Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 1 of 11

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE and BRIAN
GISCLAIR, individually and on behalf of all
others similarly situated,
Case No. 2:17-cv-06197-EEF-MBN
Plaintiffs,
v.
HARRY E. CANTRELL, Magistrate Judge
of Orleans Parish Criminal District Court,
Defendant.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF
MOTION FOR INJUNCTIVE RELIEF
Plaintiffs move this Court for injunctive relief to ensure Judge Cantrell’s compliance with
the Court’s declaratory judgment. Doc. 131 at 21. As explained below, Judge Cantrell has
repeatedly violated this Court’s declaratory judgment on Count Two of Plaintiffs’ Complaint by
requiring secured financial conditions of release despite his unconstitutional financial conflict of
interest in the collection of the resulting bail bond fees. His violations of the declaratory
judgement continue unabated even though the Fifth Circuit has upheld this Court’s declaratory
judgment and issued its mandate.
Judge Cantrell’s failure to implement constitutional pretrial detention practices causes
ongoing, irreparable injuries to the Plaintiff Class. Injunctive relief is now appropriate. See 28
U.S.C. § 2002 (“Further necessary or proper relief based on a declaratory judgment or decree
may be granted, after reasonable notice and hearing, against any adverse party whose rights have
been determined by such judgment.”); Powell v. McCormack, 395 U.S. 486, 499 (1969) (“A

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 2 of 11

declaratory judgment can . . . be used as a predicate to further relief, including an injunction.”
(citing § 2202)); United Teacher Assocs. Ins. Co. v. Union Labor Life Ins. Co., 414 F.3d 558,
570 (5th Cir. 2005) (“This court has held that under § 2202, ‘the prevailing party [in a
declaratory judgment action] may seek further relief in the form of damages or an injunction.’”). 1
Plaintiffs hereby request injunctive relief against Judge Cantrell. Furthermore, Plaintiffs seek
leave to conduct additional discovery against Judge Cantrell and relevant third parties, including
the Judicial Administrator of the Orleans Parish Criminal District Court, in order to produce
evidence in support of this motion.
I.

Factual and Procedural Background
A. This Court’s Declaratory Judgment
On August 6, 2018, this Court granted summary judgment to the Plaintiff Class on both

counts of their complaint. On Plaintiffs’ first claim, the Court issued a declaratory judgment that
Judge Cantrell’s bail practices violate Plaintiffs’ equal protection and due process rights. Doc.
131 at 21. The Court’s judgment stated:
Evidence in the record demonstrates that Judge Cantrell’s procedure does not
include an inquiry into ability to pay or consideration of alternative conditions of
release prior to his setting bail. . . .
In the context of hearings to determine pretrial detention Due Process requires:
1) an inquiry into the arrestee’s ability to pay, including notice of the importance
of this issue and the ability to be heard on this issue;
2) consideration of alternative conditions of release, including findings on the
record applying the clear and convincing standard and explaining why an
arrestee does not qualify for alternative conditions of release; and
3) representative counsel [at such hearings].

1

42 U.S.C. § 1983 bars injunctive relief in the first instance against a “judicial officer” acting in his “judicial
capacity” but excepts cases, like this one, in which a declaratory decree has been violated.

2

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 3 of 11

Doc. 132 at 1–2.
As to Plaintiffs’ second claim, this Court further issued “a declaratory judgment that
Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of
interest when he determines their ability to pay bail and sets the amount of that bail.” Id.
Judge Cantrell subsequently appealed this Court’s judgment, but only as to the second
claim—Plaintiffs’ separate challenge to his financial conflict of interest when determining
conditions of pretrial release. As Judge Cantrell explained to the Fifth Circuit: “Judge Cantrell
accepts the Count I declaratory judgment regarding his bail procedures and has already instituted
new bail procedures in response.” Appellant’s Brief at 4, Caliste v. Cantrell, 18-30954, (5th Cir.
Nov. 15, 2018). 2
Plaintiffs subsequently filed a motion for injunctive relief pursuant to their first claim
because of Judge Cantrell’s noncompliance with the declaratory judgment. See Docs. 138; 1381. The parties agreed on a consent decree requiring compliance with the substance of this
Court’s declaratory judgment on Count One, and this Court entered that injunction on June 13,
2019. Doc. 158.
On August 29, 2019, the Fifth Circuit affirmed this Court’s declaratory judgment on
Plaintiffs’ second claim regarding the financial conflict of interest. The panel explained:
[T]he Orleans Parish magistrate[’s] dual role—the sole source of essential court
funds and an appropriator of them—creates a direct, personal, and substantial
interest in the outcome of decisions that would make the average judge vulnerable
to the temptation . . . not to hold the balance nice, clear, and true. The current
arrangement pushes beyond what due process allows.

2

Attached as Ex. 1.

3

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 4 of 11

Caliste v. Cantrell, No. 18-30954, Slip Op. at *12, 937 F.3d 525, 532 (5th Cir. Aug. 29, 2019)
(quotation and citation omitted). Judge Cantrell sought rehearing en banc, which the Fifth
Circuit denied on October 1, 2019. The mandate issued on Oct. 9, 2019.
B. Judge Cantrell’s Continued Imposition of Secured Financial Conditions
Since this Court issued its declaratory judgment fifteen months ago, Judge Cantrell has
routinely and consistently required secured financial conditions of release in violation of this
Court’s declaratory judgment. He continues to do so on a daily basis. Monthly reporting by the
Orleans Criminal District Court’s Pretrial Services demonstrates that in September 2019, 73% of
arrestees assessed by Pretrial Services had a secured financial condition of release imposed at
First Appearance. See Ex. 2 at 2. And 71% of those assessed had a bond set at $500 or more. Id.
This report includes the results of First Appearance hearings conducted not only by Judge
Cantrell but also the Commissioners of the Magistrate section. Nonetheless, it is illustrative of
the degree to which the OPCDC continues to rely on secured money bond, despite this Court’s
declaratory judgment. Indeed, a review of Judge Cantrell’s First Appearance hearings over a
single week in November 2019 demonstrate Judge Cantrell’s continuing use of secured money
bail. Ex. 3 (providing a sampling of the dockets in which secured money bails were set by Judge
Cantrell in First Appearance hearings from Nov. 18–22, 2019).
One recent example illustrates the continuing constitutional violations. Class member
Miles Moran filed an emergency habeas petition after spending five weeks in jail following a
misdemeanor arrest alleging trespassing and shoplifting from Walgreen’s. Moran v. Gusman,
19-cv-13503 (E.D. La. filed Nov. 7, 2019). Judge Cantrell initially required a secured financial
condition of release of $1,250. At a subsequent hearing, he reduced the amount to $300, despite
uncontroverted evidence that Mr. Moran could not pay that amount either, and he did so without

4

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 5 of 11

making any of the inquiries or findings required by the Constitution or by this Court’s previous
consent decree. 3
In a statutory amendment taking effect in August 2019, the Louisiana Legislature
amended the statute that capped premiums that can be charged by commercial sureties. 2019 La.
Sess. Law Serv. Act 54 (S.B. 108) (WEST). The amendment added this language to the law:
“Notwithstanding any provision of law to the contrary, in no parish covered by the provisions of
this Subsection shall the fee provided for in R.S. 22:822 be more than two dollars for each one
hundred dollars[’] worth of liability underwritten by the commercial surety. commercial surety
fee.” If enforced, this would negate the additional 1% fee that the Orleans Parish Criminal
District Court had been allowed to collect for the commercial surety licensing fee. See La. R.S. §
22:822(A)(2) (“In the parish of Orleans, the fee shall be equal to three dollars for each one
hundred dollars[’] worth of liability underwritten….”) Since Aug. 1, 2019, the OPCDC
presumably has received a fee equal to 0.8% of every commercial surety bond issued in Orleans
Parish. Applying this decrease to the OPCDC’s revenue for 2017, the amount in bond fees
collected would have dropped from $839,006 to $372,519. (See ECF No. 116-2 at 9 (presenting
a table of the OPCDC’s bond fee revenue as a percentage of the JEF.) Yet in that scenario, the
bond fee would have accounted for 9% of OPCDC’s operating budget through that year.

3

Notably, when Mr. Moran’s detention order was brought before this Court on his petition for a writ of habeas
corpus, the Orleans Parish District Attorney’s Office refused the charges against him. Moran v. Gusman, No. 19-cv13503-EEF-MBN, ECF No. 13-1 (E.D. La. filed Nov. 20, 2019). Instead the District Attorney charged Mr. Moran in
municipal court for violations of city ordinances, resulting in Mr. Moran’s release without any satisfaction of
financial conditions.

5

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 6 of 11

II.

Argument
The Plaintiff Class suffers irreparable injury on a daily basis because of Judge Cantrell’s

unconstitutional financial conflict of interest in requiring secured financial conditions of pretrial
release, and injunctive relief is needed to protect their fundamental constitutional rights.
In this case, Plaintiffs followed the dictates of Section 1983 by first seeking declaratory
relief. See 42 U.S.C. § 1983 (barring injunctive relief in the first instance against a “judicial
officer” acting in his “judicial capacity” but providing for injunctive relief in cases, like this one,
in which a declaratory decree has been violated). As the Fifth Circuit panel explained, this
approach gives “state and local officials, like Judge Cantrell, the first crack at reforming their
practices to conform to the Constitution.” Caliste, Slip Op. at *13.
Because Judge Cantrell has continued requiring secured financial conditions of release,
and because state law still requires that the money from those conditions be deposited in the
Judicial Expense Fund that finances his court, he has failed to conform his practices to the
Constitution in light of this Court’s declaratory judgment. This Court should now order him to
do so, as the equitable requirements for injunctive relief are easily satisfied here.
A. Judge Cantrell’s Use of Secured Money Bail Causes Irreparable Injury to
the Plaintiff Class.
The violation of a constitutional right is an “irreparable injury as a matter of law.”
Springtree Apartments, ALPIC v. Livingston Parish Council, 207 F. Supp. 2d 507, 515 (M.D. La.
2001) (citing Elrod v. Burns, 427 U.S. 347 (1976)); see also 11A Charles Alan Wright, et al.,
Federal Practice and Procedure § 2948.1 (3d ed.) (“When an alleged deprivation of a
constitutional right is involved, such as the right to free speech or freedom of religion, most
courts hold that no further showing of irreparable injury is necessary.”). Here, class members
have a due process right to pretrial release determinations that are free of financial conflicts of
6

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 7 of 11

interest. Doc. 132; Caliste, 937 F.3d at 532. The OPCDC continues to receive a percentage fee
on every commercial surety bond in Orleans Parish. And this fee represents a substantial part of
the court’s budget. Judge Cantrell’s continued use of secured money bail therefore violates the
class members’ due process rights—an irreparable harm.
But the violation of a Constitutional right is not the only harm that results from the
continued use of secured money bail. Judge Cantrell’s noncompliance with this Court’s
declaratory judgment and subsequent consent judgment on Count I regularly causes class
members to be unconstitutionally deprived of liberty. See Pls.’ Mot. for Disc. and Rule to Show
Cause Why Def. Cantrell Should Not be Held in Contempt, Doc. 160. The OPCDC’s continuing
receipt of a percentage fee on bonds provides an ongoing temptation for the average person as a
judge to ignore constitutional standards in determining conditions of pretrial release. A
temptation therefore exists to default to financial conditions of release, regardless of a person’s
ability to immediately pay that amount. So, the harm caused by the financial conflict of interest
includes the deprivation of pretrial liberty. Multiple courts have found unconstitutional
deprivations of pretrial liberty to be irreparable injuries that call for injunctive relief. See McNeil
v. Cmty. Probation Servs., LLC, No. 1:18-CV-00033, 2019 WL 633012, at *16 (M.D. Tenn. Feb.
14, 2019); Schultz v. Alabama, 330 F. Supp. 3d 1344, 1374 (N.D. Ala. 2018); Preliminary
Injunction Order, Schultz v. Alabama, No. 5:17-cv-00270-MHH, ECF No. 164 (N.D. Ala. Sept.
13, 2018); ODonnell v. Harris Cnty., Tex., 251 F. Supp. 3d 1052, 1157–58 (S.D. Tex. 2017),
aff’d as modified, 892 F.3d 147 (5th Cir. 2018); Rodriguez v. Providence Cmty. Corrs., Inc., 155
F. Supp. 3d 758, 771 (M.D. Tenn. 2015); Cooper v. City of Dothan, No. 1:15-CV-425WKW[WO], 2015 WL 10013003 (M.D. Ala. June 18, 2015) (granting temporary restraining
order). Indeed, this Court has already issued a consent decree in this case requiring Judge

7

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 8 of 11

Cantrell’s compliance with other requirements of the Fourteenth Amendment’s Equal Protection
and Due Process Clauses. See Doc. 158.
For indigent people in the Plaintiff class, Judge Cantrell’s use of secured financial
conditions results in their confinement to a jail cell. Imprisoning a person in a jail cell in
violation of her constitutional rights inflicts irreparable harm on her body and mind. “Freedom
from imprisonment—from government custody, detention, or other forms of physical restraint—
lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533
U.S. 678, 690 (2001); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from
bodily restraint has always been at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action.”).
Even one additional night in jail is a harm to a person that cannot be later undone. See,
e.g., United States v. Bogle, 855 F.2d 707, 710–11 (11th Cir. 1988) (holding that the
“unnecessary deprivation of liberty clearly constitutes irreparable harm”); Wanatee v. Ault, 120
F. Supp. 2d 784, 789 (N.D. Iowa 2000) (“[U]nconstitutional incarceration generally constitutes
irreparable harm to the person in such custody.”); SEC v. Bankers Alliance Corp., No. 95-0428,
1995 WL 317586, *3 (D.D.C. 1995) (“As for the question of irreparable harm in the absence of a
stay, clearly Mr. Lee will be harmed by being incarcerated.”); Lake v. Speziale, 580 F. Supp.
1318, 1335 (D. Conn. 1984) (granting preliminary injunction requiring court to inform child
support debtors of their right to counsel because unlawful incarceration would be irreparable
harm); Cobb v. Green, 574 F. Supp. 256, 262 (W.D. Mich. 1983) (“There is no adequate remedy
at law for a deprivation of one’s physical liberty. Thus the Court finds the harm asserted by
plaintiff is substantial and irreparable.”).

8

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 9 of 11

Even a few days in jail can have devastating consequences in a person’s life, such as the
loss of a job or the inability to arrange safe alternate care for minor children. 4 It also exposes
arrestees to the risk of medical and safety emergencies prevalent in the Orleans Justice Center. 5
B. There Is No Adequate Remedy at Law for the Loss of Liberty and
Imposition of Imprisonment Suffered by the Plaintiff Class.
This ongoing violation of constitutional rights presents a quintessentially equitable case
under § 1983. No remedy at law can redress the harms that result from subjecting Plaintiffs to an
impartial tribunal or to some of the attendant effects, including orders of pretrial conditions that
lack sufficient integrity and the imprisonment of indigent Plaintiffs; that is the very meaning of
“irreparable injury.” Moreover, the doctrine of absolute judicial immunity may preclude the
standard remedy of damages against Judge Cantrell by the Plaintiff class.

4

Recent scholarship details the multiple deleterious effects of pretrial detention. See Megan Stevenson, Distortion
of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511 (2018), available at
https://academic.oup.com/jleo/article/34/4/511/5100740#124816631; Dobbie Will, et al., The Effects of Pre-Trial
Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am.
Econ. Rev. 201 (2018); Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69
Stanford L. Rev. 711 (2017) (finding that misdemeanor pretrial defendants detained in Harris County, Texas, were
25% more likely to plead guilty, 43% more likely to be sentenced to jail, and had sentences more than twice as long
as those defendants who were released pretrial); Emily Leslie & Nolan G. Pope, The Unintended Impact of Pretrial
Detention on Case Outcomes: Evidence from New York City Arraignments, 60 J.L. & Econ. 529 (2017); Arpit
Gupta, et al., The Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. Legal Stud. 471, 472, 487
(2016) (finding a 12% increase in the likelihood of conviction when money bail is imposed); The Hidden Costs of
Pretrial Detention at 3, 19 (Nov. 2013), available at http://www.pretrial.org/download/research/
The%20Hidden%20Costs%20of%20Pretrial%20Detention%20-%20LJAF%202013.pdf (studying 153,407
defendants and finding that “when held 2–3 days, low risk defendants are almost 40 percent more likely to commit
new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial
Criminal Justice Research Summary 5 (2013), available at: http://www.arnoldfoundation.org/sites/default/files/
pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf (finding that “low-risk defendants held 2–3 days were 17 percent
more likely to commit another crime within two years” and that those detained “4–7 days yielded a 35 percent
increase in re-offense rates.”).
5

See Jones v. Gusman, 296 F.R.D. 416 (E.D. La. 2013) (approving consent judgment to remedy unconstitutional
conditions of confinement in Orleans Parish Prison, addressing rapes, beatings and a lack of healthcare leading to
suicides and deaths); Report No. 9 of the Independent Monitors, Aug. 29, 2018, Jones v. Gusman, No. 2:12-cv00859, ECF No. 1188 at 1 (E.D. LA. Aug. 29, 2018) (“Based on objective review of data, the facility has shown
improvement in inmate and staff safety, but still remains critically unsafe for inmates and staff.” (emphasis added)).

9

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 10 of 11

C. Any Hardship to Judge Cantrell Is Outweighed by the Harm to Plaintiff
Class from the Continued Use of Unconstitutional Bail Hearings.
Judge Cantrell will not suffer any hardship by refraining from imposing secured financial
conditions of release so long as the structural financial conflict of interest created by the relevant
statutes persists. To the extent that conducting bail hearings that comply with the Constitution
may cause Judge Cantrell and his court to incur greater financial burdens, this is insufficient
justification to continue violating Plaintiffs’ due process rights. See Smith v. Sullivan, 611 F.2d
1039, 1043–44 (5th Cir. 1980) (“It is well established that inadequate funding will not excuse the
perpetuation of unconstitutional conditions of confinement, nor will an allegedly contrary duty at
state law.”); Jones v. Gusman, 296 F.R.D. 416, 458 (E.D. La. 2013); Advocacy Ctr. for the
Elderly and Disabled v. La. Dep’t. of Health and Hosps., 731 F. Supp. 2d 603, 626 (E.D. La.
2010) (“A state’s constitutional duties toward those involuntarily confined in its facilities does
not wax and wane based on the state budget.”). The harm to Plaintiffs, by contrast, is an ongoing
deprivation of fundamental pretrial liberty.
Moreover, while Judge Cantrell awaits a legislative remedy to remove the structural
conflict linking secured financial conditions to the Judicial Expense Fund, he and the other
judges remain free to seek other sources of funding for their court.
D. An Injunction Is in the Public Interest.
The vindication of constitutional rights is always in the public interest. See Ingebretsen
ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996) (holding that
injunction preventing implementation of unconstitutional statute would serve the public interest);
Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 93 (5th Cir. 1992) (holding that “the public
interest is always served when public officials act within the bounds of the law and respect the
rights of the citizens they serve”); see also Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)
10

 Case 2:17-cv-06197-EEF-MBN Document 161-1 Filed 01/17/20 Page 11 of 11

(“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”
(quotations omitted)); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002); G &
V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
III.

Requested Relief
Plaintiffs ask this Court to order Judge Cantrell to follow the terms of its Declaratory

Judgment. Specifically, they ask the Court to order Judge Cantrell not to require a secured
financial condition of pretrial release so long as state law provides for a portion of fees paid
based on that financial condition to be deposited into a Judicial Expense Fund whose statutory
function is to fund the operations of Judge Cantrell’s court. Plaintiffs also seek leave to conduct
discovery on the collection and disposition of the commercial surety licensing fee.

Respectfully submitted,
/s/ Eric A. Foley
Eric A. Foley, La. Bar No. 34199, T.A.
James W. Craig, La. Bar No. 33687
Roderick & Solange MacArthur Justice Center
4400 S. Carrollton Ave.
New Orleans, La 70119
(504) 620-2259 (p)
(504) 208-3133 (f)
eric.foley@macarthurjustice.org
jim.craig@macarthurjustice.org

/s/ Alec Karakatsanis
Alec Karakatsanis, D.C. Bar No. 999294
(admitted pro hac vice)
CIVIL RIGHTS CORPS
1601 Connecticut Avenue NW, 8th Floor
Washington, DC 20009
(202) 681-2409
alec@civilrightscorps.org

Counsel for Plaintiffs

11