a plaintiff suffer injury, but that the plaintiff's injury be
capable of redress through the relief sought. As this Court noted in Lewis v.
Continental Bank Corp., ___ U.S. ___, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990):
"To invoke the jurisdiction of a federal court, a litigant must
have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision
[citation]", emphasis added; see also Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. at 38, 96 S.Ct. at 1924 ["(T)he relevant inquiry is whether ... the
plaintiff has shown an injury to himself that is *23 likely to be
redressed by a favorable decision"]; emphasis added.
Indeed, requiring a plaintiff seeking injunctive relief to allege
facts showing that he or she will benefit from the relief sought is the only
way to "assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult ... questions."
Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663,
678. For example, in the instant case, what
interest do the named plaintiffs have in vigorously litigating the question of
whether individuals who may be arrested in the future will receive prompt
probable cause determinations which, according to the allegations of their
complaint, they did not (and indeed now cannot) receive?
Quite plainly, the only instance in which the named plaintiffs in
this action could conceivably benefit from an injunction would be where there
were allegations suggesting that the named plaintiffs themselves would again be
subject to warrantless arrest and detention without receiving constitutionally
prompt probable cause determinations. Yet, the complaint contains no allegation that the named
plaintiffs would ever engage in conduct likely to subject them to warrantless
arrest and detention. For example, there
is no allegation that the named plaintiffs are habitually subject to warrantless
arrest without probable cause so as to create a "credible threat"
that they would again be subjected to the unconstitutional processes which form
the basis of the instant lawsuit. See
Kolender v. Lawson, 461 U.S. 352, 355, fn. 3, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) [held, plaintiff possessed standing to
assert claim for declaratory judgment and mandatory *24 injunction
barring enforcement of unconstitutionally vague statute
allowing police to detain a person for failure to provide adequate
identification: "We note that Lawson has been stopped on approximately 15
occasions pursuant to section 647(e) and that these 15 stops occurred in a
period of less than two years. Thus,
there is a 'credible threat' that Lawson might be detained again under section
647(e)"]; Ellis v. Dyson, 421 U.S. at 434, 95 S.Ct. at 1696. [FN6]
FN6 Moreover, we note that
even if plaintiffs could credibly allege that they would again be subject to
warrantless arrest without probable cause and detention in the Riverside County
jail system, these allegations alone would be insufficient to establish that
they would be subject to the alleged unconstitutional conduct of which they
complained - being detained in jail for an unconstitutionally lengthy time
period prior to receiving a probable cause determination. As the undisputed evidence submitted by the
County in the district court indicated and as plaintiffs essentially conceded,
a majority of warrantless arrestees are released in 24 hours or less. 2 JA 276-277. Thus, plaintiffs could not credibly allege that they would not
necessarily be among the majority of individuals who in fact are not retained
in custody following their initial arrest.
See Lyons at 461 U.S. 108, 103 S.Ct. at 1668 ["But even assuming that Lyons would again be stopped for a traffic or other violation in the
reasonably near future, it is untenable to assert, and the complaint made no
such allegation, that strangleholds are applied by the Los Angeles police to
every citizen who is stopped or arrested regardless of the conduct of the
person stopped. We cannot agree that
the 'odds' [citation], that Lyons would not only again be stopped for a traffic
violation but would also be subjected to a chokehold without any provocation
whatsoever are sufficient to make out a federal case for equitable
relief"].
*25 The allegations of the Second Amended Complaint make it
clear that the named plaintiffs have no stake whatsoever in obtaining
injunctive relief in this case. The
injunction sought would not result in their receiving a prompt probable cause
determination, since by their own allegation, the time in which to provide them
with such a determination had already passed.
Nor is an injunction sought which would result in their immediate
release based upon their failure to have received such a determination.
[FN7] In short, the complaint lacks any
allegation even remotely suggesting that any of the named plaintiffs would
benefit from injunctive relief. Despite
the conclusions of the Ninth Circuit and the arguments urged by plaintiffs, the
fact that they themselves cannot benefit *26 from the relief which forms
the very focus of this lawsuit underscores their lack
of standing under article III.
FN7 Indeed, as this Court
noted in Gerstein, a request for injunctive relief seeking a plaintiff's
release from custody based upon the failure to have obtained a probable cause
hearing would, in and of itself, run afoul of this Court's decision in Preiser
v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). See
420 U.S. at 107, fn. 6, 95 S.Ct. at 859 ["Because release was neither asked nor
ordered, the lawsuit did not come within the class of cases for which habeas
corpus is the exclusive remedy"].
See also O'Shea v. Littleton, 414 U.S. at 496, 94 S.Ct. at 676 ["(n)either the complaint nor respondents'
counsel suggested that any of the named plaintiffs at the time the complaint
was filed were themselves serving an allegedly illegal sentence or were on
trial or awaiting trial before petitioners.
Indeed, if any of the respondents were then serving an assertedly
unlawful sentence, the complaint would be inappropriately seeking relief from
or modification of current, existing custody.
See Preiser v. Rodriguez.
[Citations.] Furthermore, if any of them were on trial or awaiting trial
in state proceedings, the complaint would be seeking injunctive relief that a
federal court should not provide.
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)...."].
Nor is plaintiffs' claim saved by invocation of the "capable
of repetition yet evading review" doctrine. As a threshold matter, the "capable of repetition yet
evading review" doctrine allows a plaintiff who has standing at the time
the case is filed to continue to pursue the action in spite of the fact that
the passage of time has eliminated the facts giving rise to the actual
controversy between the parties. The
classic example of this is Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), where the plaintiff's challenge to state
laws which restricted her right to abortion was no longer a live controversy by
the time the case was before this Court, since she was no longer pregnant. Nonetheless, since she had standing at the
outset and the problem was capable of repetition and might otherwise evade
review, this Court reached the substantive issues underlying the case. Similarly, in a class action context, if the
case of the named plaintiff becomes moot, the Court may address the underlying
issues so long as some member of the class has a live claim. Indeed, this is precisely the analysis
employed by the Court in finding standing in Gerstein for purposes of allowing
the plaintiffs to seek injunctive relief requiring the State of Florida to
enact a mechanism to provide probable cause hearings to warrantless
arrestees. While the Court found that
the named plaintiff's case was now moot, since he had been convicted, it
nonetheless found that the existence of a certified
class that by its nature would be subjected to the unconstitutional policy
forming the basis of the lawsuit, prevented the action as a whole from becoming
moot. Gerstein, *27420 U.S. at 110, n.
11, 95 S.Ct. 861; see
also Schall v. Martin, 467 U.S. 253, 256, n. 3, 104 S.Ct. 2403, 2405, n. 3 ["Although the pre-trial detention of the
class representatives has long since ended [citation], this case is not moot
for the same reason that the class action in Gerstein ... was not mooted by the
termination of the claims of the named plaintiffs"]. However, as previously noted, this Court has
repeatedly held that a class does not possess standing to prosecute a lawsuit
unless a named plaintiff has standing at the time the complaint is filed and
the class is certified. See Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. at 40, fn. 20, Sosna v. Iowa, 419 U.S. at 403, 95 S.Ct. at 559. Thus, the
doctrine of "capable of repetition yet evading review" does not even
come into play with respect to a class action unless the named plaintiffs have
already established their standing - the doctrine itself cannot establish their
standing. [FN8]
FN8 In the district court,
in the Court of Appeals, and in their opposition to the petition for certiorari
in the instant case, plaintiffs have argued that this Court's discussion of
mootness in Gerstein cited above, is dispositive of the
issue of the named plaintiffs' standing to bring the instant action. Yet, plaintiffs' contention does not bear
scrutiny. As previously noted, in
Gerstein, the Court simply assumed that the named plaintiffs had standing at
the time the class was certified and focused solely on the question of whether
mootness of the named plaintiff's claim would moot the action as to the entire
class. In addition, Gerstein was
decided eight years before this Court's decision in Lyons clarifying the
requirements of article III standing for purposes of seeking injunctive relief. As discussed herein, application of the
principles enunciated in Lyons to the instant case, makes it clear that the
named plaintiffs lack standing to prosecute the instant case for injunctive
relief. Hence, this Court's discussion
in Gerstein (and subsequently Schall) with respect to mootness is simply
inapplicable to this case.
*28 Moreover, as this Court noted in Lyons, the doctrine of
"capable of repetition yet evading review" is inapplicable where, as
here, it is possible that a plaintiff may litigate the constitutional question
involved in the context of a damage claim.
Lyons, 461 U.S. at 109, 103 S.Ct. at 1669. [FN9]
FN9 Indeed, the Seventh Circuit
in Robinson v. City of Chicago, 868
F.2d 959, 968 (7th Cir. 1989) similarly rejected the "capable of
repetition" doctrine in finding that the named plaintiffs lacked article
III standing to prosecute an action for injunctive relief seeking accelerated
probable cause hearings for pre-trial detention: "Robinson could have achieved the same results as reached
here by suing the City for damages; the court's holding that the General Order
was unconstitutional would have served as res judicata in any subsequent
action. Robinson most likely chose not
to pursue class-wide damages to avoid the attendant notice requirements, but
'[t]here is no need to throw away a venerable constitutional rule just to
retain a replaceable champion."'
As this Court emphasized in Lewis v. Continental Bank Corp., ___
U.S. ___, 110 S.Ct. 1249, 1253:
"Article III denies federal courts the power 'to decide questions
that cannot affect the rights of litigants in the case before
them...."' Since the instant
action will in no way "affect the rights" of the named plaintiffs,
the federal courts plainly lack jurisdiction to entertain their claim for
injunctive relief. Hence, on this
ground alone, the district court had no alternative other than to deny the
motion for preliminary injunction.
*29 II. THE
PRELIMINARY INJUNCTION SHOULD HAVE BEEN DENIED BECAUSE THE COUNTY
OF RIVERSIDE'S COMPLIANCE WITH CALIFORNIA PENAL CODE SECTIONS 825 AND 991 IN
PROVIDING WARRANTLESS ARRESTEES WITH THE OPPORTUNITY TO RECEIVE PROBABLE CAUSE
DETERMINATIONS AT THE TIME OF ARRAIGNMENT, WITHIN TWO DAYS OF ARREST, EXCLUDING
WEEKENDS AND HOLIDAYS, CONSTITUTES A CONSTITUTIONALLY PROMPT HEARING UNDER THE
FOURTH AMENDMENT, AS INTERPRETED BY THIS COURT IN GERSTEIN V. PUGH.
Plaintiffs sought an injunction against the County of Riverside
and its Sheriff, Cois Byrd, requiring defendants to provide persons arrested
without a warrant with a probable cause hearing before a magistrate, court
commissioner or other judicial officer within 36 consecutive hours of
arrest. Plaintiffs argued, and the
district court agreed, that such a probable cause hearing was mandated by this
Court's decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854 (1975), as well as the Ninth Circuit's decision in
Bernard v. City of Palo Alto, 699 F.2d 1023 (9th Cir. 1983). [FN10] In
support of their application for injunctive relief, plaintiffs submitted arrest
records that were almost two years old - from 1987 - purporting to show the
number of arrested persons who were kept in custody without receiving a prompt
probable cause determination. Thus, plaintiffs argued to the district court
that in *30 order to avoid continued "deprivation of constitutional
rights," it was "necessary" that the court issue an injunction.
FN10
In Bernard, the Ninth Circuit held that the City of Palo Alto was required to
provide warrantless arrestees with a probable cause determination within 24
consecutive hours of arrest. See 699 F.2d at 1025.
In response, the County demonstrated by uncontradicted evidence
that probable cause determinations were provided to warrantless arrestees at
the time of arraignment within two days of arrest, excluding weekends and
holidays, pursuant to California Penal Code sections 825 and 991 and the
California Supreme Court's decision in In re Walters, 15 Cal.3d 738, 126 Cal.Rptr. 239, 543 P.2d 607, interpreting this Court's decision in
Gerstein. In its November 8, 1989,
opinion, the Ninth Circuit expressly held that providing probable cause
determinations at arraignment within the time frames provided by California
Penal Code sections 825 and 991 "is not in accord with Gerstein's
requirement of a determination 'promptly after arrest."' Pet. for Cert., App. p. 7. In so holding, the Court stated that
Gerstein required a probable cause determination to be made "as soon as
the administrative steps incident to the arrest were completed, and that such
steps should require only a 'brief period"' - in this case, 36 consecutive
hours after arrest. Thus, in determining the constitutional
"promptness" of the probable cause determination,
the Ninth Circuit looked solely to completion of arrest reports and the like,
and ignored the time necessary to provide a warrantless arrestee with an
adversarial hearing at arraignment in compliance with California state law.
The Ninth Circuit's determination that the "promptness"
of a probable cause hearing turns solely upon completion of the administrative
steps incident to arrest, without allowing for delays necessitated by providing
an *31 arrestee with greater constitutional protections and integrating
the probable cause hearing into existing pre-trial proceedings, is inconsistent
with this Court's decision in Gerstein and interprets the Fourth Amendment so
broadly as to mandate an entirely separate tier of pre-trial criminal
proceedings. The result is an
unnecessary restraint on the states in enacting and administrating their
criminal justice systems within constitutional boundaries, in direct
contravention of the most basic principles of federalism, and the improper
injection of the lower federal courts into local criminal justice systems -
requiring the courts to evaluate the promptness of probable cause hearings on a
county-by-county or even city-by-city basis.
A. The Fourth Amendment
Does Not Prohibit Delays In Providing Probable Cause Hearings To Warrantless
Arrestees Resulting From The Incorporation Of Such Hearings Into Existing
Proceedings That Afford The Arrestees Substantially Greater
Constitutional Protections.
Gerstein involved a constitutional challenge to Florida procedures
under which criminal defendants charged by a prosecutor's information could be
detained for extended periods of time without receiving a judicial
determination of the question of whether there was probable cause for arrest
and detention. At the time the
plaintiffs were arrested Florida law appeared to authorize a preliminary
hearing to determine the question of probable cause, but Florida courts had
held that if the prosecutor proceeded by information, an arrestee could not
obtain a preliminary hearing. See 420 U.S. at 105-106, 95 S.Ct. at 859. Thus, as
this Court observed: "Under the *32 Florida procedures challenged
here, a person arrested without a warrant and charged by information may be
jailed or subjected to other restraints pending trial without any opportunity
for a probable cause determination."
420 U.S. at 116, 95 S.Ct. at 864; emphasis added.
Moreover, even as to those individuals who were not charged by
information and hence could receive a probable cause determination at a
preliminary hearing, Florida law provided that the preliminary hearing and/or
arraignment in which a probable cause determination would be made could be
delayed as much as 30 days after arrest.
See 420 U.S. at 106, 95 S.Ct. at 859. Nor could
a prisoner test probable cause by way of state court habeas corpus. Id.
Thus, under the Florida procedures at issue in Gerstein, a defendant arrested without a warrant would likely not
receive a probable cause determination, if at all, until 30 days after arrest.
In affirming the Court of Appeals' determination that the Florida
procedures violated the Fourth Amendment, this Court observed that while
"a policeman's on-the-scene assessment of probable cause provides legal
justification for arresting a person suspected of crime, and for a brief period
of detention to take the administrative steps incident to arrest," once a
suspect is in custody "the State's reasons for taking summary action
subside," and the "suspect's need for a neutral determination of
probable cause increases significantly."
420 U.S. at 113-114, 95 S.Ct. at 863. Thus, this
Court held that "the Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint of liberty following
arrest." 420 U.S. at 114, 95 S.Ct. at 863.
*33 While upholding the Court of Appeals' determination
that the Florida procedures violated the Fourth Amendment, this Court
nonetheless reversed the lower appellate court's determination that Florida was
required to provide probable cause determinations in the context of a
preliminary hearing that offered a full-blown adversarial proceeding with
accompanying constitutional protections.
Noting the restricted focus of a probable cause inquiry, the Court found
that "adversary safeguards are not essential for the probable cause determination," since the issue "can be
determined reliably without an adversary hearing. The standard is the same as
that for arrest. That standard -
probable cause to believe the suspect has committed a crime - traditionally has
been decided by a magistrate in a nonadversary proceeding on hearsay and
written testimony and the Court has approved these informal modes of proof." 420 U.S. at 120. The Court
observed, however, that "[t]his is not to say that confrontation and cross-examination
might not enhance the reliability of probable cause determinations in some
cases. 420 U.S. at 121-122, 95 S.Ct. at 867. It was
concerned, however, that requiring states to provide full-blown hearings
"could exacerbate the problem of pretrial delay." 420 U.S. at 122, fn. 23, 95 S.Ct. at 867; emphasis added.
This was because as "the procedures become more complex the
likelihood that it [a probable cause hearing] can be held promptly after arrest
diminishes." 420 U.S. at 120.
However, while the Court held that the Constitution did not
require a full- blown adversary proceeding for probable cause determinations,
it nonetheless found that *34 the states were free to provide such
protections within a reasonable time frame.
As the Court held:
"[W]e recognize that state systems of criminal procedure
vary widely. There is no single
preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a
State's pretrial procedure viewed as a whole." 420 U.S. at 123, 95 S.Ct. at 868.
Thus, the Court continued:
"While we limit our holding to the precise requirement of
the Fourth Amendment, we recognize the desirability of flexibility and
experimentation by the States. It may be
found desirable, for example, to make the probable cause determination at the
suspect's first appearance before a judicial officer [citation] or the
determination may be incorporated into the procedure for setting bail or fixing
other conditions of pretrial release.
In some states, existing procedures may satisfy the requirement of the
Fourth Amendment. Others may require only minor adjustment, such as
acceleration of existing preliminary hearings." 420 U.S. at 123-124, 95 S.Ct. at 868; fn. omitted.
Significantly, in this regard, the Court noted that the Uniform
Rules of Criminal Procedure permitted a person arrested without a warrant to
obtain a probable cause hearing "without unnecessary delay" at the
first appearance before a magistrate and that the ALI Model Code of
Pre-Arraignment Procedure allowed a magistrate to make a probable cause
determination at the time of first appearance and that a magistrate was
required to make *35 such a determination within two "court
days" of the first appearance. See 420 U.S. at 124, fn. 25, 95 S.Ct. at 868. [FN11]
FN11 In Gerstein, the Court
referred to the tentative draft of the ALI Model Code of Pre-Arraignment
Procedures. The final draft was
virtually unchanged from the tentative draft, section 310.1(6) again allowing a
magistrate to determine probable cause at the defendant's appearance within 24
hours of arrest, but not requiring it to be done until an additional 48 hours
later, i.e., within 72 hours of arrest.
See ALI Model Code of Pre- Arraignment Procedure (American Law Institute
1975), sections 310.1(6), 310.1(8), and 310.2(2). Indeed, the commentary to
section 310 specifically states that the final draft was intended to reflect
this Court's decision in Gerstein.
In Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207, this Court applied Gerstein in rejecting a due
process attack on a state statute which allowed juveniles to be detained for a
delinquency determination for three, and sometimes as much as six days prior to
receiving a probable cause determination.
The Court noted that in light of Gerstein, this delay was permissible,
emphasizing that in Gerstein "[w]e did not ... mandate a specific time
table," and in fact had recognized "'the desirability of flexibility
and experimentation by the states."' 467 U.S. at 275, 104 S.Ct. at 2415. Critical to the Court's
determination was the fact that "preventative detention serves an
important and legitimate function in the juvenile justice system" (467 U.S. at 272, 104 S.Ct. at 2414), and that the delays occasioned by the process
were more than offset by the considerable procedural and substantive
protections afforded a detainee at the eventual hearing in which probable cause
was determined. As the Court
observed: *36 "In many
respects, the [act] provides far more pre-detention protection for juveniles
than we found to be constitutionally required for a probable-cause
determination for adults in Gerstein."
467 U.S. at 275, 104 S.Ct. 2415. These
included the right to counsel, the right to confront and challenge the charges
against the juvenile and the ability to cross-examine witnesses. See 467 U.S. at 275-277, 104 S.Ct. at 2416-2417. The Court
therefore found nothing inconsistent with the three- and perhaps six-day delay
in providing juveniles a probable cause determination under the law in question
in light of the fact "[t]he Court in Gerstein indicated approval of
pretrial detention procedures that supplied a probable-cause hearing within
five days of the initial detention," and the "brief delay in the
probable cause hearing [here] may actually work to the advantage of the
juvenile since it gives his counsel, usually appointed at the initial appearance
... time to prepare." 467 U.S. at 277, fn. 28, 104 S.Ct. at 2416.
Consistent with Gerstein and Schall, the
Second Circuit in Williams v. Ward, 845 F.2d 374 (2d Cir. 1988), cert. den. 488 U.S. 1020, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989) expressly recognized that delays resulting
from providing pre-trial detainees with greater procedural protections in the
context of a more extensive adversarial hearing were not per se unreasonable
under the Fourth Amendment. Thus, the
Court upheld probable cause determinations conducted at the time of arraignment
which, in many cases, did not occur until 72 hours after arrest. The Court found that the delays resulting
from providing these more extensive proceedings were reasonable in light of the
significant constitutional protections afforded arrestees:
*37 "[T]he use of arraignment procedures to determine
probable cause provides members of the plaintiff class with benefits that would
not be available if probable cause were determined through the use of minimal ex
parte procedures immediately after the completion of the 'administrative steps
incident to arrest.' In particular, the
accused is present at the arraignment and has the benefit of counsel in
attacking the sufficiency of the charging instrument. More importantly, however, arraignments involve far more than
probable-cause determinations. Before arraignment, prosecutors both review the
appropriateness of the charge against an arrestee and make a recommendation
with regard to the possibility of pretrial release. In addition, the arrestee, with the
assistance of defense counsel, may negotiate a final disposition of the
arrestee's case at the arraignment.
Indeed, over one-third of all cases reach their final disposition at
arraignment through dismissals, pleas of guilty, or adjournments in
contemplation of dismissal. In the
other cases, the court may set bail or other conditions of pre-trial
release. [p] We believe that the procedural
benefits provided to arrestees under New York City's arraignment system justify
constitutionally arrest-to-arraignment periods of 72 hours in
length." 845 F.2d at 387.
As the Second Circuit recognized in Williams, in light of the
principles articulated in Gerstein and Schall, it is simply untenable for
plaintiffs to assert and the Ninth Circuit to conclude that it is impermissible
for a state or public entity to delay a probable cause hearing based upon the
additional time necessary to provide warrantless arrestees with additional
constitutional protections afforded by existing pre-trial procedures. While Gerstein did not require these additional
protections to accompany *38 the probable cause hearings, it clearly did
not forbid them. If anything, as noted
above, the Court invited states to merge the two procedures and recognized that
providing such procedures would necessarily cause some delay.
Quite simply, as this Court recognized in Gerstein, and reaffirmed
in Schall, to the extent a state or public entity elects to conduct probable
cause determinations for warrantless arrestees in the
context of existing pre-trial procedures which provide the arrestee with
additional constitutional protections, as well as a more searching inquiry into
not simply the propriety of the arrest, but the validity of charges against the
individuals, the delays attending this extended procedure are not per se
unreasonable. As we discuss below, consistent
with Gerstein, and the dictates of the Fourth Amendment, the County of
Riverside provides warrantless arrestees the opportunity to receive a probable
cause determination at the time of arraignment which, under California law,
must be conducted without unnecessary delay and in any event no later than two
days following arrest, excluding weekends and holidays. The arraignment procedures provide arrestees
with significantly greater constitutional protections than available at the ex
parte proceedings imposed by the Ninth Circuit in this case and thus under
Gerstein and Schall, amply justify any slight delay necessitated by providing
these more extensive procedures.
*39 B. Consistent
With The Fourth Amendment As Interpreted In Gerstein v. Pugh, The County Of
Riverside, Within The Framework Of California Law, Has Incorporated Probable
Cause Determinations Into Arraignment Proceedings Which By Their Nature
Necessitate Some Delay In The Processing Of Arrestees, But Afford Pre-Trial
Detainees Additional Constitutional Protections And Avoid The Severe Disruption
Of State Criminal Justice Systems Which Would Result From The Creation Of A Separate Tier Of Judicial Proceedings
Devoted Solely To Determining Probable Cause.
Following this Court's decision in Gerstein, the California
Supreme Court expressly addressed the question of precisely when probable cause
determinations should be made under California law, consistent with the
requirements of the Fourth Amendment as articulated in Gerstein. In In re Walters, 15 Cal.3d 738, 126 Cal.Rptr. 239, 543 P.2d 607, an individual arrested without a warrant for
committing a misdemeanor filed a petition for habeas corpus asserting he had
not been provided with a prompt probable cause determination as required by
Gerstein. The California Supreme Court
denied the petition, finding that the petitioner had received a prompt probable
cause determination. In so holding, the
Court declared that the constitutional requirements articulated in Gerstein
would be met if persons arrested for a misdemeanor without a warrant received a
probable cause determination at the time of arraignment, which, under
California law, must take place without unnecessary delay, and no later than
two days after a suspect's arrest. See 15 Cal.3d at 750 ["(t)he determination of probable cause is to
be made a matter of record at the time of arraignment or bail setting *40
which usually takes place simultaneously within two days after a misdemeanor
suspect's arrest.... [W]e consider
arraignment to be the most appropriate stage of the
proceedings at which to make a judicial determination of probable cause
..."]. The California Supreme
Court's determination that arraignment would be the most appropriate time in
which to conduct a probable cause determination was not surprising in light of
the fact that the Court had earlier determined that the issue of probable cause
is a matter properly determined upon an individual's first appearance before a
magistrate. See People v. Powell, 67 Cal.2d 32, 60, 59 Cal.Rptr. 817, 834, 429 P.2d 137 (1967) [first appearance provides opportunity
"to place the issue of probable cause for the arrest before a judicial
officer ..."].
In light of the California Supreme Court's decision in In re
Walters, the California Legislature enacted Penal Code section 991. Section 991
requires an individual arrested for a misdemeanor without a warrant to receive
the opportunity for a probable cause determination at the time of arraignment.
Appendix, p. 6a. Penal Code section
825, in turn, provides that arraignment must take place without
"unnecessary delay" and in no event more than two days after arrest,
excluding Saturday, Sunday and holidays with an extension to the next court day
if the two days expire at a time when the court is not in session. Appendix, p. 1a. As the California Supreme Court observed in In re Walters, under
California law arraignment typically constitutes a prisoner's first appearance
before a magistrate and the time limits imposed by Penal Code section 825 are intended to comply with the *41
requirements of article I, section 14, of the California Constitution
guaranteeing that all felony arrestees shall be "taken without unnecessary
delay before a magistrate."
At arraignment, an arrestee is entitled to be represented by
counsel and if he cannot afford an attorney one will be appointed for him. People v. Carlon, 161 Cal.App.3d 1193, 1196, 208 Cal.Rptr. 18 (1984); California Penal Code section 987. In addition, the prisoner and his attorney
are entitled to inspect all police, arrest and crime reports submitted to the
magistrate (Penal Code 859, 1430) and are allowed to examine the formal charge
filed with the magistrate. (Penal Code
988.) The magistrate may also set bail
at this time, if not previously done.
California Const., article 1, section 12; California Penal Code sections
1270-1271. The magistrate then requests
and accepts any plea. As noted above,
under Penal Code section 991 and In re Walters, at arraignment a magistrate may
also determine probable cause if requested to do so. [FN12]
FN12 Plaintiffs have
maintained throughout this litigation that while Penal Code section 991 and In
Re Walters may require probable cause determinations to be made at the time of
arraignment in misdemeanor cases, felony arrestees do not obtain a probable
cause determination until some 10 court days after
arraignment, at the time of preliminary hearing. See California Penal Code §
859b, 871. As previously
discussed, the County of Riverside construes In re Walters as suggesting that
arraignment is the proper time to provide warrantless arrestees with a probable
cause determination regardless of the nature of the charges against them, and
at the time the motion for preliminary injunction was filed, was following this
policy. 1 JA 120-129. While defendants note that neither Gerstein
nor Schall necessarily rule out a constitutionally proper probable cause
determination being made at that the time of a preliminary hearing delayed for
as much as 14 days after arrest in light of the considerable protections
afforded an arrestee at such hearings, as noted above, throughout this
litigation, the County of Riverside has steadfastly agreed to provide such
hearings at the time of first appearance before a magistrate at arraignment and
not at preliminary hearing. The
district court order affirmed by the Ninth Circuit in this case, of course,
however, precludes the County from providing such determinations even within
the short two-day time period of arraignment.
*42 In sum, the California arraignment procedure
constitutes the very sort of existing pre-trial state procedure that would best
accommodate a probable cause hearing without the
necessity of creating an entirely new tier of proceedings. It is marked by precisely those additional
constitutional protections and more extensive inquiry that this Court found
sufficient to justify a three- to six-day delay in providing probable cause
determinations in Schall.
Moreover, California law itself guarantees that arraignments be
conducted in speedy fashion, thus avoiding unnecessary delay. As noted above, California Penal Code
section 825 requires that a defendant must in all cases be taken before a
magistrate for arraignment "without unnecessary delay," with an
outside two-day time period, excluding Saturdays, Sundays and holidays. [FN13]
Penal Code section 849 specifically requires all *43 warrantless
arrestees to be taken before a magistrate "without unnecessary
delay." Willful failure to do so
is punishable as a misdemeanor. Penal
Code section 145. California courts, in
turn, have narrowly interpreted *44 "unnecessary delay," thus
making it clear that the two-day time period is an outside limitation, but that
arraignment within that time period does not necessarily mean that the
individual is taken before a magistrate without "unnecessary
delay." For example, if delay is
solely the result of improper actions of law enforcement officials to elicit
statements in the absence of counsel or other procedural protections,
arraignment within the outside time period of Penal Code section 825 will not be sufficient. See People v. Powell, 67 Cal.2d 32, 59-60, 59 Cal.Rptr. 817, 429 P.2d 137 ["We have ... stressed that section 825 does
not authorize even a two-day detention in all cases, but instead places a limit
upon what may be considered a necessary delay, and a detention of less than two
days if unreasonable under the circumstances, is in violation of the
statute"]; Dragna v. White, 45 Cal.2d 469, 473, 289 P.2d 428 (1955) [same].
At the same time, however, California courts have recognized that delay
inherent in the arraignment procedure itself, i.e., time consumed by
investigating and preparing the necessary legal documents, such as the
accusatory pleading or waiting opening of the courts themselves, is not per se
unreasonable. For example, in People v.
Johnson, 85 Cal.App.3d 684, 149 Cal.Rptr. 661 (1978), the California Court of Appeal rejected a
contention by an individual arrested on Thursday morning, but not arraigned
until the following Monday morning, that there was an unnecessary delay within
the meaning of section 825, in light of the fact that it was entirely plausible
that the delay was caused by the need to investigateand prepare the accusatory
pleading accompanying the arraignment:
FN13 There is currently a
division among the California Courts of Appeal concerning interpretation of the
phrase "two days" in Penal Code section 825. One line of cases interprets the term to
mean 48 hours, so that an individual arrested on a Monday between 9:00 a.m. and
4:00 p.m., must be arraigned by the time of arrest on Wednesday. If arrested after 4:00 p.m. on a Monday, for
example, at 6:00 p.m., the individual would have to be arraigned by 4:00 p.m.,
on Thursday - the 48 hours expiring at 6:00 p.m., on Wednesday, a time when
"the court in which the magistrate is sitting is not in session,"
thus extending the period to the "next regular court session of the
judicial day immediately following."
Penal Code section 825; see People v. Chambers, 276 Cal.App.2d 89, 103, 80 Cal.Rptr. 672 (1969), cert. denied, 402 U.S. 999, 91 S.Ct. 2175 (1971); People v. Lee, 3 Cal.App.3d 514, 521, 83 Cal.Rptr. 715 (1970); People v. Ross, 236 Cal.App.2d 364, 368, 46 Cal.Rptr. 41 (1965); Youngblood v. Gates, 200 Cal.App.3d 1302, 1335-1337, 246 Cal.Rptr. 775 (1988) [George, J. dissenting]. Another line of cases interprets the term
"two days" to mean two court days, so that an individual arrested at
6:00 p.m, on a Monday would have to be arraigned by the close of business on
Wednesday - the second day following the arrest upon which the courts are
open. See Youngblood v. Gates, 200 Cal.App.3d 1302, 246 Cal.Rptr. 775 and cases cited therein. At the time of the hearing on the preliminary injunction, the
County of Riverside interpreted the phrase "two days" as 48 hours, so
that if the 48-hour period expired at a time when the
courts were closed, the probable cause hearing would take place on the next
court day. See 1 JA 81. While the case was on appeal, however, the
County of Riverside advised the Ninth Circuit that the County was currently
using the "two court day" standard enunciated in Youngblood v. Gates,
202 Cal.App.3d 1302, 240 Cal.Rptr. 775. In any event, this conflict is largely irrelevant to the instant
case as the 36 hour outside period set by the Ninth Circuit would be violated
by the County's compliance with either interpretation of section 825.
*45 "[U]sing the time allowed to prepare and evaluate
a case before filing a complaint is not prohibited. Where a delay within the 48-hour period occurs in order to
evaluate a case the delay is not unnecessary.
[Citation.] There may be other
valid reasons for not arraigning an arrested person immediately upon arrest and
for using all or the greater part of the 48 hours allowed. Some of those
reasons may include study and investigation to make certain that grounds exist
to support a criminal complaint. [Citation.]
A delay which is occasioned by the conscientious performance of police
and which is utilized for the purposes of clerical and administrative needs and
not used solely for the purposes of eliciting damaging statements from the
accused is not an unreasonable delay." 85 Cal.App.3d at 689.
In light of the significant substantive and procedural protections
afforded warrantless arrestees under California law, the County of Riverside
plainly does not "unreasonably" delay providing such arrestees with
probable cause hearings. Consistent
with In re Walters, the County of Riverside conducts probable cause
determinations for warrantless arrestees at the time of arraignment, i.e.,
within "two days" of arrest, excluding Saturdays, Sundays and
holidays. Prior to arraignment, all
arrestees are shown a video advising them of their rights during the
arraignment proceeding, including a clear instruction that they are entitled to
a probable cause determination at the time of arraignment should they or their
attorney desire such a determination. 1
JA 120-129. As review of the booking
records submitted by the County in opposition to the motion for preliminary
injunction reveals, the County does not unnecessarily delay arraignment for
prisoners. Rather, prisoners are
arraigned in a reasonable *46 time frame that allows the procedures
necessary to conduct arraignment to be completed, for example, preparation of
arrest reports and the filing of a criminal complaint to be reviewed by a judge
sitting in open court, as well as securing counsel for defendants and for the
People. At the same time, delay does
necessarily occur during those time periods in which courts are not in session
under California law, i.e., on Saturdays, Sundays and
holidays. When courts are again in
session, arraignments are promptly conducted.
Indeed, as the evidence submitted by plaintiffs in support of the motion
for preliminary injunction and defendants' own booking records reveals, those
warrantless arrestees subject to extended detention are typically those
arrested on a weekend, who must wait until Monday, Tuesday or Wednesday before
being taken before a judicial officer.
For example, as review of the County's evidence indicates,
individuals arrested with or without a warrant on a Saturday night or early
Sunday morning and who are not released on their own recognizance shortly after
arrest, typically appear in court by no later than Tuesday and others, in fact,
are presented to the magistrate for arraignment Monday. While some arrestees are not presented for
arraignment until Wednesday, this is still within the "two day"
period provided by California law and there is no evidence to suggest that a
delay even to this point is the result of anything more than that which
necessarily attends processing hundreds of individuals through a court system
that is itself already severely burdened. [FN14] Indeed, conspicuously, plaintiffs provided no *47 evidence
whatsoever that the County was unnecessarily delaying arraignment. Rather, plaintiffs simply argued and the
district court and Ninth Circuit agreed, that any delay caused by incorporating
probable cause hearings into arraignment is per se
unreasonable, since a probable cause determination can be made without
providing the additional protections and procedures of a full arraignment
hearing. As discussed above, in light
of Gerstein and Schall, this contention is simply untenable.
FN14 Review of the most
recent booking statistics submitted to the district court for March 1989
reveals that arraignment proceedings for those arrested with and without
warrants typically takes place within two court days of arrest. Of the approximately 70 individuals who were
not outright released or sentenced prior to first appearance at arraignment, 23
were arraigned within one court day of arrest (App., pp. 8a-9a), 23 in two
court days (App., pp. 9a-10a), and 16 on the third court day (App., p. 10a) -
the outside time limit under any interpretation of California Penal Code
section 825 (48 hours after arrest, with an extension to the next court day if
the period expires when court is not in session). See footnote 13.
Consistent with the Fourth Amendment as interpreted by this Court
in Gerstein, the County of Riverside has incorporated probable cause
determinations into arraignment, a pre-trial procedure which itself provides
greater constitutional protections and concrete
benefits to pretrial arrestees than the cursory ex parte proceedings embraced
by the district court and imposed by the Ninth Circuit in this case. While
providing such hearings at arraignment may cause some delay, it cannot be
assumed that this delay is an improper punishment of those in custody to the
extent it is "reasonably related to a legitimate governmental
objective...." Bell v. Wolfish, *48441 U.S. 520,
539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447. There is nothing illegitimate about a public entity's
attempt to provide warrantless arrestees with greater procedural and
substantive protections at a hearing that may offer benefits beyond a simple
determination of probable cause. At the
same time, a public entity clearly has a legitimate interest in maintaining an
efficient court system avoiding needless multiplicity and duplication of
judicial hearings, which unnecessarily consumes judicial time and resources
that may slow the process to the detriment of all who pass through it without
providing any compensating significant benefit to any category of arrestee.
[FN15]
FN15 For example, as the
County demonstrated in opposition to the motion for preliminary injunction, the
36-hour ex parte probable cause hearings imposed by the district court in an
Orange County case, Scott v. Gates, from which the 36-hour time period in this
case was derived, has not resulted in any significant
number of individuals released for lack of probable cause. Despite the figures submitted by plaintiffs
in support of their motion for preliminary injunction, after taking into
account the fact that arrestees are often released on their own recognizance
prior to the hearing officer's review of the arrest report or that initial
findings of "no probable cause" are later reversed upon the arresting
officer's providing the hearing officer with additional facts to support the
arrest, release figures for lack of probable cause run no more than
approximately 6%. 2 JA 161.
Moreover, these are precisely the sort of decisions that states
and their local entities are best equipped to make. As this Court has cautioned with respect to the inquiries of
federal courts into the conditions of pre-trial detention, "[c]ourts must
be mindful that these inquiries *49 spring from constitutional
requirements and that judicial answers to them must reflect that fact rather
than a court's idea of how best to operate a detention facility." Bell v.
Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874. Similarly, a federal court should not, as the
district court and Ninth Circuit did here, essentially substitute their
judgment for that of the California Legislature or indeed the local Riverside
officials as to both the appropriate form and time frame in which a probable cause determination will be provided to
warrantless arrestees. As this Court
recognized in Rizzo v. Goode, 423 U.S. 362, 378- 379, 96 S.Ct. 598, 607-608, 46
L.Ed.2d 561, injunctive
relief in these circumstances conflicts with "'the well-established rule
that the Government has traditionally been granted the widest latitude in the
"dispatch of its own internal affairs....""' As the Court
observed in O'Shea v. Littleton, 414 U.S. at 502, 94 S.Ct. at 679, "A major continuing intrusion of the
equitable power of the federal courts into the daily conduct of state criminal
proceedings is in sharp conflict with the principles of equitable restraint
which this Court has recognized...."
In the instant case, both the district court and the Ninth Circuit
ignored the "special delicacy of the adjustment to be preserved between
federal equitable power and State administration of its own law." Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138 (1951); City of Los Angeles v. Lyons, 461 U.S. at 112, 103 S.Ct. at 1670. As this
Court held in Gerstein and reaffirmed in Schall, a state is free to incorporate
probable cause determinations into existing pre-trial proceedings which, by
their very nature, may be delayed for a reasonable period of time, in order to
provide an arrestee with *50 additional constitutional protections and
benefits and assure efficient operation of the criminal justice system. Because
neither the district court nor the Court of Appeals in
this case allowed any reasonable delay occurring as the result of incorporating
such hearings into existing procedures to be taken into account, the order
granting preliminary injunction was erroneous.
Defendants County of Riverside and Cois Byrd therefore request the Court
to reverse the judgment of the Ninth Circuit and the district court.
CONCLUSION
For the foregoing reasons, defendants County of Riverside and Cois
Byrd request the Court to reverse the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.
Date: November 15, 1990.
*1a APPENDIX
California Penal Code
§ 825. The defendant must in all cases be taken
before the magistrate without unnecessary delay, and, in any event, within two
days after his arrest, excluding Sundays and holidays; provided, however, that
when the two days prescribed herein expire at a time when the court in which
the magistrate is sitting is not in session, such time shall be extended to
include the duration of the next
regular court session on the judicial day immediately following.
After such arrest, any attorney at law entitled to practice in the
courts of record of California, may, at the request of
the prisoner or any relative of such prisoner, visit the person so
arrested. Any officer having charge of
the prisoner so arrested who willfully refuses or neglects to allow such attorney
to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow any
attorney to visit the prisoner when proper application is made therefor, shall
forfeit and pay to the party aggrieved the sum of five hundred dollars ($500),
to be recovered by action in any court of competent jurisdiction.
California Penal Code
§ 859. When the defendant is charged with the
commission of a public offense over which the superior court has original
jurisdiction, by a written complaint subscribed under oath and on file in a
court within the county in *2a which the public offense is triable, he
or she shall, without unnecessary delay, be taken before a magistrate of the
court in which the complaint is on file.
The magistrate shall immediately deliver to the defendant a copy of the
complaint, inform the defendant that he or she has the right to have the
assistance of counsel, ask the defendant if he or she desires the assistance of
counsel, and allow the defendant reasonable time to send for counsel. However, in a capital case, the court shall
inform the defendant that the defendant must be represented in court by counsel
at all stages of the preliminary and trial proceedings
and that the representation will be at the defendant's expense if the defendant
is able to employ counsel or at public expense if he or she is unable to employ
counsel, inquire of him or her whether he or she is able to employ counsel and,
if so, whether the defendant desires to employ counsel of the defendant's
choice or to have counsel assigned for him or her, and allow the defendant a
reasonable time to send for his or her chosen or assigned counsel. The magistrate must, upon the request of the
defendant, require a peace officer to take a message to any counsel whom the
defendant may name, in the judicial district in which the court is
situated. The officer shall, without
delay and without a fee, perform that duty.
If the defendant desires and is unable to employ counsel, the court
shall assign counsel to defend him or her; in a capital case, if the defendant
is able to employ counsel and either refuses to employ counsel or appears
without counsel after having had a reasonable time to employ counsel, the court
shall assign counsel to defend him or her.
If it appears that the defendant may be a minor, the magistrate shall
ascertain whether that is the case, and if *3a the magistrate concludes
that it is probable that the defendant is a minor, he or she shall immediately
either notify the parent or guardian of the minor, by telephone or messenger,
of the arrest, or appoint counsel to represent the minor. The prosecuting attorney shall deliver to,
or make accessible for inspection and copying by, the
defendant or counsel, copies of the police, arrest, and crime reports, upon the
first court appearance of counsel, or upon a determination by a magistrate that
the defendant can represent himself or herself. If unavailable to the prosecuting attorney at the time of that
appearance or determination, the reports shall be delivered within two calendar
days. Portions of those reports
containing privileged information need not be disclosed if the defendant or
counsel has been notified that privileged information has not been disclosed.
If the charges against the defendant are dismissed prior to the time the above-
mentioned documents are delivered or made accessible, the prosecuting attorney
need not deliver or make accessible those documents unless otherwise so
compelled by law. The court shall not
dismiss a case because of the failure of the prosecuting attorney to
immediately deliver copies of the reports or to make them accessible for
inspection and copying.
California Penal Code
§ 859b. At the time the defendant appears before the
magistrate for arraignment, if the public offense is a felony to which the
defendant has not pleaded guilty in accordance with Section 859a, the
magistrate, immediately upon the appearance of counsel, or if none *4a
appears, after waiting a reasonable time therefor as provided in Section 859,
shall set a time for the examination of the case and shall allow not less than
two days, excluding Sundays and holidays, for the
district attorney and the defendant to prepare for the examination. The magistrate shall also issue subpoenas,
duly subscribed, for witnesses within the state, required either by the
prosecution or the defense.
Both the defendant and the people have the right to a preliminary
examination at the earliest possible time, and unless both waive that right or
good cause for a continuance is found as provided for in Section 1050, the
preliminary examination shall be held within 10 court days of the date the
defendant is arraigned or pleads, whichever occurs later.
Whenever the defendant is in custody, the magistrate shall dismiss
the complaint if the preliminary examination is set or continued beyond 10
court days from the time of the arraignment or plea and the defendant has
remained in custody for 10 or more court days solely on that complaint, unless
either of the following occur:
(a) The defendant
personally waives his or her right to preliminary examination within the 10
court days.
(b) The prosecution
establishes good cause for a continuance beyond the 10- court-day period.
For purposes of this subdivision, "good cause" includes,
but is not limited to, those cases involving allegations that a violation of
one or more of the sections specified in subdivision
(a) of Section 11165.1 or in Section 11165.6 has occurred and the prosecuting
attorney *5a assigned to the case has another trial, preliminary
hearing, or motion to suppress in progress in that court or another court. Any continuance under this paragraph shall
be limited to a maximum of three additional court days.
If the preliminary examination is set or continued beyond the
10-court-day period, the defendant shall be released pursuant to Section 1318
unless:
(1) The defendant requests
the setting of continuance of the preliminary examination beyond the
10-court-day period.
(2) The defendant is charged
with a capital offense in a cause where the proof is evident and the
presumption great.
(3) A witness necessary
for the preliminary examination is unavailable due to the actions of the
defendant.
(4) The illness of
counsel.
(5) The unexpected
engagement of counsel in a jury trial.
(6) Unforeseen conflicts
of interest which require appointment of new counsel.
The magistrate shall dismiss the complaint if the preliminary
examination is set or continued more than 60 days from the date of the
arraignment or plea, unless the defendant personally waives his or her right to
a preliminary examination within the 60 days.
*6a California Penal Code
§ 991. (a)
If the defendant is in custody at the time he appears before the
magistrate for arraignment and, if the public offense is a misdemeanor to which
the defendant has pleaded not guilty, the magistrate, on motion of counsel for
the defendant or the defendant, shall determine whether there is probable cause
to believe that a public offense has been committed and that the defendant is
guilty thereof.
(b) The determination of
probable cause shall be made immediately unless the court grants a continuance
for good cause not to exceed three court days.
(c) In determining the
existence of probable cause, the magistrate shall consider any warrant of
arrest with supporting affidavits, and the sworn complaint together with any
documents or reports incorporated by reference thereto, which, if based on
information and belief, state the basis for such information, or any other
documents of similar reliability.
(d) If, after examining
these documents, the court determines that there exists probable cause to
believe that the defendant has committed the offense charged in the complaint,
it shall set the matter for trial. If
the court determines that no such probable cause exists, it shall dismiss the
complaint and discharge the defendant.
(e)
Within 15 days of the dismissal of a complaint pursuant to this section
the prosecution may refile the complaint.
A second dismissal pursuant to this section is a bar to any other
prosecution for the same offense.
*7a Fourth Amendment to the United States Constitution
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
United States Constitution, Article III
Section 1. The judicial
Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at stated
Times, receive for their Services, a Compensation, which shall not be
diminished during their Continuance in Office.
Section 2. The judicial
Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall
be made, under their Authority; - to all Cases affecting Ambassadors,
other public Ministers and Counsels; - to all Cases of admiralty and maritime
Jurisdiction; - to Controversies to which the United States shall be a Party; -
to Controversies between two or more States; - between a State and Citizens of
another State; - between Citizens of different States, - between Citizens of
the same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.
*8a In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be a Party, the supreme
Court shall have original Jurisdiction.
In all the other Cases before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said Crimes shall
have been committed; but when not committed within any State, the Trial shall
be at such Place or Places as the Congress may by Law have directed.
BREAKDOWN OF ARRAIGNMENT TIME FOR ARRESTEES IN RIVERSIDE COUNTY
CENTRAL JAIL FOR 72 HOURS BETWEEN 0001 HOURS, SUNDAY, MARCH 19, 1989, THROUGH
2400 HOURS, TUESDAY, MARCH 21, 1989