El Bey v. Dominguez

Full title: Hasseh EL BEY and El Yumbe El Bey, Plaintiffs, v. Conrad DOMINGUEZ, et…

Court: United States District Court, N.D. Texas, Amarillo Division.

Date published: Nov 20, 2020

540 F. Supp. 3d 653 (N.D. Tex. 2020)

Opinion

2:20-CV-73-Z-BQ

2020-11-20

Hasseh EL BEY and El Yumbe El Bey, Plaintiffs, v. Conrad DOMINGUEZ, et al., Defendants.

Hasseh El Bey, Las Vegas, NV, Pro Se. El Yumbe El Bey, Las Vegas, NV, Pro Se.

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

Hasseh El Bey, Las Vegas, NV, Pro Se.

El Yumbe El Bey, Las Vegas, NV, Pro Se.

ORDER

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on six motions: (1) Motion to Dismiss of the State of Texas, filed June 12, 2020 (ECF No. 10); (2) Motions to Dismiss of the Office of the Attorney General of Texas & Ken Paxton, filed June 12, 2020 (ECF No. 11); (3) Motion to Dismiss of the State of Texas, filed June 4, 2020 (ECF No. 41); (4) Motions to Dismiss of the Texas Department of Public Safety, Texas Highway Patrol, Phillip Ayala & Suzy Whittenton, filed June 5, 2020 (ECF No. 7); (5) Motions to Dismiss of the Texas Department of Public Safety, Texas Highway Patrol, Phillip Ayala & Suzy Whittenton, filed June 12, 2020 (ECF No. 42); and (6) Motions to Dismiss of the Office of the Attorney General of Texas & Ken Paxton, filed June 12, 2020 (ECF No. 43). For the reasons below, the Court GRANTS the six motions to dismiss.

BACKGROUND

In 2019, a patrolman stopped Plaintiffs Hasseh El Bey¹ and El Yumbe El Bey² for speeding and because passenger Hasseh El Bey was not wearing a seatbelt. See Complaint ¶¶ 9–11, at 2–3. The patrolman asserted he smelled marijuana in the vehicle while investigating the traffic violation and therefore suspected the car contained illegal drugs. See ECF No. 19, at 20. The patrolman and two backup officers searched the car without Plaintiffs’ consent or a warrant. See Complaint ¶ 14, at 3; id. ¶ 16, at 3; ECF No. 19, at 24.³ When the patrolman and backup officers allegedly found more than a pound of marijuana in the vehicle, they arrested Plaintiffs for possession of marijuana and for providing a false name to law enforcement. See ECF No. 19, at 24–26. The patrolman who initiated the traffic stop asserts Plaintiff Hasseh El Bey resisted arrest and was subdued, see ECF No. 19, at 20, which Plaintiffs aver involved holding Plaintiff Hasseh El Bey at gunpoint, see, e.g. , Complaint ¶ 15, at 3. Plaintiffs also contend they were not read their Miranda rights. See Complaint ¶ 40, at 5. The Plaintiffs were then photographed and fingerprinted without their consent, giving rise to Plaintiffs’ arguments that their "likenesses" are in jeopardy. See Complaint ¶¶ 43-44, at 5; ¶ 48, at 5.

1 "Hasseh El Bey" is the fictious name Plaintiff Andre Pierre Harris provided officers at the time of his arrest and under which he filed his motions. Curiously, he disputes existence of the alias in multiple documents he filed and signed under that alias. The Court need not resolve this oddity, as no party asserts any person suffers mistaken identity. Instead, the Court refers to Plaintiff by the name captioned in his Complaint, filed March 24, 2020 (ECF No. 3).

2 "El Yumbe El Bey" is the fictious name Ronald Clifton Stovall provided officers at the time of his arrest and under which he has filed all his motions. Like "Hasseh El Bey," he oddly challenges the names of everyone involved in this case — including his own name. For the reasons discussed in note 1 supra , the Court need not resolve the naming inconsistencies and refers to Plaintiff by the name captioned in his Complaint, filed before consolidation at El Yumbe El Bey v. Dominguez , 2:20-CV-073-Z-BQ (N.D. Tex. Mar. 24, 2020), ECF No. 3.

3 Plaintiffs initially filed separate cases, which the United States Magistrate Judge assigned to this case consolidated on August 7, 2020 because they "involve a common question of law or fact," Fed. R. Civ. P. 42(a)(2), and would not prejudice Plaintiffs, see ECF No. 40, at 3. Plaintiffs’ individual complaints are nearly carbon copies. Wherever no difference in wording, paragraphing, or pagination distinguishes Plaintiffs’ claims from each other, the Court for the sake of clarity refers to and cites the two complaints collectively as "Complaint."

Because Plaintiffs were booked late in the afternoon, they remained in jail until their probable cause and bail hearing the following morning. See Complaint ¶ 50, at 6; ECF No. 19, at 20; id. at 26. Plaintiffs were advised of their Miranda rights during the hearing and acknowledged via signature they had been informed of those rights and the charges against them. See ECF No. 19, at 26. Bail was set for each Plaintiff at $15,000, an amount Plaintiffs maintain they subsequently negotiated down to $10,000 combined and paid under "duress" and opposition to such "extort[ion]." Complaint ¶¶ 62–67, at 7.

Plaintiffs each filed Section 1983 suits in this Court on the same day against the same twenty-nine government Defendants, arguing that said Defendants were variously involved in the traffic stop, booking process, or hearing. In April, the Court referred the case to the United States Magistrate Judge based in the Amarillo Division. See ECF No. 5.⁴ When said Magistrate Judge recused, the Court referred the case for pretrial management to the Magistrate Judge in the nearby Lubbock Division. See ECF No. 23. That Magistrate Judge consolidated Plaintiffs’ cases in August. See ECF No. 40.⁵

4 Plaintiffs objected to the referral on the theory the undersigned judge is not their "registered owner." ECF No. 6 ¶ 4, at 2. But the referral is permissible under 28 U.S.C. § 636(b)(1)(A) and Rule 72 of the Federal Rules of Civil Procedure.

5 Plaintiffs each subsequently filed motions indicating they accepted the Magistrate Judge's consolidation order, but only on the condition that he (1) provide them with the original copy of his appointment letter; (2) order the arrest of all Defendants and defense counsel; and (3) enter default judgment against all Defendants. See ECF No. 59 ¶¶ 1–2, at 2–3; ECF No. 61 ¶¶ 1–2, at 2–3. Plaintiffs imposed a deadline for these actions three days after their motions were filed. See ECF No. 59 ¶ 1, at 2; ECF No. 61 ¶ 1, at 2. Plaintiffs seem to misunderstand the nature of a consolidation order under Rule 42 of the Federal Rules of Civil Procedure. The Court is given broad discretion to decide whether to consolidate cases under this rule, and the consent of the parties is not required. See 9A Charles A. Wright & Arthur R. Miller , Fed. Prac. & Proc. Civ. § 2383 (3d ed. 2020). Plaintiffs’ acceptance of consolidation is therefore appreciated but not necessary, and the conditions Plaintiffs’ place on that acceptance have no legal effect.

Plaintiffs allege multiple constitutional claims against the seven Defendants who are the subject of this Order: (1) the State of Texas, (2) Texas Attorney General's Office, (3) Paxton; (4) Texas Department of Public Safety ("TDPS"), (5) Texas Highway Patrol ("THP"), (6) Ayala, and (7) Whittenton. First, they allege all Defendants engaged in a warrantless vehicle search in violation of the Fourth Amendment. See Complaint ¶¶ 28–35, at 4. Second, they contend all Defendants arrested them without mirandizing them, violated their privacy, and committed "trespass against their persons" in violation of the Fifth Amendment. Id. ¶¶ 36–48, at 5–6. Third, they maintain all Defendants conspired to jail them without notice of their offense, deprive them of counsel, and violate their right to a speedy trial under the Sixth Amendment. See id. ¶¶ 49-59, at 6-7. Lastly, they aver all Defendants set excessive bail in violation of the Eighth Amendment. See id. ¶¶ 60–69, at 7–8.

Defendants all claim immunity from Plaintiffs’ suit. The four Defendants that are state entities — the State of Texas, Texas Attorney General's Office, TDPS, and THP — and Defendant Paxton in his official capacity as state attorney general argue that they enjoy unwaived sovereign immunity under the Eleventh Amendment. See ECF No. 7, at 2–3; ECF No. 10, at 1–2; ECF No. 11, at 2–4; ECF No. 41, at 1–2; ECF No. 42, at 2–3; ECF No. 43, at 2–4. Defendants Paxton in his individual capacity, Ayala, and Whittenton aver that Section 1983 liability does not attach via respondeat superior absent proof of official policy or custom. See ECF No. 7, at 3; ECF No. 11, at 3–4; ECF No. 42, at 3; ECF No. 43, at 3–4. All seven defendants therefore ask the Court to dismiss Plaintiffs’ claims against them under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

LEGAL STANDARD

A. Section 1983 Suits and Immunities

The text of 42 U.S.C. § 1983 holds liable to suit "every" state official who violates an American citizen or resident's rights under color of law. 42 U.S.C. § 1983. Congress created the remedy shortly after the Civil War to counter endemic official action in the South that deprived freed slaves of their rights, and bill sponsors therefore intended for the remedy to be construed liberally. Cong. Globe, 42 Cong., 1st Sess. App 68 (1871) ("liberally and beneficently construed"). Yet the Supreme Court from the start has construed "every person" to exempt certain state officials who were immune from suit under the common law⁶ or because of constitutional necessity.⁷ Absolute immunity attaches to state judges and prosecutors within the scope of their judicial and prosecutorial acts. See Stump v. Sparkman , 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (state judges); Imbler v. Pachtman , 424 U.S. 409, 425–26, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (state prosecutors). Qualified immunity extends to police officers when they arrest a defendant and do "not violate clearly established statutory or constitutional rights of which a reasonable person would have known."⁸ City of Escondido, Cal. v. Emmons , ––– U.S. ––––, 139 S. Ct. 500, 503, 202 L.Ed.2d 455 (2019) ; see also Porter v. Epps , 659 F.3d 440, 445 (5th Cir. 2011).

6 See Buckley v. Fitzsimmons , 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ("Certain immunities were so well established in 1871 ... we presume that Congress would have specifically so provided had it wished to abolish them.").

7 See Harlow v. Fitzgerald , 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ; see also Bradley v. Fisher , 80 U.S. 13 Wall. 335, 347, 20 L.Ed. 646 (1871) ("The principle ... which exempts judges ... from liability in a civil action for acts done by them in the exercise of their judicial functions ... has been the settled doctrine of the English courts for many centuries, and has never been denied ... in the courts of this country.")

8 This qualified immunity attempts to balance the individual right to compensation for constitutional violations with governmental interests in public safety and effective policing. See Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1866, 198 L.Ed.2d 290 (2017) ; Anderson v. Creighton , 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The qualified immunity doctrine gives police officers and other government officials "breathing room to make reasonable but mistaken judgments about open legal questions." Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).

More broadly, government officials are not liable for the unconstitutional conduct of their subordinates solely on a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Nor are supervisory officials subject to vicarious liability under Section 1983 for the omissions of their subordinates. See Alderson v. Concordia Parish Correctional Facility , 848 F.3d 415, 419–20 (5th Cir. 2017). Consequently, absent direct personal participation in the alleged constitutional violation, a plaintiff must prove each individual defendant either implemented an unconstitutional policy that directly resulted in injury to the plaintiff or failed to properly train a subordinate employee. See Peña v. City of Rio Grande City , 879 F.3d 613, 620 (5th Cir. 2018) ; Thompkins v. Belt , 828 F.2d 298, 303–04 (5th Cir. 1987).

B. The Fourth Amendment and Warrantless Vehicle Searches

Blackstone inveighed against general warrants in his Commentaries ,⁹ while 18th Century English courts denounced government searches that dragnetted entire cities.¹⁰ Yet such protection from unreasonable searches was less secure in the American colonies. For the decade between the Stamp Act of 1765 and the American Revolution, colonists regularly endured British agents who rifled their papers and ransacked their homes in indiscriminate search of untaxed imports.¹¹ The young John Adams in his papers memorialized that British "writs of assistance" placed "the liberty of every man in the hands of every petty officer."¹²

9 See 4 William Blackstone , Commentaries *288. Cf. Magna Carta ch. 29 (1215) (guaranteeing freedom from warrantless searches). For historical research into the Framers’ awareness of Blackstone's criticism, see Fourth Amendment Origins at 1137.

10 See, e.g., Wilkes v. Wood , 98 Eng. Rep. 489 (1763). The case was one of the most famous legal cases in colonial America in the years before the Revolution. See Akhil Reed Amar, Fourth Amendment First Principles , 107 Harv. L. Rev. 757, 772 (1994) (case "familiar to every schoolboy in America"); Fourth Amendment Origins at 1105–08 (extensive coverage in colonial press).

11 See The Sugar Act, 4 Geo. III ch. 15 (1764); Duties in American Colonies Act ["The Sugar Act"], 5 Geo. III ch. 12 (1765); Revenue Act of 1766, 6 Geo. III ch. 52; William John Cuddihy , The Fourth Amendment: Origins and Original Meaning , 602-1701, at 507–28 (Ph. D. dissertation, Claremont Graduate School 1990) (ProQuest) ("Fourth Amendment Origins ") (chronicling indiscriminate customs searches in the colonies). The Continental Congress repeatedly protested to George III customs officials abused their power "to break open and enter houses without the authority of any civil magistrate founded on legal information," Continental Congress, Petition to the King's Most Excellent Majesty 3 (Oct. 26, 1774).

12 John Adams, Abstract of the Argument for and against the Writs of Assistance (Apr. 1761), in 2 John Adams , Legal Papers of John Adams 142 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965).

Even before the Americans triumphed at Yorktown in 1781, five new state constitutions banned such indiscriminate searches and seizures.¹³ Support for a similar protection against any new national government ran strong in multiple state ratifying conventions as well, and Madison introduced the primordial Fourth Amendment soon after the First Congress.¹⁴ With little discussion and no recorded dissent, Congress passed his proposal to constitutionalize the "right of the people to be secure in their persons, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend IV, cl. 1. Reflecting Madison's fear an ethereal right would be but a parchment barrier against aggressive government,¹⁵ the amendment also concretely commanded "no Warrants shall issue, but upon probable cause" and particularly "describing the place to be searched" and "the persons to be seized." U.S. CONST. amend IV, cl. 2.

13 1776 Const. of Maryland § XXIII; 1776 Const. of North Carolina § XI; 1776 Const. of Pennsylvania § X; 1776 Virginia Decl. of Rights § 10; 1777 Const. of Vermont ch. I, § XI.

14 See 3 Jonathan Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 657–97 (1836).

15 Madison initially opposed bills of rights as empty letters. See, e.g. , Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 James Madison , Papers of James Madison 295–300 (Robert A. Rutland & Charles F. Hobson eds., 1977) ("Repeated violations ... have been committed by overbearing majorities in every State" despite such protection). The fraught history of future revolutionary societies would prove his fears were not unfounded. See 1791 Const. of France ch. 5 art. 10 (prohibiting seizures); 1936 Const. of the USSR art. 125 (declaring legal inviolability of persons, personal correspondence, and residences); 1954 Const. of the People's Rep. of China art. 39–40 (same).

Records of the state ratifying conventions provide scarce discussion of these clauses,¹⁶ complicating the work of courts attempting to excavate their original public meaning and to extend their principles to novel technologies. Jumbled jurisprudence often results, to the consternation of Supreme Court justices¹⁷ and constitutional scholars¹⁸ alike. Yet caselaw on warrantless vehicle searches provides the following bright line rules to inform the Court's analysis of this case.

16 See Richard Labunski , James Madison and the Struggle for the Bill of Rights 245–55 (2006) (reporting history of the state ratifying conventions). Mimicking their fathers’ generation at Bunker Hill, many convention delegates kept their powder dry for more intense and momentous skirmishes to come. Cf. Robert Middlekauff , The Glorious Cause: The American Revolution 294–301, in 3 Oxford History of the United States (David M. Kennedy ed., 2007) (describing parsimonious firing at Battle of Bunker Hill and later strategic retreat).

17 See, e.g., Chapman v. United States , 365 U.S. 610, 618, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (Frankfurter, J., concurring).

18 See, e.g. , Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. at 757 (1994) ; Anthony G. Amsterdam, Perspectives on the Fourth Amendment , 58 Minn. L. Rev. 349, 353–54 (1974).

1. Traffic Stops

First, a police officer who reasonably suspects a traffic violation may execute a traffic stop even if further investigation demonstrates the violation did not occur. See Heien v. North Carolina , 574 U.S. 54, 57, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) ; Navarette v. California , 572 U.S. 393, 134 S. Ct. 1683, 188 L.Ed.2d 680 (2014). Beyond investigating the suspected violation and writing any justified citation, the stopping officer may ask any stopee incidental questions provided those questions do not measurably extend the stop's duration.¹⁹ See Rodriguez , 135 S. Ct. at 1614 ; Arizona v. Johnson , 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; Illinois v. Caballes , 543 U.S. at 408, 125 S.Ct. 834. The officer may inspect the VIN to ensure the vehicle is not stolen, even if this requires peering through the windshield or at the door jamb. See New York v. Class , 475 U.S. 106, 115–19, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) ; United States v. Pierre , 958 F.2d 1304, 1309–10 (5th Cir. 1992).

19 Such inquiries typically involve (1) asking for the driver's license, registration, and proof of insurance; (2) checking whether outstanding warrants for the driver exist; and (3) asking the driver if he has drugs or weapons in the car and about his travel plans. See Rodriguez v. United States , 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015) ; Delaware v. Prouse , 440 U.S. 648, 658–60, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; United States v. Pack , 612 F.3d 341 (5th Cir. 2010) ; 4 Wayne R. Lafave , Search & Seizure § 9.3(c) (6th ed. 2020). Even checking the passenger's license is permitted in this circuit. See Pack , 612 F.3d at 341.

2. Vehicle Searches During a Traffic Stop

Police may search a stopped automobile if they develop a reasonable suspicion²⁰ while investigating the traffic violation²¹ that the vehicle is carrying contraband.²² Maryland v. Dyson , 527 U.S. 465, 466–67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) ; Carroll v. United States , 267 U.S. 132, 153–54, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Stopees enjoy Fourth Amendment protections against unreasonable searches and seizures. See Whren v. United States , 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Nevertheless, police may contemporaneously²³ search the passenger compartment of an automobile stopped alongside a public road without a warrant because of the risks of immediate flight²⁴ or a weapon inside the vehicle²⁵ and because of reduced privacy expectations in vehicles.²⁶ Police also may search locked compartments and luggage in a vehicle,²⁷ even if those depositories contain stopees’ personal effects.²⁸ Police may search a vehicle while a stopee still is inside it. See United States v. Meredith , 480 F.3d 366, 370–71 (5th Cir. 2007). If officer safety so advises, the officer also may search it after having ordered a stopee out of his car if and only if the search occurs within stopee's view. See Maryland v. Wilson , 519 U.S. 408, 414–15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). For instance, the automobile may not be searched while a stopee is handcuffed inside a patrol car. See Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

20 Reasonable suspicion is not the same as clairvoyant certainty; the reasonable suspicion inquiry "falls considerably short of 51% accuracy. Kansas v. Glover , ––– U.S. ––––, 140 S. Ct. 1183, 1188, 206 L.Ed.2d 412 (2020) (internal marks omitted). "To be reasonable is not to be perfect." Heien , 574 U.S. at 60, 135 S.Ct. 530. Touchstone cases invalidating warrantless vehicle searches in the absence of probable cause include Almeida-Sanchez v. United States , 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) ; Dyke v. Taylor Implement Mfg. Co. , 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968) ; and Preston v. United States , 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

21 Because the officer's purpose is to address the traffic infraction, the stop may last no longer than is necessary to effectuate that purpose. See Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). The authority for the search therefore ends when the officer completes — "or reasonably should have [ ] completed" — the tasks tied to the traffic infraction. Rodriguez v. United States , 575 U.S. 348, 135 S. Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). In other words, absent reasonable suspicion to justify an extended detention, an officer cannot "measurably extend" the stop beyond the time reasonably necessary to complete his or her traffic-related inquiries. Rodriguez , 135 S. Ct. at 1615.

22 For a police officer to lawfully stop a vehicle, he must have "a particularized and objective basis for suspecting the particular persons stopped of criminal activity." Glover , 140 S. Ct. at 1187–88. But once the car has stopped, police may search it for contraband whether or not the stop was pretextual. See Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

23 See Knowles v. Iowa , 525 U.S. 113, 116–19, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).

24 See Coolidge v. New Hampshire , 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; Carroll v. United States , 267 U.S. at 153-54, 45 S.Ct. 280. Out of all the considerations listed in this sentence, the Supreme Court recently has most greatly emphasized mobility. Thus, for instance, motorhomes may be searched without a warrant — even though they are residences and enjoy a greater expectation of privacy than do automobiles — because they are mobile. See Cal. v. Carney , 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). But see Collins v. Virginia , ––– U.S. ––––, 138 S. Ct. 1663, 1672-73, 201 L.Ed.2d 9 (2018) (the Carney rule does not extend to search of a vehicle parked within the curtilage of a dwelling).

25 See Birchfield v. North Dakota , 579 U.S. 438, 136 S. Ct. 2160, 2176–77, 195 L.Ed.2d 560 (2016).

26 United States v. Chadwick , 433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (internal marks omitted) ("One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects.... It travels public thoroughfares where both its occupants and its contents are in plain view.")

27 See California v. Acevedo , 500 U.S. 565, 579, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (in case concerning discovery of marijuana during automobile search); United States v. Ross , 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (where there was probable cause to search the entire vehicle for drugs, the police lawfully searched a brown paper bag and a zippered pouch found in the trunk).

28 See Wyoming v. Houghton , 526 U.S. 295, 300–06, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (search may extend to "a passenger's personal belongings, just like the driver's belongings or containers attached to the car like a glove compartment.").

C. The Fifth Amendment and the Right Against Self-Incrimination

When attempting to understand the federal constitutional right against self-incrimination, "a page of history is worth a volume of logic." Ullmann v. United States , 350 U.S. 422, 438, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (internal marks omitted). The right is nowhere found in English law that predates the American Revolution.²⁹ Unrestrained by law, the Star Chamber grew expert at extracting defendants’ confessions through physical torture.³⁰ Once introduced at trial, such self-incrimination generally guaranteed an accused felon would speedily ferry across the Thames towards the River Styx.

29 No mention of the right is found in Magna Carta, the Petition of Right, or the English Bill of Rights, and it was not recognized in pre-revolutionary common law. See 3 Thomas Babington Macauley , History of England 265 (2017) (1848); R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America , 21 Va.l. Rev. 763, 764 (1935).

30 See, e.g., The Trial of John Lilburn and John Wharton , 3 How. St. Tr. 1315 (1637); David Jardine , A Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth 13 (1836) ("anterior to the Commonwealth, torture was always used as a matter of course in all grave accusations, at the mere discretion of the King and the Privy Council, and uncontrolled by any law"); see also A. Lawrence Lowell, The Judicial Use of Torture, Parts I and II , 11 Harv. L. Rev. 220, 230 (1897) ("The use of torture was not entirely confined to procuring the conviction of a prisoner by extorting his confession. It was also ... a regular engine for compelling a condemned criminal to reveal his accomplices ...").

Commonly descended from dissident stock, American colonists took a much stronger stand against self-incrimination by banning coerced confessions. Article 45 of the Massachusetts Body of Liberties of 1641 provided, "No man shall be forced by Torture to confess any Crime against himself nor any other."³¹ Connecticut and Plymouth Plantation adopted similar provisions,³² and Virginia commanded "no law can compel a man to swear against himself in any matter wherein he is liable to corporal punishment."³³ By the time Speaker Muhlenberg of Pennsylvania gaveled in the First Congress, seven of the original thirteen states had constitutionally enshrined their citizens’ right not to incriminate themselves.³⁴

31 Massachusetts Body of Liberties of 1641 art. 45.

32 See Laws of Connecticut Colony (1655) ("It is ordered by the authority of this court that no man shall be forced by torture to confess any crime against himself."); William Bradford , of Plymouth Plantation 354 (2012) (1651) ("I fear it is not safe, nor warranted by God's word, to extract a confession from a delinquent by an oath in matters of life and death.")

33 2 William Waller Hening , Statutes at Large: A Collection of All the Laws of Virginia 422 (1823).

34 1776 Constitution of Virginia § 8; 1776 Constitution of Pennsylvania § IX; 1776 Constitution of Maryland § XX; 1776 Constitution of North Carolina § VII; 1777 Constitution of Vermont ch. 1 § X; 1780 Constitution of the Commonwealth of Massachusetts pt. 1 art. XII; 1784 Constitution of New Hampshire art. 1, § XV.

Antifederalists like Patrick Henry fretted the new national government would trample these rights and import the tortures of the Star Chamber.³⁵ He was not alone. Four state constitutional ratifying conventions proposed a federal amendment banning use of coerced confessions at trial on capital crimes.³⁶ Back in New York, Madison and Mason unsuccessfully lobbied their fellow congressmen to extend the right to civil cases before the more limited scope of the Fifth Amendment was adopted unanimously.³⁷

35 See 3 Jonathan Elliot , The Debates in the Several State Conventions on the Adoption of the Federal Constitution 447–48 (1836) ("Congress ... may introduce the practice ... of torturing to extort confessions of the crime.... They will tell you ... that they must have a criminal equity, and extort concessions by torture, in order to punish with still more relentless severity.").

36 See 1 id. at 319; 2 id. at 111.

37 See Leonard W. Levy , Original Intent and the Framers’ Constitution 248–53 (2000).

Because the Fifth Amendment was not yet incorporated against the states,³⁸ the right against self-incrimination was mostly uninvoked for the first century and a half after its ratification.³⁹ It was not until the early twentieth century that the Supreme Court overturned longstanding precedent to incorporate the Self-Incrimination Clause. See Brown v. Mississippi , 297 U.S. 278, 285–87, 56 S.Ct. 461, 80 L.Ed. 682 (1936). It then upped the ante in Miranda v. United States , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), extending the protection to disallow any confessions extracted from a defendant held incommunicado during questioning. Id. at 446, 86 S.Ct. 1602.

38 See Barron v. City of Baltimore , 32 U.S. (7 Pet.) 243, 249–52, 8 L.Ed. 672 (1833).

39 See William J. Stuntz, The Substantive Origins of Criminal Procedure , 105 YALE L.J. 393, 419–20 (1995).

As the Self-Incrimination Clause currently is construed in Miranda and its progeny, it only applies to arrestees who are in custodial interrogation — i.e. when the circumstances would lead a reasonable arrestee to believe police are questioning him. Statements an arrestee voluntarily makes to police, see United States v. Patane , 542 U.S. 630, 637–38, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004), or to a third party, see Illinois v. Perkins , 496 U.S. 292, 296-300, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), after they make him aware of his Miranda rights are admissible in court proceedings. The accused need not fully understand his right not to self-incriminate provided he knows he may remain silent under questioning. See, e.g., Connecticut v. Barrett , 479 U.S. 523, 525–26, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) ; Moran v. Burbine , 475 U.S. 412, 421–23, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

The privilege against self-incrimination "protects a person only against being incriminated by his own compelled testimonial communications." Fisher v. United States , 425 U.S. 391, 409, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Thus, for the privilege to attach, a statement or act must exhibit three qualities: (1) testimonial communication; (2) compulsion; and (3) incrimination. See United States v. Velasquez , 881 F.3d 314, 337 (5th Cir. 2018). "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County , 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (internal marks omitted). In applying the concept of testimonial communication, the Supreme Court and Fifth Circuit have held the government may compel a person to provide a blood sample,⁴⁰ to stand in a lineup,⁴¹ to demonstrate physical⁴² or speech characteristics,⁴³ to furnish handwriting samples⁴⁴ or fingerprints,⁴⁵ to breathe into a Breathalyzer,⁴⁶ or to complete a urine test.⁴⁷ The defendant also may be compelled to reenact a crime⁴⁸ or try on clothing⁴⁹ since such actions do not require a suspect to "speak his guilt"⁵⁰ or "disclose the contents of his own mind."⁵¹

40 United States v. Hubbell , 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000).

41 United States v. Wade , 388 U.S. 218, 222–23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

42 Tasco v. Butler , 835 F.2d 1120, 1124 (5th Cir. 1988).

43 See United States v. Dionisio , 410 U.S. 1, 5–7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

44 Gilbert v. California , 388 U.S. 263, 266–67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

45 Maryland v. King , 569 U.S. 435, 458–59, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013).

46 Birchfield v. North Dakota , 579 U.S. 438, 136 S. Ct. 2160, 2184, 195 L.Ed.2d 560 (2016).

47 National Treasury Employees’ Union v. Von Raab , 816 F.2d 170, 181 (5th Cir. 1987).

48 Avery v. Procunier , 750 F.2d 444, 448 (5th Cir. 1985).

49 Holt v. United States , 218 U.S. 245, 252–53, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).

50 Wade , 388 U.S. at 222, 87 S.Ct. 1926.

51 Curcio v. United States , 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957).

D. The Sixth Amendment Right to a Speedy Trial

The Anglo-American right to a speedy trial predates even Magna Carta, found at the very beginning of the medieval transition from trials by combat to modern courts.⁵² In 1679, Parliament required indicted prisoners be tried within two judicial terms or otherwise discharged from jail. See Habeas Corpus Act of 1679, 31 Car. II, ch. 2. In his commentaries on Magna Carta five centuries later, influential British jurist Edward Coke⁵³ considered it an uninterrupted and fundamental tenet of English law that courts give "the prisoner full and speedy justice ... without detaining him long in prison."⁵⁴ Multiple state constitutions enacted between 1776 and 1789 ensured such hoary homage survived the American Revolution.⁵⁵ In 1792, the right was enshrined in the federal constitution: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. CONST. amend. VI.

52 See 1166 Assize of Clarendon para. 4, available at https://avalon.law.yale.edu/medieval/assizecl.asp (last visited Nov. 20, 2020) (when a criminal is apprehended, "if the Justices shall not be about to come quickly enough into that county where they have been taken, the sheriffs shall send word to the nearest Justice ... and the Justices shall send back word to the sheriffs where they wish those men to be brought before them ... and there, before the Justice, they shall do their law.") (spelling modernized). This right to a formal trial was formalized in the Magna Carta five decades later. See Magna Carta ch. 40 (1215) ("[T]o no one will we refuse or delay, right or justice.").

53 Jefferson considered Coke's Institutes the "universal elementary book of Law Students" in colonial America and Coke himself the profoundest British constitutional scholar of the preceding centuries. Letter from Thomas Jefferson to James Madison (Feb. 17, 1826).

54 Edward Coke , Second Part of the Institutes of the Laws of England 43 (1681); id. at 43; see 4 William Blackstone , Commentaries *438 (speedy trial right part of "Bulwark of the British Constitution").

55 See 1776 Constitution of Pennsylvania art. 1, § 9 ("in all prosecutions for criminal offences, a man hath a right to ... a speedy public trial"); 1776 Constitution of Maryland § 19; 1777 Constitution of Vermont, ch. 1, art. X See also Virginia Declaration of Rights § 8 (1776) ("That in all capital or criminal prosecutions a man hath a right ... to a speedy trial by an impartial jury of his vicinage ....").

The Supreme Court did not have significant occasion to construe the exact requirements of any part of the Sixth Amendment until the twentieth century because so little federal criminal law existed. See Jonathan F. Mitchell, Apprendi's Domain , 2006 SUP. CT. REV. 297, 342.⁵⁶ But the Warren Court revivified the speedy trial as "one of the most basic rights preserved by our Constitution" and "fundamental as any of the rights secured by the Sixth Amendment." Klopfer v. North Carolina , 386 U.S. 213, 223-26, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Fundamental though it is, the same Court has recognized the right as "vague" and "slippery." Barker v. Wingo , 407 U.S. 514, 521–22, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (internal marks omitted).⁵⁷ In summary, Speedy Trial Clause jurisprudence turns on case-specific factual analysis that weighs a variety of factors. See, e.g., Vermont v. Brillon , 556 U.S. 81, 90–91, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009).

56 Cf. Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners , 76 Harv. L. Rev. 441, 465 (1963) ("there was no federal habeas jurisdiction to inquire into detentions pursuant to state law.").

57 For contemporaneous academic criticism along the same lines, see generally Note, The Lagging Right to a Speedy Trial , 51 Va. L. Rev. 1587, 1618 (1965); Note, The Right to a Speedy Criminal Trial , 57 Colum. L. Rev. 846 (1957) ; and Note, Dismissal of the Indictment as a Remedy for Denial of the Right to Speedy Trial , 64 Yale L.J. 1208 (1955).

By the 1950s, federal circuit courts began to coalesce around three factors to consider in Speedy Trial Clause analysis.⁵⁸ But the Supreme Court first identified the relevant factors in Barker v. Wingo , which remains the lodestar for Speedy Trial Clause analysis today. Rejecting the practice of some states that set definite timelines for each prosecutorial action after an arrest, the Barker court mandated an open-ended balancing test with at least four factors⁵⁹ : "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. 2182. "If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." Id. Prejudice to the defendant can be related to any of three interests: (1) prevention of "oppressive pretrial incarceration"; (2) minimization of the accused's "anxiety and concern"; or (3) impairment of the accused's defense. Id. at 532, 92 S.Ct. 2182. The third of these interests is the most important because it can "skew[ ] the fairness of the entire system." Doggett v. United States , 505 U.S. 647, 654, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) ; see also Divers v. Cain , 698 F.3d 211, 219 (5th Cir. 2012). If the first three Barker factors weigh heavily in a defendant's favor, prejudice may be presumed. See United States v. Harris , 566 F.3d 422 (5th Cir. 2009). If they do not, the defendant "must demonstrate actual prejudice." Parker , 505 F.3d 323, 328 (5th Cir. 2007).

58 See Note, The Right to a Speedy Trial , 57 Colum. L. Rev. at 851–58.

59 407 U.S. at 533, 92 S.Ct. 2182 ("We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.").

The federal circuits have split on whether — and how many — additional factors courts may consider in addition to the Barker four and on whether the factors should be weighted equally. In contrast to at least four circuits that give equal consideration to each factor,⁶⁰ the Fifth Circuit has adopted a weighted approach that is designed to faithfully effect the competing policy goals identified in Barker. See Boyer v. Vannoy , 863 F.3d 428, 444 (5th Cir. 2017) Barker instructs that different weights should be assigned to different reasons.").

60 See, e.g., Garcia Montalvo v. United States , 862 F.2d 425, 426 (2d Cir. 1988) (per curiam); United States v. Gerald , 5 F.3d 563 (D.C. Cir. 1993) ; Hakeem v. Beyer , 990 F.2d 750, 759–72 (3d Cir. 1993) ; United States v. White , 985 F.2d 271, 275–76 (6th Cir. 1993). The length of delay is often the critical factor in these cases, overriding the other factors.

Even a yearslong delay between arrest and trial may not violate the Speedy Trial Clause. See, e.g., Bell v Lynaugh , 828 F.2d 1085, 1094 (5th Cir. 1987) (eight-year delay). But see Doggett , 505 at 657–58 (eight-and-a-half-year delay presumptively violative). A Barker analysis of the four factors is not generally triggered unless at least one year has elapsed since indictment. See United States v. Lucien , 61 F.3d 366 (5th Cir. 1995).

E. The Sixth Amendment Right to Counsel

The right to counsel was narrow in English law prior to the American Revolution, reserved only for those brought before the Star Chamber on treason charges.⁶¹ Blackstone decried the lack of such a right for other accused felons,⁶² but his position found little resonance in a Parliament that did not extend the right even to those accused of capital crimes until 1930.⁶³ More persuasive to many was Edmund Coke's position that the right to counsel was unnecessary because impartial judges presided over trials and criminal proceedings were simple enough for the common man to understand.⁶⁴

61 See 1 James P. Stephen , A History of the Criminal Law of England 341 (1883).

62 4 William Blackstone , Commentaries *355.

63 See Poor Prisoners’ Defence Act of 1930, 20 and 21 Geo. V, ch. 32.

64 See Theodore F. Plucknett , A Concise History of the Common Law 385 (1940).

Colonial American law on the right to counsel thus more accurately represented a divorce with England than a faithful continuation of English practice. Despite a shortage of trained lawyers,⁶⁵ at least five colonies recognized the right of those charged with a capital crime to obtain counsel.⁶⁶ South Carolina retrenched on that right after the Revolution by not including it in its 1776 constitution. But North Carolina added such a right by statute the following year,⁶⁷ and six states constitutionalized accused felons’ right to counsel before 1789.⁶⁸ So did what at the time was the Independent Republic of Vermont.⁶⁹

65 See Oliver Chitwood , A History of Colonial America 191–92 (1931).

66 See 1701 Pennsylvania Charter of Privileges ¶ 5 ("[A]ll criminals shall have the same Privileges of Witnesses and Counsel as their Prosecutors"); 1683 Pennsylvania Frame of Government ¶ 6 ("In all courts all persons of all persuasions may ... personally plead their own cause themselves, or if unable, by their friend."); 1701 Charter of Delaware § V ("All criminals shall have the same Privileges of Witnesses and Counsel as their Prosecutors."); South Carolina Act of August 20, 1731 § XLIII, reprinted in 1 Nicholas Trott , Laws of the Province of South Carolina 518–19 (1736) ("And whereas many innocent persons under criminal Prosecutions, may suffer for want of Knowledge in the Laws, how to make a just Defense ... be it therefore enacted ... every such person so accused accused [sic] and indicted, arraigned or tried for any such Treason, Murder, Felony or other capital Offence whatsoever, shall be received and admitted to make his and their full Defense, by Counsel learned in the Law...."); Virginia Act of August 1734 (8th Geo. II) ch. VII, reprinted in 4 William Waller Hening , Statutes-at-Large of Virginia 404 (1820); Rhode Island Act of March 11, 1660, reprinted in 2 John Russell Bartlett , Records of the Colony of Rhode Island and Providence Plantations in New England 238–39 (1857) ("Whereas it doth appear that any person inhabiting in this jurisdiction, may on good grounds, or through malice and envy be indicted and accused for matters criminal, wherein the person that is so [accused] may be innocent, and yet may not be accomplished with so much wisdom and knowledge of the law as to plead his own innocence, etc. Be it therefore enacted ... the lawful privilege of any person that is indicted, to procure an attorney to plead any point of law that may make for the clearing of his innocence.").

67 North Carolina Act of 1777 § XCIV, reprinted in James Iredell , Laws of the State of North Carolina 317 (1791).

68 1784 Constitution of New Hampshire pt. 1, art. XV ("Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel."); 1780 Massachusetts Declaration of Rights pt. 1, art. XII ("And every subject shall have a right ... to be fully heard in his defense by himself, or his counsel at his election."); 1777 Constitution of New York ¶ XXXIV ("[I]n every trial on impeachment, or indictment for crimes or misdemeanors, the party impeached or indicted shall be allowed counsel, as in civil actions."); 1776 Pennsylvania Declaration of Rights § IX; 1776 Constitution of New Jersey § XVI ("all Criminals shall be admitted to the same Privileges of Witnesses & Counsel, as their Prosecutors are or shall be entitled to").

69 1777 Constitution of Vermont ch. I ¶ X ("[I]n all prosecutions for criminal offenses, a man hath a right to be heard, by himself and his counsel ...").

Those state constitutions were to represent the highwater mark for the right to counsel for the next two centuries. Only the ratifying conventions in Virginia,⁷⁰ New York,⁷¹ and North Carolina⁷² demanded the First Congress add this right to the federal constitution, and the entire congressional floor debate on the right after Madison fills less than a page of text. See 1 ANNALS OF CONGRESS at 796. Related legislation the First Congress passed contemporaneous to debate over the Bill of Rights statutorily ensured right to counsel for those charged with treason and other capital crimes — suggesting Congress originally construed the similar federal constitutional right as narrowly as Parliament had during the time of the Star Chamber.⁷³

70 See 3 Eliot , Debates on the Federal Constitution at 658.

71 See 1 id. at 327.

72 See 4 id. at 243.

73 See Act of April 30, 1790, 1 Stat. 118; cf. English Treason Act of 1695, 7 & 8 Will. 3 ch. 37.

The Supreme Court did not substantively construe the Sixth Amendment right to counsel until Powell v. Alabama in 1932, when it flatly rejected the English theory of Coke and other law doctors that pepper centuries of jurisprudence. In the view of Justice Sutherland, writing for the majority, it is unreasonable to expect (1) even an impartial judge to mount an accused's defense or (2) the average person to adequately navigate criminal procedure. See 287 U.S. 45, 61, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ; id. at 68–69, 53 S.Ct. 55. Thus, the Court construed the Sixth Amendment to require court-appointed counsel in all federal capital cases at least for mentally incompetent or illiterate defendants. See id. at 71, 53 S.Ct. 55 ; see also Johnson v. Zerbst , 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

The Supreme Court further expanded the scope of the Sixth Amendment counsel right over the next three decades. In 1945, it was expanded to all stages of criminal trial proceedings for capital crimes. See Hawk v. Olson , 326 U.S. 271, 66 S. Ct. 116, 90 L.Ed. 61 (1945). In 1961, it was extended backward to arraignment on capital crimes. See Hamilton v. Alabama , 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737 (1961). Soon thereafter, it was pushed further back to pretrial custodial interrogation. See Miranda , 384 U.S. at 444 n.4, 86 S.Ct. 1602 ; Escobedo v. Illinois , 378 U.S. 478, 486, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).⁷⁴ In 1963, the Supreme Court overturned its prior decision in Betts v. Brady , 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), to hold in Gideon v. Wainwright the Sixth Amendment right to counsel is incorporated against the states. See 372 U.S. 335, 339–45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

74 For a more thorough history of these developments, see Alan K. Austin, The Pretrial Right to Counsel , 26 Stan. L. Rev. 399 (1974) and Constitutional Law. Right to Counsel , 46 Colum. L. Rev. 647 (1946).

Subsequent caselaw clarified the chronological contours of this right as it applies to the states. Assistance of counsel extends to pretrial proceedings because missteps then may cause more damage than those during trial itself. Maine v. Moulton , 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Nevertheless, the right does not attach before initiation of adversary criminal proceedings. See Montejo v. Louisiana , 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) ; Texas v. Cobb , 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) ; McNeil v. Wisconsin , 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) ; see generally 1 MCCORMICK ON EVIDENCE § 154 (8th ed. 2020) (listing cases). In Texas, the right specifically attaches when an accused is brought before a magistrate, as required by state law, for a hearing under Texas Code of Criminal Procedure art. 15.17(a), at which a probable cause determination is made, bail is set, and the defendant is formally apprised of the accusation against him. See Rothgery v. Gillespie County, Tex. , 554 U.S. 191, 212–13, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008).

F. The Eighth Amendment Prohibition on Excessive Fines

The framers of the Eighth Amendment were deeply aware of the provision's importance when they assembled in Philadelphia. The protection was at least as old as Magna Carta⁷⁵ and had been reaffirmed in England's 1628 Petition of Right.⁷⁶ Yet crown encroachments had grown so numerous by the Restoration they had spurred parliamentary calls for foreign invasion.⁷⁷ When William of Orange answered the clarion call and deposed James II, Parliament extracted from him the concession "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."⁷⁸ Colonial bills of rights and early state constitutions mirrored such precatory language.⁷⁹

75 See Magna Carta ch. 39, 28 Edw. 3(1215).

76 See 1628 Petition of Right, 3 Car. 1, ch. 1; see also 3 How. St. Tr. 222 (construing same).

77 See, e.g., Trial of Titus Oates , 10 How. St. Tr. 1079, 1314 (K.B. 1685); Trial of Sir Samuel Barnardiston , 9 How. St. Tr. 1333, 1371–72 (K.B. 1684). In 1680, a House of Commons committee censured Charles II for excessive bail for political and religious opponents. See 9 House of Commons J. 661 (1680). They believed the king had coopted the English judiciary to "arbitrarily, illegally, and partially" in favor of "Papists." Id. at 692.

78 Bill of Rights, 1689, 1 W. & M., St. 2, ch. 2.

79 Massachusetts Body of Liberties, reprinted in The Colonial Laws of Massachusetts § 18, at 37 (W. Whitmore ed. 1889); New York Charter of Liberties of 1683, reprinted in C. Lincoln , Constitutional History of New York 95 (1906); Pennsylvania Frame of Government, art. XI, reprinted in 5 F. Thorpe , The Federal and State Constitutions , Colonial Charters and Other Organic Laws 3061 (1906); Pennsylvania Const. of 1776, § 28; North Carolina Const. of 1776, art. XXXIX; see also Northwest Ordinance 1787, art. II, 1 Stat. 51, 52 n.(a).

The Eighth Amendment took the unprecedented step of changing such aspirational language into a mandate that the federal government "shall not" require defendants to post excessive bail to secure pretrial release. U.S. CONST. amend VIII. Congress expressly declined to define the word "excessive" in response to the only question any congressperson asked about the amendment during floor debate.⁸⁰ Nor did the Supreme Court provide any factors or guideposts for interpreting the term for the first dozen years after it incorporated the Excessive Bail Clause against the states in 1972. See Schilb v. Kuebel , 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1972).

80 See 1 Annals of Congress 754 (Joseph Gales ed., 1789) ("Mr. Livermore. – The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges?"). The annals contain no response.

The Supreme Court confirmed in 1987 that the Excessive Bail Clause does not proscribe sizable bails or the complete denial of bail if a defendant presents a flight or public safety risk. See United States v. Salerno , 481 U.S. 739, 752-55, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). But the Supreme Court never has prescribed ranges or rules for how states should calculate bail for various offenses and defendants. Rather, it continues to leave states with broad discretion over bail decisions.⁸¹ Whereas some states have chosen to create statutory bail schedules that preset bail amounts for each type of offense. Texas devolves this discretion to individual judges as long as they operate within the following five parameters listed in the Texas Code of Criminal Procedure:

81 See Young v. Hubbard , 673 F.2d 132, 134 (5th Cir. 1982) (per curiam). This degree of discretion may be considered extraordinary in light of incorporation, but it is a principle of jurisprudence that stretches back at least to the time of Blackstone. See 4 William Blackstone , Commentaries *298.

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.

TEX. CODE OF CRIM. PROC. Art. 17.15 (Vernon's). Explanatory notes to the Texas Constitution further instruct all non-capital crimes should be bailable, even though individual circumstances of a case may warrant no grant of bail. See TEX. CONST. art. 1, § 11 explanatory note.

The Fifth Circuit and Texas courts of appeal provide little further guidance. The magistrate who imposes bail must enunciate his or her individualized, case-specific reasons for doing so. See O'Donnell v. Harris County, Texas , 882 F.3d 528 (5th Cir. 2018). An accused's ability to make bail is not alone determinative of the amount to be set. Ex parte Temple , 595 S.W.3d 825 (Tex.App. 14 Dist. 2019, pet. for discretionary review refused). Otherwise, the amount of bail set is within the sound discretion of the trial court. Nguyen v. State , 881 S.W.2d 141 (Tex.App. 1 Dist. 1994).

G. Eleventh Amendment Sovereign Immunity

Sovereign immunity has existed in English common law since the thirteenth century,⁸² but monarchs rarely invoked it in the five hundred years before the American Revolution.⁸³ They screened suits for frivolousness through the Privy Council⁸⁴ but regularly stood trial on the merits of the cases their subjects brought against them.⁸⁵ Even the tendentious Tudors at the peak of their power abided this tradition.⁸⁶ But the Stuart kings beginning with James I attempted to radically expand sovereign immunity to cover intentional torts and all inferior officers and to reroute such claims through the Star Chamber to avoid liability.⁸⁷ The ensuing uproar caused the suspension of Edward Coke and helped trigger civil war.⁸⁸ The Glorious Revolution restored a more limited sovereign immunity approximating that of the Tudor era, and by the summer of 1776 King George III and his law enforcement officers were routinely summoned to court to answer complaints from royal subjects.⁸⁹

82 1 Frederick Pollock & Frederic William Maitland , The History of English Law Before the Time of Edward I, at 518 (2d ed., Kindle reprint 2010); Charles Howard Mcilwain , The Growth of Political Thought in the West 198, microformed at https://archive.org/details/in.emet.dli.2015.6570 (last visited Nov. 20, 2020); 1 William Blackstone , Commentaries *243–51.

83 See generally Louis L. Jaffe, Suits Against Government and Officers , 77 Harv. L. Rev. 1 (1963).

84 See 9 William Searle Holdsworth , A History of English Law 13–22 (Scholar Select ed. 2018).

85 See id. at 25–28.

86 See, e.g. , 32 Acts of the Privy Council of England (1601-1604) passim (John Roche Dasent ed, 1907), available at https://www.british-history.ac.uk/acts-privy-council/vo132 (last visited Nov. 20, 2020) (reporting cases).

87 Creation of large-scale sewer systems in England in the previous decade had created and consolidated a centralized administrative state and provided the first practical incentive to extend royal immunity to such officers. See Rooke's Case , 5 Co. Rep. 99b, 77 Eng. Rep. 209 (C.P. 1599). The legal question had not previously been before the Privy Council or the Court of Common Pleas. See Louis Jaffe & Edith Henderson, Judicial Review and the Rule of Law Historical Origins , 72 L.Q. Rev. 345, 350–54 (1956) (collecting cases during first decades of Jacobean era).

88 See 3 Samuel Rawson Gardiner , History of England from the Ascension of James I to the Outbreak of the Civil War 1603-1642 1–25 (Elibron Classics ed. 2005) (1883).

89 See, e.g., William Panter and Another v. Attorney-General , 2 E.R. 1217 (House of Lords 1772); Full John Hoblyn, and Others v. The King , 1. E.R. 976 (House of Lords 1772); Cameron et al. v. Reynolds, Under Sheriff , 98 E.R. 1154 (K.B. 1776); Hawkins v. Plomer and Hart, Sheriffs of London , 98 E.R. 626 (K.B. 1776); Hawkins and Another, Assignees of Frost v. Plomer and Hart, Sheriffs of Middlesex , 98 E.R. 616 (K.B. 1776); Between John Wilkes, Esq. v. The King , 97 E.R. 123 (K.B. 1768).

The revolting American colonies condemned George III's "long train of injuries and usurpations," including manipulation of the judiciary to his own ends.⁹⁰ But when they convened to write the Articles of Confederation, they preserved for themselves all the sovereign immunity the English crown possessed.⁹¹ Six years of pitched battle later, postwar Americans found themselves with fewer rights to sue government officials as citizens than they previously had as subjects. Up and down the seaboard, newly independent states keen to avoid repaying their war debts jettisoned common law and codified their primordial right under international law not to be sued by their citizens.⁹²

90 Decl. of Independence ¶¶ 1 & 11–12 (1776).

91 See Nevada v. Hall , 440 U.S. 410, 414–15, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), overruled on other grounds in Franchise Tax Board of California v. Hyatt , ––– U.S. ––––, 139 S. Ct. 1485, 203 L.Ed.2d 768 (2019) ; United States v. Lee , 106 U.S. 196, 205, 1 S.Ct. 240, 27 L.Ed. 171 (1882) (surmising doctrine derives from "laws and practice of our English ancestors").

92 The Treaty of Paris, which ended the Revolutionary War, recognized each of England's former colonies as a free and independent state under international law. See Definitive Treaty of Peace Between the United States of America and his Brittanic Majesty ["Treaty of Paris"], 8 Stat 80 (1783). For a comprehensive discussion of the Founding generation's familiarity, reliance on, and adoption of international law norms as they relate to state sovereignty, see Anthony J. Bellia, Jr. & Bradford R. Clark, The International Law Origins of American Federalism , 120 Colum. L. Rev. 835, 847–56 (2020) and Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions , 93 Nw. U. L. Rev. 819, 821 (1999). For early Supreme recognition of the same, see Ware v. Hylton , 3 U.S. (3 Dall.) 158, 178, 1 L.Ed. 568 (1796).

The Articles of Confederation did nothing to cabin states’ sovereign immunity,⁹³ but the new federal constitution proposed to the states in 1787 was ambiguous on the point. Of greatest concern to Antifederalists was language in Article III that proposed federal court jurisdiction over claims "between a State and Citizens of another State."⁹⁴ U.S. CONST. art. III, § 2. "Between" could be construed to authorize suits in which states were either plaintiffs or defendants , and neither records of the constitutional convention nor Madison's notes provided insight into what delegates had intended the preposition proposition to mean.⁹⁵

93 See Articles of Confederation of 1781, art. II. (preserving full sovereignty of each state). For more historical context, see Gordon S. Wood, Federalism from the Bottom Up , 78 U. Chi. L. Rev. 705, 724–25 (2011).

94 Fear the Constitution would extinguish state sovereign immunity and bankrupt state treasuries ran broad and deep. See, e.g., 2 The Complete Anti-Federalist 429–31 (Herbert J. Storing ed., 1981) (Brutus) (Article III would "subject[ ] a state to answer in a court of law, to the suit of an individual"); 14 Documentary History of the Ratification of the Constitution 41–42 (John P. Kaminski & Gaspare J. Saladino eds., 1983) (Federal Farmer) ("[T]his new jurisdiction will subject the states ... to actions, and processes"); 3 Jonathan Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 526–27 (1836) (George Mason) (Constitution would enable "state to be brought to the bar of justice like a delinquent individual").

95 See 2 Records of the Federal Convention of 1787, at 423–25 (Max Farrand ed., 1937) (record of floor debate); see id. at 430-33 (Madison's notes).

Federalists fanning out to state ratifying conventions frequently fed Antifederalist fears, especially after two members of the Committee on Detail that had drafted the language averred the clause would entirely abolish state sovereign immunity.⁹⁶ Hamilton and Madison labored hard to change the narrative,⁹⁷ both in person at the conventions and in the Federalist Papers. ⁹⁸ Their construction of Article 3, Section 2 to only apply to suits in which states would be plaintiffs prevailed and became states’ express or implied understanding of the troubling language by the time President Washington swore his inaugural oath on the balcony of Federal Hall in 1789.⁹⁹

96 See 3 Jonathan Elliot , Debates at 207 (Edmund Randolph) ("I admire that part [of the Constitution] which forces Virginia to pay her debts."); id. at 491 (James Wilson) ("When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing.").

97 Cf. Lin-Manuel Miranda , Finale, on Hamilton (Original Broadway cast Recording ) (Atlantic 2015).

98 See 3 id. at 533 (Madison) ("It is not in the power of individuals to call any state into court. The only operation it can have is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court."); see also id. at 555 (John Marshall) ("I hope that no gentleman will think that a state will be called at the bar of the federal court.... It is not rational to suppose that the sovereign power shall be dragged before a court. The intent is to enable states to recover claims of individuals residing in other states."); The Federalist No. 81 (Alexander Hamilton) ("It is inherent in ... sovereignty not to be amenable to the suit of an individual without its consent.").

99 Accepting Hamilton's interpretation but wishing to make its construction clear, the New York ratifying convention proposed the following amendment to Article III: "[N]othing in the Constitution now under consideration contained is to be construed to authorize any suit to be brought against any state, in any manner whatever." 2 Johnathan Elliot , Debates at 409. The Conventions of Rhode Island, Massachusetts, Virginia, North Carolina, and New Hampshire proposed similar amendments. See William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction , 35 Stan. L. Rev. 1033, 1051–52 (1983) (collecting proposals).

The First Congress did nothing to disabuse states of this interpretation when it passed the Judiciary Act of 1789 to establish the federal judiciary.¹⁰⁰ But just four years later, in its first major case, the new Supreme Court interpreted Article 3, Section 2 to grant it much broader jurisdiction. In Chisholm v. Georgia , the Peach State fruitlessly argued sovereign immunity prevented a citizen of South Carolina from suing it for unpaid bills for Revolutionary War supplies. Four of the five justices invoked the "spirit" of the Constitution and international law principles to find in "between" an express surrender of states’ sovereignty immunity. 2 U.S. (2 Dall.) 419, 420-24, 1 L.Ed. 440 (1793). Justice Iredell alone dissented, insisting the majority's interpretation defied the original public meaning of the clause and stood athwart five centuries of Anglo-American common law.

100 Judiciary Act of 1789, ch 20, § 13, 1 Stat 73, 80. "[T]he Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction."

The Chisholm decision "fell upon the country with a profound shock" and sparked immediate and furious public backlash.¹⁰¹ Newspapers across the political spectrum denounced the decision as a federal usurpation of power,¹⁰² and state officials steeled themselves for prospective raids on state treasuries by aggrieved and aggressive plaintiffs.¹⁰³ Congress acted with unusual urgency, passing an Eleventh Amendment almost unanimously¹⁰⁴ the first day it was back in session to clarify the "Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend XI.¹⁰⁵ The requisite twelve states ratified the amendment in less than a year.¹⁰⁶

101 See 1 Charles Warren , The Supreme Court in United States History 96 (2011); Democratic-Republican Newspaper (July 25, 1793) ("All the members of the convention said they were opposed to the suability of states.").

102 The condemnation was loudest in the Democratic-Republican press, including in Jefferson's Independent Chronicle. See, e.g. , Independent Chronicle (July 23, 1793), at 2 ("For should it be admitted that the states may be sued in the Federal Judiciary , the numerous prosecutions that will immediately ensue from the various claims of refugees, Tories, etc. will introduce such a series of litigation, as well throw every [scanned text image unclear] in the Union into great confusion.") (spelling modernized, italics in original). Some Federalist newspapers also took up the clamor against the Supreme Court's decision in a rare display of bipartisan agreement. See 1 Charles Warren , The Supreme Court in United States History at 96.

103 See Currie , Constitution in Congress: The Federalist Period 1789–1801, at 196 (1997); see also Cohens v. State of Virginia , 19 U.S. 6 Wheat. 264, 5 L.Ed. 257 (1821) (Marshall, C.J.) (identifying state fears of unpaid debts as motivation).

104 The Senate voted 23-2 in favor of the amendment, and the House voted 81 to 9 in favor of it. See 3 Annals of Cong. 651–52 (1793).

105 For fuller analysis, see John E. Nowak, Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments , 75 Colum. L. Rev. 1413, 1436–40(1975).

106 See Clyde Edward Jacobs , The Eleventh Amendment and Sovereign Immunity 67 (1972).

For the next century the Supreme Court applied a strict textualist interpretation to the Eleventh Amendment, only holding after 1890's Hans v. Louisiana state sovereign immunity also extended to suits states’ own citizens brought against them.¹⁰⁷ The academic legal community has witheringly criticized the extension,¹⁰⁸ and the Supreme Court frequently has conceded the extension is hopelessly at odds with the amendment text.¹⁰⁹ But Hans remains good law, and even the Supreme Court's originalists have adopted the view the Eleventh Amendment does not stand "so much for what it says" as for the "presupposition of our constitutional structure" that "each State is a sovereign entity." Accord Allen v. Cooper , ––– U.S. ––––, 140 S. Ct. 994, 1000–01, 206 L.Ed.2d 291 (2020).

107 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) ; see also Carlos Manuel Vásquez, What is Eleventh Amendment Immunity? , 106 Yale L.J. 1683, 1694 (1997).

108 See, e.g. , John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts , 113 Yale L.J. 1663, 1683 (2004) ("the Hans Court relied on political context and the temper of the times to infer a broader spirit than the Amendment's text could bear, and then enforced that spirit over the letter of the Amendment"); Akhil Reed Amar, Foreword: The Document and the Doctrine , 114 Harv. L. Rev. 26, 114–15 (2000) ("The countervailing doctrine of ‘sovereign immunity’ invoked by Hans ... is constitutional nonsense. It is, quite literally, the precise negation of the Founders’ root idea that the People are sovereign and governments are not."); Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment , 102 Harv. L. Rev. 1342, 1343 (1989) (Hans is "thoroughly unfaithful to the essentially unambiguous dictates of the amendment's language.").

109 See, e.g., Allen v. Cooper , ––– U.S. ––––, 140 S. Ct. 994, 1000-01, 206 L.Ed.2d 291 (2020) (the "bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment ... applies only if the plaintiff is not a citizen of the defendant State.").

The Supreme Court expanded state sovereign immunity even further beyond the textual limits of the Eleventh Amendment in 1999, when it held in Alden v. Maine a nonconsenting state is immune from a private party's suit for alleged violations of federal law even if the suit is brought in a state court. As the majority explained:

[S]overeign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments.

527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Three years later the Supreme Court extended this immunity even beyond courts to a private party's complaint to federal administrative agencies. See Federal Maritime Commission v. South Carolina State Ports Auth. , 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). Federal Maritime Commission understood the Eleventh Amendment to be a floor rather than a ceiling for immunity, not defining its scope but only offering "one particular exemplification of that immunity." Id. at 752, 122 S.Ct. 1864 ; see also Scott Dodson, Mandatory Rules , 61 STAN. L. REV. 1, 18–20 (2008).

Where the ceiling is and what shape it takes has produced plenty of doctrinal confusion and circuit splits. Nonetheless, a few bright line rules arise from Supreme Court and Fifth Circuit caselaw to guide the Court's analysis in this case.

First, state sovereign immunity is a jurisdictional matter within the Fifth Circuit. See Texas Democratic Party v. Abbott , 978 F.3d 168, (5th Cir. 2020). Second, absent express state waiver of sovereign immunity, the doctrine prohibits private suits against nonconsenting states in federal court. See Va. Office for Prot. & Advocacy v. Stewart , 563 U.S. 247, 253, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011) ; City of Austin v. Paxton , 943 F.3d 993, 997 (5th Cir. 2019). Third, it prohibits suits against state officials who are acting in their official capacity or agencies that are effectively suits against a state. See Edelman v. Jordan , 415 U.S. 651, 663–69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) ; see also 13 CHARLES A. WRIGHT & ARTHUR R. MILLER , FED. PRAC. & PROC. JURIS. § 3524.2 (3d ed. 2020).

The only major exception to state sovereign immunity other than waiver is identified in Ex Parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), for state officers who refuse to enforce a federal law they are bound to enforce. See Meza v. Livingston , 607 F.3d 392, 412 (5th Cir. 2010) (duty to enforce); AT&T Communications v. BellSouth Telecommunications Inc. , 238 F.3d 636, 643 (5th Cir. 2001) (federal but not state law).¹¹⁰ The refusal to act must be ongoing. See K.P. v. LeBlanc , 729 F.3d 427, 439 (5th Cir. 2013) ; Nelson v. University of Texas at Dallas , 535 F.3d 318 (5th Cir. 2008). Such a refusal strips a state official of his normal Eleventh Amendment immunity and makes him liable for declaratory and injunctive relief. See Armstrong v. Exceptional Child Center, Inc. , 575 U.S. 320, 326–27, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) ; Richardson v. Texas Secretary of State , 978 F.3d 220 (5th Cir. 2020).¹¹¹ However, a plaintiff may not benefit from the Ex Parte Young exception if his suit would interfere with special state sovereignty interests. See Idaho v. Coeur d'Alene Tribe of Idaho , 521 U.S. 261, 283-88, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). Whether such interference occurs is a case-specific and fact-intensive question. See Seminole Tribe of Florida v. Florida , 517 U.S. 44, 73–76, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ; Ysleta Del Sur Pueblo v. Laney , 199 F.3d 281, 288–90 (5th Cir. 2000), cert. denied , 529 U.S. 1131, 1131, 120 S.Ct. 2007, 146 L.Ed.2d 957 (2000). Lastly, sovereign immunity bars recovery of retrospective damages from the state treasury even under the Ex Parte Young exception. See Edelman , 415 U.S. at 667–69, 94 S.Ct. 1347 ; Talib v. Gilley , 138 F.3d 211 (5th Cir. 1998).

110 The Ex Parte Young exception is meant to guarantee supremacy of federal law when state officials attempt to nullify it. See Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 89-90, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Application of the exception to compel state officers to apply state law impermissibly intrudes on state sovereignty. See id. at 106, 104 S.Ct. 900.

111 The Supreme Court repeatedly has recognized the internal inconsistency in this doctrine, which simultaneously holds an officer's illegal acts do not constitute state action under the Eleventh Amendment but do constitute state action under the Fourteenth Amendment and 42 U.S.C. § 1983. See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho , 521 U.S. 261, 269–70, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) ; Fla. Dep't of State v. Treasure Salvors, Inc. , 458 U.S. 670, 685, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) ("Nevertheless, the rule of Ex parte Young is one of the cornerstones of the Court's Eleventh Amendment jurisprudence."). Legal commentators have also hammered home this point. See, e.g. , John Harrison, Ex Parte Young , 60 Stan. L. Rev. 989, 994–95 (2008) ("legal fiction"). The Ex Parte Young exception to sovereign immunity nevertheless remains good law. See 13 Charles A. Wright & Arthur R. Miller , Fed. Prac. & Proc. Juris. § 3524.3 (3d ed. 2020).

H. Motions to Dismiss

When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts and views them in the light most favorable to the nonmovant. Dyer v. Houston , 964 F.3d 374, 379 (5th Cir. 2020). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal marks omitted). This standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A plaintiff must provide "more than labels and conclusions." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Heinze v. Tesco Corp. , 971 F.3d 475, 479 (5th Cir. 2020). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; Jackson v. City of Hearne, Tex. , 959 F.3d 194, 200 (5th Cir. 2020).

Since 2010, the Fifth Circuit has expressly and consistently applied Iqbal and its two-pronged approach to assessing "plausibility" under Rule 8(a).¹¹² First, the district court must identify and exclude claims that "are no more than conclusions, [and therefore] are not entitled to the assumption of truth."¹¹³ Second, it must assume the veracity of remaining claims and "determine whether they plausibly give rise to an entitlement for relief."¹¹⁴ The Fifth Circuit has not defined "plausibility." Instead, citing Iqbal , it advises district courts to "draw on experience and common sense" when assessing claim "plausibility" in the context of a particular case.¹¹⁵ The Fifth Circuit imposes one limitation on the district court's discretion: they should not define "plausibility" to mean probability of success on the merits of the claim.¹¹⁶ Finally, the Fifth Circuit has construed Jones v. Bock to exclude from the realm of "plausibility" any claim that is absolutely negated by an affirmative defense.¹¹⁷ To date, the Fifth Circuit has identified at least seven affirmative defenses that render a plaintiff's claim "implausible": (1) estoppel;¹¹⁸ (2) legal immunity;¹¹⁹ (3) laches;¹²⁰ (4) res judicata and related preclusion principles;¹²¹ (5) improper joinder;¹²² (6) failure to exhaust administrative remedies;¹²³ and (7) statute of frauds.¹²⁴

112 See Daugherty v. Convergent Outsourcing, Inc. , 836 F.3d 507, 510 (5th Cir. 2016).

113 Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

114 Id.

115 556 U.S. at 662, 129 S.Ct. 1937 ; see also Landeros v. Fu King, Inc. , 12 F. Supp. 3d 1020 (S.D. Tex. 2014).

116 See Lexington Ins. Co. v. S.H.R.M. Catering Services, Inc. , 567 F.3d 182 (5th Cir. 2009).

117 See Jones v. Bock , 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

118 See, e.g., City of Clinton, Ark. v. Pilgrim's Pride Corp. , 632 F.3d 148, 155 (5th Cir. 2010).

119 See, e.g., Hoffman v. Thaler , 539 Fed. Appx. 507, 510 (5th Cir. 2013).

120 See, e.g., Deniece Design, LLC v. Braun , 953 F. Supp. 2d 765, 775 (S.D. Tex. 2013)

121 See, e.g., Wainscott v. Dallas County, Tex. , 408 Fed. Appx. 813, 815 (5th Cir. 2011).

122 See, e.g., Davidson v. Georgia-Pacific, L.L.C. , 819 F.3d 758, 765 (5th Cir. 2016).

123 See, e.g., Gallentine v. Housing Auth. of City of Port Arthur, Tex. , 919 F. Supp. 2d 787, 793 n.3 (E.D. Tex. 2013).

124 See, e.g., Miller v. BAC Home Loans Servicing, L.P. , 726 F.3d 717, 726 (5th Cir. 2013).

The Fifth Circuit's application of Iqbal is complicated by Iqbal itself, which outlines two methodologies for assessing plausibility: (1) "checklist" versus (2) "common sense." The "checklist" approach invokes Iqbal paragraphs stating each legal conclusion "must be supported by factual allegations" not "mere conclusory statements," resulting in a checklist matching each legal element to the particular facts of "who," "what," "when," "where," and "why." 556 U.S. at 678-79, 129 S.Ct. 1937. In contrast, the "common sense" approach invokes Iqbal paragraphs emphasizing "experience and common sense" and a district court's capacity to draw reasonable inferences.

Empirical analysis through 2011 reflected the "checklist" approach was then ascendant in the Fifth Circuit. See Colleen McNamara, Note, Iqbal as Judicial Rorschach Test , 105 Nw. U. L. REV. 401, 417-19 (2011). Subsequent Fifth Circuit opinions axiomatically have adopted the approach. See, e.g., Merchants & Farmers Bank v. Coxwell , 557 Fed. App'x 259, 261 (5th Cir. 2014) (per curiam); Patrick v. Wal-Mart, Inc. — Store No. 155 , 681 F.3d 614, 616 (5th Cir. 2012) ; Bowlby v. City of Aberdeen , 681 F.3d 215 (5th Cir. 2012). Thus, a complaint can survive a motion to dismiss only if it answers the pronouns who, what, where, when, why, and how.

ANALYSIS

Defendants move the Court to dismiss Plaintiffs’ claims against them under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The four state entity Defendants and Defendant Paxton in his official capacity maintain they enjoy unwaived sovereign immunity. See ECF No. 7, at 2–3; ECF No. 10, at 1–2; ECF No. 11, at 2–4; ECF No. 41, at 1–2; ECF No. 42, at 2–3; ECF No. 43, at 2–4. Defendants Paxton in his individual capacity, Ayala, and Whittenton maintain Section 1983 liability does not attach them via respondeat superior absent proof of official policy or custom. See ECF No. 7, at 3; ECF No. 11, at 3–4; ECF No. 42, at 3; ECF No. 43, at 3–4. For the many reasons below, the Court GRANTS Defendants’ motions to dismiss.

A. Claims Dismissed Against State Entities and Defendant Paxton in Official Capacity under Rule 12(b)(1) and Rule 12(b)(6)

At the motion to dismiss stage, the Court must accept Plaintiffs’ allegations as true. See Dyer , 964 F.3d at 379. But even an extraordinarily generous reading of Plaintiffs’ complaint does not identify anywhere they specifically challenge any action, inaction, or policy of the state entity Defendants or Defendant Paxton in his official capacity. The Court therefore DISMISSES the action against them under Rule 12(b)(6) for failure to state a claim on which relief can be granted.

Even if Plaintiffs made particularized allegations against the state entity Defendants, they all enjoy unwaived sovereign immunity here qua state entities. The State of Texas and Texas Attorney General's Office fall squarely within even the narrowest parameters the Supreme Court has imposed on the Eleventh Amendment since 1796. See 13 CHARLES A. WRIGHT & ARTHUR R. MILLER , FED. PRAC. & PROC. JURIS. § 3524.2 (3d ed. 2020). In the face of circuit splits, the Fifth Circuit has held highway authorities and law enforcement agencies also are "state" entities for Eleventh Amendment purposes. See Oliver v. Scott , 276 F.3d 736, 742 (5th Cir. 2002) ; Fireman's Fund Ins. Co. v. Department of Transp. and Development, State of La. , 792 F.2d 1373 (5th Cir. 1986). Because (1) the Eleventh Amendment sets the floor of sovereign immunity and (2) sovereignty immunity is a jurisdictional bar in this circuit, the Court therefore also must DISMISS the claims against the state entity defendants under Rule 12(b)(1).

So too with Defendant Paxton in his official capacity because the Ex Parte Young exception manifestly does not apply here. Plaintiffs challenge (1) a state law Defendant Paxton allegedly (2) did enforce at a time in the past and the enforcement of which is (3) not ongoing. Three strikes might be increasingly acceptable in modern sabermetric baseball, but they continue to defeat Ex Parte Young arguments in federal court. The Court accordingly DISMISSES Plaintiffs’ action against Defendant Paxton in his official capacity under Rule 12(b)(1).

B. Claims Against Defendant Paxton in His Individual Capacity and Defendants Ayala and Whittenton Dismissed under Rule 12(b)(6)

At the motion to dismiss stage, the Court also must accept Plaintiffs’ allegations against the individual Defendants as true. See Dyer , 964 F.3d at 379. Squint as intently at Plaintiffs’ pleadings as it can, the Court discerns no specific allegations Plaintiffs make that these Defendants directly infringed their constitutional rights. The Court therefore understands Plaintiffs to make claims against these Defendants exclusively in their supervisory capacity.

In Section 1983 suits, government officials are not categorically liable for unconstitutional conduct or omissions of their subordinates on a theory of vicarious liability. Iqbal , 556 U.S. at 676, 129 S.Ct. 1937 ; Alderson , 848 F.3d at 419–20. Only two exceptions to this default rule exist, namely, if a supervising official either implemented an unconstitutional policy that directly resulted in a plaintiff's injury or failed to properly train a subordinate employee. See Peña , 879 F.3d at 620 ; Thompkins , 828 F.2d at 303-04. Plaintiffs’ allegations relate only to a single isolated incident, but without allegations of a recurring pattern, a claim based on custom or policy must fail. See Piotrowski v. City of Houston , 237 F.3d 567, 581 (5th Cir. 2001) ; Bennett v. City of Slidell , 728 F.2d 762, 768 n.3 (5th Cir. 1984). Plaintiffs’ claims thus are not well-pleaded under the Fifth Circuit's checklist approach to Iqbal plausibility analysis. See Patrick , 681 F.3d at 616. The Court DISMISSES all claims against Defendant Paxton in his individual capacity and Defendants Ayala and Whittenton under Rule 12(b)(6). In sum, the Court GRANTS all six motions to dismiss it enumerated on page 1 of this order, namely: (1) Motion to Dismiss of the State of Texas, filed June 12, 2020 (ECF No. 10); (2) Motions to Dismiss of the Office of the Attorney General of Texas & Ken Paxton, filed June 12, 2020 (ECF No. 11); (3) Motion to Dismiss of the State of Texas, filed June 4, 2020 (ECF No. 41); (4) Motions to Dismiss of the Texas Department of Public Safety, Texas Highway Patrol, Phillip Ayala & Suzy Whittenton, filed June 5, 2020 (ECF No. 7); (5) Motions to Dismiss of the Texas Department of Public Safety, Texas Highway Patrol, Phillip Ayala & Suzy Whittenton, filed June 12, 2020 (ECF No. 42); and (6) Motions to Dismiss of the Office of the Attorney General of Texas & Ken Paxton, filed June 12, 2020 (ECF No. 43).

Lastly, this order TERMINATES all outstanding motions related exclusively to the State of Texas, Texas Attorney General's Office, the Texas Department of Public Safety, the Texas Highway Patrol, Attorney General Paxton, Ayala, and Whittenton — or to any combination of case defendants solely consisting of any of the foregoing Defendants and other defendants already dismissed from this case. Namely, ECF Nos. 7, 10, 11, 16, 41, 42, 43, 45 are TERMINATED.

SO ORDERED.