Sutherland Lawyer Wants D.C. to Pay Up After Arrest

When Washington attorney Hamilton "Phil" Fox III was arrested in late 2008 on a charge of disorderly conduct after challenging a police order to move his car, he paid $35 and was released from a police station.

Fox, a white-collar criminal defense partner in the Washington office of Sutherland Asbill & Brennan, said in a suit this week against the District of Columbia and two police officers that the authorities considered the payment the end of the case.

There was no prosecutorial review, no judicial oversight and no refund.

Fox’s suit in Washington’s federal trial court challenges the lawfulness of his arrest and the constitutionality of the police department’s “post and forfeit” policy. That program, Fox said, allows a person to pay between $25 and $1,000 to secure release from custody on petty offenses without having to appear before a D.C. Superior Court judge.

He said he was not given an option to be released on a citation with a promise to appear in court later. The program, Fox said, “uses the coercive power of the criminal justice system to exact money from arrestees in exchange for release from incarceration and conditional termination of the prosecution of any arrest charges.” A copy of the suit is here.

Fox said in the suit that “post and forfeit” revenue is not accounted for by city police. The suit, which Fox wants to become a class action, examines the extent to which the program is constitutional. He was not immediately reached today by phone or e-mail.

A lawyer for Fox, Washington solo practitioner William Claiborne, called the "post and forfeit" money a "bribe sanctioned by the government of the District of Columbia."

A spokeswoman for the police department, Gwendolyn Crump, did not immediately comment on Fox's suit.

In the complaint, which demands $1.2 million in compensatory and punitive damages, Fox claimed the authorities had no probable cause to arrest him. The events underlying the suit happened the evening of Dec. 20, 2008, near a CVS store on Capitol Hill.

More on the case after the jump.

According to Fox, he drove his wife to a CVS store in the 600 block of Pennsylvania Avenue in Southeast Washington, where she was picking up medication for herself and father. Fox said he was waiting in his car, running with the lights on, for his wife to return, when an officer pulled up behind him.

The officer told Fox he was not allowed to park in that spot. “Gotta move your car, sir,” the office said, according to Fox. Fox, who maintained he was legally “standing” and not parked, demanded to speak with a supervisor.

While he was waiting for a supervisor, his wife emerged from the CVS. The couple got in their car and tried to leave. The officer blared a siren and stopped Fox, telling him that since he wanted to speak with a superior, he’d have to wait for one to arrive.

“At that time, numerous MPD police officers swarmed the scene, including officers on Segways and in vehicles,” Fox recounted in his suit.

Fox then admits that he said something “derogatory” about the officer’s “intelligence and competence.” His suit does not indicate what he uttered.

A police sergeant arrested Fox. His wife was crying. Fox said in the suit that police arrested him in retaliation for objecting to moving his car and for his disparaging remark about the officer’s intelligence.

Back at a police station, Fox said he was presented a “post and forfeit” form, which indicated he was being charged with “disorderly conduct—loud and boisterous.” Fox said he was never presented the option of a citation.

He signed the form and paid $35. Fox said he did not admit guilt in signing the form. He said he feared he would have taken to the city’s central cellblock if he did not pay the $35.

Police released Fox about 3 a.m. the morning of Dec. 21. The police, according to Fox, abandoned the arrest, never sending it to the D.C. Office of the Attorney General for prosecution.

The money Fox paid had “none of the characteristics of bail paid upon detention to secure release to appear at a hearing.”

Fox said in the suit he wants an independent monitor set up to supervise the police department’s release program to make sure officers present arrestees with release options.

The exact size of the potential class isn’t known, Fox said in court papers. Police figures, he said, indicate the class could be in the tens of thousands based on arrests over the past five years.

The suit also demands $700,000 in compensatory and punitive damages for Fox's wife.

Claiborne said the record of Fox's arrest has been expunged and that a Superior Court judge found, in October, that Fox did not commit the offense of disorderly conduct.

Comments

[M.B.]

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.

[MarkWSchumann]

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.

[HainlinelawDCMD]

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 http://newsroom.dc.gov/file.aspx/release/7299/disorderly_conduct_policy_recommendation.pdf).

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.

[HainlinelawDCMD]

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.