Taphia Williams v. Thomas Dart ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2108
TAPHIA WILLIAMS, et al., individually
and on behalf of those similarly situated,
Plaintiffs-Appellants,
v.
THOMAS J. DART, Cook County Sheriff, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-01456 — Harry D. Leinenweber, Judge.
____________________
ARGUED MARCH 31, 2020 — DECIDED JULY 23, 2020
____________________
Before KANNE, WOOD, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. “In our society,” the Supreme
Court has said, “liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.” United
States v. Salerno, 481 U.S. 739, 755 (1987). Not as a statistical
matter, says the Bureau of Justice Statistics. See Jail Inmates in
2018, at 5 (2020), available at bjs.gov/content/pub/pdf/ji18.pdf
(in 2018, 490,000 jail inmates (two thirds of total) had not been
2 No. 19-2108
convicted of offense). To better enforce the norm and police
the exceptions more carefully, Cook County, Illinois, like
other jurisdictions across the country, recently revised its pre-
trial detention policies in favor of broader access to pretrial
release.
The plaintiffs in this case allege that defendant Thomas
Dart, the Cook County Sheriff, disagreed with the revised pol-
icies and substituted in their place policies of his own making
that denied them release. Plaintiffs are nine black residents of
Chicago, arrested and charged with felonies, whom the Cook
County trial courts admitted to bail subject to electronic mon-
itoring supervised by the Sheriff. According to plaintiffs, the
Sheriff independently reviewed plaintiffs’ bail orders and de-
cided they should not be released on those conditions. As a
result, plaintiffs were neither released on monitoring nor left
at liberty. Instead, they languished in the Sheriff’s jail for up
to two weeks after the bail orders were issued while their fam-
ilies and lawyers scrambled to find out what was happening.
Motions for rules to show cause were filed. Two plaintiffs
were released in the dead of night, hours before the motion
hearings could be held.
Plaintiffs allege federal constitutional and state-law claims
on behalf of the nine named plaintiffs and a putative class of
other arrestees whose bail orders were disregarded by the
Sheriff. After three rounds of pleading, the district court dis-
missed most of the suit for failure to state a claim. Plaintiffs
abandoned the balance and took this appeal. We reverse in
part and remand. Plaintiffs’ allegations are sufficient to pro-
ceed on federal constitutional claims for wrongful pretrial de-
tention and denial of equal protection, and on state-law
claims for contempt of court.
No. 19-2108 3
I. Factual and Procedural Background
A. Plaintiffs’ Allegations
Because the case comes to us on bare pleadings, we as-
sume the following facts to be true and state them in the light
most favorable to plaintiffs. Manistee Apartments, LLC v. City
of Chicago, 844 F.3d 630, 633 (7th Cir. 2016). In September 2017,
with the support of the other branches of government, the
Cook County Circuit Court implemented new pretrial release
policies aimed at reducing the use of cash bail. This was done
for the sake of fairness (poor people cannot afford it) and pub-
lic safety (the most successful robbers and drug dealers can).
For people arrested on felony gun charges, the new policies
resulted in rates of pretrial release subject to electronic moni-
toring that were eleven times higher than before. Before the
reforms, 0.7 percent of persons on release were charged with
a new violent crime before trial. After the reforms, from Sep-
tember 2017 to February 2018, rates of recidivism on the same
or similar charges for people charged with gun felonies rose
but remained low (2.5 percent).
By February 2018, despite the low re-arrest rates in gun
cases, the Sheriff had taken a dim view of these developments.
The Sheriff superintends the Cook County Jail, and since 1989
his office has operated Cook County’s electronic monitoring
program. In a public letter to the president of the Cook
County board of commissioners and in the press, the Sheriff
expressed his view that the wrong people from the wrong
neighborhoods were being released on monitoring. Accord-
ingly, the Sheriff announced, he would begin to “closely scru-
tinize all individuals” ordered released on monitoring by the
courts. “Those who are deemed to be too high a security risk
4 No. 19-2108
. . . will be referred back to the court for further evaluation”
within forty-eight hours.
While this policy debate aired in public, within the con-
fines of the Cook County Jail the Sheriff had already begun
his “administrative review” of the courts’ bail orders and was
refusing to comply with them in cases of his choosing. Con-
trary to the Sheriff’s public statements, plaintiffs allege, no ef-
forts were made to remand detainees to the court within
forty-eight hours or otherwise to make alternative arrange-
ments. Families and nonprofits posted four- and five-figure
bonds on behalf of detainees and then—nothing, for days and
even weeks. No notice or explanation was given to the per-
sons detained or to their lawyers, their families, or anyone
else.
For example: On February 23, 2018 a nonprofit posted
$5,000 bond on behalf of plaintiff Taphia Williams. Sixty hours
later she had not been released. After repeated telephone
calls, a jail officer informed the nonprofit’s agent that Wil-
liams’s case was “under review” and assured him: “Your per-
son will be taken care of in the order that the bond was
posted.” Williams’s counsel filed this lawsuit on the evening
of February 26. Williams was released early the next morning.
This was the first and shortest of these plaintiffs’ confine-
ments.
Plaintiff Tony Mason posted $7,500 bond on February 26
but had not been released as of March 2, when his counsel
moved for a rule to show cause why the Sheriff should not be
held in contempt of the court’s bail order. A hearing on the
motion was set for 9:00 a.m. on March 7. The Sheriff released
Mason at 4:00 a.m., five hours before the hearing. Plaintiff
Gregory Cooper’s story is essentially the same.
No. 19-2108 5
After posting $1,000 bond on his son’s behalf, the father of
plaintiff Xavier Webster was reduced to pleading by text mes-
sage with a policy staffer in the Sheriff’s office before his son
was released nine days later.
Plaintiff Joshua Atwater, having spent a year on the Sher-
iff’s monitoring program already, was re-arrested on Febru-
ary 21 after mistakenly missing a court date. He had bail rein-
stated by the court on the same terms as before on March 6.
The Sheriff did not release him to monitoring until March 12,
on the condition that he have no contact with his five chil-
dren—a release condition not imposed by the court but cut by
the Sheriff from whole cloth.
B. This Lawsuit
Williams filed this lawsuit in the Northern District of Illi-
nois on February 26, 2018, while still in custody, seeking dam-
ages and an injunction, together with a motion to certify a
class of all arrestees who had been, were, or would be ordered
released on monitoring but detained by the Sheriff as a result
of “administrative review.” The other named plaintiffs were
joined as they became known. Defendants are the Sheriff in
his individual and official capacities, and Cook County itself
(only because it pays for the Sheriff’s office, so we will not re-
fer to it again). See Carver v. Sheriff, 324 F.3d 947 (7th Cir. 2003).
On April 12, 2018 plaintiffs filed a second amended com-
plaint pleading Fourth and Fourteenth Amendment claims
under 42 U.S.C. § 1983 and state-law claims for race discrimi-
nation and contempt of court. 740 Ill. Comp. Stat. 23/5; 55 Ill.
Comp. Stat. 5/3-6020; see 28 U.S.C. §§ 1331, 1367. On the Sher-
iff’s motion under Federal Rule of Civil Procedure 12(b)(6),
the district court dismissed plaintiffs’ Fourth Amendment
6 No. 19-2108
claim with prejudice, sustained the procedural due process
claim on the merits and the contempt claim by default, and
dismissed the others with leave to replead. Plaintiffs’ third
amended complaint followed on October 15 with more fac-
tual detail and a substantive due process claim in place of the
Fourth Amendment claim. On the Sheriff’s renewed Rule
12(b)(6) motion, the court dismissed all claims with prejudice
except the procedural due process claim, which it again sus-
tained. The court also took up for the first time plaintiffs’ mo-
tion for class certification, now as to only the surviving claim,
and denied the motion.
Plaintiffs stipulated to dismissal with prejudice of the sur-
viving claim. The district court entered final judgment in the
Sheriff’s favor on May 29, 2019. This appeal followed. Because
plaintiffs have twice confirmed, once in their opening brief
and again at argument, that the stipulated dismissal of the
procedural due process claim was indeed with prejudice to
refiling, we are satisfied they are not attempting an unauthor-
ized interlocutory appeal. See JTC Petrol. v. Piasa Motor Fuels,
190 F.3d 775, 776–77 (7th Cir. 1999). The district court’s judg-
ment was final and our jurisdiction is secure. 28 U.S.C. § 1291.
II. Analysis
We review de novo the district court’s decisions on mo-
tions to dismiss for failure to state a claim under Rule 12(b)(6).
Manistee Apartments, LLC v. City of Chicago, 844 F.3d 630, 633
(7th Cir. 2016). We cannot review its class certification deci-
sion, as we will explain.
A. Fourth Amendment
Plaintiffs’ core claims fit most comfortably within the lan-
guage and jurisprudence of the Fourth Amendment, so we
No. 19-2108 7
devote most of our attention to it. The Fourth Amendment
protects the right of the people to be secure in their persons
against unreasonable seizures. Manuel v. City of Joliet, 137 S.
Ct. 911, 917 (2017). It “establishes ‘the standards and proce-
dures’ governing pretrial detention” in criminal cases. Id. at
914, quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975). The
standard for pretrial detention is probable cause, that is, offi-
cial knowledge of “facts and circumstances sufficient to war-
rant a prudent [person] in believing” the detainee has com-
mitted a criminal offense. Gerstein, 420 U.S. at 111 (quotation
marks omitted). The procedure for pretrial detention, for im-
posing any “extended restraint of liberty” before trial, is a de-
cision by a neutral and detached magistrate rather than a law
enforcement officer. Id. at 114.
This case is not about the probable cause standard. No one
in this case disputes the existence of probable cause to detain
each plaintiff. The dispute is over procedure. The plaintiffs al-
leged that, by conducting independent reviews of the courts’
bail orders and on that basis continuing to hold persons al-
ready admitted to bail without purpose or plan for their re-
lease, the Sheriff arrogated to himself a decision that was not
his to make. These allegations stated a claim under the Fourth
Amendment.
1. The Fourth Amendment Applies
The district court held that the Fourth Amendment does
not apply because probable cause was uncontested and pre-
trial “conditions of confinement” are governed by the Due
Process Clause, quoting Lopez v. City of Chicago, 464 F.3d 711,
719 (7th Cir. 2006). As applied to plaintiffs’ complaint (which
is not really about the conditions of their confinement in the
8 No. 19-2108
Sheriff’s jail, but the fact of their confinement), this earlier di-
vision of labor in our circuit’s case law did not survive the
Supreme Court’s decision in Manuel. After remand from the
Supreme Court, “wrongful pretrial custody” was the claim
sustained under the Fourth Amendment. Manuel v. City of Jo-
liet, 903 F.3d 667, 669 (7th Cir. 2018).
Wrongful pretrial custody is what plaintiffs complain of
here. If plaintiffs’ custody was wrongful, it was the Fourth
Amendment that made it so, whether for want of probable
cause, as in Manuel, or for want of a neutral decisionmaker, as
in Gerstein, where the Court “decided some four decades ago
that a claim challenging pretrial detention fell within the
scope of the Fourth Amendment.” Manuel, 137 S. Ct. at 917;
see also Albright v. Oliver, 510 U.S. 266, 274 (1994) (plurality
opinion) (“The Framers considered the matter of pretrial dep-
rivations of liberty and drafted the Fourth Amendment to ad-
dress it.”); id. at 290 (Souter, J., concurring in the judgment)
(“it is not surprising that rules of recovery for such harms
have naturally coalesced under the Fourth Amendment”).
2. Pretrial Detention Requires a Neutral Decisionmaker
On appeal, and after Manuel, the Sheriff does not argue
that plaintiffs’ Fourth Amendment claim is precluded by the
Due Process Clause; he argues the claim fails on its merits.
The Sheriff agrees that Gerstein requires “a judicial determi-
nation of probable cause as a prerequisite to extended re-
straint of liberty following arrest.” 420 U.S. at 114. He points
out that each plaintiff received just that. Whether, for how
long, and at whose behest plaintiffs were detained thereafter
are simply not matters of Fourth Amendment significance, ac-
cording to the Sheriff.
No. 19-2108 9
We doubt the Sheriff would push this argument to the hilt.
He could not plausibly argue the Fourth Amendment would
pose no obstacle to his detention of plaintiffs after a non-pros-
ecution decision on the same charges—or an acquittal, or a
conviction. A court’s bail orders are of the same stripe. We
have consistently accorded such orders Fourth Amendment
significance, though without detailed explanations. See Driver
v. Marion County Sheriff, 859 F.3d 489, 491 (7th Cir. 2017) (re-
versing partial denial of certification of classes of detainees
held unreasonably long times after release orders); Harper v.
Sheriff, 581 F.3d 511, 514–15 (7th Cir. 2009) (reversing grant of
class certification; constitutionality of prolonged detention af-
ter bond posted would depend on individual circumstances
not suitable for class), citing Chortek v. City of Milwaukee,
356 F.3d 740, 747 (7th Cir. 2004), and Lewis v. O’Grady,
853 F.2d 1366, 1370 (7th Cir. 1988); United States v. Holmes,
452 F.2d 249, 261 (7th Cir. 1971) (Stevens, J.) (re-arrest of de-
fendant on bail violated Fourth Amendment), citing Carlson v.
Landon, 342 U.S. 524, 546–47 (1952). It is appropriate here to
explain why.
First, a core function of the Fourth Amendment is to put
neutral decision-makers between unchecked official discre-
tion and invasions of private liberty by search or seizure. Lo-
Ji Sales v. New York, 442 U.S. 319, 326–27 (1979); Camara v. Mu-
nicipal Court, 387 U.S. 523, 532–33 (1967). Gerstein performs
this function explicitly. Under the law disapproved there, “a
person charged by information could be detained for a sub-
stantial period solely on the decision of a prosecutor.”
420 U.S. at 106. The law’s fault lay not in letting the prosecutor
reach “a conscientious decision that the evidence warrants
prosecution,” or determine probable cause in the abstract. Id.
at 117; see id. at 119. It lay in letting the prosecutor decide to
10 No. 19-2108
“imperil the suspect’s job, interrupt his source of income, and
impair his family relationships” by “prolonged detention” be-
fore trial, or even to subject him to pretrial release on “bur-
densome conditions that effect a significant restraint of lib-
erty.” Id at 114. “The awful instruments of the criminal law
cannot be entrusted to a single functionary,” id. at 118, quot-
ing McNabb v. United States, 318 U.S. 332, 343 (1943), especially
one “engaged in the often competitive enterprise of ferreting
out crime.” Id. at 113, quoting Johnson v. United States, 333 U.S.
10, 14 (1948).
In this case, plaintiffs allege that, in place of court-ordered
release on specified terms, the Sheriff substituted “prolonged
detentions” as well as “significant restraints” on pretrial re-
lease of his own devising. The practical result was that his sole
exercise of discretion caused the jailing of each plaintiff for
three to fourteen days. Those decisions, say plaintiffs, imper-
iled plaintiff Marcus Johnson’s education and impaired plain-
tiff Joshua Atwater’s family relationships, for example.
The teaching of Gerstein is unmistakable: these decisions
were not the Sheriff’s to make. “When the stakes are this high,
the detached judgment of a neutral magistrate is essential if
the Fourth Amendment is to furnish meaningful protection
from unfounded interference with liberty.” 420 U.S. at 114.
3. “Exhaustion” of Probable Cause
Second, there is another, less direct path to the same con-
clusion, the course of which is indicated by language in other
cases and roughly by plaintiffs’ seemingly inconsistent argu-
ments that the Sheriff imposed an unconstitutional “degree”
of seizure on them or “re-seized them without probable
No. 19-2108 11
cause.” These are not two inconsistent arguments but two im-
precise expressions of the same argument (neither of which is
therefore waived, pace the Sheriff), as follows.
It is axiomatic that seizures have purposes. When those
purposes are spent, further seizure is unreasonable. See Ari-
zona v. Johnson, 555 U.S. 323, 333 (2009); Terry v. Ohio, 392 U.S.
1, 19 (1968), citing Warden v. Hayden, 387 U.S. 294, 310 (1967)
(Fortas, J., concurring); Strand v. Minchuk, 910 F.3d 909, 915
(7th Cir. 2018). At the time of the founding and still today, the
primary purpose of an arrest is to ensure the arrestee appears
to answer charges. This purpose is accomplished by bringing
the arrestee promptly before the court so that it may issue one
of three orders: discharge, commitment, or bail. See Virginia v.
Moore, 553 U.S. 164, 173 (2008); Gerstein, 420 U.S. at 114–15 &
n.14, citing among others 1 Matthew Hale, Pleas of the Crown
583–86, 589–90 (1736), and 2 Hale, supra, at 77, 81, 95, 121; Al-
bright, 510 U.S. at 278 (Ginsburg, J., concurring), citing among
others 3 William Blackstone, Commentaries *290; County of Riv-
erside v. McLaughlin, 500 U.S. 44, 61 (1991) (Scalia, J., dissent-
ing), citing among many others 2 Hale, supra, at 95 n.13 (1847)
(1736). The arresting authority itself may accomplish the same
purpose only if there is no prospect of pretrial detention or
burdensome pretrial release conditions. E.g., Portis v. City of
Chicago, 613 F.3d 702, 703–05 (7th Cir. 2010); see also 4 Black-
stone, supra, at *297 (magistrates, not peace officers, under
duty to bail).
Once the arrestee appears before the court, the purpose of
the initial seizure has been accomplished. See Albright,
510 U.S. at 278 (Ginsburg, J., concurring) (purpose “equally
answered” by detention or bail), quoting 3 Blackstone, supra,
at *290. Further seizure requires a court order or new cause;
12 No. 19-2108
the original probable cause determination is no justification.
See Gerstein, 420 U.S. at 114 n.14 (“a gaoler will expect a Mit-
timus for his warrant of detaining”), quoting 1 Hale, supra, at
590 (1736); County of Riverside, 500 U.S. at 61 (Scalia, J., dissent-
ing) (“needed warrant for further detention”); United States v.
Holmes, 452 F.2d 249, 261 (7th Cir. 1971) (Stevens, J.) (“[A] va-
riety of valid causes for a rearrest of a person admitted to bail
may exist, but . . . continuing knowledge of his possible guilt
of the offense charged . . . is not itself sufficient”), citing Carl-
son v. Landon, 342 U.S. 524, 546–47 (1952); 4 Blackstone, supra,
at *300 (“if the offence be not bailable, or the party cannot find
bail, he is to be committed to the county gaol by the mittimus
of the justice”). In formal terms, the original probable cause
determination is said to have been “exhausted.” Carlson,
342 U.S. at 546 (reversing denial of habeas corpus to detainee
released on bail then re-arrested under original warrant), cit-
ing United States ex rel. Heikkinen v. Gordon, 190 F.2d 16, 19 (8th
Cir. 1951) (“Ordinarily in criminal cases, where one has been
released on bail he can not be rearrested in the same jurisdic-
tion on the same charge on which he was originally ar-
rested.”).
In this case, no one disputes “the continuing existence of
‘probable cause’” to believe plaintiffs committed the offenses
charged. Holmes, 452 F.2d at 261. Once plaintiffs appeared be-
fore the court, however, such probable cause ceased to be a
justification for the Sheriff’s unilateral seizure. See id. Put dif-
ferently, the original probable cause was “exhausted” by the
courts’ bail orders. Carlson, 342 U.S. at 546. This is the true
sense of plaintiffs’ “degree of seizure” and “reseizure without
probable cause” characterizations. It is only another way of
expressing our original conclusion: courts, not sheriffs, make
pretrial detention decisions.
No. 19-2108 13
4. Reasonable Administrative Delay?
On the principle that bail orders terminate law enforce-
ment’s authority to seize on the same charges, courts tolerate
only brief and reasonable administrative delay by a jailer in
processing the release of an arrestee admitted to bail. In Driver
v. Marion County Sheriff, reversing a denial of class certifica-
tion, we addressed a proposed class of Fourth Amendment
plaintiffs “composed of persons for whom legal authority for
detention has ceased, whether by acquittal after trial, release
on recognizance bond, completion of jail time in the sentence,
or otherwise.” 859 F.3d 489, 491 (7th Cir. 2017). As to that
class, further detention was lawful for only such time as rea-
sonably needed “to merely process the release.” Id. In Harper
v. Sheriff of Cook County, reversing a grant of class certification,
we observed similarly that the constitutionality of “holding
detainees after bond has been posted” depended on “whether
the length of the delay between the time the Sheriff was noti-
fied that bond had been posted and the time that the detainee
was released was reasonable in any given case.” 581 F.3d 511,
514–15 (7th Cir. 2009).
In this case, there is no suggestion that the Sheriff was tak-
ing any steps, of any kind or at any speed, to process plain-
tiffs’ release. It was precisely his opposition to their release
that motivated his unilateral decision to continue their deten-
tion. These decisions cannot be justified on the basis of admin-
istrative delay.
5. “Their Surety’s Friendly Custody”
In terms of Fourth Amendment doctrine, there is a further
wrinkle, however. Plaintiffs allege that the Sheriff was their
wrongful jailer, but he was also their rightful “surety,” so to
14 No. 19-2108
speak, as the administrator of the electronic monitoring pro-
gram to which they had been admitted. The relationship was
custodial either way. “[H]e that is bailed, is in supposition of
law still in custody,” Albright, 510 U.S. at 278 (Ginsburg, J.,
concurring), quoting 2 Hale, supra, at 124 (1736), though in
the “friendly custody” of his surety “instead of going to gaol.”
Id., quoting 4 Blackstone, supra, at *297. That is not to say the
common law regarded jail and bail as equivalent. To the con-
trary, “to refuse or delay to bail any person bailable is an of-
fense against the liberty of the subject.” 4 Blackstone, supra,
at *297. Nonetheless, it was said: “The bail have their principal
on a string, and may pull the string whenever they please, and
render him in their discharge.” Taylor v. Taintor, 83 U.S.
(16 Wall.) 366, 371–72 (1872). Again: “Whenever they choose
to do so, they may seize him and deliver him up in their dis-
charge; and if that cannot be done at once, they may imprison
him until it can be done.” Id. at 371. And again: “the parties
that take him to bail are in law his keepers, and may re-seize
him to bring him in.” 2 Hale, supra, at 124 (1736).
In this case, the Sheriff argues that plaintiffs had to be
jailed because they “failed to secure enrollment” in his elec-
tronic monitoring program and could not be left at liberty
without contravening the courts’ bail orders. Grant the prem-
ises—setting aside the intolerable elision of the agent (plain-
tiffs did not “fail to secure enrollment;” the Sheriff denied
them enrollment), as well as the irreconcilable conflict with
the Sheriff’s position on the contempt of court claim (where,
as we explain below, the Sheriff argues the courts’ bail orders
were nullities he was free to disregard). Even so, this argu-
ment runs headlong into the limits of the surety’s friendly
custody.
No. 19-2108 15
We agree the Fourth Amendment did not oblige the Sheriff
or anyone else to act as plaintiffs’ surety even under court or-
der. The Fourth Amendment is not a vehicle for enforcing the
terms of state law. Virginia v. Moore, 553 U.S. 164, 178 (2008).
Assuming the Sheriff was thus free to pull the string when-
ever he pleased, having pulled it he was most certainly not
free to keep plaintiffs in custody indefinitely and without ex-
planation. He was free only to deliver plaintiffs at once or to
detain them very briefly until it could be done—to return
them to court after a brief time needed for administrative pur-
poses, as we would say today. Taylor, 83 U.S. at 371; 2 Hale,
supra, at 124 (1736); see generally County of Riverside v.
McLaughlin, 500 U.S. 44 (1991). As explained above, “reasona-
ble administrative delay” is not a plausible characterization of
the Sheriff’s unilateral detention decisions alleged in this case.
6. Conclusion on Fourth Amendment Claims
We emphasize that we have neither the institutional com-
petence nor the desire to manage Cook County’s pretrial re-
lease program. See Courthouse News Serv. v. Brown, 908 F.3d
1063, 1075 (7th Cir. 2018) (court would not manage Cook
County clerk’s office); SKS & Assocs. v. Dart, 619 F.3d 674, 679–
80 (7th Cir. 2010) (court would not manage Cook County evic-
tion docket). Indeed, this court’s scrutiny of proffered admin-
istrative justifications for detention could not be called un-
duly zealous. See Chortek v. City of Milwaukee, 356 F.3d 740,
750 (7th Cir. 2004) (Cudahy, J., concurring) (court accepted
administrative justification for imposing expressly punitive
booking procedure on repeat municipal ordinance violators
resulting in detentions up to 14.5 hours).
The Fourth Amendment does not require any particular
administrative arrangement for processing bail admissions. It
16 No. 19-2108
does require, however, that whatever arrangement is adopted
not result in seizures that are unreasonable in light of the
Fourth Amendment’s history and purposes. “[I]f the Fourth
Amendment is to furnish meaningful protection from un-
founded interference with liberty,” the Sheriff’s flat refusal to
heed the courts’ bail orders alleged in this case, based on noth-
ing more than a policy disagreement and resulting in unjusti-
fied detentions of multiple days, simply will not do. Gerstein,
420 U.S. at 114. Plaintiffs’ complaint stated claims for wrong-
ful pretrial detention under the Fourth Amendment.
B. Substantive Due Process
In holding that the Fourth Amendment did not apply to
the allegations of plaintiffs’ second amended complaint, the
district court suggested that the substantive component of the
Due Process Clause might. On cue, plaintiffs’ third amended
complaint added a substantive due process claim, which the
district court later dismissed for failure to allege conscience-
shocking conduct by the Sheriff. See County of Sacramento v.
Lewis, 523 U.S. 833 (1998).
We agree that plaintiffs cannot obtain relief under the Due
Process Clause, but for a different reason: the Fourth Amend-
ment applies to plaintiffs’ wrongful pretrial detention claims,
so there is no need to resort to the “more generalized notion”
of substantive due process. See Graham v. Connor, 490 U.S. 386,
395 (1989); see also Albright v. Oliver, 510 U.S. 266, 273 (1994)
(plurality opinion) (incorporation “has substituted, in these
areas of criminal procedure, the specific guarantees of the var-
ious provisions of the Bill of Rights . . . for the more general-
ized language” of the Due Process Clause), id. at 288 (Souter,
J., concurring in the judgment) (“the Court has resisted rely-
No. 19-2108 17
ing on the Due Process Clause when doing so would have du-
plicated protection that a more specific constitutional provi-
sion already bestowed”).
Conditions of pretrial confinement, as opposed to the
standards and procedures required to impose it, are subject to
the Due Process Clause’s prohibition on preconviction pun-
ishment. E.g., McCann v. Ogle County, 909 F.3d 881, 886 (7th
Cir. 2018), following Miranda v. County of Lake, 900 F.3d 335
(7th Cir. 2018), following in turn Kingsley v. Hendrickson,
576 U.S. 389 (2015); see also United States v. Salerno, 481 U.S.
739, 746–47 (1987); Bell v. Wolfish, 441 U.S. 520, 535–37 (1979)
(“For under the Due Process Clause, a detainee may not be
punished prior to an adjudication of guilt in accordance with
due process of law.”). Similarly, the Due Process Clause limits
the permissible bases for detention in general. See Salerno,
481 U.S. at 748–49 (danger to community is permissible basis).
But plaintiffs do not challenge conditions in the Sheriff’s jail,
nor the state’s authority to imprison them pending trial as a
general matter. They challenge the fact of their detention as
unreasonable under the circumstances. These claims do not
invoke any substantive prohibitions implied in the Due Pro-
cess Clause.
C. Equal Protection Under Federal and State Law
The Equal Protection Clause of the Fourteenth Amend-
ment prohibits intentional racial discrimination. Washington v.
Davis, 426 U.S. 229, 239 (1976). The parties agree with the dis-
trict court that the applicable state antidiscrimination law
reaches to the same extent.1 Invoking both, plaintiffs allege
1 It is not entirely clear what that law is. The Illinois Constitution con-
tains an equal protection clause, art. I, § 2, which is analyzed the same as
18 No. 19-2108
that the Sheriff targeted them for detention in defiance of the
courts’ bail orders because of their race. The district court dis-
missed both claims, holding that plaintiffs’ complaint did not
contain plausible, nonconclusory allegations of intentional
discrimination. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
We respectfully disagree; we are reviewing only pleadings,
not evidence.
The questions under Federal Rule of Civil Procedure
8(a)(2) are whether the defendant has fair notice of what he
must defend himself against and whether there is some rea-
son to believe he could be found liable at the end of the case.
Freeman v. Metro. Water Reclamation Dist., 927 F.3d 961, 965
(7th Cir. 2019) (per curiam); Luevano v. Wal-Mart Stores, Inc.,
722 F.3d 1014, 1028 (7th Cir. 2013); Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010). Plaintiffs alleged that the
Sheriff targeted them for detention “because of their race.”
That is fair notice. Plaintiffs alleged further that the Sheriff’s
bail review policy “disproportionately targets African Amer-
its federal counterpart, People v. Perea, 807 N.E.2d 26, 38 (Ill. App. 2004),
but “it appears there is no private right of action under Article I, Section
2.” Rodriguez v. City of Chicago, 370 F. Supp. 3d 848, 856 n.4 (N.D. Ill. 2019).
The Illinois Civil Rights Act of 2003, 740 Ill. Comp. Stat. 23/5, creates two
separate causes of action, id. § 5(a)(1)–(2), which have been held only to
provide a state forum for federal rights under Title VI and Title VII, re-
spectively, of the Civil Rights Act of 1964. See McQueen v. City of Chicago,
803 F. Supp. 2d 892, 906–07 (N.D. Ill. 2011), citing among others Ill. Native
Am. Bar Ass’n v. Univ. of Ill., 856 N.E.2d 460, 467 (Ill. App. 2006) (“the Act
was not intended to create new rights”). Plaintiffs pleaded a nonspecific
claim under the statute, but the district court applied the constitutional
standard without objection from either side. This question of state law
may need further attention on remand.
No. 19-2108 19
icans by using charge, prior arrests, and neighborhood to de-
termine eligibility for release.” As a result, more than four in
five of the more than eighty or so people detained by the Sher-
iff after being admitted to bail by the courts were black. At the
pleading stage, those allegations offer sufficient reason to be-
lieve the Sheriff could be found liable for intentional discrim-
ination.
“Outright admissions of impermissible racial motivation
are infrequent.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999). A
policy’s use of facially neutral criteria raises an inference of
impermissible intent when those criteria map so closely onto
racial divisions that they allow racial targeting “with almost
surgical precision.” North Carolina State Conference of the
NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016); see id. at
225 (voting history as proxy for race). We may take judicial
notice that Chicago is consistently ranked among the most ra-
cially segregated cities in the country. EEOC v. Chicago Minia-
ture Lamp Works, 947 F.2d 292, 294 & n.1 (7th Cir. 1991); Clark
v. Universal Builders, Inc., 706 F.2d 204, 211 (7th Cir. 1983); see
also, e.g., Alana Semuels, Chicago’s Awful Divide, The Atlantic
(Mar. 28, 2018), available at theatlantic.com/business/ar-
chive/2018/03/chicago-segregation-poverty/556649. Under
these conditions, neighborhood was a plausible proxy for
race. Arrest history was another, in light of Chicago’s alleged
history of disproportionately arresting African Americans (an
allegation endorsed by the U.S. Department of Justice in
2017). Pending charges may have been another, but the proxy
mechanism was unexplained and the first two are enough.
The district court found plaintiffs’ allegations to be “sus-
picious at first glance.” That is a fair way to articulate the gov-
20 No. 19-2108
erning pleading standard. Supporting “each evidentiary ele-
ment of a legal theory” is for summary judgment or trial, not
a test of the pleadings under Rule 12(b)(6) or 12(c). See Free-
man, 927 F.3d at 965; see also, e.g., Bennett v. Schmidt, 153 F.3d
516, 518–19 (7th Cir. 1998) (no “requirement that complaints
contain all of the evidence needed to prevail at trial”; “resolv-
ing under Rule 12(b)(6) matters that formerly were handled
by summary judgment” is “incompatible with the Rules of
Civil Procedure”). The Sheriff’s contrary arguments go well
beyond plaintiffs’ pleading burden under Rule 8 and cannot
be fairly entertained at this stage.
First, the Sheriff faults plaintiffs for failing to plead “the
nature or severity of their own pending charges or criminal
backgrounds.” We search Rule 8 and cases interpreting it in
vain for a requirement that a plaintiff plead the defendant’s
defenses for him. See Xechem, Inc. v. Bristol-Myers Squibb Co.,
372 F.3d 899, 901 (7th Cir. 2004). The Sheriff would also have
us ignore as “conclusory,” for example, plaintiffs’ allegation
that his “administrative review” policy was based on “racist
assumptions about the likelihood that people from primarily
African American neighborhoods pose a public safety risk or
are likely to reoffend.” Because we can think of no cause of
action that contains as an element proof of racist assumptions
about neighborhoods in Chicago, plaintiffs’ allegation cannot
fairly be characterized as conclusory. See Iqbal, 556 U.S. at 678.
Finally, leaning heavily on Iqbal, the Sheriff argues there are
good reasons to believe his policy was race-neutral in concep-
tion and execution. That may or may not be so, but in any
event “[l]itigants are entitled to discovery before being put to
their proof.” Bennett, 153 F.3d at 519. Iqbal is not a mandate to
weigh a plaintiff’s likelihood of ultimate success at the plead-
ing stage. See 556 U.S. at 678 (“The plausibility standard is not
No. 19-2108 21
akin to a ‘probability requirement’”). Instead it demands
“more than a sheer possibility” of liability. Id. Alleging merely
that defendants “approved” a policy of arresting and detain-
ing “Arab Muslim men” was not enough in that case arising
in the immediate wake of the terrorist attacks of September
11, 2001, id. at 681, but there is a good deal more to plaintiffs’
complaint here. The district court erred in dismissing plain-
tiffs’ equal protection claims on the pleadings.
D. Contempt of Court
Illinois law affords a private right of action to anyone in-
jured by a sheriff’s contumacious refusal to comply with a
court order “legally issued to him.” 55 Ill. Comp. Stat. 5/3-
6020. Plaintiffs allege they were injured by the Sheriff’s con-
tempt of the Cook County courts’ bail orders. The Sheriff’s
motion to dismiss responded that the orders had not been le-
gally issued to him. The district court agreed with the Sheriff,
interpreting the Illinois Bail Act to authorize a court to impose
electronic monitoring as a condition of release but not to order
any particular person to administer the monitoring. On this
theory, the Sheriff did not disobey valid court orders in refus-
ing to administer plaintiffs’ monitoring. The district court’s
interpretation of the Bail Act may or may not have been cor-
rect as matter of state law, but correctly interpreting the stat-
ute was only half the battle—which, when fought to the end,
plaintiffs ought to have won, at least at the pleading stage be-
fore the facts have been developed.
As a general matter, courts have little patience with parties
who decide to violate court orders they disagree with rather
than challenge them through orderly legal channels. The ca-
nonical precedent on this point is Walker v. City of Birmingham,
22 No. 19-2108
388 U.S. 307 (1967), which affirmed contempt of court convic-
tions of leaders of a civil rights march in 1963. A local parade
ordinance imposed restrictions on the proposed march that
the Supreme Court assumed would violate the First Amend-
ment. But city officials had also obtained from a state court a
temporary restraining order against the march and had the
order served on the march organizers. The organizers did not
try to challenge the restraining order (itself of dubious consti-
tutionality). They chose instead to declare publicly their in-
tention to violate the order, and they did so. 388 U.S. at
309−10. Several organizers were convicted of criminal con-
tempt of court. The Supreme Court of the United States af-
firmed those convictions.
The case tested the rule of law as applied to the civil rights
movement. Despite the Court’s pivotal role in protecting the
legal rights of civil rights advocates, the Court held that the
marchers could not avoid the consequences of violating the
court order even if the order violated their First Amendment
rights. The marchers were “on notice that they could not by-
pass orderly judicial review of the injunction before disobey-
ing it.” 388 U.S. at 320. The Court explained: “The rule of law
that Alabama followed in this case reflects a belief that in the
fair administration of justice no man can be judge in his own
case, however exalted his station, however righteous his mo-
tives, and irrespective of his race, color, politics, or religion.
. . . One may sympathize with the petitioners’ impatient com-
mitment to their cause. But respect for judicial process is a
small price to pay for the civilizing hand of law, which alone
can give abiding meaning to constitutional freedom.” Id. at
320−21.
No. 19-2108 23
To avoid the general principle exemplified by Walker, the
Sheriff points to People v. Stinger, 317 N.E.2d 340 (Ill. App.
1974), as addressing the “very issue” in this case. We do not
read Stinger that way. A prosecutor was held in contempt of a
trial court’s order to have grand jury proceedings transcribed
by a court reporter. Id. at 341. The question on appeal from the
contempt finding was not whether the trial court’s order was
“improper” or “merely erroneous” as a matter of law. Id. at
342. The question was whether the prosecutor was free to dis-
obey it, without resort to judicial process, on the theory that
the order had been entered without jurisdiction and was “ut-
terly void.” Id.
An order is not void for lack of jurisdiction when entered
with personal jurisdiction, subject matter jurisdiction, and
“power in the court to decide the particular matter pre-
sented.” Id. The “correctness of the court’s determination has
no bearing upon the initial question of jurisdiction.” Id. As the
Law Lords have put it, “Jurisdiction to go right” is “jurisdic-
tion to go wrong.” Anisminic Ltd. v. Foreign Comp. Comm’n
[1969] 2 AC 147 (HL) 171.
The Illinois Bail Act authorizes a court to impose among
many others the following conditions of release on a person
admitted to bail:
(13) Remain in the custody of such designated
person or organization agreeing to supervise his
release. Such third party custodian shall be re-
sponsible for notifying the court if the defend-
ant fails to observe the conditions of release
which the custodian has agreed to monitor, and
shall be subject to contempt of court for failure
so to notify the court;
24 No. 19-2108
(14) Be placed under direct supervision of the
Pretrial Services Agency, Probation Department
or Court Services Department in a pretrial bond
home supervision capacity with or without the
use of an approved electronic monitoring de-
vice subject to Article 8A of Chapter V of the
Unified Code of Corrections . . . .
725 Ill. Comp. Stat. 5/110-10(b). The Sheriff points out that he
is not a pretrial services agency, probation department, or
court services department, and he says emphatically that he
“did not agree” to administer plaintiffs’ electronic monitoring
under § 10(b)(13).
That is not an issue that we can decide on the pleadings. A
bit of needed context is supplied by a document attached to
plaintiffs’ complaint: an e-mail dated March 10, 2018 from the
Cook County State’s Attorney’s office to the Sheriff’s office, in
response to the Sheriff’s requests that the prosecutors object
on his behalf to bail orders committing persons the Sheriff
deemed “ineligible” to his monitoring program. See William-
son v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The State’s At-
torney explained that the Sheriff had been obeying monitor-
ing orders issued to him as an “agreeable third party” under
§ 110-10(b)(13) “for decades” without objection. If the Sher-
iff’s position had changed, it was his responsibility “to either
follow the court’s orders or seek appropriate relief from the
orders.” But the Sheriff had chosen to litigate neither the mon-
itoring orders themselves nor the show-cause motions filed
by plaintiffs and others (instead releasing them just before the
hearings could be held, as plaintiffs allege). The prosecutors
No. 19-2108 25
said they would start objecting to further issuance of such or-
ders only after the Sheriff had established the orders’ unlaw-
fulness through the “simple legal path available.”
Additional context is supplied by one of the only two bail
orders in the record.2 These documents are central to plain-
tiffs’ complaint and referred to in it, so they may be consid-
ered regarding the sufficiency of the pleadings. E.g., William-
son, 714 F.3d at 436. The order issued in the case of plaintiff
Williams ordered that she “shall remain on Electronic Home
Monitoring” and that “The supervising authority shall be the
Cook County Sheriff’s Office.” Critically: “If the Defendant
cannot be placed on Electronic Home Monitoring for any rea-
son, the Defendant shall be remanded to the court within 72
hours.” (The complaint alleged carefully that Williams “spent
more than 72 hours in custody” after the court ordered that
she be admitted to bail.)
Against this statutory and factual backdrop, our task is to
predict whether the Illinois Supreme Court would agree with
the Cook County State’s Attorney (and presumably the Cook
County trial courts) that the Sheriff was required to seek re-
view and reversal of the trial courts’ bail orders before disre-
garding them; or whether it would agree with the Sheriff that
those orders were written on water. We think the former is
more likely.
2 The bail orders are obviously at the center of all the claims in plain-
tiffs’ complaint, but the only two orders in the record appear as attach-
ments to the Sheriff’s opposition to class certification. They are not cited
by either side on appeal, though the Sheriff’s brief purports to summarize
the contents of more than eighty such orders, all without citation. The lim-
itations of the record in this critical area further illustrate the inadvisability
of dismissing this case on the pleadings.
26 No. 19-2108
Apparently the only legal question is whether the Sheriff
was correctly determined to be an “agreeable third party” un-
der § 110-10(b)(13) of the Bail Act. A trial court acting within
its jurisdiction to set bail in a criminal case would of course
have the power to decide this question. See Stinger,
317 N.E.2d at 342. The trial court would not forfeit this power
by concluding that an “agreement” under the statute had
been established over “decades” of acquiescence and would
not be set aside without some notice to the court. In other
words, if the Sheriff was going to change his policy toward
these court orders, the Illinois courts could reasonably con-
clude as a matter of state law that he needed to bring that sub-
ject up immediately with the courts, not silently refuse to
comply while holding plaintiffs as pawns in an interbranch
policy dispute.
Alternatively, an “agreement” under the statute was argu-
ably conceded by continuing to hold a person admitted to bail
where the option existed to remand her if she could not be
admitted to monitoring “for any reason.” Compare Stinger,
317 N.E.2d at 343 (order void without conceivable statutory
basis and no supervisory authority over independent consti-
tutional officer). Such an interpretation may have been re-
versed on appeal, but we think Illinois requires adherence
even to the reversible interpretations of its trial courts other-
wise acting within their jurisdiction until they are reversed.
See id. at 342, quoting Cummings-Landau Laundry Mach. Co. v.
Koplin, 54 N.E.2d 462, 470 (Ill. 1944).
Whether the Sheriff could in principle be held in contempt
of monitoring orders issued to him under § 110-10(b) is dis-
tinct from the question whether and to what extent he could
be held liable for contempt of any particular order here. We
No. 19-2108 27
are not told and do not yet know how these orders operated
in practice, but the two examples in the record before us seem
to differ materially. The first was issued in plaintiff Williams’s
case, described above. The second was issued in the case of
putative plaintiff class member Deavonte Kimble. Unlike the
Williams order’s mandatory language that Williams “shall”
be placed on monitoring and that the Sheriff “shall” supervise
it, Kimble’s order provided that, “in the event the Defendant
is admitted to bail,” he shall comply with the following con-
dition: “Other as specified: EM as SCOB.” The Sheriff sug-
gests this stands for “electronic monitoring as a special condi-
tion of bond.” Whatever it stands for, Kimble’s order did not
on its face direct the Sheriff to do anything. It did not direct
Kimble’s release or admit him to bail. It is not clear that any-
one but Kimble could be held in contempt of it. But it is also
plausible that these orders should not be considered in isola-
tion, without reference to established practices and expecta-
tions in the high-volume world of the Cook County Circuit
Court.
The specific terms and practical effects of the order or or-
ders issued in each plaintiff’s case no doubt inform proper
analysis of liability, damages, and class certification on plain-
tiffs’ contempt claims. But the district court did not reach
these issues; it held that the Sheriff could never be issued a
valid order under § 110-10(b) at all. We disagree for the rea-
sons we have explained, so these issues will need further con-
sideration on remand.
E. Class Certification
Having granted most of the Sheriff’s motions to dismiss,
the district court considered plaintiffs’ motion for class certi-
fication only as to the sole survivor of its dismissal orders, the
28 No. 19-2108
procedural due process claim. Before taking this appeal,
plaintiffs abandoned that claim by voluntarily dismissing it
with prejudice, so there is nothing in the district court’s certi-
fication denial for us to review that would not result in an ad-
visory opinion. The district court on remand, not this court on
appeal, should be the first to address class certification as to
the claims revived by this decision. See Metro. Milwaukee Ass’n
of Commerce v. County of Milwaukee, 325 F.3d 879, 884 (7th Cir.
2003).
The district court’s judgment of dismissal is AFFIRMED as
to plaintiffs’ due process claims. The judgment is otherwise
REVERSED and the case is REMANDED for further proceed-
ings consistent with this opinion.