Via Legal Times comes this story about a DC lawyer who was arrested for “disorderly conduct” (after insulting a police officer), was asked to pay $35 at the station and forfeit the right to a hearing or be taken to the District’s central cellblock. He did so in order to avoid being taken, as they say, downtown, but is now suing the DC government, and the specific officers personally, on the basis that the “post and forfeit” procedure is neither bail nor fine and is therefore unconstitutional. The suit demands $1.2 million in damages for the lawyer and an additional $700,000 for his wife.
You might be rolling your eyes at this point at the idea of a lawyer kicking up that kind of a fuss over a $35 fee; this is the town that brought us the Infamous Pants Lawsuit, after all. But when I read the LT item, the lawyer’s name, Hamilton P. Fox III, sounded familiar, so I did what any self-respecting web writer would do: I Googled.
Hamilton Fox was an assistant prosecutor on the Watergate Special Prosecution Force. He was an investigator on the House Committee on Standards of Official Conduct in the 1983 Congressional page scandal. He was a defense attorney on appeal for Jonathan Pollard, the naval intelligence employee convicted of spying for Israel. My point is: this guy actually DOES have better things to do than sue the District over $35. And this IS the risk one takes as a police officer in the District: that the guy you arrest under broad discretionary authority that may or may not stand up to judicial scrutiny might actually have the legal chops to call you on it.
So what is “post & forfeit,” anyway? It’s sort of an abbreviation of usual procedure: Ordinarily, if you’re arrested, you can be released “on citation,” which just means you get a piece of paper telling you when to report for court; or you have to post some kind of collateral against your appearance at some future court date in the form of bail or bond. You either show up for court and get your money back, or you don’t, and you forfeit the money, along with any other consequences the court may impose for blowing it off.
The problem with this is that DC has generally had a ridiculously high number of arrests for fairly trivial offenses, particularly disorderly conduct. So many, in fact, that just this past November the DC Council passed a bill clarifying and narrowing the criteria for a disorderly conduct arrest. If all those disorderly conduct cases actually had to make it to prosecution, the courts would never do anything else.
Enter “post & forfeit.” If you get arrested for a trivial offense and the police decide they’d rather not deal with sending you to court, they can offer you another option. The officer hands you a form, tells you how much money you need to post-and-forfeit, and you can go home, directly from the station. You pay something that looks like bail, forfeit it in a way that keeps you out of court (or a real jail cell), but without the actual legal nicety of having the option to go to court and argue your case before a judge.
Fox argues that it’s not bail, since it’s clearly not intended to secure your appearance in court, and there’s nothing you can do to get it back. So in practice, it’s more like a fine, except that fines are subject to judicial review and post & forfeit procedures are not. Therefore, he says, it’s basically a legalized bribe accepted by the District government while officers rack up meaningless, unprosecutable arrests that nonetheless still appear in their arrest statistics.
The District might argue back that “judicial economy” is a perfectly acceptable and recognized reason to abbreviate certain procedures for minor offenses so that the judicial system doesn’t come to a screeching halt in processing every citizen who ever mouthed off to a cop.
Cranks like me would then argue that the actual solution to that problem is to stop using disorderly conduct as a catch-all for “contempt of cop,” and then there wouldn’t be such an overwhelming quantity of arrests.
Meanwhile, the post & forfeit form is not an admission of guilt, but the arrest stays on your record unless you fill out a bunch of additional paperwork later to have it expunged. And this is a metropolitan area full of people who depend on their security clearances to keep their jobs.