A former partner at Washington's Sutherland Asbill & Brennan is seeking to expand his lawsuit against the city over a procedure used to quickly close arrests for low-level offenses, known as “post and forfeit,” into a class action.
Hamilton Fox III, who was with Sutherland when he first filed suit in December but has since retired, has accused the Metropolitan Police Department of using “post and forfeit” to avoid scrutiny into what Fox claims are retaliatory disorderly conducts arrests. Fox, who was arrested for disorderly conduct in 2008, claims the “post and forfeit” procedure is not only improperly used by police, but also that it's unconstitutional.
Fox sued the city and several police officers in U.S. District Court for the District of Columbia in December. Today, he filed an amended complaint (PDF) and motion to certify a class (PDF) in the case, aiming to expand the litigation to include anyone who was arrested for disorderly conduct and released through “post and forfeit” since late 2007.
Solo practitioners William Claiborne III of Washington and Sean Day of College Park are representing Fox. Day deferred comment to Claiborne, who did not immediately return a request for comment today. A police department spokeswoman also did not immediately return a request for comment. Ariel Waldman, senior counsel to the city's attorney general, declined to comment on the pending litigation.
Under the “post and forfeit” statute in the D.C. Code, a person arrested for traffic and other low-level offenses can post collateral and then choose to forfeit that collateral in exchange for essentially closing the case against them. The arrested person waives their right to trial, but avoids a conviction their record.
Fox was arrested in 2008 for disorderly conduct after objecting to a police order to move his car. In his complaint, Fox admits to making a remark questioning one of the police officer’s “intelligence and competence.” Following his arrest, Fox agreed to “post and forfeit” and was released after paying $35, but claims in his complaint that police failed to explain how the “post and forfeit” procedure worked and did not make him aware of other options for release.
He alleges that the procedure gives police cover to make unlawful disorderly conduct arrests of anyone who questions their authority, and then avoid further scrutiny by coercing the arrested individuals into agreeing to “post and forfeit.”
“In these cases, the District uses the full force and might of its criminal justice system to arrest persons then demands money from them to release them and to make their cases go away,” Fox states in his complaint.
The city, in a pending motion to dismiss (PDF), argues that “post and forfeit” is an entirely voluntary procedure, and also that the statute allows individuals to file a motion within 90 days of their arrest to “set aside the forfeiture and recommence the criminal proceedings.”
In the amended complaint filed today, Fox’s attorneys cite a recent jury verdict in Washington federal court, in which a local woman accused police of unlawfully arresting her on a disorderly conduct charge after she publicly criticized them. In that case, the woman also agreed to “post and forfeit” and claimed police failed to make her aware of other options for release; her attorneys similarly argued that police have used “post and forfeit” to escape scrutiny for unlawful arrests. The jury awarded her $97,500 in damages.