Seventh Circuit Says Fourth Amendment Does Not Require Bail Hearing Within 48 Hours of Arrest
by Benjamin Tschirhart
In a decision handed down on June 22, 2022, the U.S. Court of Appeals for the Seventh Circuit found no Fourth Amendment violation for a group of protestors arrested and held nearly three days without a bail hearing. The decision affirmed a lower court ruling that found no Fourth Amendment guarantee that a bail determination must be made within 48 hours.
During racial justice protests in Illinois’ Winnebago County over the summer of 2020, eight demonstrators were arrested “at various times,” as later recalled by the federal court for the Northern District of Illinois; “each … was jailed over the weekend until Monday afternoon, when a court determined that each was eligible for release.”
In a suit filed in the district court , five of the eight – Dylan Mitchell, Dayna Schultz, Larissa Walston, Michael Riggs and Ivan Holland – were represented by attorney Brad Thomson of the People’s Law Office in Chicago, along with another Chicago attorney, Adele D. Nicholas, who also represented the other three: Ross Wagner, Andrew Ehrhardt and Jaylen Butler. On their behalf, as well as all others similarly situated, they alleged that the detentions resulted in “numerous injuries” including loss of employment and inability to seek medical care for various injuries sustained during their arrests.
The initial suit addressed the failure to make a probable cause determination within 48 hours of arrest. Later, the complaint was amended to argue under 42 U.S.C. § 1983 that the Fourth Amendment guarantee of protection from unreasonable seizure was violated by that failure. After the district court granted Defendants’ motion for dismissal, Plaintiffs appealed.
At the Seventh Circuit, a three-judge panel – Ilana K.D. Rovner, Amy J. St. Eve and Candace Jackson-Akiwumi – began by examining the two Supreme Court decisions to address “procedural requirements for probable cause determinations.” But none was found that “considered the timing of bail hearings.”
Instead, in Gerstein v Pugh, 420 U.S. 103 (1975), the high court determined that the Fourth Amendment requires a prompt “judicial determination of probable cause as a prerequisite to extended restraint of Liberty following arrest.”
After that, in County of Riverside v McLaughlin 500 U.S. 44 (1991), the Supreme Court said that jurisdictions providing “judicial determinations of probable cause within 48 hours of arrest will ... comply with the promptness requirement of Gerstein,” though that might be too long if a delay is imposed “for the purpose of gathering additional evidence to justify the arrest,” or is “motivated by ill will against the arrested individual” or is “a delay for delay’s sake.”
The Seventh Circuit said it “has likewise never held that a bail hearing must occur within  hours after arrest,” and “no other circuit has imposed a [48-hour] requirement for bail hearings.” In the instant case, the 68-hour hold was also deemed constitutional. While a jurisdiction could choose to hold bail hearings within 48 hours, it is by no means required to do so under the Fourth Amendment, the Court concluded. Therefore the district court’s decision was affirmed. See: Mitchell v. Doherty, 37 F.4th 1277 (7th Cir. 2022).
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