Lawyers for the District this week asked a federal judge to throw out a suit a Sutherland Asbill & Brennan partner in Washington filed challenging his arrest in 2008 on a disorderly conduct charge.
Attorneys for the city said in court papers filed Tuesday that the Sutherland lawyer, Hamilton Fox III, who paid $35 after he was arrested to secure his release and end his case, has not shown how his decision to skip judicial review has hurt him.
Fox's suit, filed in December in Washington’s federal trial court, alleges constitutional violations and purports to serve as a class action. In the complaint, Hamilton said he was one of thousands of individuals who participated in the District’s so-called “post-and-forfeit” process in recent years.
Fox sued under the theory the government improperly took his $35. Fox, who practices in white-collar criminal defense litigation, also contends he was forced to make decisions about the release process “without the benefit of counsel competent in these questions.”
District lawyers Ellen Efros and Jacques Lerner said in court papers [.pdf] that Fox was given the opportunity to post and immediately forfeit collateral. Fox, the city’s attorneys said, participated in the program to “obtain more expeditious release without the risk of criminal conviction.” District lawyers called the program an optional “privilege” for certain misdemeanor offenses.
Fox “admits he signed the post-and-forfeit form, thereby voluntarily relinquishing his $35 to secure a more expeditious release than required by the constitution, and one that ended any further threat to his liberty,” District lawyers said.
The program, according to lawyers for the city, does not supplant the judicial system. An person who's been arrested has 90 days to file court papers to set aside the forfeiture and resume criminal proceedings. Fox did not file a motion to reinstate the criminal case, District lawyers said.
An attorney for Fox, Washington solo practitioner William Claiborne III, was not immediately reached for comment this afternoon on the District’s motion to dismiss the suit. U.S. District Judge Richard Roberts has not set a hearing date.
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