Erick Arevalo v. VICKI HENNESSY, Sheriff of San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK AREVALO,
Petitioner-Appellant,
v.
VICKI HENNESSY, Sheriff of
San Francisco,
Respondent-Appellee.
No. 17-17545
D.C. No.
4:17-cv-06676-HSG
OPINION
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted February 7, 2018
San Francisco, California
Filed February 9, 2018
Before: Sidney R. Thomas, Chief Judge, and A. Wallace
Tashima and Morgan Christen, Circuit Judges.
Opinion by Chief Judge Thomas

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AREVALO V. HENNESSY 2
SUMMARY*
Habeas Corpus
The panel reversed the district court’s judgment
dismissing based on Younger abstention a habeas corpus
petition challenging the conditions of pretrial detention in
state court, and remanded with instructions.
The panel held that Younger abstention is not appropriate
in this case because the question of whether the petitioner is
entitled to a constitutional bail hearing is separate from the
state prosecution, and would not interfere with those
proceedings. The panel held that the Younger doctrine also
does not apply because this case fits squarely within the
irreparable harm exception, as the petitioner has been
incarcerated for over six months without a constitutionally
adequate bail hearing. The panel wrote that the petitioner has
properly exhausted his state remedies as to his bail hearing.
The panel remanded with instructions that the writ of
habeas corpus issue unless the California Superior Court
conducts a new constitutionally compliant bail hearing within
fourteen (14) days after the issuance of the district court’s
order conditionally granting the petition. The panel directed
that the mandate be issued forthwith.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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AREVALO V. HENNESSY 3
COUNSEL
David M. Lehn (argued), Arpit K. Garg, Daniel S. Vochok,
and Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington, D.C.; Laura Donaldson, Wilmer Cutler
Pickering Hale and Dorr LLP, Los Angeles, California; Alec
Karakatsanis and Katherine Hubbard, Civil Rights Corps,
Washington, D.C.; Chesa Boudin, Deputy Public Defender;
Matt Gonzalez, Chief Attorney; Jeff Adachi, Public
Defender; San Francisco Public Defender’s Office, San
Francisco, California; for Petitioner-Appellant.
Katie L. Stowe (argued) and Amit Kurlekar, Deputy
Attorneys General; Joshua A. Klein, Deputy Solicitor
General; Jeffrey M. Laurence, Senior Assistant Attorney
General; Gerald A. Engler, Chief Assistant Attorney General;
Edward C. DuMont, Solicitor General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Defendant-Appellee.
OPINION
THOMAS, Chief Judge:
We consider in this case whether Younger v. Harris,
401 U.S. 37 (1971), requires a district court to abstain from
hearing a petition for a writ of habeas corpus challenging the
conditions of pretrial detention in state court. We conclude
that, under the circumstances presented by this case, it does
not, and we reverse the judgment of the district court.

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AREVALO V. HENNESSY 4
I
This appeal comes to us in a unique posture. The State of
California has laudably conceded that Arevalo is entitled to
federal habeas relief on the merits of his claim. The State
agrees that Arevalo did not receive constitutionally adequate
process during the setting of his bail in the California superior
court. Therefore, the State concedes that a federal writ of
habeas corpus should issue, although it suggests a slightly
different form of relief than that requested by Arevalo.
However, despite this concession, and despite the fact that the
State did not argue for abstention, the district court held, sua
sponte, that it was compelled to abstain under Younger, and
it dismissed the petition.
But first the facts. Erick Arevalo has been detained since
he was arrested on July 1, 2017 and charged with various
California crimes arising from a domestic dispute. On July
6, 2017, the California trial court summarily set Arevalo’s
bail at $1.5 million.
On August 10, 2017, Arevalo filed a motion for bail
hearing or bail reduction, arguing that the unreasoned
excessive bail violated his Eighth and Fourteenth Amendment
rights. He argued that financial release conditions are
unconstitutional absent both specific procedural protections
and a finding that non-financial conditions could not
reasonably serve the State’s interest.

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AREVALO V. HENNESSY 5
Arevalo also pointed out that he had no prior criminal
record. The Public Safety Assessment Report1 indicated that
he had never failed to appear in court. The Report assigned
him the lowest score possible for the risk of non-appearance
and committing further crimes during a period of pretrial
release. He indicated to the court that he would live with
church members if released, and desired to be released so that
he could provide support for his six-year-old daughter. He
requested an evidentiary hearing.
At a hearing the same day, the trial court agreed to lower
the bail amount to $1 million. The court noted that the
charges were serious, but did not discuss Arevalo’s ability to
pay or what government interests the bail amount would
serve.
On September 8, 2017, Arevalo filed a petition for writ of
habeas corpus before the California Court of Appeal. He
argued that the trial court violated California law and his
federal constitutional rights to equal protection and due
process by requiring money bail without making the findings
required for an order of pretrial detention. The Court of
Appeal summarily denied the writ four days later.
On September 20, 2017, Arevalo filed a petition making
the same arguments before the California Supreme Court.
The State filed an answer declining to defend the district
1 A Public Safety Assessment is a tool developed by the Laura and
John Arnold Foundation to assess the risk that an arrestee, if released
pretrial, will fail to appear or will engage in new criminal activity, and to
generate a release recommendation based on the assessed risk. See Buffin
v. City & Cty. of S.F., 2018 WL 424362, at *2 (N.D. Cal. Jan. 16, 2018).

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AREVALO V. HENNESSY 6
court’s bail setting and affirmatively arguing that Arevalo
was entitled to a hearing with specific consideration of his
ability to pay and nonmonetary alternatives to bail. The
California Supreme Court summarily denied the writ on
November 15, 2017.
On November 20, 2017, Arevalo filed an emergency
petition before the district court. Again, the State filed an
answer agreeing that Arevalo did not receive constitutionally
adequate process. The State agreed that the petition for
habeas corpus should be granted and requested an order
staying the petition to allow the state court to conduct a
constitutionally adequate detention hearing.
At oral argument on December 19, 2017, the district court
raised Younger sua sponte. The State noted that it had
waived the issue of abstention by failing to raise it. However,
the district court requested supplemental briefing on the issue,
stating that it was within the court’s authority to let the State
“go back on waiving the argument.” After briefing, the
district court held that it declined to reach Arevalo’s
constitutional claims because Younger compelled abstention.
The court dismissed the petition and granted a certificate of
appealability.
II
A
“[A] federal court’s ‘obligation’ to hear and decide a case
is ‘virtually unflagging.’” Sprint Communic’ns, Inc. v.
Jacobs, 134 S. Ct. 584, 591 (2013) (quoting Colo. River
Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976)). “Younger abstention remains an extraordinary and

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AREVALO V. HENNESSY 7
narrow exception to the general rule[.]” Cook v. Harding,
879 F.3d 1035, 1038 (9th Cir. 2018) (quoting Nationwide
Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 727 (9th Cir.
2017) (internal quotation marks omitted)).
“Younger abstention is a jurisprudential doctrine rooted
in overlapping principles of equity, comity, and federalism.”
San Jose Silicon Valley Chamber of Commerce Political
Action Committee v. City of San Jose, 546 F.3d 1087,
1091–92 (9th Cir. 2008). Younger cautions against federal
interference with ongoing state criminal, civil, and
administrative proceedings. Id. at 1092. Specifically,
Younger abstention is appropriate when: (1) there is “an
ongoing state judicial proceeding”; (2) the proceeding
“implicate[s] important state interests”; (3) there is “an
adequate opportunity in the state proceedings to raise
constitutional challenges”; and (4) the requested relief
“seek[s] to enjoin” or has “the practical effect of enjoining”
the ongoing state judicial proceeding. ReadyLink Healthcare,
Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir.
2014).
However, even if Younger abstention is appropriate,
federal courts do not invoke it if there is a “showing of bad
faith, harassment, or some other extraordinary circumstance
that would make abstention inappropriate.” Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435
(1982).

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AREVALO V. HENNESSY 8
B
Younger abstention is not appropriate in this case because
the issues raised in the bail appeal are distinct from the
underlying criminal prosecution and would not interfere with
it. Regardless of how the bail issue is resolved, the
prosecution will move forward unimpeded. As the Supreme
Court explained in Gerstein v. Pugh, 420 U.S. 103, 107 n.9
(1975):
The District Court correctly held that
respondents’ claim for relief was not barred
by the equitable restrictions on federal
intervention in state prosecutions, Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d
669 (1971). The injunction was not directed
at the state prosecutions as such, but only at
the legality of pretrial detention without a
judicial hearing, an issue that could not be
raised in defense of the criminal prosecution.
The order to hold preliminary hearings could
not prejudice the conduct of the trial on the
merits.
The fact that issues concerning pretrial bail proceedings
are distinct from the criminal prosecution was underscored in
Stack v. Boyle, where the Supreme Court addressed a
petitioner’s challenge to excessive bail pre-Younger. The
concurrence noted that “an order fixing bail can be reviewed
without halting the main trial—its issues are entirely
independent of the issues to be tried.” 342 U.S. 1, 12 (1951)
(Jackson, J., concurring). Cf. Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484 (1973) (holding that a habeas
petitioner had properly exhausted his speedy trial claim

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AREVALO V. HENNESSY 9
because it was distinct from the criminal prosecution). The
Sixth Circuit also addressed this issue in Atkins v. Michigan,
noting that “[t]he issue of whether the right to bail has been
denied is collateral to and independent of the merits of the
case pending against the detainee.” 644 F.2d 543, 549 (6th
Cir. 1981).
Thus, because the question of whether the petitioner is
entitled to a constitutional bail hearing is separate from the
state prosecution, and would not interfere with those
proceedings, Younger abstention is not appropriate.2
C
The Younger abstention doctrine also does not apply
because this case fits squarely within the irreparable harm
exception. See World Famous Drinking Emporium, Inc. v.
City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987) (holding
that an exception to abstention applies “under extraordinary
circumstances where the danger of irreparable loss is both
great and immediate”).
“It is well established that the deprivation of
constitutional rights ‘unquestionably constitutes irreparable
injury.’” Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir.
2017) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th
2 In urging that Younger abstention should apply, the State relies on
O’Shea v. Littleton, 414 U.S. 488 (1974). However, that case is easily
distinguished because it involved an injunction against state criminal
prosecutions, a decision that squarely impacted state criminal
prosecutions. Because “the requested relief may be achieved without an
ongoing intrusion into the state’s administration of justice,” O’Shea does
not require abstention in this case. Courthouse News Serv. v. Planet,
750 F.3d 776, 790 (9th Cir. 2014).

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AREVALO V. HENNESSY 10
Cir. 2012)). Deprivation of physical liberty by detention
constitutes irreparable harm. Id. We have applied the
irreparable harm exception when “full vindication of the right
necessarily requires intervention before trial.” Mannes v.
Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). Here, the
petitioner has been incarcerated for over six months without
a constitutionally adequate bail hearing. His case easily falls
within the irreparable harm exception to Younger.3
D
Arevalo also has properly exhausted his state remedies as
to his bail hearing. He filed two motions with the superior
court, a habeas petition with the California Court of Appeal,
and a petition for a writ of habeas corpus with the California
Supreme Court, each of which was denied. The State
suggests that a newly decided California Court of Appeal
case, In re Humphrey, __ Cal. App. __, 2018 WL 550512
(Cal. App. Jan. 25, 2018), may provide a new state avenue of
3 The State also argues that the “irreparable harm” exception to
Younger is exclusively a Double Jeopardy exception. There is nothing in
the text of the Supreme Court decisions so limiting it, and we have applied
it in other contexts. See, e.g., Krahm v. Graham, 461 F.2d 703, 705–07
(9th Cir. 1972) (applying Younger exception for irreparable harm where
the city imposed over 100 criminal charges that allegedly sought to
impede the plaintiffs’ First Amendment rights). Citing Juidice v. Vail,
430 U.S. 327, 330 (1977), the State also argues that the exception does not
apply if the state court provided any opportunity to address the claim.
However, Juidice did not involve the exception; it involved the third
Younger factor—adequacy of the state proceedings to address the issue.
Id. Nor does Moore v. Sims, 442 U.S. 415, 433–35 (1979), stand for that
proposition, as the State claims. Far from supporting the State’s
articulation of the rule, Moore provides a fact-specific analysis suggesting
that “irreparable harm” could have applied to the case under different
factual circumstances, despite the availability of a state court forum. Id.

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AREVALO V. HENNESSY 11
relief for petitioner. However, “[t]he critical date for
purposes of deciding whether abstention principles apply is
the date the federal action is filed.” Gilbertson v. Albright,
381 F.3d 965, 969 n.4 (9th Cir. 2004) (en banc). Further,
Humphrey did not create a new procedural state remedy;
rather, it established substantive standards for trial court
compliance with constitutional and statutory requirements in
setting bail. Humphrey, 2018 WL 550512, at *24.
III
For all the foregoing reasons, we conclude that Younger
abstention does not apply in this case. The final question is
the appropriate remedy. The State has acted in good faith
throughout this litigation with respect to the substantive
merits of Arevalo’s claim. Throughout the state court
litigation and before the federal district court, the State has
repeatedly stated that the petitioner did not receive
constitutionally adequate process during the setting of bail.
It has agreed, in its pleadings, that the petition for a writ of
habeas corpus should issue. Therefore, absent Younger
abstention, there is nothing left for the district court to decide
because the parties agree on the substantive merits.
However, the State has requested that an order granting
the habeas petition be stayed for a reasonable period of time
to allow the superior court to conduct a constitutionally
adequate bail hearing. The State’s request is reasonable.
Accordingly, we reverse the judgment of the district court and
remand with instructions to grant a conditional writ of habeas
corpus, providing that the writ issue unless the California
Superior Court conducts a new constitutionally compliant bail
hearing within fourteen (14) days after the issuance of the
district court’s order conditionally granting the petition.

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AREVALO V. HENNESSY 12
Given our resolution of this case, we need not, and do not,
decide any other issue urged by the parties. In light of the
circumstances, we direct that the mandate be issued forthwith.
RE VE RSED AND REMANDE D WIT H
INSTRUCTIONS.

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