Zach Kurzhals, Associate Member, University of Cincinnati Law Review
It is well established in federal courts that pre-hearing detentions, before arraignment or a comparable formal hearing, are limited in duration by the Due Process Clause (DPC) of the Fourteenth Amendment. However, there is a circuit split over whether to analyze due process claims arising from prolonged detentions under substantive or procedural due process. The circuits proffering an argument for utilizing a procedural due process analysis, over a substantive due process analysis, make a more compelling argument because their premises are simple and direct.
The Substantive Due Process Approach
In Armstrong v. Squadrito Mr. Armstrong surrendered himself after he learned that a “body attachment warrant” had been issued for his arrest regarding for child support arrearages. Following Mr. Armstrong’s detainment the officers placed Mr. Armstrong on a “will call”  list of detainees waiting for court. However, a mistake was made in the transposition of Mr. Armstrong’s case number and thus Mr. Armstrong spent 57 days in jail. Mr. Armstrong repeatedly queried about his court date but was repeatedly assured he was on the “will call” list. On a few occasions, Mr. Armstrong wrote out an “Inmate Request Form” and on each occasion the guards refused to accept the forms. After, Mr. Armstrong’s release, he filed a civil suit against the Sheriff and various other government officials who were directly involved in the detention and jailing of Mr. Armstrong. Mr. Armstrong asserted a § 1983 claim based on Constitutional violations under the Fourth, Eighth, and Fourteenth Amendments. The district court granted summary judgement in favor of the defendants with respect to all of Mr. Armstrong’s claims and Mr. Armstrong appealed.
On appeal, the Seventh Circuit reversed and remanded the case for a substantive due process violation. The court believed it necessary to address why Due Process claims in the context of pre-hearing detention should “play out on the yielding natural grass of substantive due process.” The court began by acknowledging the Supreme Court’s reluctance to expand substantive due process when a “particular amendment provides an explicit textual source of constitutional protection.” Next, the court explained that Armstrong’s Fourth and Eighth Amendment claims were insufficient under Seventh Circuit precedent, concluding Mr. Armstrong’s § 1983 claim depended entirely on the Fourteenth Amendment. Finally, the court outlined its three-step analysis under substantive due process: examine whether the DPC protects against extended detention; determine whether the defendants’ conduct offended the standards of substantive due process; and consider whether the totality of the circumstances shocks the conscience.
The court first addressed some procedural concerns. A quote utilized by the court explicitly states finding a DPC violation for prolonged detention would be dependent on the procedures the State afforded the detainee. However, the Armstrong court utilized the quote only to establish that the Constitution guards against extended detention. A second quote used by the court is from Coleman v. Frantz. The Coleman quote finds a “first appearance” to be vital to procedural due process. The court in Armstrong then referred to a “first appearance” as an “established” procedure. The Seventh Circuit also referenced numerous prior court opinions, mainly from the Seventh Circuit, that claim to analyze similar issues under substantive due process. Most of these specific references state an argument akin to: abridgment of an individual’s interest, without proper procedures, is unconstitutional. Lastly, before starting its substantive due process analysis, the court highlighted a procedural deficiency in Mr. Armstrong’s detention. Heretofore opinion appears to be a procedural analysis; this will be discussed later.
For its substantive due process analysis, the court applied a “deliberate indifference” standard that had been recently utilized by the Supreme Court in County of Sacramento v. Lewis. The court found the defendants were deliberately indifferent to a country-wide concern amongst jail administration regarding the possibility of prolonged detention. In applying this standard, the court found all of Mr. Armstrong’s claims survived summary judgement because of the custom of refusing to accept the “Inmate Request Forms.” Finally, the court addressed whether or not this instance of “deliberate indifference,” viewed in the totality of the circumstances, shocks the conscience. Efforts to bring Mr. Armstrong before a judge were less than those in Coleman, and the conduct in Coleman shocked the conscience, thus the court determined the defendants’ deliberate indifference must certainly “shock the conscience.” Having found Armstrong’s case to survive this three-part analysis, the court reversed the District Court’s summary judgment and remanded the case.
Procedural Due Process Approach
In April of 2012, Jessica Jauch was indicted by a grand jury on drug-related charges and a capias warrant was issued. Ms. Jauch was arrested, detained in jail, and presented with a misdemeanor warrant and the capias. Ms. Jauch cleared the misdemeanor warrant within a few days and remained detained on the capias warrant. Ms. Jauch made requests to be brought before a judge and protested her innocence. However, she was told she could not be taken before a judge until August, which was the next time the court would convene. Ms. Jauch waited 96 days before being brought before a judge. Ms. Jauch brought a civil suit under § 1983 asserting Sixth, Eighth, and Fourteenth Amendment violations. The district court treated Ms. Jauch’s Fourteenth DPC claim as a challenge to the probable cause underlying her arrest and detention but believed the Fourth Amendment was more apt and found the government had indisputable probable cause. Ms. Jauch’s case was dismissed.
In Jauch v. Choctaw County the Fifth Circuit does not rule out the possibility of substantive due process analysis in prolonged detention cases. However, the court does state they understand such cases to always “raise the immediate question of whether . . . procedural due process rights have been violated.” Thus, taking the Fifth Circuits opinion at face value leaves open the question of which analysis, procedural or substantive, should be used in prolonged detention cases. It also seems possible the answer may be either. However, citing and referencing several Supreme Court cases, the Fifth Circuit focused their analysis in the procedural realm and used Medina as their guide to find a due process violation.
The Fifth Circuit first identified the constitutional interest at issue, Jauch’s liberty. Next, the court recognized it must identify the process due. However, the court did not decide which procedural due process test should apply. The court manifested, because the “indefinite-detention procedure” of the defendants violated Jauch’s right to procedural due process under the more “narrow inquiry” of the Medina test, the court did not need to resolve whether the Mathews Balancing test or the Medina test should apply.
First, the Fifth Circuit outlined the two possible routes under the Medina Test for finding a procedural due process violation: the procedure “(i) ‘offends some principle so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or (ii) ‘transgresses any recognized principle of ‘fundamental fairness’ in operation.’” The Fifth Circuit then looked to English historical practices as a guide to this first inquiry. The court found an indefinite-detention procedure, without an arraignment or other court appearance, offends the same fundamental principles of justice that birthed the Sixth Amendment right to a speedy trial and Eighth Amendment prohibition of excessive bail. Next, the court looked to contemporary practices and noted that it was the norm for state rules to require persons be brought before a judicial officer promptly or without unnecessary delay. Thus, upon finding “no sanction, historical or modern, for the defendants’ indefinite detention procedure” the court determined the procedure at issue failed Medina’s historical test. The court also noted prolonged pre-trial detention without judicial oversight and an opportunity to assert constitutional rights is facially unfair and opposes the recognized principles of “fundamental fairness.” The court concluded its procedural analysis stating if Medina is the proper test, it is because denying criminal defendants a hearing before prolonged detention denied those “defendants their enumerated constitutional rights relating to criminal procedure by cutting them off from the judicial officers charged with implementing constitutional criminal procedure.”
The specific question in Jauch was whether a state could detain someone until a court reconvened several months after the defendant’s arrest. The court in Jauch attacked this question in the most direct manner possible. The court determined the right at issue: a mixture of speedy trial and bail. The Fifth Circuit then searched historical references to determine that in 1166 the right for speedy trial proscribed that an alternate judge be found to ensure “justice be not delayed.” Continuing this direct approach, utilizing Supreme Court precedent, the Fifth Circuit was able to conclusively say that our country claimed these rights of Englishmen and adopted them as our own under their Constitutional counterparts. Thus, a clear historical line was developed supporting a due process right requiring procedures that safeguard the fundamental principles birthing the Sixth and Eighth Amendments.
Reading the Seventh Circuit opinion in Armstrong it appears something is omitted from the logical procession warranting a need for substantive due process analysis. The Seventh Circuit does not explicitly address why substantive, and not procedural due process, should be utilized under the Fourteenth Amendment’s DPC.
Simplified, the first half of the Armstrong opinion is the Constitution requires the process “Y,” or its equivalent, to curb “X.” The court then specifically pointed to procedural deficiencies that equated to: the defendants overstepped their authority while infringing on Armstrong’s rights. The court in Armstrong could have finished their discussion here and called it a procedural due process violation. Instead, the court ventured into the messy jurisprudence of substantive due process. The second half of the Court’s opinion must be: although the Constitution creates the procedural requirement “Y,” it does not explicitly state requirement “Y,” therefore the constitutionally required procedure is substantively guaranteed. When the premise the court’s opinion relies upon is articulated it becomes clear the argument for a substantive approach becomes unsustainable in the face of a procedural analysis alternative. Especially given they both provide the same remedies under a § 1983 claim. Indeed, the Seventh Circuit admits that any orderly approach deteriorates within substantive due process.
Upon closer inspection it appears the Seventh Circuit, claiming to analyze prolonged detention under substantive due process, actually used a mixture of procedural and substantive due process analysis. The court wrote an opinion approximately twice as long as was needed to provide sufficient support for their determination. Judicial efficiency supports a more direct procedural due process approach.
Under Seventh Circuit precedent, in order for a court to find a procedure inadequate, in this context, would require a finding that the state actors were “deliberately indifferent.” However, to be “deliberately indifferent” requires first being on notice of a deficiency. Surely, a Constitutional right, something intended to be absolute outside of procedural safeguards, cannot depend on an individual’s knowledge of a violation. The outcome should not be dependent on whether Armstrong had the courage to voice his concerns and frustration with his incarcerators. Should a detainee have remained silent, a court could compare historical and contemporary practices against the process at issue. This comparison could include the amount of time detained. This is the analysis offered in Jauch.
The Seventh Circuit also does not argue that only one procedure, an arraignment hearing, is the sole procedure by which the government can ensure an individual’s Constitutional rights are protected. Just as the Jauch court mentioned, the possibility of alternate procedures in lieu of first appearances, to ensure defendant’s rights, seems particularly susceptible to a Mathews balancing test. By utilizing a procedural analysis the courts leave more options available to individual states to implement their local preferences and operate under their unique constraints. Although the Supreme Court has determined that state laws do not create substantive constitutional rights, contemporary considerations within Medina’s due process analysis allows courts to consider modern principles of due process. Thus, even the concern that a more historical approach under procedural due process may lead to odds with contemporary understandings, the concern is at most a temporary one. American jurisprudence is not a fast changing animal. Our laws tend to begin changing long before our perceptions of the rights underscoring the laws advance. However, when those perceptions match, they will then have a historical basis to look back upon, albeit, a shorter more modern basis. It could be argued the Founders intended our laws to be resistant to arbitrary modifications.
Defendants have a right to a speedy trial and reasonable bail. Although under many jurisdiction’s precedent, what some outside the legal community might call a technicality, the Sixth and Eighth Amendments are not directly applicable to pre-hearing detention. However, certainly no one could argue with any iota of sincerity that the fundamental principles that underpin the Sixth and Eighth Amendments do not also embrace pre-hearing detention. It is this basic argument that makes the analysis in Jauch so easy and straightforward. One might also think any “fundamental right” would have sufficient historical and contemporary support, similar to Jauch’s case, and to make this easy analysis repeatable. Judicial resources, the simplicity of objective analysis, legal stability all favor a procedure due process approach in pre-hearing detention cases.
 Jauch v. Choctaw Cty., 874 F.3d 425, 437 (5th Cir. 2017); Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1483 (9th Cir. 1992); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998); Hayes v. Faulkner Cty., Ark., 388 F.3d 669, 676 (8th Cir. 2004).
 Currently the Seventh and Eighth circuits use a substantive due process analysis and the Fifth and Ninth Circuits use a Procedural Due Process Analysis. Jauch, 874 F.3d 425, 437 (utilizing procedural due process); Oviatt, 954 F.2d 1470, 1483 (utilizing procedural due process); Armstrong, 152 F.3d 564, 582 (utilizing substantive due process); Hayes, 388 F.3d 669, 676 (utilizing substantive due process).
 152 F.3d 564, 582.
 A writ of body attachment, or body attachment warrant, is a process issued by the court directing the authorities to bring a person who has been found in civil contempt before the court.
 Arrears (or arrearage) is a legal term for the part of a debt that is overdue after missing one or more required payments.
 A “will call” list is simply a list of detainees that are to appear before a judge and the court informed the jail which detainees were to be seen each day.
 Armstrong, 152 F.3d 564, 567.
 Id. The guards would explain to Mr. Armstrong that the forms were of no use because the officers could answer his questions faster.
 Mr. Armstrong’s boss eventually hired an attorney who was able to quickly gain Armstrong’s release. The attorney was able to secure Mr. Armstrong’s release by obtaining a court order requiring Armstrong to pay weekly child support plus arrearages.
 A §1983 claim comes from federal law 42 U.S.C. § 1983, which allows claims based on Constitutional rights.
 Armstrong, 152 F.3d 564, 569 (rejecting the procedural approach laid out by the Ninth Circuit in Oviatt, 964 F.2d 1470).
 Id. (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).
 Id. at 569-570. The court explained that they understood the Fourth Amendment to govern the period of confinement between arrest without a warrant and the preliminary hearing and in this case a warrant was issued. Citing Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir. 1992). The court then explained that under their precedent, the Eighth Amendment only applies to convicted prisoners and not pretrial detainees. Citing
Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).
 Armstrong, 152 F.3d 564, 570.
 Id. at 572 (citing Baker v. McCollan, 443 U.S. 144-145 (1979)).
 Id at 572-573.
 Id. (citing Coleman v. Frantz, 754 F.2d 719, 734 (7th Cir. 1985); Patton v. Przybylski, 822 F.2d 697 (7th Cir.1987)) (Finding these cases to show it is through this right of first appearance that an arrestee receives the necessary information for them to ensure the rest of their constitutional rights are protected.).
 Id. (citing Brown v. Patterson, 823 F.2d 167 (7th Cir.1987) (detaining someone without verifying their identity is a DPC violation); Johnson v. City of Chicago, 711 F.Supp. 1465, 1470 (N.D.Ill.1989) (“[A] prolonged detention, coupled with the failure to investigate a claim of mistaken identification, may suggest a deprivation of liberty without due process.”).
The court explained that the writ utilized in the case represented the mere authority of detaining and immediately taking the person to court. Therefore, the defendants exceeded the authority provided under the procedure utilized. Id. at 576.
 This standard applies to government actors acting in a custodial capacity and has the “luxury of forethought.” Id.
 Under the substantive due process standard of “shocks the conscience,” the Supreme Court found that when a government actor, acting in a custodial capacity, was “deliberately indifferent” to the needs of those under their care, such deliberate indifference may be enough to shock the conscience because the actors had the luxury of forethought and decided not to act. Id. at 581 (referencing County of Sacramento v. Lewis, 523 U.S. 846-849 (1998)).
 Id. at 579 (“[H]ow much more basic could it get—jails cannot confine people without the authority to do so.”).
Although the Sheriff and Municipality operated under a policy that allowed detainees to make complaints and inquiries through “Inmate Request Forms,” which would allow the jail administration to minimize injury from prolonged detention, the defendants also had a policy or custom of not accepting those forms. Thus, the court determined that this policy or custom implicated each of the defendants whether through their direct refusal or through the abdication of the duty to ensure detainees see court to those that ultimately refused the forms. Id.
 754 F.2d 719, 734 (7th Cir. 1985). The Seventh Circuit found the actions of a Sheriff to “shock the conscience” despite the Sheriff’s repeated efforts at arranging a court appearance. However, Coleman lost his civil suit because the court found the defendant to be entitled to qualified immunity.
 Armstrong, 152 F.3d 564, 582.
 Id. at 428.
 874 F.3d 425, 437 (5th Cir. 2017).
 Id. at 431 (referencing Fuentes v. Shevin, 407 U.S. 67, 81-82 (1971), stating the right to a notice and a hearing is a right of procedural due process).
 Id. (“The Supreme Court, however, has turned to Medina repeatedly.”).
 Ky. Dep’t of Corr. V. Thompson, 490 U.S. 454, 460 (1989).
The Fifth Circuit recognized due process claims concerning state criminal procedures are to be analyzed under the Medina test. Kaley v. United States, 134 S.Ct. 1090. However, the Fifth Circuit also noted that the procedure at issue, “confinement with process deferred,” is unlike criminal procedures normally considered within the Kaley and Medina line of precedent. Jauch, 874 F.3d 425, 431.
 Procedural due process “requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.” Mathews v. Eldridge, 424 U.S. 319, 321 (1976).
 Jauch, 874 F.3d 425, 431. (mentioning that Oviatt used the Mathews test before Kaley had been decided).
 Id. at 432 (citing Kincaid v. Gov’t of D.C., 854 F.3d 721, 726 (D.C. Cir. 2017).
Id. at 434 (citing Gerstein, 420 U.S. at 114, which discusses the severity of the consequences associated with prolonged detention).
 Id. at 435.
 Id. at 432 (citing Assize of Clarendon ¶4 (1166)).
 Id. at 434 (“At the embryonic stage, we claimed all the rights of Englishmen.”) (citing Hurtado v. California, 110 U.S. 516, 540 (1884)).
 Instead of fulling explaining their decision to embark down the substantive due process path, they cite
Villanova v. Abrams, 972 F.2d 792, 798 (7th Cir. 1992) for “describing ‘the persistent fallacy that procedural requirements create substantive entitlements.’”).
 Armstrong, 152 F.3d 564, 576.
 Id. at 570. (“Unfortunately, this orderly approach deteriorates when the constitutional right exists, if at all, as a matter of substantive due process.”).
 The historical analysis of Indiana’s treatment of their writ is remarkably similar a contemporary analysis under the Medina test.
 Id. at 576.
 Jauch, 874 F.3d 425, 432 (“’Historical practice and, to a lesser extent, contemporary practice’ guide our first inquiry.”) (quoting Kincaid v. Gov’t of D.C., 854 F.3d 721, 726 (D.C. Cir. 2017)).
 Medina v. California, 505 U.S. 437 (1992) (considering contemporary practice on placing the burden of proof on competency).