No.

14A493
In the

Supreme Court of the United States

_______________________________

COUNTY OF MARICOPA; JOSEPH M. ARPAIO, Maricopa County Sheriff, in his official

capacity; WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY, in his official
capacity,
Applicants,
v.
ANGEL LOPEZ-VALENZUELA; ISAAC CASTRO-ARMENTA,
Respondents.
_______________________________
Response In Opposition to Application to Stay Judgment Pending Appeal
_______________________________
DIRECTED TO THE HONORABLE ANTHONY KENNEDY,
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT
_______________________________
Daniel Pochoda
ACLU FOUNDATION OF
ARIZONA
3707 N. 7th Street,
Suite 235
Phoenix, AZ 85014
(602) 650-1967

Cecillia D. Wang
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
(415) 343-0775

Counsel for Respondents

Andre I. Segura
Counsel of Record
Steven R. Shapiro
Judy Rabinovitz
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
(212) 549-2676
asegura@aclu.org

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
STATEMENT OF THE CASE....................................................................................... 2
REASONS THE STAY APPLICATION SHOULD BE DENIED ................................ 4
I.

II.

Applicants Have Not Shown a Reasonable Probability that Certiorari Will Be

Granted................................................................................................................ 5
A.

The Ninth Circuits Judgment Is Narrow and Does Not Render Suspect
Any Other Laws .......................................................................................... 5

B.

Applicants Fail To Show an Existing Conflict Between the Ninth Circuit

and Any Other Court .................................................................................. 6

C.

The Ninth Circuit Did Not Misread Salerno or Demore and Even If It
Did, Such a Misreading Would Not Warrant a Grant of Certiorari ...... 9

Applicants Have Not Shown a Fair Prospect of a Reversal of the Judgment

Below ................................................................................................................. 12

III. Applicants Have Made No Showing of Irreparable Harm .............................. 13

IV. The Balance of Equities Tips Entirely Against a Stay .................................... 15
CONCLUSION............................................................................................................. 16

TABLE OF AUTHORITIES
CASES
Am. Ry. Express Co. v. Levee, 263 U.S. 19 (1923) ......................................................... 7
Buchanan v. Evans, 439 U.S. 1360 (1978) .................................................................. 15
Castillo v. Indus. Commn, 520 P.2d 1142 (Ariz. Ct. App. 1974) ................................. 8
Demore v. Kim, 538 U.S. 510 (2003) ........................................................... 9, 10, 11, 14
Florida v. White, 526 U.S. 559 (1999) ........................................................................... 7
Hernandez v. Lynch, 167 P.3d 1264 (Ariz. Ct. App. 2007) ................................... 6, 7, 8
Hollingsworth v. Perry, 558 U.S. 183 (2010) ................................................................ 4
Johnson v. California, 545 U.S. 162 (2005) .................................................................. 7
Lopez-Valenzuela v. Arpaio, No. 11-16487, 2014 WL 5151625
(9th Cir. Oct. 15, 2014) ..................................................................................... passim
State v. Furgal, 161 N.H. 206 (N.H. 2010) ............................................................... 8, 9
United States v. Salerno, 481 U.S. 739 (1987) .................................................... passim
STATUTES
8 U.S.C. 1226(c) ......................................................................................................... 14
28 U.S.C. 1257 ............................................................................................................. 7
Ala. Code 31-13-18(b) .................................................................................................. 6
Ariz. Const. art. II, 22(A)(4)....................................................................................... 2
Ariz. Rev. Stat. 13-3961(A)(5)..................................................................................... 2
Mo. Stat. 544.470(2) .................................................................................................... 6
RULES
S. Ct. R. 10 ............................................................................................................. 10, 12

ii

Pursuant to the Courts order dated November 7, 2014, Respondents

respectfully submit this Response to the Application to Stay Judgment Pending
Appeal [sic] (Stay Application). The Stay Application should be denied because it
does not meet the standard for a stay pending the filing and disposition of a
certiorari petition.
The Court is unlikely to grant certiorari in this case. As a legal matter, the
en banc decision, by a 9-2 vote, from the Ninth Circuit is a narrow and
straightforward application of this Courts controlling opinion on pretrial detention
in United States v. Salerno, 481 U.S. 739 (1987). As a factual matter, the
unprecedented breadth of and total absence of justification for the Arizona law
struck down by the Ninth Circuit makes it sui generis among all the bail laws of the
50 states. The decision below does not invalidate other categorical prohibitions on
bail. To the contrary, the Ninth Circuits decision was expressly limited to the
uniquely unconstitutional features of Proposition 100. For the same reasons, the
Ninth Circuits judgment is unlikely to be reversed. The purported statistics cited
in the Stay Application were not relied upon or even mentioned by Applicants in the
district court or the Ninth Circuit, were not cited or relied upon by the district
court, and do not withstand scrutiny. Finally, Applicants have entirely failed to
prove irreparable harm. Under the Ninth Circuits judgment, Arizona state courts
will now make individualized determinations as to whether an accused individual
poses an unmanageable flight risk, just as they did before Proposition 100 was
passed; those who do pose such a risk will not be released. Weighing heavily on the
1

other side of the scale is the wholesale denial of due process for an unpopular
political minority that the Arizona legislature and electorate have once again
decided to single out without justification. The Stay Application should be denied.
STATEMENT OF THE CASE
Arizonas Proposition 100 imposed a categorical prohibition on bail of
unprecedented breadth. See Lopez-Valenzuela v. Arpaio, No. 11-16487, 2014 WL
5151625, Slip Op. at 29-31 & nn.9-12 (9th Cir. Oct. 15, 2014). It amended the
Arizona state constitution to provide that when there is probable cause to believe
that an accused person has entered or remained in the United States illegally and
if the proof is evident or the presumption great as to the present charge, the
Arizona state courts are forbidden to make an individualized bail assessment but
instead must order the person held without bond. Ariz. Const. art. II, 22(A)(4);
Ariz. Rev. Stat. 13-3961(A)(5). Proposition 100 applied in cases where the
individual was charged with any Class 1 through 4 felonyencompass[ing] an
exceedingly broad range of offenses, including not only serious offenses but also
relatively minor ones. Slip Op. at 23-24.
Contrary to Applicants assertions, the Ninth Circuits ruling is a narrow one
that faithfully applied this Courts precedent on pretrial detention in Salerno and
held, based on the record presented, that Proposition 100 is excessive in relation to
the asserted purpose of addressing flight risk and thus facially unconstitutional.
See id. at 38. The Ninth Circuit rested this conclusion on multiple grounds.

First, the Ninth Circuit noted that, unlike the federal bail statute at issue in
Salerno, Proposition 100 was not limited to a specific category of extremely serious
offenses, but instead encompassed an exceedingly broad range of offenses,
including relatively minor offenses such as unlawful copying of a sound recording
and theft of property worth between $3,000 and $4,000. Id. at 23-24.
Second, the Ninth Circuit found that the record did not support Applicants
assertion that Proposition 100 addressed a particularly acute problem
necessitating the extreme measure of a categorical prohibition on bail. Id. at 21-23.
While not treating this failure of proof as dispositive, the en banc court explained
that the absence of any credible showing that the Proposition 100 laws addressed a
particularly acute problem is one factor quite relevant to demonstrating that the
laws are not carefully limited. Id. at 23 (emphasis added).
Third, the Ninth Circuit held that the district court erred in accepting
Applicants rationale that it was a logical assumption on the part of the Arizona
legislature that all undocumented immigrants pose such a great flight risk that a
categorical prohibition on bail is necessary and no undocumented immigrant
charged with a covered crime can even be considered for bail. Id. at 19.
Fourth, the Ninth Circuit concluded, after reviewing the record, that the
credible evidence points in exactly the opposite direction. For example, the record
shows that there were undocumented immigrants arrested prior to Proposition 100
who were granted bail or released on their own recognizance, and who appeared as
directed by the state courts. See id. at 25. And yet, as the Ninth Circuit noted, even

these individuals were needlessly remanded into state custody following

Proposition 100s passage. Id.
Fifth, and relatedly, the Ninth Circuit held that Proposition 100 imposes
punishment before trial in violation of the Due Process Clause because of the severe
lack of fit between the asserted purpose and the regulation. Id. at 37 (emphasis in
original). Even if we assume that a problem exists, the Ninth Circuit wrote,
Proposition 100 employs a profoundly overbroad irrebuttable presumption, rather
than an individualized evaluation. Id.
In short, the Ninth Circuit carefully rested its ruling on the unique features
of Proposition 100 and the record presented in this case. What it did not do is strike
down all categorical prohibitions on bail or call into question the bail laws of 40
other states, as Applicants claim. See Stay Application at 4.
REASONS THE STAY APPLICATION SHOULD BE DENIED
The Ninth Circuits judgment should not be stayed pending the filing and
disposition of a petition for a writ of certiorari. As demonstrated below, Applicants
have failed to meet their heavy burden of showing: (1) a reasonable probability
that four Justices will consider the issue sufficiently meritorious to grant certiorari;
(2) a fair prospect that a majority of the Court will vote to reverse the judgment
below; and (3) a likelihood that irreparable harm will result from the denial of a
stay. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). In a close case, the Court
assesses the balance of equities and weighs the relative harms to the applicant and
the respondent. Id. Applicants fall short at every stage of the analysis.
4

I.

Applicants Have Not Shown a Reasonable Probability that Certiorari

Will Be Granted.
A.

The Ninth Circuits Judgment Is Narrow and Does Not Render

Suspect Any Other Laws.

Applicants assert that the Ninth Circuits judgment render[s] suspect the
bail laws of 40 states in an attempt to buttress their claim that the Court is likely to
grant certiorari in this case. Stay Application at 4. They then cite various state
bail provisions that lack the broad reach and undifferentiated scope of Proposition
100. One group applies to a circumscribed list of serious crimes, including capital
offenses, offenses punishable by life imprisonment, treason, offenses involving
dangerous weapons, certain serious sexual offenses, or certain drug offenses. See
id. at 4-5. Another group applies to defendants who have a felony record or are
charged with committing a felony on bail or parole or who have a record of escape
from prison. See id. at 5.
None of these bail provisions is addressed by the Ninth Circuits decision.
Indeed, as Applicants acknowledge, the Ninth Circuit expressly did not address the
broader, open question of whether any other laws categorically denying bail in
noncapital cases would violate the Due Process Clause. See Slip Op. at 26. Indeed,
the Ninth Circuit assume[d] without deciding that a categorical denial of bail
would be constitutional if it were adequately tailored. Id. at 27 n.8. Rather than
answer the broader question unnecessarily, the Ninth Circuit narrowly answered
the question before itwhether Arizonas Proposition 100 was excessive in relation

to the asserted purpose: In sum, we hold that the Proposition 100 laws do not
satisfy the heightened substantive due process scrutiny Salerno requires. Although
the state has a compelling interest in assuring that arrestees, including
undocumented immigrants, appear for trial, Proposition 100 is not carefully limited
to serve that interest. Slip Op. at 32.
The impact of the Ninth Circuits decision is further limited by the fact that
Proposition 100 is unprecedented and unique among the bail laws of the 50 states
and the United States. Only two other states, Alabama and Missouri, have enacted
bail laws that are remotely similar to Proposition 100 in targeting alleged
undocumented immigrants. As Applicants note, Alabama has formally
acknowledged in litigation that its categorical prohibition on bail for undocumented
immigrants, Ala. Code 31-13-18(b), cannot constitutionally be applied to
individuals charged with non-capital offenses. See Slip Op. at 31 n.12. And
Missouris law, Mo. Stat. 544.470(2), has been held by at least one Missouri state
court to violate both the Missouri and U.S. Constitutions. See Corrected Brief of
Appellants, No. 11-16487, Doc. 22-3, Addendum B at B-6 to B-7 (9th Cir. Oct. 28,
2011).
B.

Applicants Fail To Show an Existing Conflict Between the

Ninth Circuit and Any Other Court.

Applicants also point to a purported conflict between the Ninth Circuits

decision and an intermediate Arizona state appellate court decision, Hernandez v.
Lynch, 167 P.3d 1264 (Ariz. Ct. App. 2007). Stay Application at 2, 8-9. The

existence of the Hernandez decision does not make the instant case certworthy.
While a ground for certiorari may exist when there is a direct conflict on a federal
question between the decision of a U.S. court of appeals and the highest court of a
state, see, e.g., Johnson v. California, 545 U.S. 162, 164 (2005); Florida v. White, 526
U.S. 559, 562-63 (1999), Hernandez is not a decision by Arizonas highest state
court.
Moreover, the authorities Applicants cite, Stay Application at 8-9, provide
only that a decision by a state intermediate court may be reviewed on certiorari by
this Court when the highest state court has declined to review it. See Am. Ry.
Express Co. v. Levee, 263 U.S. 19, 20-21 (1923); 28 U.S.C. 1257. 1 In this case,
however, Applicants do not seek review of an intermediate state appellate court
decision pursuant to Section 1257, but of a Ninth Circuit decision. Applicants cite
no precedent for a grant of certiorari of a federal court of appeals decision, the issue
presented here, merely because it conflicts with an earlier decision by an
intermediate state appellate court.
More fundamentally, Applicants have made no showing that there is actually
a conflict between the Arizona state courts and the Ninth Circuit. Hernandez is a

Section 1257 provides: Final judgments or decrees rendered by the highest court
of a State in which a decision could be had, may be reviewed by the Supreme Court
by writ of certiorari where the validity of a treaty or statute of the United States is
drawn in question or where the validity of a statute of any State is drawn in
question on the ground of its being repugnant to the Constitution, treaties, or laws
of the United States, or where any title, right, privilege, or immunity is specially set
up or claimed under the Constitution or the treaties or statutes of, or any
commission held or authority exercised under, the United States. 28 U.S.C.
1257(a).
1

decision by an Arizona intermediate appellate court that predates the Ninth

Circuits decision. The Arizona Supreme Court denied discretionary review of
Hernandez, but did not take up the merits of Proposition 100s constitutionality.
Absent a ruling from the Arizona Supreme Court, Hernandez is not even binding on
other intermediate appellate courts in the state, which can reach a different
conclusion where compelling reasons exist to do so (which certainly may be the case
here given the Ninth Circuits subsequent well-reasoned decision). See Castillo v.
Indus. Commn, 520 P.2d 1142, 1148 (Ariz. Ct. App. 1974). Even more to the point,
Applicants make no showing that the Arizona courts are continuing to follow the
state appellate panel in Hernandez, rather than the Ninth Circuits subsequent en
banc decision. To the contrary, Applicants represent that the state courts have
already scheduled bail hearings to begin November 17, 2014, the week after the
Ninth Circuit mandate was to issue. See Stay Application at 20. Thus, there is
every indication that the Arizona state courts have decided to follow the Ninth
Circuits ruling, effectively resolving the alleged conflict, at least so far as the record
now indicates.
Applicants assertion of a conflict between the Ninth Circuit and the New
Hampshire Supreme Courts decision in State v. Furgal, 161 N.H. 206 (N.H. 2010),
is also misplaced. In Furgal, the Supreme Court of New Hampshire upheld a far
narrower bail law than Proposition 100. The New Hampshire bail law provided
only that if a defendant has been charged with an offense punishable by life
imprisonment and if the proof is evident or the presumption great that the

defendant will be convicted, then he must be held without bail pending trial. Id. at
210. The state court rejected the defendants argument that Salerno permitted
denial of bail only if there were individualized findings as to dangerousness and
noted that this Court in Salerno was considering the bail law before it without
requiring individualized hearings as an absolute matter. See id. at 214. Nothing in
Furgal conflicts with the Ninth Circuits opinion in the instant case. As set forth
above in the Statement of the Case, the Ninth Circuit did not hold that Salerno
requires individualized bail hearings in all circumstances. To the contrary, it issued
a narrow ruling striking down Arizonas Proposition 100 because of its
unprecedented overbreadthi.e., the absence of evidence that the Arizona law
addressed an actual problem with a categorical and unmanageable flight risk, and
the severe lack of fit between the asserted purpose and the regulation. Slip Op. at
37 (emphasis in original).
C.

The Ninth Circuit Did Not Misread Salerno or Demore and

Even If It Did, Such a Misreading Would Not Warrant a Grant
of Certiorari.

Finally, Applicants assert that it is likely that the Court will grant the writ
because the Ninth Circuits holdings misread Salerno and are incompatible with
this Courts subsequent decision in Demore v. Kim. Stay Application at 11. This
assertion mischaracterizes the Ninth Circuit opinion and, in any event, does not
raise a valid basis for a grant of certiorari.

First, the Ninth Circuit properly applied this Courts Salerno decision.
Applicants argument hinges entirely on the notion that the Ninth Circuit struck
down all categorical prohibitions on bail. But as already set forth above, the Ninth
Circuit did not interpret Salerno as requiring individualized bail hearings in all
cases. In an effort to make this argument stick, Applicants resort to a
mischaracterization of Respondents argument as asserting a right to bail when
the proof is evident or the presumption great that the person is guilty of the
[serious felony] offense charged and there is probable cause to believe that the
person has entered or remained in the United States illegally. Stay Application at
12 (emphasis added). But the Ninth Circuit correctly noted that the asserted
liberty interest is not the right to bail; it is the liberty interest in an individualized
hearing on flight risk. See Slip Op. at 16-17. In order to strip a category of criminal
defendants of an individualized hearing on flight risk, the Ninth Circuit held,
Salerno requires that the law not be excessive in relation to the asserted purpose.
See id. This was a straightforward application of Salerno. On the record before it,
the Ninth Circuit held that Arizonas Proposition 100 failed. Even if the Ninth
Circuit misapplied Salerno, which it did not, it is well-established that [a]
petition for a writ of certiorari is rarely granted when the asserted error consists of
erroneous factual findings or the misapplication of a properly stated rule of law. S.
Ct. R. 10.
Applicants also assert that the Ninth Circuits decision is in conflict with
Demore v. Kim, 538 U.S. 510 (2003). But as Applicants acknowledge, Demore

10

addressed a specific federal statute addressing the detention of certain non-citizens

pending removal proceedings, not a criminal pretrial detention law. The Ninth
Circuit rightly rejected Applicants attempt in this litigation to borrow the factual
record from Demore to present a post-hoc justification for a very different law.
Whereas Demore involved the risk of flight pending immigration removal
proceedings for a class of non-citizens who had already been convicted of serious
crimes, see Slip Op. at 32 (citing Demore, 538 U.S. at 513), Proposition 100
addresses a wholly distinct question: the risk of flight for a population of
undocumented individuals who are merely charged with crimes, including relatively
minor and non-violent crimes that carry non-custodial sentences. See id. at 23-24,
32, 37. The flight risk calculations for the federal statute in Demore and for
Proposition 100 are therefore completely different.
Moreover, the Ninth Circuit contrasted the significant empirical evidence
relied upon by Congress in enacting the federal statute at issue in Demore, with the
lack of comparable evidence before the legislature that enacted Proposition 100,
emphasizing that there is no evidence that the Proposition 100 laws were adopted
to address a particularly acute problem. Id. at 21 (emphasis added). Indeed, the
Ninth Circuit noted evidence to the contrary. See id. at 27-28 (noting that many
undocumented immigrants have strong ties to their community or do not have a
home abroad); id. at 28-29 (finding no evidence to suggest that Arizonas preProposition 100 extensive bail scheme and the already-available tools for
managing flight risk were inadequate to protect the states compelling interest in

11

ensuring appearance at trial); id. at 35 & n.14 (describing the considerable

evidence of punitive intent found in this record, rather than evidence of flight risk);
see also id. at 42-52 (Nguyen, J., concurring) (finding sufficient evidence
demonstrating that Proposition 100 was motivated by punitive intent).
II.

Applicants Have Not Shown a Fair Prospect of a Reversal of the

Judgment Below.
In asserting that there is a fair prospect that this Court will reverse the

Ninth Circuit, Applicants argue that the Ninth Circuit did not properly weigh the
factual record in holding that Arizona failed to demonstrate the need for Proposition
100. 2 This is not a ground for granting certiorari, see S. Ct. R. 10, much less for
reversal, given the absence of evidence in the factual record that supports
Applicants position, see Slip Op. at 21, 23.
For example, in their Stay Application, Applicants place great weight on a
number of purported statistics cited by then-State Senator Russell Pearce and other
proponents of Proposition 100 that they claim demonstrate the need for the statute.
See Stay Application at 15-18. However, Applicants did not even mention these
statistics in their briefing to the district court or the Ninth Circuit, and the district
court did not rely upon them. Applicants failure to mention these statistics in their
briefing was for good reason, as no support or documentation was ever provided for
This represents a telling tactical shift by Applicants. In applying for a stay in the
Ninth Circuit, Applicants did not make this claim, but rather argued that the Ninth
Circuit should remand to the district court so that Applicants could supplement the
factual record. See Motion to Stay Issuance of Mandate and to Remand to District
Court to Develop the Record, No. 11-16487, Doc. 91 at 6-8 (9th Cir. Oct. 23, 2014).

12

any of these figures. See, e.g., District Ct. Order, No. 08-cv-660, Doc. 246 at 9 (D.
Ariz. May 29, 2011) (No one came forward at the time with evidence to support
[Pearces] claim that people who are unlawfully present in the United States are
categorically more of a flight risk than people who are not unlawfully present, nor
have Defendants in this matter presented evidence to that effect.).
The other sources cited by Applicants also do not bear scrutiny. Applicants
rely on statements made by then-Maricopa County Attorney Andrew Thomas, who
was later disbarred for crimes involving dishonesty. See Stay Application at 15-16.
Indeed, in dismissing these statements, which were relied upon by Judge Tallman
in his dissent, the majority emphasized that [t]he record does not substantiate
Thomas claims . . . . and he is not a credible source. . . . [T]he defendants tellingly
do not even mention them. Slip Op. at 22 n.6. 3
III.

Applicants Have Made No Showing of Irreparable Harm.

Applicants have entirely failed to demonstrate irreparable harm if the Ninth

Circuit mandate issues pending the disposition of a certiorari petition. They begin
by pointing out that Proposition 100 was a core exercise of . . . sovereignty by the
people of Arizona. Stay Application at 19. But Arizonas interest in enforcing a law
Applicants highlight a reference in Thomas statements to the case of Oscar Garcia
Martinez, who committed a violent crime when he returned to the United States
after being deported by the federal government. See Stay Application at 15-16. The
example proves too much. Martinez did not flee the jurisdiction while on bail; he
was deported by the federal government. See Slip Op. at 44 n.3 (Nguyen, J.
concurring). More fundamentally, Respondents have never argued that every
undocumented immigrant should receive bail regardless of the criminal charge and
regardless of individual circumstances. The issue in this case is whether Arizona
can constitutionally deny bail to all undocumented immigrants subject to
Proposition 100.

13

that has been declared unconstitutional by a 9-2 vote of the en banc Ninth Circuit
pales in comparison to the injury that will be suffered by depriving defendants of
their due process right to a bond hearing. If a stay is granted, no one covered by
Proposition 100 will be eligible for bail, even those who do not present a flight risk
or danger to the community. If a stay is denied, Arizona will simply be required to
provide the individualized bail hearings that are the norm in the criminal justice
system while it pursues its petition for certiorari.
Applicants then go on to rely once again on a mischaracterization of this
Courts precedent by stating: As this Court recognized in Demore, individualized
assessments of illegal immigrants for flight risk are notoriously ineffective. Stay
Application at 19. But Demore made no such broad pronouncement. As recognized
by the en banc panel majority, Demore merely upheld a federal immigration
detention statute, 8 U.S.C. 1226(c), against a due process challenge based upon
the record in that case. See Slip Op. at 21. Moreover, Demore did not apply the
heightened level of scrutiny required here. See id. at 32. Thus, to say that Demore
reached the constitutional questions raised by Arizonas Proposition 100which
applies to an entirely different population in the distinct context of criminal
prosecutions for a wide range of offenses including relatively minor offenses
carrying noncustodial sentencesis simply wrong. See id. at 21-24, 31-32.
Applicants also contend that they will suffer irreparable harm because of the
administrative burdens of [r]eprocessing criminal defendants who are entitled to
individualized bail hearings under the Ninth Circuits ruling. Stay Application at

14

21. This argument holds no water as a matter of logic or practicality. See, e.g.,
Buchanan v. Evans, 439 U.S. 1360, 1365 (1978) (Brennan, J., in chambers) (denying
application for stay of Third Circuits judgment and mandate affirming a districtcourt ordered desegregation plan where [a]pplicants strenuously urge[d] that
irreparable financial and administrative difficulties [would] attend upon the
District Courts order). Providing any accused person with a bail hearing entails
some administrative burden to the prosecution; by Applicants reasoning, Arizona
could avoid an irreparable harm by denying bail without a hearing to all criminal
defendants. In any event, as a practical matter, how the Arizona court system goes
about implementing the Ninth Circuit ruling in an orderly fashion should be
addressed by the district court on remand in the first instance. See Slip Op. at 39.
IV.

The Balance of Equities Tips Entirely Against a Stay.

This is not a close case, and thus the Court need not balance the equities.

But if it did, they would tip entirely against issuance of a stay of the Ninth Circuit
judgment. A stay of the mandate would subject accused persons in Arizona to a
pretrial detention law that has been held by an en banc panel of the Ninth Circuit
to violate the Due Process Clausecertainly a substantial injury to the nonmoving party. 4 And on the other side of the balance, the only conceivable harm to
Applicants argument that this admitted infringement on liberty is somehow
mitigated by a defendants ability to request a hearing is illusory. As the Ninth
Circuit explained, at this hearing the arrestee can dispute whether there is
probable cause that he or she entered or remained in the United States illegally, but
may not refute Proposition 100s irrebuttable presumption that he or she poses an
unmanageable flight risk. Slip Op. at 6 (emphasis added). Once the court
determines that there is probable cause to believe an arrestee has entered or

15