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Jauch v. Choctaw County

United States Court of Appeals, Fifth Circuit

March 29, 2018

JESSICA JAUCH, Plaintiff-Appellant
v.
CHOCTAW COUNTY; CLOYD HALFORD, in his Individual Capacity, Defendants-Appellees

          Appeal from the United States District Court for the Northern District of Mississippi

         ON PETITION FOR REHEARING EN BANC (Opinion: October 24, 2017, 874 F.3d 425)

          Before REAVLEY, HAYNES, and COSTA, Circuit Judges.

          THOMAS M. REAVLEY UNITED STATES CIRCUIT JUDGE.

         The 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.

         In the 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).

          LESLIE 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:

         I 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 panel opinion.

         At its 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.

         I start 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).[1]

         When 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.[2] 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.

         A 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, ...


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