from the United States District Court for the Northern
District of Mississippi
PETITION FOR REHEARING EN BANC (Opinion: October 24, 2017,
874 F.3d 425)
REAVLEY, HAYNES, and COSTA, Circuit Judges.
M. REAVLEY UNITED STATES CIRCUIT JUDGE.
court having been polled at the request of one of its
members, and a majority of the judges who are in regular
active service and not disqualified not having voted in favor
(Fed. R. App. P. 35 and 5TH Cir. R. 35), the Petition for
Rehearing En Banc is DENIED.
en banc poll, six judges voted in favor of rehearing (Judges
Jones, Smith, Owen, Southwick, Willett, and Ho) and nine
judges voted against rehearing (Chief Judge Stewart and
Judges Dennis, Clement, Prado, Elrod, Haynes, Graves,
Higginson, and Costa).
H. SOUTHWICK, Circuit Judge, joined by EDITH H. JONES, JERRY
E. SMITH, PRISCILLA R. OWEN, DON R. WILLETT, and JAMES C. HO,
Circuit Judges, dissenting from denial of rehearing en banc:
respectfully dissent from our failure to rehear this case en
banc. The panel opinion - for the first time in this or any
circuit - declared that a sheriff violated the Constitution
when an indicted, pretrial detainee was held until the next
regular term of the local criminal court before being
afforded an opportunity to have bail set. A capias warrant
instructed the sheriff to hold her until the term of court,
which was when a judge with authority over that prisoner
would be in the county. The sheriff did so, following a
practice authorized by the state's Supreme Court. There
is no law to the contrary that is established with the
clarity the United States Supreme Court requires under recent
caselaw that was not considered because it postdates the
most basic, my concern is that in assessing the liability of
the County and the sheriff, the panel opinion used precedents
that are inapplicable to the process afforded in this case, a
process drawn from statutes, court rules, and perhaps even
policies of the local judges. I cannot discern how these
defendants had any effect on when this plaintiff was
considered for release. Thus, as to these parties, I believe
the panel was wrong. More relevant to whether to take a case
en banc, what rights prisoners have to be released on bail or
otherwise before trial is a profoundly significant question
due to its implications for individual liberty. The full
court should rework the answer.
with a summary of the Mississippi statutes and court rules
that led to an allegedly unconstitutional detention. Each of
the state's 82 counties is placed into one of 22
districts for circuit courts, the courts handling felony
criminal cases. See Miss. Code Ann. §§
9-7-1 through 9-7-57. Almost all circuit court districts
contain multiple counties. Id. In multi-county
districts, there is not a continuous functioning of the
circuit court. Instead, each county's circuit court is to
schedule at least two court terms per year, which are set by
the circuit judges themselves with notice published annually
by the Mississippi Secretary of State. See §
9-7-3. Choctaw County is in the Fifth Circuit Court District,
consisting of seven counties. § 9-7-19. As shown in the
Secretary of State's publication, Choctaw County's
two circuit court terms are for three weeks each in February
and August. Mississippi Judiciary Directory and Court
Calendar 35 (2017).
Jauch was arrested, court rules required an initial
appearance within 48 hours of arrest for considering probable
cause for the arrest and bail, Miss. Unif. Cir. & Cnty.
Ct. R. 6.03, and a later preliminary hearing to examine
probable cause and reconsider bail, Rule 6.04. These
requirements become moot if a grand jury indicted the
individual before the arrest:
In all cases wherein the defendant shall post bond and is
released from custody, or is allowed release on his/her own
recognizance, or has been indicted by a grand jury, the
defendant shall not be entitled to an initial appearance. A
defendant who has been indicted by a grand jury shall not be
entitled to a preliminary hearing.
Rule 6.05. The plaintiff, Jessica Jauch, had been
indicted before she was arrested. Thus state law directed
that neither an initial appearance nor a preliminary hearing
needed to be held. There is Mississippi caselaw that the
sheriff's office has the responsibility to arrange an
initial appearance or preliminary hearing for one of its
prisoners. See Jones v. State, 841 So.2d 115, 131-32
(Miss. 2003). Because Jauch had been indicted, though, the
sheriff's state-law obligation did not apply to her.
statute Jauch relies upon, Section 99-3-17, which provides
for prompt taking of a prisoner before a magistrate, is the
statutory analog to the court rule on initial appearances.
The Mississippi Supreme Court has held that the court rules
displace any contrary statutes as a matter of separation of
powers. See State v. Delaney,52 So.3d 348, ...