U.S. District Judge Amy Berman Jackson heard arguments today about whether a legal challenge to a controversial post-arrest procedure in the District of Columbia known as "post and forfeit" should survive a motion to dismiss.
Under "post and forfeit," a person arrested for certain low-level offenses in D.C. can post collateral and then agree to forfeit it in exchange for having the case essentially dropped. The Metropolitan Police Department has come under scrutiny in the past amid concerns that officers used "post and forfeit" to quickly close and cover up wrongful arrests.
Hamilton Fox III, an assistant Bar Counsel and former partner at Washington's Sutherland Asbill & Brennan, sued the city and several police officers in U.S. District Court for the District of Columbia over his arrest for disorderly conduct in 2008. He opted to "post and forfeit" following his arrest.
Aside from individual claims surrounding his arrest, which he alleged was made without probable cause, Fox has moved to certify a class around the allegations that “post and forfeit” is coercive and unconstitutional. The class claims include unlawful seizure and violation of due process under the Fourth and Fifth Amendments, respectively.
Jackson heard oral arguments this morning on the city’s motion to dismiss (PDF) the constitutional claims.
The city's Office of the Attorney General has argued that Fox failed to produce any facts or legal authority for his argument that “post and forfeit” is, on its face, an unconstitutional procedure.
Assistant Attorney General Jacques Lerner said this morning that Fox hadn’t alleged any injury because, under “post and forfeit,” he had the right to go back and reopen his case if he felt he was wrongfully arrested. Fox was aware of his options and made a choice not to exercise that right, Lerner said.
Lerner also argued that Fox hadn’t made any concrete allegations of constitutional violations beyond his own. Fox’s class claims are based on “sheer speculation,” Lerner said.
Washington solo practitioner William Claiborne III, arguing on behalf of the proposed “post and forfeit” class, compared Fox’s case to one recently before U.S. District Chief Judge Royce Lamberth, Huthnance v. D.C., which challenged the city’s handling of disorderly conduct arrests.
Huthnance accused police of wrongfully and unlawfully arresting her in retaliation for negative comments she made about several officers; she claimed she was made to believe she had no choice but to “post and forfeit." Huthnance won a jury verdict last March, a judgment that the city is still contesting.
Jackson pressed Claiborne to explain why Huthnance’s case was relevant, since Fox, unlike Huthnance, knew “post and forfeit” was one of several options available. The judge also noted that Huthnance’s case focused on the legality of how police handled disorderly conduct arrests – of which “post and forfeit” was a part – while Fox’s case was a challenge to the “post and forfeit” procedure on its own.
Claiborne argued that the city lacked authority under the constitution to “take” money in these circumstances. Jackson expressed skepticism that there was any “taking” involved, since the arrested individual made a voluntary decision to “post and forfeit” and still had a right to go back and contest the arrest.
Fox was arrested in 2008 for disorderly conduct after objecting to a police order to move his car. In the complaint, Fox admitted to making a remark that questioned an officer’s “intelligence and competence.” Fox claimed “post and forfeit” gave police cover to make retaliatory arrests for disorderly conduct like the one he alleged in his complaint.