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9th Circuit Strikes Down Arizona’s Proposition 100, A Constitutional Amendment Denying Bail To Undocumented Immigrants

Arizona’s Proposition 100, which mandates that bail be denied for serious felony offenses as prescribed by the state legislature, if the person charged has entered or remained in the United States without documentation, was struck down on October 15, 2014, by the United States Court of Appeals for the Ninth Circuit in Lopez-Valenzuela v. Arpaio, 2014 U.S. App. LEXIS 19759 (9th Cir. Ariz. Oct. 15, 2014).

The en banc court found that the Proposition 100 laws do not address an established particularly acute problem, are not limited to a specific category of extremely serious offenses, and do not afford an individualized determination of flight risk or dangerousness.

The en banc court also found that the challenged laws are excessive in relation to the state's legitimate interest in assuring arrestees' presence for trial. They therefore impermissibly impose punishment before an adjudication of guilt.

The en banc court held that the challenged laws violate the substantive component of the Due Process Clause of the Fourteenth Amendment and are facially unconstitutional.

Circuit Court Judge Raymond C. Fisher authored the majority opinion, which was joined in full by Chief Judge Alex Kozinski, and Judges Sidney R. Thomas, M. Margaret McKeown, Marsha S. Berzon, Jay S. Bybee, Milan D. Smith, and Jacqueline H. Nguyen. Circuit Court Judge Paul J. Watford also joined except as to section III.B.2 of the majority opinion.

Circuit Court Judge Nguyen wrote a concurring opinion. Circuit Court Judge Richard C. Tallman and Circuit Court Judge Diarmuid O’ Scannlain wrote dissenting opinions.

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