Brown & Little, P.L.C. » Courts, Government Rants, US Constitution » Did He Mention It Was Just Plain Evil Too?

Did He Mention It Was Just Plain Evil Too?

Jamison Koehler put up a post earlier today about Washington, D.C.’s “post-and-forfeit” statute being upheld in federal district court. A lawyer had sued D.C. after being arrested for disorderly conduct and given the “choice” pursuant to the statute of either paying $35.00 to be released and resolve the case or hanging around in jail for bit. As is often the case, Scott Greenfield wrote a post about the case over a year ago, not too long after the lawyer first filed suit.

Whereas Scott expressed concerns about the law and its potential problems in his post, Jamison’s post wasn’t really about the law at all. He focused on how people shouldn’t pick unnecessary fights with police officers or bring stupid lawsuits. Discussing the plaintiff-lawyer’s decision to file suit instead of taking less drastic action, he writes, “[a]nd we wonder why people hate lawyers so much.” Jamison almost seems to praise the opinion, noting how it’s apparently fun to read and claiming there’s a reason federal judges and clerks did better in law school than he did. He cites these paragraphs of the opinion before ending with an exclamatory “ouch:”

[T]he challenge to the post-and-forfeit fails, although not for lack of trying. Plaintiff has now provided the Court with three different versions of a prolix complaint – each longer and more detailed than the one that came before. The matter has been briefed extensively, and the Court held a lengthy hearing. Yet plaintiff has yet to articulate just what it is that is wrong with offering someone charged with a minor offense the choice to contest the charge in court or to pay a small sum and go home.

The fundamental flaw at the heart of the plaintiff’s case is that while his papers are generously seasoned with strong language connoting wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case. Moreover, plaintiff was fully apprised of, but elected to forego, his right to seek to set aside the forfeiture and contest the arrest.

I appreciate a good verbal bashing as much as the next guy, but only when it’s deserved. Here, I’m not impressed by the court’s way with words quite as much as I’m horrified that such a statute could exist. The opinion isn’t a righteous bench-slap against some unruly litigant, but rather a terrifying testament to the authoritarian path this country is following. There’s clearly no end to the willingness of the judiciary at all levels to justify coercive and even forceful deprivations of people’s rights so the government can efficiently take their money and exact sick institutional vengeance on them when they ruffle poor little cops’ feathers. Huh. Come to think of it, the plaintiff’s words seem pretty much perfect to me.

Curious, I found the entire opinion at the Blog of Legal Times. It sets forth facts that should make a criminal defense attorney’s blood boil. The lawyer-plaintiff is named “Mr. Fox,” and the opinion explains that he hurt the delicate sensibilities of some demure little flower of an officer by making a derogatory comment about the officer’s intelligence and competence in front of some of his little buddies. Being armed professionals sworn to serve and with a good sense of proportionality, they took a cautious approach and threw Mr. Fox in a cage. Mr. Fox was charged with something called “disorderly conduct – loud and boisterous” and watched another arrestee get hauled off to some scary place the officers called “Central Cellblock” after refusing to pay $35.00. After a few hours in the holding cell, Mr. Fox was given the same “choice,” as the court likes to call it, and he opted to pay the $35.00 ransom post-and-forfeit amount. He was given a form that explained the charged offense and indicated he was being offered the option to post-and-forfeit and that he would otherwise “not be released before [he was] presented to court on [the] charges.” Although the form described “release on bond” and “citation release” as possible alternatives, no one offered Mr. Fox either option. In all, Mr. Fox spent approximately nine hours in jail, which seems to me like quite the price for making someone who carries a gun and handcuffs for a living a little butthurt.

How any court can set forth those facts and rule the way the court in Mr. Fox’s case did is beyond me. Perhaps the most remarkable part of the opinion is the part where the court claims “[i]t is difficult to discern what Mr. Fox’s alleged injury is.” Really? Arrest? Cuffs? A holding cell? Nine hours in jail? Big scary cellies? His poor wife having to go down to the station to try to help him? People cry when they get stopped for going five miles over the speed limit. Other people faint when an officer pulls out handcuffs. Judge Jackson must be tough. Really tough. It’s quite impressive how casually she explains that “the facts as alleged show that he chose to post and forfeit the thirty five dollars – rather than proceed with his criminal case – in order to get out of jail more quickly and terminate his case, and that he was fully aware of his options.” I bet she wouldn’t care at all if she spent nine hours in a cell. She’s probably so tough that she’d demand more jail time to fully weigh her options, all the while feeling no pressure at all. I bet she’d spend months in jail rather than take the weakling’s option and fork over $35.00 for her liberty. Tough lady, that Judge Jackson. As she explains, “there is certainly no fundamental liberty interest in being released from jail before presentment the following morning.” Got that? Judge Jackson and all of her judge buddies do time all the time. What’s an extra several hours or a half day or so being treated like an animal?

Although I could probably go on indefinitely about all the things in the opinion that rub me the wrong way, a few things stood out. For one, the court explains that “[t]he long history of the post-and-forfeit process further weakens Mr. Fox’s substantive due process claim.” In other words, because the government has been doing something bad for a while, that makes it okay. It’s a great argument that I use on behalf of clients all the time. “Your honor, my client kidnaps and robs people every day, and no one ever does anything about it; you can’t just now decide to punish him!” Oh wait. Never mind. I never argue that because it’s ridiculous and would likely get me disbarred and maybe even tossed in the pokey with unfortunate folks like Mr. Fox. Anyway, the court explains how “[t]he Supreme Court has indicated that it approaches requests to strike down longstanding practices under the theory of substantive due process with skepticism.” Gotcha. I might have written it like this, though: “we’ve been demanding ransom for a while and the Supremes say things we’ve done for a while are okidokie so it’s all good.”

With regard to one of his substantive due process arguments, the court explains that, “contrary to Mr. Fox’s assertion, the procedure itself is not rendered constitutionally infirm for substantive due process purposes simply because some of the people who choose to pay the money may have been arrested without probable cause.” There she goes again with the whole “choose” thing. The opinion states, “[t]he risk of an erroneous deprivation is one of the factors that the Court weighs in the procedural due process inquiry, not the substantive due process inquiry.” This is a classic way for courts to get around the fact the system does truly awful things to innocent people. Re-categorize! Who cares if innocent people are incarcerated? Lawyers need to know the difference between substantive and procedural due process.

In the court’s defense, however, at least it addresses the point in the section where it felt it belonged. With regard to Mr. Fox’s procedural due process argument, the court explains, “the post-and-forfeit procedure is adequate to satisfy procedural due process concerns.” Mr. Fox apparently hadn’t alleged the law violated any “fundamental principle of justice,” as the court doesn’t see anything unfair “about being given the choice to pay a reasonable fine to resolve the charge of a petty offense, particularly where the payer has ninety days to think it over and change his mind, and the payment, once final, does not result in a record of conviction.” The emphasis is mine, not the court’s, and that quote shows that, in the end, it all comes back to the fact the court thinks it’s a choice. Our government is run by tough people like Judge Jackson who view the choice of whether to rot in jail or not rot in jail as a meaningful one when the cost is only $35.00. No wonder I’ve never worked for the government; I’m just not tough enough.

Finally, as that last quote suggested, the court really seems focused on the fact Mr. Fox didn’t ask to have the forfeiture set aside by the Superior Court of the District of Columbia despite the fact he had ninety days to do so. If people with guns kidnapped me for being a hurtful meanie to one of them and then released me in exchange for some cash, I certainly wouldn’t be champing at the bit to become involved with my captors again. I wouldn’t want to play their game. I would want to try to empower myself. I would want to strike back and make sure no one else has to endure what I did. Maybe I’d do something pretty close to what Mr. Fox did, and I might even employ some words that are stronger than “force,” “coerce,” “exact,” “deprive,” and “take” in the process. Sadly, though, I’m just a little cream puff. Tough judges would probably see right through my arguments and shoot me down because life and liberty mean nothing to them. Silly me. I suppose I’d just hope that Jamison might feel a little sympathy for me. That seems like something Mr. Fox doesn’t have, though I really can’t understand why.

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11 Responses to "Did He Mention It Was Just Plain Evil Too?"

  1. Bill Poser says:

    It seems to me that the procedure is not the problem so much as the false arrest for “disrespect of cop”. Suppose that he had been legitimately arrested for a real crime. In that case, we wouldn’t regard it as so terrible that he could be detained for some time before seeing a judge, would we?

    1. Matt Brown says:

      I think it would be just as terrible. The need for the system to be fair is just as important for those who are guilty of serious crimes as it is for those who are innocent of trivial ones.

  2. [...] and thoughtfully about the challenges of a criminal defense practice in Tempe, Arizona. He called me out earlier this week for my praise of a recent federal court opinion upholding the constitutionality [...]

  3. Jamison says:

    It is not that I “almost praise” the opinion. It is that I DO praise the opinion. I like it. It reminds us that sometimes we can be a tad bit too strident, too clever, in our advocacy and that sometimes a court will call us out on it.

    I also don’t have a knee-jerk reaction every time there is a dispute between a citizen and a police officer that the police officer is always wrong. Presumably, there is a reason for most traffic regulations and if Mr. Fox was sitting out in front of the drug store during rush hour and I am one of the people sitting in traffic because he is impeding the flow of traffic, I personally am grateful to the police officer for asking him to move along.

    Who knows what transpired between Fox and the officer? But whether or not Fox should have been arrested for sassing off to a police officer is not the question here anyway. The question instead is whether or not once he was sitting in custody he be given the OPTION of posting the $35 fine and immediately forfeiting as a more expeditious way to resolve the case.

    It was disingenuous of Mr. Fox to suggest that he was coerced or forced into doing anything. As a lawyer, he knew very well what his options were. If he wanted to contest his arrest, he could have demanded that he be brought in front of a judge. Or, having take advantage of the “post-and-forfeit” option in order to secure his more expeditious release, he could have availed himself of the opportunity to file a motion to contest the forfeiture. He did neither.

    1. Matt Brown says:

      So much for hoping I’d get a little sympathy…

    2. Andrew (the other one) says:

      “It was disingenuous of Mr. Fox to suggest that he was coerced or forced into doing anything.”

      Good to know that being incarcerated is not a form of coercion.

    3. shg says:

      While neither Fox nor the underlying facts give rise to a particularly sympathetic situation, even arrogant jerks are entitled to good law. Post and forfeit is a bad law, an inherently coercive scheme that provides an incentive to arrest and creates an improper choice of paying or staying, penalizing the vindication of rights, undermining the presumption of innocence and placing undue power in the hands of every cop on the street to make a person, even an arrogant jerk, suffer. The suffering may not be great (though it may well be for some), but suffer nonetheless.

      To question Fox, his choices, his tactics, his complaint, is fine, but to do so without acknowledging the greater problem with Post and Forfeit is a very unfortunate waste of opportunity.

      1. Jamison says:

        I get the part about “inherently coercive scheme” and “penalizing the vindication of rights.” What I don’t get is the part about “placing undue power in the hands of very cop on the street to make a person, even an arrogant jerk, suffer.”

        It is not the “post-and-forfeit” statute that makes the cop an ass. And it is not the statute that puts “undue power” in his hands. Cops will still be jerks even in the absence of the statute. They will still make arrests without probable cause. The only difference is that, by eliminating this option (and it is just that, an option) and by forcing more unfairly arrested citizens to sit in custody until they can go before a magistrate judge, you will be only inflicting more suffering, not less.

        Although there is no “post-and-forfeit” in Philadelphia, the arraignment court there sits 24 hours. D.C. would need to institute a similar arrangement here if it were to eliminate “post-and-forfeit,” and I don’t see that happening any time soon.

        As for the “inherently coercive scheme” and “vindication of rights” arguments, I know that lawyers cringe every time we see someone make a poor long-term decision on the basis of short-term considerations. But we are not the ones sitting in custody, and it is not up to us to make these decisions for people. I don’t agree that we should eliminate “post-and-forfeit” simply because we can’t trust people to make the right decision when it comes to the vindication of their rights. Nor should we do it with the hopes of creating greater systemic changes that might never come.

        1. Matt Brown says:

          I don’t think anyone is saying the statute turns cops into asses. It just makes them less likely to be subject to scrutiny for acting true to form, using the threat of extra time in custody to coerce arrestees into making a decision that will insulate cops’ actions from judicial review.

  4. John says:

    The most egregious part may be that $35.00 is all our rights are apparently worth to some government officials, which makes you wonder about other calculations being made by our government. How many times a day does a government agent invade a citizen’s right to be free in their persons and effects without cause? It happens all the time and there is no compensation for the violated party. Moreover, there is rarely any recourse against the offender because too many argue that the ends justify the means.

    I don’t know who is right and who is wrong when it comes to trading liberty for security. But I believe we need to have greater accountability no matter what.

    1. Matt Brown says:

      It’s also pretty sad that, instead of realizing it might not be a good idea to put someone in jail at all when we think what they did is only bad enough to merit a $35 fine, most people would probably rather just jack up the fine.

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