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December 17, 2010



What happened to accepting responsibility for your actions. Challenging the law is one thing but how much emotional distress warrants $700,000. Our men and women are coming home from war and no one wants to give them anything for their emotional distress. If you want to challenge the law, then do so. Do you and your wife have $1.2 million in damages for something you said to a police officer that caused you to be arrested. Really?? If you are sucessful in this endeavor then I suggest you give the money to the men and women of the police force who are willing to give their lives every day so you may enjoy your freedoms. Even better about giving it to a family of a soldier whose love one is not coming home this year.


It sounds as though Fox is making a procedural argument against post-and-forfeit.

But what about the validity of the arrest ab initio? Judicial economy is a poor argument for speedy processing of a bogus arrest. (Or put another way, nothing's more economical than leaving the guy alone.)

I'm suspicious of anything that justifies many arrests but few prosecutions. Don't you think DC police (and others) are abusing the charge of disorderly conduct? Do the officers actually not understand the elements or do they not care because there is no realistic penalty for overstepping? In that vein, why are there not more complaints of false arrest?

Brian Davis, Austin, TX

The constitutional soft spot is the boundless discretion the police department seems to have arrogated unto itself. Meanwhile the governmental interest seems to stand for nothing more than quick and easy revenue via a contrivance that skirts the petty-offense laws the police are empowered to enforce. Suppose my answer to the officer's proposition is, "Charge me or let me go." He throws the misdemeanor book at me but I still get to see a magistrate, right? I still get bail, right? Can the police still close my case administratively? If they answer is yes and they do, I get my bail $$$ back, right? Same as if I stood trial, right? So it's not bail and it's not a fine. Let's take another one. Suppose I'm arrested for PI. I'm obviously homeless and I have no money on me. What kind of deal is the police officer going to make me? Will he not send me home, scot free, as soon as I turn up clean for outstanding warrants? At the heightened risk of dogmatism, this is still the criminal law of some type and grade. Granted, municipalities have been cut slack for regulatory items like parking infractions and camera tickets, where the vehicle owner-registrant is deemed guilty and liable for a fine or fee unless he/she can prove his/her innocence. But generally those violations have been reclassified as civil matters and the charged party gets an opportunity to contest liability before it becomes fixed. It's minimal due process. But blur the lines too much, allow the State's enforcers unbridled discretion about when to pull the trigger, as D.C. apparently has, and you've got a system indifferent to its statutory underpinnings.


I do applaud the efforts of challenging this procedure and will be very interested in watching its progress.

I believe this procedure was put in place to deal with the overwhelming number of disorderly conduct arrests, and similar collateral offenses, in the District of Columbia. In 2000, for example, there were 10,600 arrests in DC for disorderly conduct. I don't have the figures, but I would bet the number for 2010 is near that amount, if not higher (see

If the courts had to process each and every disorderly conduct arrest (as well as other collateral offenses eligible for PAF) the judicial system would be ground to a halt. One way to solve this may be to educate and train the offiers better so that they understand what is and what is not disorderly conduct.


As a criminal defense attorney practicing in the District of Columbia, I have dealt with the "post and forfeit" (PAF) procedure on a number of occasions. While I think there are problems with this procedure, I do not know if it rises to a constitutional level.

First, the procedure is in place for the purpose of judicial economy, and therefore it serves a valid purpose recognized by courts across this country.

Second, when an individual is arrested and given the oppotunity to PAF (only certain crimes are eligible for this)the paperwork they receive contains important information and options for that person.

It informs them that selecting to PAF results in no conviction and the case against them is closed. A record of arrest will remain.

Should an individual who elected to PAF decide that they do not want to have the record of arrest, they may file a Motion to Set Aside Forfeiture as a matter of right if it is done within 90 days after the PAF. That Motion will reopen the case via a court Order and an arriangment date will be set in DC Superior Court. The Government then must file the necessary charging documents by that date in order to move forward with the charges against the individual. Should they fail to do so, the case is dismissed and the individual may file, immediately, a Motion to Seal and the record of arrest will be sealed.

In my opinion, the purpose of improving judicial economy, coupled with the procedural safeguards which are clearly indicated on the paperwork, will prevent any constitutional argument from succeeding.

I do think, however, that the amount forfeited by persons under this procedure should be returned to them, with interest, in the event the government fails to file the necessary charging documents (which is often the case in disorderly conduct arrests).

A great majority of arrests for disorderly conduct are never prosecuted because the officers do not understand the requisite elements of the offense. It is widely used as a justification for arrest but rarely prosecuted.

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