Full opinion text
MEMORANDUM AND OPINION Lee H. Rosenthal, Chief United States District Judge The plaintiffs, Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder, sued under 42 U.S.C. § 1983, challenging Harris County’s postarrest detention policies. They alleged that the Harris County Sheriff and sixteen Harris .County Criminal Courts at Law Judges promulgate policies that violate the Equal Protection and Due Process Clauses of the United States Constitution by detaining people arrested for misdemeanor offenses who are unable to pay a financial bail bond much longer than those financially able to pay. The result is allegedly a “wealth-based detention system” of jailing misdemeanor defendants only because they cannot pay secured financial bail. (Docket Entry No. 54 ¶ 125). The plaintiffs seek injunctive and declaratory relief against the County and—to the extent that they are State, not County, actors—against the Sheriff and the sixteen Harris County Judges, sued in their official and personal capacities. The plaintiffs also seek declaratory relief against five Harris County Hearing Officers, also sued both in their official and personal capacities. On May 19, 2016, Ms. ODonnell filed this civil-rights class-action lawsuit initially suing Harris County, Sheriff Ron Hickman, and the five Harris County Hearing Officers. She sued on behalf of herself and all other similarly situated individuals. (Docket Entry No. 3). Mr. Ford and Ms. McGruder filed their suits on May 21, 2016. (Civil No. 16-1436, Docket Entry No. 1). The court consolidated the cases in August 2016. (Docket Entry No. 41). The plaintiffs filed an amended complaint on August 31, 2016, adding the sixteen Harris County Criminal Courts at Law Judges as defendants. (Docket Entry No. 54). Harris County, the County Judges, the Hearing Officers, and the Sheriff have moved to dismiss. (Docket Entry Nos. 80, 83-85). The plaintiffs responded, (Docket Entry Nos. 92-95), and the defendants replied, (Docket Entry Nos. 98, 100, 102, 106). Based on the pleadings; the motions, responses, and replies; the record; the applicable law; and the oral arguments of counsel on the motions presented in lengthy hearings held on August 18 and November 28, 2016, the court grants in part and denies in part the defendants’ motions to dismiss. The court dismisses the personal-capacity claims against Sheriff Hickman and the County Judges. The court also dismisses the official-capacity claim against the Hearing Officers. The Hearing Officers did not move to dismiss the claims against them in their personal capacities. Those claims proceed. ■ The court denies the motions to dismiss the claims against Sheriff Hickman and the County Judges in their official capacities, and the court denies the motion to dismiss the claim against Harris County. The reasons for these rulings are explained below. I. Background Harris County is one of the most populous counties in the United States. Multi-pie overlapping authorities coordinate and control, pretrial procedures in the County. The parties sharply dispute basic facts and figures about the timing of pretrial procedures that can result in release pending a dismissal or guilty plea; the number of misdemeanor arrestees detained because they cannot pay bail at or near the time of booking; the sources of authority governing bail procedures; and the entities or persons operating under that authority. Taking the plaintiffs’ plausible factual allegations as true for purposes of these motions shows that bail procedures are administered in Harris County as described below. A. The Sources of Bail Regulation The Texas Constitution requires that “[a]U prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident,” and it forbids “[ejxcessive bail.” Tex. Const, art. I, §§ 11, 13. The Texas Code of Criminal Procedure states that “[t]he amount of bail to be required in any case is to be regulated by the court, judges, magistrate or officer taking the bail.” Tex. Code Ceim, Pro. art. 17.15. In exercising this authority, five rules apply: 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. Id. (emphasis added). The Texas Code permits release of defendants accused of certain misdemeanors after only a citation. Id., art. 14.06. In 1987, after litigation over the unequal application of bail amounts in Harris County, the United States District Court for the Southern District of Texas entered an agreed final judgment known as the Roberson order. See Roberson v. Richardson, Agreed Final Judgment, Civil No. 84-2974 (S.D. Tex. Nov. 25, 1987). The Roberson order required the County Criminal Courts at Law to “implement and maintain a bond schedule for all misdemeanor offenses within their jurisdiction.” Id. at 4. The bond schedule had to “establish the initial amounts of bail required in each type or category of offense.” Id. Judicial officers had the authority “to order the accused released on personal bond or released on other alternatives to presched-uled bail amounts.” Id. County Judges had to “direct the Pretrial Services Agency to make every effort to insure that sufficient information is available at the time of the hearings required herein for the Judicial Officer to determine an accused’s eligibility for a personal bond or alternatives to pre-scheduled bail amounts.” Id. Hearings to “set bail and review the accused’s suitability for release on an alternative to pre-scheduled bail amounts” were to occur “as soon as a Judicial Officer is available after the accused is placed in a jail operated by or under the authority of the Sheriff of Harris County.” Id. at 2. The Roberson court agreed to enter additional orders if “a particular arresting agency shows a pattern of failing to produce accused persons for the hearings required within 24 hours of arrest.” Id. at 8. The Roberson order also substantially repeated the Texas Code of Criminal Procedure by requiring that “bail determinations shall be according to the following criteria”: 1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with; 2. The nature of the offense for which Probable Cause has been found and the circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any; 3. The ability to make bail is to be regarded, and proof may be taken upon this point; 4. The future safety of the victim may be considered, and if this be a factor, release to a third person should also be considered; and 5. The Judicial Officer shall also consider the accused’s employment history, residency, family affiliations, prior criminal record, previous court appearance performance and any outstanding bonds. Id. at 3 (emphasis added). The Texas Government Code permits County Judges to “adopt rules consistent with the Code of Criminal Procedure ... for practice and procedure in the courts. A rule may be adopted by a two-thirds vote of the judges.” Tex Gov’t Code § 75.403(f). On March 7, 2016, the Harris County Criminal Courts at Law Judges, sitting en banc and voting by two-thirds majority, adopted the current Harris County Criminal Courts at Law Rules of Court. These Rules of Court contain a misdemeanor bail schedule, set out as Rule 9. Current Rule 4.2.3.1.provides that “[t]he initial bail amount may be changed on motion of the court, the hearing officer, or any party subject to the following criteria”: 4.2.3.1.1. the bail shall be sufficiently high to give reasonable assurance that the defendant will comply with the undertaking; 4.2.3.1.2. the nature of the offense for which probable cause has been found and the circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any; 4.2.3.1.3. the ability to make bail is to be regarded, and proof may be taken upon this point; 4.2.3.1.4. the future safety of the victim and the community may be considered, and if this is a factor, release to a third person should also be considered; and 4.2.3.1.5. the criminal law hearing officer shall also consider the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds of the accused. Id., Rule 4.2.3 (emphasis added). The current Harris County Rules of Court require that “all law enforcement officials in Harris County shall cause the pretrial detainees in their respective custody, who have been charged with a class A or class B misdemeanor, to be delivered to the criminal law hearing officer not later than 24 hours after arrest.” Id., Rule 4.2.1.1. In addition to finding probable cause for the arrest, Hearing Officers are to “set the amount of bail required of the accused for release and shall determine the eligibility of the accused for release on personal bond, cash bond, surety bond, or other alternative to scheduled bail amounts, and shall issue a signed order remanding the defendant to the custody of the sheriff.” Id., Rule 4.2.2.1.11. (emphasis added). On August 12, 2016, the County Judges amended the County Rules of Court to provide that “personal bonds”—unsecured recognizance bonds—“are favored” in twelve specific misdemeanor categories. Id., Rule 12. Rule 12 lists five circumstances in which personal bonds “are disfavored,” including that “the defendant has demonstrated a risk to reoffend or harm society” or “has previously failed to appear in court as instructed.” Id. In the present case, the plaintiffs allege that the defendants fail or refuse to comply with the Roberson order or the provisions of the Texas Code requiring them to consider an arrestee’s inability to pay bail or eligibility for release on terms other than the scheduled bail amounts at the first hearing, which all parties agree is the probable-cause hearing before a Hearing Officer. The issue in this litigation is how what happens to those arrested for misdemeanor offenses and who are unable to pay their bail at the time of arrest compares to what happens to those who can and do pay the scheduled bail amounts. The complaint allegations describe what happens after arrest. B. The Alleged Postarrest Procedures The plaintiffs allege that despite the federal, state, and local regulations requiring judicial officers at the first hearing to consider a misdemeanor defendant’s inability to pay bail or eligibility for release on nonfinancial conditions, Harris County maintains a “systemic custom of setting secured financial conditions of release on the bail schedule without any inquiry into or findings concerning an arrestee’s present ability to pay the amount set.” (Docket Entry No. 54 ¶ 17). The complaint alleges that this systemic custom arises from written policies in the County Rules of Court, rules informally communicated to the Hearing Officers, and unwritten customs or practices of the Hearing Officers, County Judges, and County Sheriff. (See, e.g., id. ¶¶ 17, 54-55, 63-64, 84-85, 92-94, 97). The complaint alleges that the rules, customs, or practices work as follows: • Misdemeanor arrestees in Harris County are taken either to field offices or directly to the County Jail for processing after arrest. (Id. ¶ 35). • When a person is arrested without a warrant, “the arresting officer will determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys.” (Id. ¶ 36). If the district attorney decides to pursue the charge, she instructs the arresting officer to impose money bail. (Id. ¶ 38). The Harris County Rules of Court require the district attorney to “follow the bail schedule” or provide “a signed order from a judge or judicial officer setting bail at a different amount.” Rules op Court, Rules 2.3.1.1-2. • If a person is arrested under a warrant, the amount that the bond schedule sets is written on the warrant. (Docket Entry No. 54 ¶ 43). • According to the complaint, “[a]t no point does any person perform any inquiry into the arrestee’s ability to pay the money bail amount written on the schedule” during the arrest or consultation with the district attorney’s office. (Id. ¶ 38). • At the field office or at booking at the Harris County Jail, arrestees able to pay the set bail amount and who are subject to no other reason for detention may post bond and be released at this point, within a few hours after arrest. (Id. ¶¶ 41-42, 44). • For arrestees taken to the Harris County Jail for booking, the Sheriffs deputies and Pretrial Services personnel know whether the arrestee is subject to any non-monetary holds, and whether those without holds can pay the secured money bail amount and be released or not. (Id. ¶ 40, 44, 101). • Those who can afford to pay may avoid detention in different ways. If an arrestee’s application to a for-profit bail bond agent is accepted, the arrestee can pay a nonrefundable fee to the bail bond agent and the agent will stand surety for the arres-tee’s release. The complaint alleges that the fee in Harris County usually exceeds 10 percent of the scheduled bond amount for low money bail amounts. (Id. ¶ 44 n,8). Those aware of outstanding arrest warrants may proactively pay the bonding agency fee for a “non-arrest bond” and avoid arrest and detention altogether. (Id. ¶ 128). Those who can obtain counsel may arrange payment of bail at a courthouse, set a court date, and avoid the process of arrest and detention. (Id. ¶ 124). • Those without sufficient money to pay bail are limited to a track that subjects them to longer detention than wealthier arrestees. That discrepancy is the basis for this suit. • Those who cannot (or do not) pay the scheduled bail amount are booked into the County Jail. (Id. ¶ 44). At booking, Harris County Pretrial Services prepares an informational form on each arrestee, recording personal information, criminal history, employment information, and information about sources of income and family support. (See Docket Entry No. 80 at 15-16). This information gives the Hearing Officer, and other officers, the basis to know if the defendant is eligible for release on non-financial conditions and cannot afford the prescheduled, or any, amount of bail. (Docket Entry No. 54 ¶ 101). • After booking, arrestees are taken to a room in the jail. They appear by videolink before a Hearing Officer— a County magistrate judge. (Id. ¶ 51). This is the first judicial officer the defendant encounters. The hearing is conducted entirely by videol-ink, and indigent arrestees do not yet have a lawyer provided to them. (Id. ¶¶ 69-70). • The Hearing Officer determines if there is probable cause for the arrest and sets bail. (Id.), In setting bail, the Hearing Officer, like the district attorney, must “refer[]” to the bail schedule, but the Hearing Officer may modify the bail amount or grant an unsecured personal recognizance bond under the Roberson factors codified in the County Rules of Court. Rules of Court, Rules 4.2.2.1.11 and 4.2.3.1. The Hearing Officer has available at the videolink hearing the information on each arrestee’s prior record, including arrests or convictions for felonies or violent acts, and information about any other nonfi-nancial reasons for continued pretrial detention with no bail or a higher bail amount. (Docket Entry No. 54 ¶ 101). The Hearing Officer also has the arrestee’s financial information collected by Pretrial Services. (Id.). • While “[t]he County strives to hold these hearings within 24 hours of arrest for people charged with misdemeanors,” and “[i]t usually takes between 8 and 24 hours for a person arrested in Harris County to be given a probable cause hearing,” the complaint alleges that “hundreds of people every month must wait several days as a matter of practice.” (Id. ¶ 51, 58). In addition to the facts of the plaintiffs’ arrests, described below, the complaint provides a sampling of arrest data from the Harris County district clerk’s website on August 30, 2016. That data shows four arrestees who had been held for at least two or three days without a videolink hearing before a Hearing Officer. (Id. ¶ 47 n.10). • The videolink hearing before a Hearing Officer is a brief, “rote exercise.” (Id. ¶ 67). By rule, each video hearing is recorded and the recording is maintained for at least 120 days. Rules of Court, Rule 4.2.1.1. Hundreds of these recordings—according to the complaint—demonstrate their perfunctory nature. The hearings typically last a minute or less. (Docket Entry No. 54 ¶ 67). The misdemeanor defendants are warned not to speak—about anything—lest they incriminate themselves. (Id. ¶ 69). The Hearing Officers routinely, as a matter of consistent practice, apply the bail schedule without raising or considering any arrestee’s financial circumstances; without considering a lower bail or alternatives to secured financial bail; and .without permitting the arrestee to speak, much less meaningfully raise an inability to pay bail or seek release on a personal bond. (Id. ¶¶ 60, 64-73). Misdemean- or defendants who are granted personal bonds—8 percent of all misdemeanor arrestees—are granted the bonds on the basis of the charge against them or their criminal history, and not because their ability or inability to pay was considered. (Id. ¶ 79-80). • After the videolink probable-cause hearing, a misdemeanor defendant is taken to a County Court at Law, usually within one business day after the probable-cause hearing. (Id. ¶ 96). When the probable-cause hearing occurs on a Friday, the defendant remains in jail through the weekend. If the following Monday is a holiday, the detention is extended to at least three days. (Id.) • The appearance at a County Court at Law before a County Judge is the first formal adversary proceeding for a misdemeanor defendant. Those who cannot afford counsel may have an attorney appointed for them at this hearing. The complaint alleges that at this point, “there is, as a matter of practice, no review of the money bail amount previously imposed.” Instead, County Judges “reduce money bail amounts previously imposed in less than 1 percent of cases.” (Id. ¶ 97 (citing James Pinkerton and Laura Caruba, Tough bail policies punish the poor and the sick, critics say, Houston Chronicle, Dec. 26, 2015)). • If an attorney is appointed at this hearing, that attorney may file a motion to reduce or remove the money bail condition, but the complaint alleges that it typically takes at least one week for these motions to be heard. (Id. ¶ 104). For these defendants, detention lasts until at least a week after arrest. (Id.). The complaint alleges significant consequences following a “systemic custom of setting secured financial conditions of release based on the bail schedule without any inquiry into or findings concerning an arrestee’s present ability to pay the amount set.” (Id. ¶ 17). During processing at the County jail, an arrestee’s family members or legal counsel are unable to reach him or her unless the scheduled bail amount can be paid. (Id. ¶¶ 49-50). If the bail is not paid, a misdemeanor arrestee remains unreachable until assigned to a housing unit, sometimes days after arrest and even after the probable-cause hearing before a Hearing Officer. (Id. ¶¶ 92-95). Another alleged consequence is that misdemeanor defendants often plead guilty as the only way to “get out of custody more quickly.” (Id. ¶ 98). The complaint alleges that the County Judges routinely accept guilty pleas from defendants at their initial appearances and sentence them to time served, immediately releasing those who plead guilty while continuing to detain those who cannot pay but want to contest the charges. (Id. ¶ 100). The added detention, the complaint alleges, is imposed as a cost for exercising their constitutional right to a trial. (Id. ¶¶ 98-99). A study of Harris County misdemeanor pleas forthcoming in the Stanford Law Review shows that 76.8 percent of detained misdemeanor defendants plead guilty, compared to only 52.8 of defendants released on bond. (Id. ¶ 100 (citing Heaton et al, The Downstream Consequences of Misdemean- or Pretrial Detention, 69 Stan. L. Rev. (forthcoming))). The complaint alleges that the Harris County District Attorney, County Judges, Hearing Officers, and County Sheriff “know that many of the detained individuals ... charged with misdemeanors are being held in jail solely because they are too poor to pay the money bail amount set by the predetermined schedule.” (Id. ¶ 101). Information collected before and during booking is available to the Hearing Officers, County Judges, and County Sheriff, including the misdemeanor arrestees’ financial condition and whether they are ineligible for release for reasons unrelated to their inability to pay bail. (Id.). The district attorney or her assistants, and Sheriff Hickman or his deputies, are present at the videolink probable-cause hearings before the Hearing Officers. (Id. ¶¶ 56, 60). According to the plaintiffs’ summary of the videolink-hearing recordings, the Hearing Officers or the Sheriffs deputies instruct the misdemeanor defendants to remain silent during the hearings. (Id. ¶¶ 23, 70). The Hearing Officers routinely disclaim any ability to grant personal bonds or consider inability to pay. Instead, the Hearing Officers act as if they were required to impose the scheduled bond amounts as the only available release condition. (Id. ¶¶ 69-76, 85-89). The complaint alleges that this squarely violates the Texas Code requirement that “the ability to make bail is to be regarded, and proof may be taken upon this point,” Tex. Code Crim. Pro, art. 17.15; the Roberson court order that the eligibility for release on conditions other than the preset bail amount be considered at the first hearing before a judicial officer, Agreed Final Judgment, Roberson, Civil No. 84-2974; and the written Harris County Rules of Court requirement that Hearing Officers consider inability to pay and eligibility for release on nonfinan-cial conditions, Rules of Court, Rules 4.2.2.1.11, 4.2.S.I.S. County Judges, the complaint alleges, acquiesce in the Hearing Officers’ unwritten customs and practices of violating the federal, state, and local laws as written. The County Judges formally and informally ratify the customs and practices by requiring the denial of pretrial release for misdemeanor arrestees across the' system in the written and unwritten rules they promulgate, as well as in the individual cases in which they confirm the scheduled bail amounts as the only available condition of release. (Docket Entry No. 54 ¶ 103). The complaint alleges that the County Judges have additional unwritten practices and customs that they require the Hearing Officers to follow, such as an unwritten policy that no homeless defendant may be considered for release on a personal bond. (Id. ¶¶ 84-85). C. The Complaint Allegations as to the Individual Plaintiffs Maranda Lynn ODonnell 'was arrested on May 18, 2016 for driving with a suspended license. (Docket Entry No. 54 ¶ 22). The district attorney set her bail at $2,500, the prescheduled amount, (Id.). She could not afford to pay any bail amount. (Id. ¶ 24). The Sheriffs deputies told her not to speak at her brief, videol-ink probable-cause hearing. (Id. ¶ 23). The defendants allege that Ms. ODonnell had a criminal record consisting of two previous failures to appear in court. (Docket Entry No. 80 at 22). The defendants allege that Ms. ODonnell could pay the bail amount and was “released on bail” on May 20, 2016. (Id.). Robert Ryan Ford was arrested on May 18, 2016 for misdemeanor theft of property. (Docket Entry No. 80 at 23). Mr. Ford did not have a probable-cause hearing until the morning of May 20, when, at a brief videolink appearance, the Hearing Officer set his bail at $5,000, the prescheduled amount. (Docket Entry No. 54 ¶ 31 & n.14). Mr. Ford could not afford to pay any bail amount. (Id. ¶ 32). The defendants allege that Mr. Ford has a criminal history, including two felonies in the last ten years. (Docket Entry No. 80 at 23). At his -first court appearance on May 23—five days after his arrest—Mr. Ford pleaded guilty and was released with a sentence of time served. (Id.). Loetha McGruder was arrested on May 19, 2016 for the misdemeanor offense of giving a false name to a police officer. (Id. at 24). A $5,000 bail, the prescheduled amount, was set and confirmed at' the vi-deolink probable-cause hearing. (Docket Entry No. 54 ¶¶ 26-27). She could not afford any bail amount. (Id. ¶28). At a hearing before a County Judge on May 23—four days after her arrest—the bail was reduced to a personal bond, and Ms. McGruder was released. (Docket Entry No. 80 at 24, and Ex. 11). The complaint alleges that these plaintiffs’ experiences are typical of other indigent misdemeanor defendants. According to a 2012 report, 81 percent of misdemean- or arrestees in Harris County could not post bail at booking and were jailed. Most of the other 19 percent could pay and were released on bond before or at booking. (Docket Entry No. 54 ¶ 52). Harris County Pretrial Services annual reports indicate that in 2014, an average of 144 people were admitted to the jail each day on misdemeanor charges; in 2015, 40 percent were still in detention when their cases resolved, most often by a guilty plea. (Id. ¶ 53 nn.12-13, 108). D. Procedural History Ms. ODonnell filed her complaint on May 19, 2016, while still in pretrial detention in the Harris County Jail. (Docket Entry No. 3). Ms. McGruder and Mr. Ford filed their complaint the next day, while they were both in pretrial detention. Civil No. 16-1436 (S.D. Tex. May 20, 2016). The court consolidated the cases on August 18, 2016. (Docket Entry No. 41). Ms. ODonnell’s original complaint named Harris County, Harris County’s five Hearing Officers, and County Sheriff Ron Hickman as defendants. The defendants filed a joint motion to dismiss on June 24, 2016. (Docket Entry No. 25). At the motion hearing on August 28, 2016, the court granted the plaintiffs time to consider amending to add any proper parties for the prospective relief alleged in the complaint. (Docket Entry No. 43). The plaintiffs amended on August 31, 2016, adding the sixteen Harris County Criminal Courts at Law Judges as defendants. (Docket Entry No. 54). The complaint alleges a systemic and knowing violation.of the Due Process and Equal Protection Clauses of the United States Constitution by the defendants’ detention of misdemeanor arres-tees without regard for their ability to pay secured financial conditions of release, while permitting release at booking for defendants able to pay bail. The complaint seeks injunctive and declaratory relief from the County Judges and Sheriff in their official and personal capacities, in-junctive and declaratory relief against Harris County, and declaratory relief against the Hearing Officers in their official and personal capacities. The County Judges moved to dismiss the complaint on November 9, 2016. (Docket Entry Nos. 80-82). They argue that the named plaintiffs lacked standing under Federal Rule of Civil Procedure 12(b)(1), and that the complaint failed to state a plausible claim for relief under Rule 12(b)(6). They argue that their role in setting bail procedures for the County entitled them to immunity from suit. Finally, they argue that this court should dismiss by abstaining under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Harris County, the Sheriff, and the Hearing Officers agree with and incorporate by reference the County Judges’ constitutional and abstention arguments. They also filed separate motions to dismiss, asserting their own immunity defenses and arguing that the plaintiffs have failed to identify a final municipal policymaker and therefore cannot show that Harris County is liable under 42 U.S.C. § 1983. (Docket Entry Nos. 83-85). ■ The court considers each argument and the plaintiffs’ responses, based on the pleadings, the record, the legal standards, and the oral arguments of counsel presented at lengthy hearings held in August and November 2016. II. The Legal Standards A. Standing Challenges under Rule 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) applies to challenges to a plaintiffs standing. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation and internal quotation marks omitted). A court lacks power to decide a claim that a plaintiff lacks standing to bring. The plaintiff has the burden of demonstrating that subject-matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Standing requires: “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.” Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). As “the party invoking federal jurisdiction,” the plaintiffs “bear[ ] the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. They must meet this burden “ ‘with the manner and degree of evidence required at the successive stages of the litigation,’ ” which means that “on a motion to dismiss, plaintiffs must allege facts that give rise to a plausible claim of ... standing.” Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 133-34 (5th Cir. 2009) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). When a complaint seeks multiple kinds of relief, the plaintiff must show standing “for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Courts may dismiss for lack of subject-matter jurisdiction based on: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). "When examining a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of a plaintiffs cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark, 798 F.2d at 741. The court may consider matters outside the pleadings, such as testimony and affidavits, to resolve a factual challenge to subject-matter jurisdiction, without converting the motion to dismiss to one for summary judgment. See Garcia, 104 F.3d at 1261. B. Pleading Sufficiency under Rule 12(b)(6) A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “[I]n deciding a motion to dismiss for failure to state a claim, courts must limit them inquiry to the facts stated in the complaint and the documents either attached to or incorporated in the complaint.” Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996). A court may “consider documents integral to and explicitly relied on in the complaint, that the defendant appends to his motion to dismiss, as well as the full text of documents that are partially quoted or referred to in the complaint.” In re Sec. Litig. BMC Software, Inc., 188 F.Supp.2d 860, 882 (S.D. Tex. 2001) (internal quotation marks omitted). Consideration of documents attached to a defendant’s motion to dismiss is limited to “documents that are referred to in the plaintiffs complaint and are central to the plaintiffs claim.” Scanlan v. Tex. A & M Univ., 343 F.3d 633, 536 (5th Cir. 2003) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). The court may consider these extrinsic materials without converting to a summary-judgment motion. See Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir. 1988) (quoting 5 Weight & Miller, Federal Practice and Procedure § 1366). C. Section 1983 “Section 1983 provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). A local government may not be sued under § 1983 for the deprivation of rights guaranteed by the Constitution or federal law inflicted solely by its employees or agents. Instead, it is “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983.” Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To plausibly allege a claim under § 1983 against a municipality, “a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009). An official policy can be either “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality’s] officers,” or a “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011); see also Peterson, 588 F.3d at 847. (“It usually exists in the form of written policy statements, ordinances, or regulations, but it may also arise in the form of a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy.”) (quotation marks omitted). “MonelVs ‘policy or custom’ requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.” Los Angeles Cty. v. Humphries, 562 U.S. 29, 39, 131 S.Ct. 447, 178 L.Ed.2d 460 (2010). “[A] municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker” for purposes of § 1983 liability. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see also Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (distinguishing a county judge’s “judicial duties” from his “executive, legislative and administrative chores in the day-to-day governance of the county.”). A municipality may be held liable for “deprivations resulting from the decisions of its duly constituted legislative body.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A claim against a municipal defendant in her official capacity is the equivalent of a claim against the municipality itself. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). “[S]uits against States and their agencies ... are barred regardless of the relief sought” by the Eleventh Amendment to the United States Constitution. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed, 714 (1908); Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982)). There is a narrow exception to Eleventh Amendment immunity for suits brought against individuals in their official capacity, as agents of the state or a state entity, if the relief sought is injunctive in nature and prospective in effect. See Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.1998) (citing Young, 209 U.S. at 123, 28 S.Ct. 441). D. Abstention As long as a federal court has jurisdiction over an action, the “ ‘obligation’ to hear and decide a case is ‘virtually unflagging.’ ” Sprint Communications, Inc. v. Jacobs, — U.S. —, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct, 1236, 47 L.Ed.2d 483 (1976)). In Younger v. Harris, 401 U.S. at 37, 91 S.Ct. 746, the federal-court plaintiff was simultaneously defending a state criminal prosecution. It was proper for the federal court to abstain from exercising its jurisdiction to hear the case “under ‘the basic doctrine of equity jurisprudence that courts of equity should not act ... to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.’ ” Sprint, 134 S.Ct. at 591 (quoting Younger, 401 U.S. at 43-44, 91 S.Ct. 746). Abstention under Younger is warranted when three conditions are met: “(1) the dispute must involve an ongoing state judicial proceeding, (2) an important state interest in the subject matter of the proceeding must be implicated, and (3) the state proceeding must afford an adequate opportunity to raise the constitutional challenge.” M. D. v. Perry, 799 F.Supp.2d 712, 715 n.3 (S.D. Tex. 2011) (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)) (internal quotation marks omitted). Unless all three conditions are present, Younger abstention is improper, and the plaintiff has the burden to show that the opportunity to raise the constitutional challenge in a state proceeding is inadequate. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (citing Moore v. Sims, 442 U.S. 415, 429-30, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Younger, 401 U.S. at 45, 91 S.Ct. 746). If the alleged ongoing proceeding is not a criminal proceeding or a quasi-criminal civil enforcement action, the three factors are “not dispositive.” Sprint, 134 S.Ct. at 593. III. The Issues All the Defendants Raise A. The Plaintiffs’ Standing Because there are warrants pending in both Harris County and Galveston County for Ms. ODonnell’s failure to appear for misdemeanor court proceedings, the defendants argue that Ms. ODonnell’s claims should be dismissed under the fugitive-disentitlement doctrine. They also allege that Ms. ODonnell was able to pay her bail when she was arrested, undermining her standing to sue here. Finally, they argue that because of her criminal background and history of failing to appear, Ms. ODon-nell was not imprisoned “solely” because she could not afford to pay any bail amount. (Docket Entry No. 80 at 45-47). The fugitive-disentitlement doctrine is discretionary, sparingly invoked, and rarely applied. Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). When it does apply, it is usually in criminal appeals, immigration, and civil forfeiture cases. Giri v. Keisler, 507 F.3d 833 (5th Cir. 2007) (per curiam) (extending doctrine to appellate review of Board of Immigration Appeals decisions); United States v. Hinojosa, 273 F.3d 1107 (5th Cir. 2001) (per curiam) (dismissing appeal in criminal case under the doctrine); 28 U.S.C. § 2466(a) (civil forfeiture fugitive-disentitlement provision). It has not been applied in this circuit to challenges under § 1983. The doctrine is intended to prevent defendants appealing in criminal cases from obtaining a favorable ruling while escaping unfavorable results or impending proceedings. See Degen, 517 U.S. at 820, 116 S.Ct. 1777; Bright v. Holder, 649 F.3d 397, 400 (5th Cir. 2011); Giri, 507 F.3d at 835-36 (quoting Sapoundjiev v. Ashcroft, 376 F.3d 727, 728-29 (7th Cir. 2004)). This case is not a criminal appeal, and Ms. ODonnell’s failure to appear in County Court will not permit her to escape negative rulings this court might make. She seeks an injunction against using only secured-money bail for misdemeanor defendants without considering their inability to pay at the same time those able to pay bail can secure release. If the court rules against Ms. ODonnell, she will continue to be subject to Harris County’s bail policies and practices. Neither the law nor the record provides a basis to dismiss Ms. ODonnell’s claims under the fugitive-disentitlement doctrine. Accepting the assertions that Ms. ODonnell did in fact have the ability to pay bail or that she was jailed because of her criminal background and not her inability to pay would require the court to resolve disputed facts that go to the merits. These assertions are not standing objections. See Bond v. United States, 564 U.S. 211, 218-19, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (sufficiency of factual allegations should not be confused with justiciability of the controversy). Even taking the defendants’ factual allegations on these points as true, Ms. ODonnell would have standing to bring her claim. Ms. ODonnell alleges that no judicial officer timely considered her inability to pay or her eligibility for release despite her criminal history, and that this outcome is typical for misdemeanor defendants in Harris County. The defendants’ allegations do not resolve Ms. ODonnell’s claims. As to Ms. McGruder, the defendants argue that she “is the prime example of the system functioning as it should.” (Docket Entry No. 80 at 48). They argue that Ms. McGruder “was not held in jail,” because a County Judge granted her request for a personal bond “on the first business day after her” probable-cause hearing. (Id. at 47). The defendants do not adequately account for the calendar. A weekend intervened before the “next business day.” Ms. McGruder stayed in detention on her misdemeanor charge for four days, despite the fact that, as the defendants admit, she was eligible for prompt release on a personal bond based on her inability to pay and on the absence of any other basis for detention. Whether Ms. McGruder received due process and equal protection goes to the merits. This is not a proper standing objection under Rule 12(b)(1). The defendants’ motion to dismiss the plaintiffs’ claims for lack of standing under Rule 12(b)(1) is denied. B. The Legal Standard for the Constitutional Challenges to Pretrial Detention 1. Excessive Bail Bail may be set at “an amount reasonably calculated to ensure the defendant’s presence at trial.” Broussard v. Parish of Orleans, 318 F.3d 644, 650 (5th Cir. 2003) (citing Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951)); see also Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) (“Bail, of course, is basic to our system of law, and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.”). The defendants argue that the plaintiffs’ complaint “is simply a disguised excessive bail challenge under the Eighth Amendment.” (Docket Entry No. 80 at 32). They cite precedents holding that an inability to pay does not make bail excessive under the Eighth Amendment or unreasonable under state law. See United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988) (“[A] bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.”); Simon v. Woodson, 454 F.2d 161, 166 (5th Cir. 1972) (“[T]he ability to make bond is an important element in fixing an appropriate amount therefor, but it cannot be said that the Constitution requires that it alone be controlling.”); Jobe v. State, 482 S.W.3d 300, 302 (Tex.App.-Eastland 2016, pet. ref'd) (if ability to pay is the sole criterion, “the role of the trial court in setting bond would be eliminated, and the accused would be in the position to determine what his bail should be”). The cases the defendants cite involved one-off complaints about excessive bail. These cases did not raise the inability to pay, or that issue was irrelevant in light of felony charges or a high risk of flight or danger. In this case, by contrast, the plaintiffs directly challenge an alleged systematic policy of illegal detention in the timing of misdemeanor defendants’ release based on the inability to pay bail and an alleged refusal to consider alternatives to secured money bail for misdemeanor offenses, as state and federal law require. The plaintiffs do not challenge the existence of the bail schedule or the specific amounts set out in the schedule, but rather the defendants’ alleged refusal to consider any alternatives to financial-release conditions for misdemeanor defendants unable to pay bail and the delay in considering the inability to pay as a basis for release. This case is not properly characterized as an Eighth Amendment challenge to excessive bail. 2. Equal Protection The defendants argue that the Fourteenth Amendment is an improper basis for relief, first because disparate impact is insufficient to state a § 1983 claim, and second because the government’s legitimate interest in ensuring that criminal defendants appear for trial satisfies rational-basis review. (Docket Entry No. 80 at 36-38). The defendants cite cases on racial discrimination for the proposition that disparate impact is not actionable under § 1983, and that the plaintiffs must instead plausibly allege discriminatory intent. See Manley v. Texas Southern Univ., 107 F.Supp.3d 712, 721 (S.D. Tex. 2015) (citing Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004)). The defendants argue that even if the Harris County Rules of Court did discriminate based on wealth, the case should be dismissed under rational-basis review because the government “has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences” and “confinement of such persons pending trial is a legitimate means of furthering that interest.” Bell v. Wolfish, 441 U.S. 520, 534, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). These arguments raise strong points. But they overlook circuit law that requires courts to consider challenges to pretrial detention based on indigence with particular care, “[imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc) (citing Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971)). The state has a “compelling interest in assuring the presence at trial of persons charged with crime. Yet such individuals remain clothed with a presumption of innocence and with their constitutional guarantees intact.” Id. (footnote omitted). The Fifth Circuit panel decision in Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977), applied strict scrutiny to a § 1983 Equal Protection Clause claim challenging Florida’s alleged refusal to consider inability to pay in setting bail. The panel noted that although the Supreme Court did not consider wealth a suspect classification, “the Court has been extremely sensitive to classifications based on wealth in the context of criminal prosecutions.” Id. at 1196. The panel applied strict scrutiny because the claim implicated “fundamental” Fourteenth Amendment rights to be presumed innocent and presumptively eligible for release before trial and criminal conviction. Id. at 1197. The panel decision was vacated en banc after Florida changed its bail rules while the appeal was pending. See Pugh v. Rainwater, 572 F.2d at 1055. The en banc court affirmed the panel’s basis for its ruling, stating that “[a]t the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Id. (citing Williams, 399 U.S. at 235, 90 S.Ct. 2018; Tate, 401 U.S. at 395, 91 S.Ct. 668). These statements remain the applicable law in this circuit, based on subsequent case law developments. In Williams, 399 U.S. at 235, 90 S.Ct. 2018, the Supreme Court held that a facially neutral system of imprisoning convicted defendants who did not pay their fines “works an invidious discrimination” as applied to indigent defendants. Id. at 242, 90 S.Ct. 2018. The majority did not explicitly call for heightened scrutiny but used a functionally similar analysis, finding the government's “substantial and legitimate interest” in collecting revenue from fines did not justify an “invidious discrimination” against those unable to afford the fines. Id. at 238, 242, 90 S.Ct. 2018. A concurring opinion noted that the majority had not applied ordinary rational-basis review to the Equal Protection Clause challenge. See id. at 259, 90 S.Ct. 2018 (Harlan, J., concurring in the judgment). In Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the Court acknowledged without taking a clear position that the Court’s equal protection jurisprudence in collateral detention cases was “substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine.” Id. at 665-66, 103 S.Ct. 2064. The Court reasoned that the answer to that question “cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as ‘the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose .... ” Id. at 666-67, 103 S.Ct. 2064 (quoting Williams, 399 U.S. at 260, 90 S.Ct. 2018 (Harlan, J., concurring)); see also Agreed Final Judgment, Roberson, Civil No. 84-2974, at 1 (creating “a meaningful review of alternatives to pre-scheduled bail amounts” to comport with the en banc Fifth Circuit’s Pugh decision, 572 F.2d at 1057-58). The defendants argue here that the court should apply rational-basis review and dismiss the complaint. That approach represents the “pigeonhole analysis” the Supreme Court rejected and ignores the analysis the Court applied in Williams and Bearden. Williams, 399 U.S. at 238-42, 90 S.Ct. 2018; Bearden, 461 U.S. at 666, 103 S.Ct. 2064. The “careful inquiry” the Court requires in this type of case calls for a more demanding review. Bearden, 461 U.S. at 666, 103 S.Ct. 2064. Even if the defendants were correct that rational-basis review applies, the court would still deny the motion to dismiss under Rule 12(b)(6). Rational basis is a factual inquiry. Courts are properly reluctant to dismiss without permitting plaintiffs to make a factual showing that a government policy is irrational. Mahone v. Addicks Util. Dist., 836 F.2d 921, 937-38 (5th Cir. 1988) (asserting the discretion of district courts to deny dismissal at the Rule 12(b)(6) stage on rational-basis review). That analysis requires this court to resolve critical factual disputes about the Harris County bail system. The parties dispute, for example, whether secured bail ensures attendance at court proceedings, (compare Docket Entry No. 54 ¶ 132 with No. 80 at 37-38); whether the plaintiffs had an opportunity to raise their inability to pay within 48 hours of arrest, (compare No. 54 ¶¶ 21-32 with No. 80 at 46-48); and whether a typical misdemeanor defendant is detained solely for inability to pay bail, (compare No. 54 ¶¶ 51, 121 with No. 80 at 20 n.28). On the last point alone, the plaintiffs allege hundreds of misdemeanor defendants detained solely by indigence; the defendants allege the number is “very small, if any.” (Id.), These disputes go to the merits of the rationality and legitimacy of the government’s bail procedure. Without a developed factual record these disputes cannot be resolved. A motion to dismiss is not the right way to resolve these disputes. The equal protection claim survives the motion to dismiss. 3. Due Process The defendants argue that the complaint fails to state a due-process claim because the plaintiffs admit that “it usually takes between 8 and 24 hours for a person arrested in Harris County to be given a probable cause hearing,” (Docket Entry No. 54 ¶ 51), and “[t]he Supreme Court has set a presumptively reasonable 48-hour probable cause deadline following arrest.” (Docket Entry No. 80 at 35) (citing Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). This argument is unpersuasive. In Gerstein, the Supreme Court held that “the Fourth Amendment requires a timely judicial determination of probable case as a prerequisite to detention.” 420 U.S. at 126, 95 S.Ct. 854. While a rule requiring courts to determine probable cause before every arrest “would constitute ah intolerable handicap for legitimate law enforcement,” id. at 113, 95 S.Ct. 854, the Fourth Amendment’s “balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases,” id. at 125, 95 S.Ct. 854 n.27. Riverside defined that process by holding that if the probable-cause hearing is held within 48 hours of arrest, the burden is on the plaintiff to show that the titilé between the arrest and the hearing was unreasonable in the circumstances. After 48 hours, the burden shifts to the government to show the delay was reasonable. 500 U.S. at 57, 111 S.Ct. 1661. The Riverside Court recognized that under this standard, states could choose to combine probable-cause hearings with other pretrial proceedings if “those proceedings ... arise very early in the pretrial process— such as bail hearings and arraignments.” Id. at 58, 111 S.Ct. 1661. “Even then,” the Court noted, “every effort must be made to expedite the combined proceedings.” Id. (citing Gerstein, 420 U.S. at 124, 95 S.Ct. 854). The plaintiffs allege that although the Hearing Officers attempt to hold probable-cause hearings within 48 hours after arrest, the hearings are at best fleeting and perfunctory. (Docket Entry No. 54 ¶67). The misdemeanor arrestees appear by videolink. (Id. ¶ 56). The plaintiffs allege that the Hearing Officers deliberately and inflexibly refuse to consider the inability to meet financial conditions of release. Instead, the Hearing Officers mechanically impose the scheduled bail amounts. (Id. ¶¶ 64-73). The arrestees are told not to speak. (Id. ¶¶23, 70). If this is a “bail hearing” for Riverside purposes, it clearly does not include consideration of indigence. Nor is it clear that the Riverside 48-hour presumptions would apply to the inquiry into the inability to pay bail or the eligibility for release on nonfinancial conditions. These are both inquiries judicial officers must make “every effort ... to expedite.” Id. In the Fourth Amendment’s probable-cause context, courts have held state actors to significantly shorter periods to conduct “administrative tasks.” See, e.g., Sanders v. City of Houston, 543 F.Supp. 694 (S.D. Tex. 1982) (city enjoined from detaining prisoners more than 24 hours to complete administrative tasks). Or courts have found factual disputes that must be resolved before the court could rule on whether a delay was reasonable under due process. See, e.g., Berry v. Baca, 379 F.3d 764 (9th Cir. 2004) (jury must determine whether a 29-hour delay after authorized release was reasonable); Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986) (jury must decide whether 4-hour delay between arrest and appearance before magistrate was reasonable). The 48-hour probable-cause-hearing standard announced in Riverside is not a safe harbor for the defendants under Rule 12(b)(6). The plaintiffs do not challenge the timing of the probable-cause hearings. They challenge the delay before any judicial officer allows a misdemeanor arrestee an opportunity to raise the inability to pay bail or eligibility for release on a personal bond; they challenge the Hearing Officers’ refusal to consider nonfinancial conditions of release; and they challenge the refusal of the County Judges to allow categories of misdemeanor arrestees, including those who are homeless, to be considered for release on nonfinancial conditions. The plaintiffs allege customs or practices of delaying this hearing for up to a week, until indigent defendants have court-appointed counsel who move for a hearing on the inability to pay bail or the eligibility for release without financial conditions. (Docket Entry No. 54 ¶ 104). In short, the plaintiffs do not challenge the federal, state, and local rules that, as written, require judicial officers to consider inability to pay bail within 24 hours of arrest. Rather, the plaintiffs allege customs or practices of applying these rules in ways that amount to County policies that violate due process because of timing; and that violate equal protection by discriminating on the basis of wealth, or more precisely, poverty, with an insistence on financial release conditions. Even if the law were clear that considering inability to pay bail within 48 hours of arrest is sufficient due process, the plausible factual allegations in the complaint make dismissal inappropriate. At least two of the named plaintiffs allegedly remained in detention for at least four days before they could even raise their inability to pay bail and eligibility for release on a personal bond before a judicial officer. (Docket Entry No. 54 ¶¶ 25-32). The plaintiffs allege that hundreds of recorded probable-cause hearings show that Hearing Officers refuse to consider the inability to pay bail or to consi