332 F.Supp. 1107 (S.D.Fla. 1971), 71-448, Pugh v. Rainwater

Docket Nº:71-448-Civil.
Citation:332 F.Supp. 1107
Party Name:Robert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated, Plaintiffs, Thomas Turner and Gary Faulk, on their own behalf and on behalf of all others similarly situated, Plaintiff-Intervenors. v. James RAINWATER et al., Defendants.
Case Date:October 12, 1971
Court:United States District Courts, 11th Circuit, Southern District of Florida

Page 1107

332 F.Supp. 1107 (S.D.Fla. 1971)

Robert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated, Plaintiffs,

Thomas Turner and Gary Faulk, on their own behalf and on behalf of all others similarly situated, Plaintiff-Intervenors.


James RAINWATER et al., Defendants.

No. 71-448-Civil.

United States District Court, S.D. Florida

Oct. 12, 1971

Rehearing Denied Jan. 25, 1972.

Page 1108

Bruce S. Rogow and Rene V. Murai, Legal Services of Greater Miami, Phillip A. Hubbart, Public Defender, Miami, Fla., for plaintiffs.

Alan H. Rothstein, City Atty., Larry J. Hirsch, Asst. City Atty., Miami, Fla., for defendant Bernard E. Garmire.

Stuart Simon, County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for defendant E. Wilson Purdy.

Robert L. Shevin, Atty. Gen., Barry Scott Richard, Asst. Atty. Gen., Miami, Fla., for defendants Sutton, Rainwater, Snowden, Adair, Berkman and Ferguson.

Joseph Pardo, Miami, Fla., for defendant Sidney L. Segall.

Joseph A. Wanick, City Atty., Henry A. Edgar, Jr., Asst. City Atty., Miami Beach, Fla., for defendant Rocky Pomerance.

Aaron A. Foosaner, Miami, Fla., for defendant Morton L. Perry.

Ralph F. Miles, Hialeah, Fla., for defendant David Maynard.

August, Nimkoff & Gladstone, Pearson & Josfesberg, Jepeway, Gassen & Jepeway, Miami, Fla., for amicus curiae, Dade County Bar Association.


KING, District Judge.

Plaintiffs Robert Pugh and Nathaniel Henderson brought this class action, in which plaintiffs Thomas Turner and Gary Faulk have intervened, seeking relief for the alleged deprivation of their rights as secured by the Fourth and Fourteenth Amendments to the Constitution of the United States. Jurisdiction is founded upon 28 U.S.C. § 1343(3), (4) and grows out of a Constitutional attack (42 U.S.C. § 1983) upon the procedure whereby plaintiffs were incarcerated, upon information filed by the state attorney, and held for trial in Dade County, Florida, without review by a committing

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magistrate of the probable cause for their arrest.

The defendants herein are sued in their official capacities (sheriff, police chiefs, state attorney, justices of the peace and judges of small claims courts of Dade County and several of its municipalities) as individuals charged with the responsibility of administering the system under which plaintiffs were incarcerated.

The plaintiffs contend that they have been deprived of a Constitutional right to a preliminary hearing before a judicial officer to determine whether there is probable cause that they committed the offenses with which they are charged.

Under the present procedure the state attorney (or one of his assistants) considers the reports submitted by police officers of the results of their investigations and thereafter files a direct information and issues a capias for arrest of the individual charged with the offense. The person may be already in jail or is then arrested and waits in jail until either he is released on bond or is tried. There is no review by a judicial officer as to the probable cause for the arrest and detention of a person charged by the state attorney in a direct information.

Plaintiffs further allege they have been denied their constitutionally protected right to equal protection of the law in that in certain instances the police will process cases through the offices of the justices of the peace instead of going to the office of the state attorney as was done herein. A justice of the peace conducts a preliminary hearing for probable cause whereas the state attorney does not. It is contended that the unfettered discretion of the police in deciding whether to file criminal charges with the justice of the peace or the state attorney, results in an arbitrary and unreasonable creation of two classes of arrested persons, those who are afforded a preliminary hearing and those who are not.

Lastly plaintiffs contend that the setting of a monetary bail bond as a condition for the release of persons financially unable to post the bond creates two classes of arrested persons and discriminates against poor persons, thereby violating their right of equal protection of the law. Plaintiffs Henderson, Turner and Faulk allege they remain imprisoned because of their impoverished financial conditions.

In the case of plaintiff Pugh no bond has been set pursuant to F.S.A. Constitution, Article 1, § 14 since the main pending charge is robbery, a crime punishable by life imprisonment, F.S.A. § 813.011.

On May 13, 1971 the Court, upon the request of all counsel took the plaintiff's pending motions for summary judgment under advisement for the purpose of permitting the Florida Legislature an opportunity to consider pending legislation providing for the type of probable cause hearing sought herein. The Legislature adjourned without enacting the proposed statute and this case was set for final hearing. In the course of arguing their respective positions during final hearing, all counsel agree that there are no issues of fact to be resolved in this suit and that the issues can, and should, be determined as a matter of law.

Consistent with the philosophy of non-intervention in state criminal procedures the Court afforded the parties a reasonable time, subsequent to the final hearing, within which to attempt to agree upon the implementation of a system securing to all persons the protection of judicial review of the probable cause for arrest. This proved fruitless. The time of restraint is past and the Court has no alternative except to act.


A person may be charged with a crime in Dade County, Florida, in one of five ways:

(1) A police officer witnesses the commission of a crime, places the accused under arrest and takes him to

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jail. Sometime between 24 hours and two weeks later the arresting officer files a sworn affidavit with the office of the state attorney who, then files a direct information and issues a capias against the defendant.

(2) A police officer conducts an investigation of an alleged criminal offense, decides he has sufficient evidence to arrest, and places the defendant in jail. The arresting officer then goes to the state attorney with his affidavit and a direct information is filed against the defendant by the state attorney.

(3) A police officer conducts an investigation but takes the case to the state attorney before making the arrest and, after issuance of the direct information, arrests the defendant and places him in jail.

(4) A police officer conducts an investigation, presents the matter by affidavit to a justice of the peace, who issues a warrant for arrest and conducts a preliminary hearing to determine probable cause as to the commission of the alleged crime. The defendant is released if no probable cause is found to exist.

(5) The results of an investigation are submitted by the state attorney to the grand jury, which determines probable cause and returns an indictment to a judge. After review, the judge either issues the arrest warrant and causes the indictment to be filed or dismisses the charge.

Under the process outlined in paragraphs 1, 2, and 3 above there is no judicial determination, prior to trial of whether or not there is probable cause to believe that the particular defendant under arrest did in fact, commit the offense for which he is being held in custody. The procedures outlined in paragraphs 4 and 5 provide for a probable cause hearing, by a judicial officer, prior to trial and are not therefore under attack in this litigation.

When an accused person is informed against by the state attorney and arrested, processing of the information does not begin until the arresting officer appears before an assistant state attorney and files his...

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