Dylan Mitchell v. EUGENE G. DOHERTY , GARY CARUANA, and WINNEBAGO COUNTY

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1764
DYLAN M ITCHELL, et al.,
Plaintiffs-Appellants,
v.
EUGENE G. DOHERTY ,
GARY C ARUANA, and
WINNEBAGO C OUNTY ,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 20-cv-50285 — John Z. Lee, Judge.
____________________
A RGUED DECEMBER 7, 2021 — DECIDED J UNE 22, 2022
____________________
Before R OVNER , ST. EVE, and J ACKSON -A KIWUMI , Circuit
Judges.
ST. EVE, Circuit Judge. Winnebago County does not hold
bail hearings over the weekend. As a result, suspects may wait
longer than forty-eight hours before a judge can set bail. Eight
detainees, who were held for up to sixty-eight hours, sued the
County for maintaining a policy that allegedly violates the

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2 No. 21-1764
Fourth Amendment. The district court granted the defend-
ants’ motion to dismiss for failure to state a claim. We affirm.
I.
Police arrested eight demonstrators in Rockford, Illinois,
seven on a Friday (Dylan Mitchell, Dayna Schultz, Larissa
Walston, Ivan Holland, Ross Wagner, Andrew Ehrhardt, and
Jaylen Butler) and one on a Saturday (Michael Riggs). All
eight waited until Monday at 1:30 p.m. to receive a bail hear-
ing, at which point seven were released either on their own
recognizance or on bond.1 The charges against Shultz,
Ehrhardt, and Butler have been dismissed, and the court sen-
tenced Mitchell, Riggs, and Wagner to probation or condi-
tional discharge. In total, the Friday detainees were held for
about sixty-eight hours, and the Saturday detainee was held
for slightly over forty-eight hours.
Plaintiffs allege the detention caused numerous injuries:
Three missed work, and Mitchell lost her job altogether; Riggs
could not seek medical attention for an open shoulder wound
and bruised ribs while in jail; Walston endured three days of
solitary confinement, was let out only once for a one-hour pe-
riod, and was not allowed to take her prescription medication;
and Wagner was denied medical attention for a concussion
and a bleeding head wound.
Plaintiffs first sued over an alleged failure to make a prob-
able-cause determination within forty-eight hours, an
1 Ivan Holland had bail set at $50,000, pleaded guilty to burglary, and re-
ceived a sentence of time served; plaintiffs concede that he cannot seek
damages for his detention. See Bridewell v. Eberle, 730 F.3d 672, 677 (7th Cir.
2013).

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No. 21-1764 3
uncontested violation of the Fourth Amendment. But upon
learning that a judge does make a probable-cause determina-
tion within forty-eight hours, albeit on an ex parte basis,
Plaintiffs filed an amended complaint, bringing claims under
§ 1983 against Eugene Doherty, the Chief Judge of the 17th
Judicial Circuit Court, and Winnebago County Sheriff Gary
Caruana, in their official capacities, as well as Winnebago
County. They argued that the County violated the Fourth
Amendment by denying them a bail hearing within forty-
eight hours after detention even though a probable-cause de-
termination had been made within that period. The complaint
sought injunctive and declaratory relief against the chief
judge and damages against Sheriff Caruana as well as the
County under Monell v. Department of Social Services, 436 U.S.
658 (1978).
Plaintiffs, in conjunction with filing the amended com-
plaint, moved for a preliminary injunction and class certifica-
tion. The defendants moved to dismiss the counts for failure
to state a claim, and the district court granted the defendants’
motion and denied the class-certification motion as moot.
This timely appeal followed.
II.
Plaintiffs submit that Winnebago County violates the
Fourth Amendment by not providing a bail hearing within
forty-eight hours after a suspect’s arrest. We review the dis-
missal of a complaint for failure to state a claim de novo, con-
struing all allegations and drawing all reasonable inferences
in favor of plaintiffs. Dix v. Edelman Fin. Servs., LLC, 978 F.3d
507, 512 (7th Cir. 2020).

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4 No. 21-1764
A.
Plaintiffs argue that Supreme Court and circuit precedent
requires a bail hearing within forty-eight hours after a sus-
pect’s arrest. We disagree.
The Supreme Court has twice addressed the procedural
requirements for probable-cause determinations but never
considered the timing of bail hearings. See Gerstein v. Pugh,
420 U.S. 103 (1975); County of Riverside v. McLaughlin, 500 U.S.
44 (1991). In Gerstein v. Pugh, a Florida law allowed prosecu-
tors to charge all non-capital offenses by information “with-
out a prior preliminary hearing and without obtaining leave
of court.” 420 U.S. at 105. The only way to obtain a judicial
determination of probable cause was either through a special
statute or by an arraignment, both of which could have taken
over a month. Id. at 106. Florida changed this procedure but
still did not offer neutral judicial review within twenty-four
hours. Id. at 109. Two individuals charged by information
sued over alleged Fourth Amendment violations. Id. at 105.
The case presented the question of “whether a person ar-
rested and held for trial on an information is entitled to a ju-
dicial determination of probable cause for detention.” Id. at
111. An arrest must be supported by probable cause. Id. But
while prearrest review is preferred, a requirement that an of-
ficer always obtain an arrest warrant ahead of time would
handicap law enforcement. Id. at 113. “Once the suspect is in
custody, however, the reasons that justify dispensing with the
magistrate’s neutral judgment evaporate.” Id. at 114. Thus, the
Court concluded, the Fourth Amendment mandates a prompt
“judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest.” Id. Florida’s
system of detaining someone by a prosecutor’s information

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No. 21-1764 5
violated the Constitution. The Court left open though just
how promptly the state must provide a probable-cause deter-
mination.
County of Riverside v. McLaughlin took up this unanswered
question. 500 U.S. 44. There, plaintiffs sued the county for the
delay in providing probable-cause determinations. Id. at 47.
The county provided probable-cause determinations within
forty-eight hours for a business week but excluded weekends
and holidays from this calculation. Id. Thus, a person arrested
over the Thanksgiving holiday could be held for seven days—
arrested on a Tuesday with no hearing until the following
Monday. Id. The district court imposed an injunction mandat-
ing that all persons arrested be given a probable-cause deter-
mination within thirty-six hours, regardless of weekends or
holidays. Id. at 49. The Court of Appeals affirmed the order
granting the injunction, and the county appealed. Id. at 49–50.
The Supreme Court reversed. States have a strong interest
in promoting public safety, and the “demands of federalism”
require “flexibility and experimentation.” Id. at 53. At the
same time, prolonged detention harms arrestees through lost
wages and impaired family relationships. Id. at 52. In balanc-
ing “the rights of individuals and the realities of law enforce-
ment,” the Court announced the rule for probable-cause de-
terminations: generally, “a jurisdiction that provides judicial
determinations of probable cause within 48 hours of arrest
will … comply with the promptness requirement of Gerstein,”
but an arrestee can still “prove that his or her probable cause
determination was delayed unreasonably” when, for exam-
ple, the delays were “for the purpose of gathering additional
evidence to justify the arrest, a delay motivated by ill will
against the arrested individual, or delay for delay’s sake.” Id.

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6 No. 21-1764
at 56. The Court further remarked that bail hearings and ar-
raignments might be combined with probable-cause determi-
nations, but states were not required to do so. Id. at 58.
Our caselaw, although admittedly imprecise at times, has
likewise never held that a bail hearing must occur within
forty-eight hours after arrest. See Paine v. Cason, 678 F.3d 500
(7th Cir. 2012); Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013).
In Paine v. Cason, police took Christina Eilman, a woman suf-
fering from bipolar disorder, into custody and released her on
her own recognizance in a high-crime area. 678 F.3d at 504.
She wandered until she eventually reached an apartment
where a man raped her at gunpoint. Id. at 506. Trying to es-
cape, Eilman jumped out of a window. Id. The resulting fall
damaged her brain. Id. Eilman sued, arguing in part that she
should have been kept in custody longer to facilitate medical
care. Id. In denying recovery, we stated that “[e]xisting law
creates a right to be released on bail (for bailable crimes) as
promptly as possible, with 48 hours as the outside time before
presentation to a judicial officer who can make an authorita-
tive decision.” Id. at 508 (citing McLaughlin, 500 U.S. 44). But
that language does not accurately reflect the holding of
McLaughlin and is nonbinding dicta. See United States v. Craw-
ley, 837 F.2d 291, 292 (7th Cir. 1988) (“[D]ictum is not author-
itative. It is the part of an opinion that a later court … is free
to reject.”). Eilman posited a near opposite theory as plaintiffs
here: she claimed that she had a right to be detained, not that
she had a right to be released at a bail hearing. As such, we had
no occasion to consider what bail-hearing procedure the
Fourth Amendment commanded. This passing and mistaken
reference can be “deleted without seriously impairing the an-
alytical foundations of the holding.” Id.

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No. 21-1764 7
Bridewell v. Eberle, while also containing some ambiguous
language, never extended McLaughlin’s probable-cause re-
quirements to bail hearings. 730 F.3d at 675. There, Sara Bride-
well allegedly shot and killed a man, though she was never
convicted of the murder. Id. She pleaded guilty only to a re-
duced drug charge and was sentenced to time served; the
prosecutors dismissed the murder charge. Id. Bridewell then
sued Chicago, arguing that the police took too long to present
her to a judge. Id. Because Bridewell was not injured by her
sixty-three-hour detention, we decided she could not recover
damages under McLaughlin. Id. at 676. We added that
McLaughlin mandates “that the fourth amendment allows no
more than 48 hours for the police to get a magistrate's ap-
proval of a suspect’s continued detention” and that “the rea-
son for requiring suspects in custody to be taken before a
magistrate promptly is to ensure that detention based on ‘in-
correct or unfounded suspicion’ is short-lived and that per-
sons properly arrested but entitled to bail can be released
promptly.” Id. (quoting McLaughlin, 500 U.S. at 52 (internal ci-
tation omitted)). This observation essentially summarizes the
holding of McLaughlin: the police must obtain a magistrate’s
approval for a probable-cause determination within forty-
eight hours to ensure that unlawful detention is “short-lived.”
Id. Because jurisdictions can combine probable-cause deter-
minations and bail hearings, a prompt hearing often allows a
suspect to be released on bail quickly, but we never held that
a bail hearing alone must be conducted within forty-eight
hours. Any suggestion that a bail hearing must be held at the
same time as a probable-cause determination would have
been dicta. Bridewell did not challenge the timing of the bail
hearing. Indeed, “[e]vents showed that Bridewell … was not
entitled to release on bail” in the first place. Id.

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8 No. 21-1764
And no other circuit has imposed a forty-eight require-
ment for bail hearings after arrest. See Walker v. City of Calhoun,
901 F.3d 1245 (11th Cir. 2018); ODonnell v. Harris County, 892
F.3d 147 (5th Cir. 2018). In Walker v. City of Calhoun, Maurice
Walker was arrested for a crime punishable by a fine of up to
$500. 901 F.3d at 1251. After being taken to jail, an officer told
Walker that he could not go free unless he paid a $160 cash
bond, which neither Walker nor his family could afford. Id.
Walker filed a class action lawsuit against the city, and the
district court issued a preliminary injunction requiring that
bail hearings be held within twenty-four hours after arrest. Id.
at 1266. The Eleventh Circuit invalidated the injunction be-
cause the city of Calhoun already offered bail hearings within
forty-eight hours. Given McLaughlin’s holding that a person
can generally be held without a probable-cause determination
for forty-eight hours, “[i]t stands to reason that the City can
take the same 48 hours to set bail for somebody held with
probable cause.” Walker, 901 F.3d at 1266. The Court clarified
that it did not “decide whether a jurisdiction could adopt a
system that allows a longer period of time than 48 hours to
make a bail determination, because the City does not seek to
take longer than 48 hours.” Id. at 1267 n.13. Both the federal
system and, potentially, Georgia law allow for longer than
forty-eight hours before a bail hearing, so a more complete
factual record would be necessary. See id.
Similarly, the Fifth Circuit struck down a district court’s
injunction requiring a bail hearing within twenty-four hours.

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No. 21-1764 9
See ODonnell, 892 F.3d 147.2 The district court imposed a
sweeping injunction to reform Harris County’s bail system,
including a requirement that the county hold a bail hearing
within twenty-four hours. Id. at 160. The Fifth Circuit believed
that “the district court’s 24-hour requirement [was] too strict
under federal constitutional standards” and added in passing
that McLaughlin “explicitly included bail hearings within [the
forty-eight-hour] deadline.” Id. As explained, McLaughlin
made no such proclamation, and this passage is dicta. The
question before the Fifth Circuit was whether the district
court’s injunction misinterpreted the constitutional require-
ments, which it did. Any remark about what the Fourth
Amendment required would be unnecessary for the outcome
of the case. See Crawley, 837 F.2d 291.
Thus, precedent dictates that only a probable-cause deter-
mination must be held within forty-eight hours. The constitu-
tionally required timing of a bail hearing is an issue of first
impression.
B.
We turn now to the question of whether, under the Fourth
Amendment, a bail hearing, like a probable-cause determina-
tion, must be held within forty-eight hours and, relatedly,
whether the County’s practice of holding hearings up to sixty-
eight hours after a suspect’s arrest is constitutional.
2 The Fifth Circuit overruled ODonnell v. Harris County and ODonnell v.
Goodhart, 900 F.3d 220 (5th Cir. 2018), on different grounds. Daves v. Dallas
County, 22 F.4th 522, 540–41 (5th Cir. 2022) (en banc).

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10 No. 21-1764
1.
We begin with the County’s argument that the Fourth
Amendment does not establish the constitutional require-
ments for a bail hearing and, thus, we should affirm on that
basis alone. This argument implicates the more general ques-
tion of when Fourth Amendment protections cease. See Cath-
erin T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L.
Rev. 1009 (2013) (discussing the implications of this question
on how courts approach general conditions of confinement,
detainee medical care, and excessive-force claims). Admit-
tedly, again the caselaw is unclear.
In Gerstein, the Supreme Court held that the Fourth
Amendment, not the Due Process Clause, governs probable-
cause determinations. 420 U.S. at 125 n.27. It explained that
“[b]oth the standards and procedures for arrest and detention
have been derived from the Fourth Amendment and its com-
mon-law antecedents.” 420 U.S. at 111 (emphasis added). The
Fourth Amendment is the appropriate vehicle because it “was
tailored explicitly for the criminal justice system, and its bal-
ance between individual and public interests always has been
thought to define the ‘process that is due' for seizures of per-
son or property in criminal cases, including the detention of
suspects pending trial.” Id. at 125 n.27. McLaughlin discussed
the possibility of combining probable cause determinations
and bail hearings, suggesting that the Fourth Amendment
might apply to more judicial determinations than those con-
cerning probable cause. See, e.g., 500 U.S. at 58.
Albright v. Oliver produced a fractured opinion, with sev-
eral justices indicating that the Fourth Amendment safe-
guarded some phases of pretrial detention related to a proba-
ble cause beyond the initial determination. 510 U.S. 266

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No. 21-1764 11
(1994). The plaintiff sued for various pretrial restraints placed
on him in violation of the Fourteenth Amendment’s substan-
tive due process guarantee. Id. at 268–69 (plurality). The claim
was “a very limited one …. that the action of respondents in-
fringed his … right to be free of prosecution without probable
cause.” Id. at 271. He never pursued a Fourth Amendment
theory, which proved fatal for his complaint. The plurality ex-
plained that “the specific guarantees of the various provisions
of the Bill of Rights” are preferred over the, at times, more
vague protections of the Due Process Clause. Id. at 273. “The
Framers considered the matter of pretrial deprivations of lib-
erty and drafted the Fourth Amendment to address it.” Id. at
274. These “deprivations of liberty [] go hand in hand with
criminal prosecutions.” Id. Because the Fourth Amendment
applied, not the Due Process Clause, the four justices con-
cluded that Albright could not proceed.
Justice Ruth Bader Ginsburg, who joined the plurality,
elaborated on this conclusion in her concurrence. At common
law, a seizure “continue[d] even after release from official cus-
tody.” Id. at 278 (Ginsburg, J., concurring). A detainee “is
hardly freed from the state’s control upon his release from a
police officer’s physical grip,” so logically the Fourth Amend-
ment governs after a probable-cause determination for some-
one released on conditions before trial. Id. Justice David
Souter concurred in the judgment without joining the plural-
ity. He reasoned that reliance on one provision of the Consti-
tution does not always “pre-empt a broad field as against []
more general one[s].” Id. at 286 (Souter, J., concurring). But the
particular injury suffered, “the initiation of a baseless prose-
cution,” is specific to the Fourth Amendment. Id. at 289. The
“rules of recovery for such harms have naturally coalesced
under the Fourth Amendment, since the injuries usually occur

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12 No. 21-1764
only after an arrest or other Fourth Amendment seizure ….”
Id. at 290. The two dissenters, for their part, agreed with Jus-
tice Ginsburg’s “explanation of why the initial seizure of pe-
titioner continued until his discharge and why the seizure
was constitutionally unreasonable” but did not want to fore-
close a due-process challenge. Id. at 307 (Stevens, J., dissent-
ing). Counting votes, at least five Justices, and as many as
seven, endorsed some theory that the Fourth Amendment ex-
tended beyond a probable-cause determination in some cir-
cumstances, though the contours are still opaque.
The Supreme Court’s recent decision in Manuel v. City of
Joliet clarified that the Fourth Amendment extends beyond
the start of legal process but left open whether it applies out-
side some defect in the probable-cause determination. 137 S.
Ct. 911 (2017). Police arrested Elijah Manuel on the suspicion
that his vitamin bottle contained illegal drugs despite a nega-
tive field test and a negative test from an evidence technician
for any controlled substances. Id. at 915. A judge, relying on
the criminal complaint, which was based on fabricated evi-
dence, found probable cause for further detention, thus be-
ginning the “legal process.” Id. Eventually, the Illinois police
laboratory analyzed the pills again and concluded that they
were not a controlled substance. Id. After waiting for more
than a month, the state dismissed the drug charge. Id. In the
end, Manuel was detained for seven weeks. Id. at 915–16. Ma-
nuel sued the city and several police officers, asserting that
they violated his Fourth Amendment rights. Id. at 916. The
district court dismissed the lawsuit because Manuel brought
the claim more than two years after his arrest. Id. We affirmed
under our prior caselaw, which held that once legal process
began, the Fourth Amendment “falls out of the picture,” and
the detainee must seek a remedy under the Due Process

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No. 21-1764 13
Clause. Manuel v. City of Joilet, 590 F. App’x 641, 643–44 (7th
Cir. 2015) (quoting Llovet v. City of Chicago, 761 F.3d 759, 763
(7th Cir. 2014)).
The Supreme Court rejected our rule and repeated, “The
Fourth Amendment … establishes the minimum constitu-
tional ‘standards and procedures’ not just for arrest but also
for ensuing ‘detention.’” Manuel, 137 S. Ct. at 917 (quoting
Gerstein, 420 U.S. at 111). Thus, “pretrial detention can violate
the Fourth Amendment not only when it precedes, but also
when it follows, the start of legal process in a criminal case.”
Id. at 918. Manuel stated a viable claim under the Fourth
Amendment for unlawful detention “because Manuel’s sub-
sequent weeks in custody were [] unsupported by probable
cause, and so [] constitutionally unreasonable.” Id. at 919.
While the Court made clear that the commencement of legal
process did not spell the end for a Fourth Amendment claim,
its analysis was still tethered to probable cause. When exactly
the amendment recedes—and other constitutional protec-
tions might begin—remains unanswered.3 Cf. Jenny E. Car-
roll, The Due Process of Bail, 55 Wake Forest L. Rev. 757, 788
(2020) (“One way to read Gerstein is that expanded consider-
ations in pretrial hearings—such as bail—also expand proce-
dural protections, including a requirement that the state
demonstrate a link between its articulated goal and the pro-
posed deprivation of liberty for the suspect.”); Kellen Funk,
3 See also Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022) (holding that
the Supreme Court’s precedents recognize a malicious-prosecution claim
under the Fourth Amendment but again not deciding the scope of the
amendment); id. at n.2 (noting that a malicious-prosecution claim “is
housed in the Fourth Amendment” and that the analysis might be differ-
ent under the Due Process Clause).

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14 No. 21-1764
The Present Crisis in American Bail, 128 Yale L.J.F. 1098, 1121
(2019) (“Gerstein is open to two entirely different readings. …
Several times in its decision the Court incautiously switched
from speaking about probable cause for the arrest to probable
cause for the detention without considering whether different
standards ought to apply in the days and weeks after an ar-
rest.”).
Even before Manuel, the circuits took divergent ap-
proaches as to when Fourth Amendment protections termi-
nate. At least one circuit drew the line at a suspect’s arrest,
regardless of whether the arrest occurred with a warrant. See,
e.g., Orem v. Rephann, 523 F.3d 442, 443–44, 446 (4th Cir. 2008),
abrogated on other grounds by Brooks v. Johnson, 924 F.3d 104, 114
n.4 (4th Cir. 2019) (applying the Due Process Clause to an ex-
cessive-force claim); see also Struve, supra, at 1021. Other cir-
cuits selected the probable-cause determination. See, e.g.,
Broussard v. Parish of Orleans, 318 F.3d 644, 662 (5th Cir. 2003)
(“As the arrestees do not challenge their initial arrest and con-
finement … there simply is no demonstration of a Fourth
Amendment problem.”); Aldini v. Johnson, 609 F.3d 858, 866
(6th Cir. 2010) (“Placing the dividing line at the probable-
cause hearing for those arrested without a warrant does []
have a basis in Supreme Court precedent.”); Golberg v. Henne-
pin County, 417 F.3d 808, 811 (8th Cir. 2005) (“Our opinions …
suggest[] that the right to release from initially lawful deten-
tion is based upon the substantive component of the Due Pro-
cess Clause, rather than the Fourth Amendment.”); Pierce v.
Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996) (“We
hold, therefore, that the Fourth Amendment sets the applica-
ble constitutional limitations on the treatment of an arrestee
detained without a warrant up until the time such arrestee is

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No. 21-1764 15
released or found to be legally in custody based upon proba-
ble cause for arrest.”).
The remaining circuits had adopted the “continuing sei-
zure” theory, which posits a person is still seized within the
meaning of the Fourth Amendment after the probable-cause
determination, extending into pretrial detention. See, e.g.,
Schneyder v. Smith, 653 F.3d 313, 321–22 (3d Cir. 2011) (“When
the state places constitutionally significant restrictions on a
person’s freedom of movement for the purpose of obtaining
his presence at a judicial proceeding, that person has been
seized within the meaning of the Fourth Amendment.” (foot-
note omitted)); Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)
(“[W]hile a state has the undoubted authority … to restrict a
properly accused citizen’s constitutional right to travel out-
side of the state as a condition of his pretrial release … such
conditions are appropriately viewed as seizures within the
meaning of the Fourth Amendment.”).
After Manuel, there is still no consensus. Compare DeLade
v. Cargan, 972 F.3d 207, 212 (3d Cir. 2020) (“We conclude that
the Fourth Amendment always governs claims of unlawful
arrest and pretrial detention when that detention occurs be-
fore the detainee’s first appearance before a court.”), and Lentz
v. Taylor, 2021 WL 5121247, *5 (3d Cir. 2021) (unpublished)
(“The Third Circuit has adopted the continuing seizure theory
and has further analyzed the parameters of what amounts to
a pre-trial seizure.”), with Lester v. Roberts, 986 F.3d 599, 609
(6th Cir. 2021) (“[T]he presence of probable cause for a prose-
cution or pretrial detention dooms any Fourth Amendment
claim.”); see also Page v. King, 932 F.3d 898, 905 (9th Cir. 2019)
(“In so holding, we do not speak to the merits of Page’s due
process claim [premised on a thirteen-year detention].

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16 No. 21-1764
Indeed, the Supreme Court’s recent opinion in Manuel … may
doom Page’s petition unless he is permitted to amend to al-
lege a Fourth Amendment violation.”). The Eleventh and
Fifth Circuits, for their part, analyzed challenges to bail sys-
tems under different constitutional provisions, but both
courts based their reasoning on Gerstein and McLaughlin,
cases interpreting the Fourth Amendment. See Walker, 901
F.3d at 1265–66 (Due Process and Equal Protection Clauses);
ODonnell, 892 F.3d at 160 (Due Process Clause).
Prior to Manuel, we charted the middle course: the Fourth
Amendment applies until the probable-cause determination,
at which point the Fourteenth Amendment governs. See, e.g.,
Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir. 2013); Ortiz v. City
of Chicago, 656 F.3d 523, 530 (7th Cir. 2011); Lopez v. City of Chi-
cago, 464 F.3d 711, 719 (7th Cir. 2006).4 After Manuel, our cases
are not as clear. We noted, for example, in Mitchell v. City of
Elgin that the Fourth Amendment might govern the condi-
tions of pretrial release because of the “significant restrictions
on liberty” and that some pre-Manuel cases are no longer
good law. 912 F.3d 1012, 1016 (7th Cir. 2019). We did not, how-
ever, decide the scope of a Fourth Amendment “seizure” in
Mitchell. Id. at 1017. In Pulera v. Sarzant, we repeated our pre-
Manuel rule that “[b]efore a finding of probable cause, the
Fourth Amendment protects an arrestee; after such a finding,
the Fourteenth Amendment protects a pretrial detainee.” 966
F.3d 540, 549 (7th Cir. 2020). At the same time, we acknowl-
edged that Manuel might require us to reconsider the dividing
4 We do not cast doubt on our prior holdings that the Fourth Amendment
governs before a probable-cause determination; we are only concerned
here with how long this protection continues.

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No. 21-1764 17
line, but because the parties did not ask us to, we declined to
do so. Id. at 549 n.1. Moreover, the difference between the
Fourth Amendment and the Fourteenth Amendment did not
matter, as “the standards [for the issue were] identical in all
respects.” Id. at 550.
Shortly after Pulera, we were presented with a bail chal-
lenge in Williams v. Dart. 967 F.3d 625 (7th Cir. 2020). There,
the plaintiffs sued over a county’s bail system, in part, on a
Fourth Amendment theory. Id. at 630–32. The district court
dismissed the claim, and we reversed. Id. at 631. The case did
not relate to the probable-cause standard—no one disputed
that the police had probable cause to detain the plaintiffs. Id.
at 632. Instead, it centered solely on “the courts’ bail orders
and on that basis continuing to hold persons already admitted
to bail without purpose or plan for their release.” Id. We con-
cluded that the plaintiffs’ claims, nonetheless, fell under the
Fourth Amendment without recognizing the conflict with our
prior caselaw. Id. at 636. The Fourth Amendment, we decided,
requires “that whatever arrangement is adopted [about pro-
cess bail admissions] not result in seizures that are unreason-
able in light of the Fourth Amendment’s history and pur-
poses.” Id. Because the plaintiffs stated a claim of unlawful
detention, they could proceed. Id. at 637; accord Funk, supra, at
1121 (Pulera aligns with the more expansive of two readings
for Gerstein).
Ultimately, given the far-reaching implications and the
limited briefing on this issue, we need not decide whether the
Fourth Amendment applies after a judge has made a proba-
ble-cause determination to the timing of a bail hearing be-
cause, assuming that it does, plaintiffs’ claim still fails. In as-
sessing the constitutionally required timing of a bail hearing

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18 No. 21-1764
under the Fourth Amendment, we consider the traditional in-
terpretive tools: text, history, tradition, and guidance from
caselaw.
2.
The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures … and no
Warrants shall issue, but upon probable cause ….” U.S. Const.
amend. IV. The Amendment’s text establishes the procedure
for the issuing of a warrant, enshrining a key protection
against “rash and unreasonable interferences with privacy
and from unfounded charges of crime,” Gerstein, 420 U.S. at
112, but makes no mention of bail hearings.
Plaintiffs have not provided any evidence from history or
tradition to support their argument. See Atwater v. City of Lago
Vista, 532 U.S. 318, 333 (2001) (recognizing that courts con-
sider history, English decisions, legal treatises and dictionar-
ies, procedure manuals, and the common-law history when
interpreting the Fourth Amendment); see also United States v.
Barr, 960 F.3d 906, 916 (7th Cir. 2020) (“It is not our job to do
the legal research that [the parties have] omitted.” (quoting
Bretford Mfg., Inc. v. Smith Sys. Mfg. Corp., 419 F.3d 576, 581
(7th Cir. 2005))). The historical evidence, based on our own
review, offers little guidance on when bail hearings were typ-
ically held, and nothing suggests that a suspect had a right to
a bail hearing within forty-eight hours.
Bail can be traced back to the early Middle Ages, originat-
ing from the Anglo-Saxon system of resolving grievances.
June Carbone, Seeing Through the Emperor’s New Clothes: Redis-
covery of Basic Principles in the Administration of Bail, 34

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No. 21-1764 19
Syracuse L. Rev. 517, 519–20 (1983). The Magna Carta prom-
ised that “[n]o freeman shall be taken or imprisoned … except
by the lawful judgment of his peers or by the law of the land,”
1215, 17 John c. 39 (Eng.) translated in James Clarke Holt,
Magna Carta 461 (2d ed. 1992), and the later Statute of West-
minster allowed some individuals to be released on “suffi-
cient Surety,” 1275, 3 Edw. C.15 (Eng.). By the end of the sev-
enteenth century in England, Parliament created an effective
system that both entitled the defendant to be released on bail
for certain offenses and protected against excessive bail, the
latter a right established by the English Bill of Rights (1689),
but never guaranteed a suspect a right to a hearing within
forty-eighty hours. Caleb Foote, Coming Constitutional Crisis
in Bail: I, 113 U. Pa. L. Rev. 959, 968 (1965). In fact, England’s
Habeas Corpus Act of 1679, enacted to address “great delays”
in the bail system, required that a petitioner be “ascertained
by the judge or court” only within “three days,” sometimes
longer if the person resided a certain distance away. 31 Car. 2
c. 2 (Eng. & Wales).
The colonies largely adopted the English bail system with-
out requiring hearings within a certain timeframe. See Wil-
liam F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L.
Rev. 33, 79 (1977). Connecticut, Delaware, Georgia, Maryland,
and Rhode Island simply provided “the same liberties and
immunities as if they had been born within the realm of Eng-
land.” Id. at 81. And the colonial bail systems continued, often
without change, after the American Revolution. Id. The First
Congress omitted an explicit right to bail from the Bill of
Rights, only prohibiting excessive bail. U.S. Const. amend.
VIII; United States v. Salerno, 481 U.S. 739, 752 (1987) (“The
Eighth Amendment addresses pretrial release by providing
merely that ‘[e]xcessive bail shall not be required.’ This

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20 No. 21-1764
Clause, of course, says nothing about whether bail shall be
available at all.”). The Judiciary Act of 1789, much like earlier
English and colonial laws, established a right to bail in non-
capital criminal cases without detailing a bail hearing’s pro-
cedure. Foote, supra, at 971.
At common law, shortly after arrest, a suspect was brought
before a justice of the peace, who would “examine” the pris-
oners “to determine whether there was reason to believe the
prisoner had committed a crime.” Gerstein, 420 U.S. at 114–15.
If support existed for the arrest, the justice would either jail
the person or release him on bail pending trial. Id. The Fram-
ers incorporated this model into the Bill of Rights, and the
practice continued after the Fourteenth Amendment was rat-
ified. Id. at 115–16. But this procedure ensured that a suspect
would not be detained without a judicial determination of
probable cause, a bedrock principle of the Fourth Amend-
ment. This “examination” did not require that a bail hearing
also be held with a probable-cause determination.
Pretrial detention, the Supreme Court has explained, re-
quires balancing different interests.5 McLaughlin, 500 U.S. at
53; see also United States v. Cole, 21 F.4th 421, 427 (7th Cir. 2021)
(en banc) (“Time and again, the Supreme Court has held that
‘the ultimate touchstone of the Fourth Amendment is reason-
ableness.’” (quoting Lange v. California, 141 S. Ct. 2011, 2017
(2021))). “The consequences of prolonged detention may be
more serious than the interference occasioned by arrest.
5 Although we decline to extend McLaughlin’s forty-eight-hour rule for
probable-cause determinations to bail hearings, we believe that the gen-
eral considerations articulated by the Supreme Court in Gerstein and
McLaughlin are germane to our inquiry, just with diminished force.

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No. 21-1764 21
Pretrial confinement may imperil the suspect’s job, interrupt
his source of income, and impair his family relationships.”
Gerstein, 420 U.S. at 114; see generally Crystal S. Yang, Toward
an Optimal Bail System, 92 N.Y.U. L. Rev. 1399 (2017). Lost
earnings for a detained defendant can total tens of thousands
of dollars over a lifetime. Yang, supra, at 1424. Someone de-
tained for only three days is seven times more likely to expe-
rience employment disruption. Alexander M. Holsinger &
Kristi Holsinger, Analyzing Bond Supervision Survey Data: The
Effects of Pretrial Detention on Self-Reported Outcomes, 82 Fed.
Probation 39, 43 (2018). Children might go without parental
figures, and jails expose innocent or low-danger people to in-
jury through contact with other inmates, guards, and natural
hazards. See John J. Gibbons & Nicholas de B. Katzenbach,
Confronting Confinement: A Report of the Commission on Safety
and Abuse in America’s Prisons, 22 Wash. U. J.L. & Pol’y 385,
402–03 (2006). The effects of a bail hearing often last: pretrial
detainees carry the stigma of a criminal conviction, and pre-
trial detention may increase the chance of conviction and in-
carceration. Yang, supra, at 1419, 1423.
At the same time, the “demands of federalism” afford
states “flexibility and experimentation.” McLaughlin, 500 U.S.
at 53 (quoting Gerstein, 420 U.S. at 123). States must manage a
large volume of bail hearings with limited resources. Requir-
ing hearings to be held on weekends would force govern-
ments to raise revenue, expend money, and hire additional
personnel. Before releasing someone on bail, a judge must as-
sess a suspect’s dangerousness and risk of flight, information
that the government might not have readily available. See, e.g.,
18 U.S.C. § 3142(e)(1). The state has an interest in preventing
pretrial flight and potential crime. See Yang, supra, at 1429–33.
Between 1990 and 2004, a bench warrant was issued for failure

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22 No. 21-1764
to appear in court for almost one in four felony defendants.
Thomas H. Cohen & Brian A. Reaves, Bureau of Justice Statis-
tics, Pretrial Release of Felony Defendants in State Courts 7
(2007).6 One comprehensive study surveying state-court data
determined that “initial pretrial release leads to substantial in-
creases in failing to appear for required court appearances.”
Will Dobbie, et al., The Effects of Pretrial Detention on Conviction,
Future Crime, and Employment: Evidence from Randomly As-
signed Judges, 108 Am. Econ. Rev. 201, 226 (2018). “[P]retrial
release increases the probability of failing to appear in court
by 15.6 percentage points ….” Id. at 203. Rushing the initial
bail determination, therefore, may endanger later prosecuto-
rial success.
Plaintiffs argue that the absence of a bail hearing within
forty-eight hours unfairly harms the innocent. Unlike proba-
ble-cause determinations, however, after forty-eight hours,
bail-eligible detainees have already had a neutral judge deter-
mine whether the “facts and circumstances … warrant a pru-
dent man in believing that the (suspect) has committed” an
offense. Gerstein, 420 U.S. at 111–12 (quoting Beck v. Ohio, 379
U.S. 89, 91 (1964)).
Mandating a bail hearing within forty-eight hours would
also cast doubt on the constitutionality of the Bail Reform Act
of 1984. Section 3142(f) provides that a bail hearing “shall be
held immediately upon the person’s first appearance before
the judicial officer unless that person, or the attorney for the
6 “Overall, 28% of the defendants who failed to appear in court and had a
bench warrant issued for their arrest were still fugitives at the end of a 1-
year study period. This was 6% of all defendants released pretrial ….” Id.
at 8.

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No. 21-1764 23
Government” seeks a continuance. A government attorney
can seek a continuance for “three days (not including any in-
termediate Saturday, Sunday, or legal holiday),” and a de-
fense attorney can request a continuance for “five days (not
including any intermediate Saturday, Sunday, or legal holi-
day).” 18 U.S.C. § 3142(f). Plaintiffs claim that, in contrast to
federal law, Winnebago County’s bail system permits “delay
for delay’s sake.” But the Bail Reform Act does not require
that the government justify the delay—it could be “delay for
delay’s sake.” An attorney can ask for the continuance for any
reason.
Moreover, several states do not provide bail hearings
within forty-eight hours. See, e.g., Ariz. R. Crim. P. 7.2(b)(4)(B)
(“[T]he [bail] hearing must be held as soon as practicable, but
no later than 7 days after the initial appearance unless the de-
tained defendant moves for a continuance or the court finds
that extraordinary circumstances exist and delay is indispen-
sable to the interests of justice.”); Ga. Code Ann. § 17-4-26
(2021) (“Every law enforcement officer arresting under a war-
rant shall exercise reasonable diligence in bringing the person
arrested before the judicial officer authorized to examine,
commit, or receive bail and in any event to present the person
arrested before a committing judicial officer within 72 hours
after arrest.”); La. C. Cr. P. Art. 313(A)(2) (2016) (“If the court
orders a contradictory hearing, the hearing shall be held
within five days from the date of determination of probable
cause, exclusive of weekends and legal holidays.”); N.M. R.
Crim. P. 5-401(A)(1) (“If a case is initiated in the district court,
and the conditions of release have not been set by the magis-
trate or metropolitan court, the district court shall conduct a
hearing … if the defendant remains in custody, three (3) days
after the date of arrest if the defendant is being held in the

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24 No. 21-1764
local detention center, or five (5) days after the date of arrest
if the defendant is not being held in the local detention cen-
ter”); Ohio Rev. Code Ann. § 2937.222(A) (2022) (“On the mo-
tion of the prosecuting attorney or on the judge’s own motion,
the judge shall hold a [bail] hearing …. Except for good cause,
a continuance on the motion of the state shall not exceed three
court days.”).
Of course, states can choose to hold all bail hearings within
forty-eight hours, which may prove easier with technological
advancements. See, e.g., Ala. Code § 15-13-105 (2019) (twenty-
four hours); Alaska Stat. Ann. § 12.30.006(b) (2016) (forty-
eight hours); Colo. Rev. Stat. § 16-4-102 (2021) (forty-eight
hours); S.C. Code Ann. § 22-5-510 (2017) (twenty-four hours);
Tex. Code Crim. Proc. Ann. art. 17.028(a) (2022) (forty-eight
hours). But the Fourth Amendment does not compel them to.
Judges should proceed cautiously when asked to step into the
shoes of legislators, as we do here.
* * *
In short, we hold that the Fourth Amendment does not re-
quire a bail hearing within forty-eight hours after arrest. Fur-
thermore, we conclude that bail hearings held within sixty-
eight hours—because suspects were arrested on a Friday (as
the suspects held for the longest time in this case were)—are
constitutional under the Fourth Amendment. We leave for an-
other day whether a longer detention without a bail hearing
violates the Constitution.
III.
For these reasons, we affirm the judgment of the district
court.

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