On December 12, 2012, two individual plaintiffs filed suit against Contra Costa County (California) and its Office of the Public Defender (PD) in the U.S. District Court for the Northern District of California (in San Francisco). Represented by private counsel, the plaintiffs sought to represent a class of indigent criminal defendants who, they alleged, were inadequately represented by the PD. The case was assigned to Magistrate Judge Joseph Spero.

The written policy of the PD provided for indigent people accused of crimes (both felonies and misdemeanors) to appear alone at their first court appearance. The court would then refer the criminal defendant to the PD, and postpone the arraignment for an arbitrary period (typically five to thirteen days), not based on the needs of the Public Defender or the exigencies of the particular defendant’s case. During that period, the person remained in jail and opportunities for bail or other release were delayed until the postponed arraignment.

The plaintiffs argued that the Public Defender’s policy was unconstitutional because counsel is required at all critical stages of criminal proceedings, including the initial court appearance. The plaintiffs alleged violations of their Sixth Amendment right to the assistance of counsel and their Fourteenth Amendment right to due process (procedural due process with respect to bail or other release, and both procedural and substantive with respect to statutory speedy trial rights). The plaintiffs sought a declaration of the policy’s illegality and an injunction to block the policy and compel the PD to perform the duties required by California Government Code § 27706. The plaintiffs also requested nominal damages under 42 U.S.C. § 1983 for violations of their constitutional rights, damages under the California State Civil Rights Act for denial of their statutory speedy trial rights, attorneys’ fees, and punitive damages.

The PD moved to dismiss the complaint on January 31, 2013. While this case was pending, the PD changed the contested policy for people charged with felonies, allowing for representation at their first court appearance, but the policy remained unchanged for misdemeanor defendants. The case was referred to Magistrate Judge Jacqueline Scott Corley for settlement negotiations on April 29, 2013, but a settlement was never reached.

On May 8, 2013, the court granted the PD’s motion to dismiss with leave to amend, citing insufficient facts and vague legal reasoning in the complaint. 2013 WL 1915700. The plaintiffs filed an amended complaint on May 13, 2013, and another on May 31. These amended complaints contained more developed legal reasoning, and alleged more particular facts regarding the ways that the delays had affected them. These effects included additional charges brought against the plaintiffs, exclusion of positive information from their bail reports, and loss of opportunity to interview witnesses.

On August 7, 2013, the court granted the PD’s motion to dismiss all federal claims with prejudice, and dismissed all California statutory claims without prejudice. 2013 WL 4042276. Magistrate Judge Spero directed the district court clerk to close the case on August 30, 2013.

The plaintiffs appealed to the Ninth Circuit (court of appeals docket # 13-16781). More than 2 years later, on December 7, 2015, in a joint opinion by Circuit Judges Kim Wardlaw, William Fletcher, and Mary Murguia, the Ninth Circuit affirmed the district court’s decision to dismiss the Fourteenth Amendment claims (the plaintiffs appealed this decision to the Supreme Court, which did not hear their appeal). However, the court of appeals reversed the district court as to the dismissal of the Sixth Amendment claims. The Sixth Amendment, the court of appeals held, required that counsel be appointed at a reasonable time, and it was not clear how long of a delay would be constitutionally unacceptable. Because the district court had not considered this question before dismissing the claims, the Ninth Circuit remanded. 637 Fed. Appx. 986.

On remand in the district court, the plaintiffs filed another amended complaint. On April 28, 2017, the court dismissed the plaintiffs’ claim that the PD had failed to provide counsel at a critical stage (namely the initial appearance), but declined to dismiss the Sixth Amendment claim of unreasonable delay.

The plaintiffs moved for summary judgment on November 22, 2017, this was followed by a cross-motion for summary judgment by the PD. The court granted the PD’s summary judgment motion on the Sixth Amendment claims on January 2, 2019. The court also dismissed the plaintiffs’ remaining California law claim for lack of subject matter jurisdiction, allowing the plaintiffs to bring that claim in a California court (it does not appear that the case was ever pursued in state court).

On January 31, 2019, the plaintiffs filed another appeal in the Ninth Circuit (court of appeals docket #19-15152). The court of appeals affirmed the district court’s ruling on March 30, 2020. In a joint opinion by Circuit Judges Ronald Gould, Morgan Christen, and Daniel Bress, the court of appeals held that the plaintiffs did not establish that the district court erred in ruling that the PD violated their Sixth Amendment rights by failing to provide counsel “within a reasonable time” after arrest and before trial. 799 Fed. Appx. 520. The plaintiffs’ petition for rehearing in the Ninth Circuit was denied and the court of appeals stayed its ruling pending an appeal to the Supreme Court.

The plaintiffs filed for certiorari on October 27, 2020; the Supreme Court issued an order denying certiorari on February 22, 2021. This effectively ended the case.

Kenneth Gray - 06/12/2013
Abigail DeHart - 02/06/2017
Keagan Potts - 03/18/2019
Gregory Marsh - 07/25/2020
Esteban Woo Kee - 07/23/2021


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