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.
Filed under: Courts, Government Rants, US Constitution · Tags: bond, collateral, d.c., district court, due process, forfeit, fox, hamilton, jackson, jail, judge, koehler, post, release, washington, watergate