The Bail Project, Inc. v. Comm'r, Ind. Dep't of Ins.
| Docket Number | 22-2183 |
| Decision Date | 03 August 2023 |
| Parties | The Bail Project, Inc., Plaintiff-Appellant, v. Commissioner, Indiana Department of Insurance, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
ARGUED DECEMBER 7, 2022
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No 1:22-cv-00862-JPH-MJD - James Patrick Hanlon, Judge.
Before FLAUM, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
The Bail Project, Inc., is a nonprofit organization that advocates for the abolition of cash bail. At the core of its advocacy, the organization pays cash bail for thousands of individuals across the country. Its aim is to show that conditioning a pretrial defendant's release upon the payment of money is not necessary to secure appearances at future court dates. In response to The Bail Project's efforts in Indiana, the legislature passed, and the governor signed into law, House Enrolled Act 1300. The law requires charitable bail organizations like The Bail Project to register with the State. It also limits for whom such organizations can pay cash bail. The Bail Project sued in federal court and requested a preliminary injunction to enjoin the Commissioner of Indiana's Department of Insurance from enforcing the law. It argued that HEA 1300 () would violate its First Amendment right to free speech and its Fourteenth Amendment right to equal protection. The district court declined to issue an injunction after concluding that The Bail Project had not shown a likelihood of success on the merits.
The principal question on appeal is whether the conduct HEA 1300 regulates-the payment of cash bail-is protected by the First Amendment. We hold that it is not. Although The Bail Project pays cash bail for pretrial defendants with the intent to communicate its message and to further its advocacy, a reasonable observer would not understand the conduct itself as communicating any message without additional explanatory speech. Thus, paying cash bail is not inherently expressive conduct, and HEA 1300 does not implicate the First Amendment. We also conclude that the law does not violate the Equal Protection Clause because it is rationally related to the State's legitimate interest in regulating pretrial detention of criminal defendants. Because The Bail Project has not shown a likelihood of success on the merits of either claim, we affirm the district court's denial of a preliminary injunction.
Indiana "strongly encourages pretrial release for many accused individuals awaiting trial." DeWees v. State 180 N.E.3d 261, 268 (Ind. 2022) (citing Ind. R. Crim. P. 26). If a defendant does not present a "substantial risk of flight or danger" to others, then the trial court must "consider releasing the arrestee without money bail or surety," subject to any reasonable conditions deemed appropriate by the court. Ind. Code § 35-33-8-3.8(b). But if a court finds that a defendant poses a risk of flight or a danger to the community, then it has "broad discretion" to set bail and other conditions of release. DeWees, 180 N.E.3d at 266-68; see also Ind. Code §§ 35-33-8-3.8, 35-33-8-4(b); Ind. R. Crim. P. 26. Bail may not be set any higher than "reasonably required to assure the defendant's appearance in court" or "to assure the physical safety of another person or the community[.]" Ind. Code § 35-33-8-4(b).
There are two primary ways a defendant can make bail in Indiana. One is a surety bond. Id. § 35-33-8-3.2(a)(1)(A). A surety bond is, in essence, an insurance arrangement where someone pays a non-refundable partial amount of the bail (usually about ten percent) to a licensed bail-bond agent, who then presents proof of an insurance policy for the entire bail amount to the county clerk. With minimal exceptions, only licensed bail agents may post surety bonds in Indiana. See id. § 27-10-3-1.
The second option is cash bail, which requires full payment of the bail amount to the county clerk. Id. § 35-33-8-3.2(a)(1)(B). If the defendant appears at all subsequent court proceedings, the funds are returned at the conclusion of the case to whoever made the deposit. See Garner v. Kempf, 93 N.E.3d 1091, 1097-98 (Ind. 2018). If the defendant fails to appear, then the entirety of the cash bail may be forfeited. See Ind. Code § 35-33-8-7. Before HEA 1300, Indiana law placed no limit on who could pay cash bail for any pretrial defendant eligible for release.
Enter The Bail Project, Inc.-a nonprofit corporation dedicated to ending cash bail and other policies that condition a defendant's pretrial release upon the payment of money. The organization believes that cash bail has a corrosive effect because it forces indigent and low-income defendants to needlessly remain in jail simply because they can't afford to pay.
At the center of its campaign, The Bail Project pays cash bail in full for its clients. The goal is to demonstrate that paying cash bail is unnecessary to ensure pretrial defendants' appearances at future court dates. The organization keeps a revolving bail fund that both pays for a client's bail and receives refunded bail deposits if the client makes all required court appearances. Once The Bail Project decides to pay bail for a client, it develops an individualized post-release support plan to help the client make it to future court dates. In total, the organization has provided bail assistance for more than 22,000 individuals across 20 states. According to The Bail Project, its clients have a 92% appearance rate, so the overwhelming amount of bail money it has posted has been returned to its revolving fund.
The Bail Project considers multiple factors when selecting its clients, but it does not rule out candidates based on the crime an individual is charged with. The organization therefore pays bail for defendants charged with a variety of crimes, including serious and violent crimes. The Bail Project believes that it is especially important to pay bail for persons charged with (or previously convicted of) serious offenses because doing so "most effectively demonstrates the fallacy of requiring the payment of cash bail."
The Bail Project's ultimate goal is to inspire systemic reforms to eliminate cash bail by showing that it is unnecessary. The organization advances its message in many ways, including on its website, which states: Although the organization's advocacy includes both speech and conduct, The Bail Project views the act of paying cash bail as its essential expressive activity.
The Bail Project began operating in Indiana in 2018 and has assisted approximately 1,000 pretrial defendants in Marion County and Lake County. Its clients in Indiana include those who have been charged with, or previously convicted of, offenses that qualify as crimes of violence under state law. See Ind. Code § 35-50-1-2(a). To pay bail for its clients in Indiana, The Bail Project sends an employee to the relevant county clerk's office to pay the cash deposit and complete the required paperwork. The only observers of The Bail Project's bail payments are the county clerk's office employees and bystanders who happen to be in the office.
In response to The Bail Project's efforts, Indiana enacted HEA 1300. See 2022 Ind. Leg. Serv. P.L. 147-2022, codified at Ind. Code §§ 27-10-2-4.1, et seq. HEA 1300 requires the Commissioner of Indiana's Department of Insurance to regulate charitable bail organizations. Ind. Code § 27-10-2-4.1. It defines "charitable bail organization" to mean "a business entity, or a nonprofit organization .. that exists for the purpose of paying cash bail for another person[,]" with some exceptions that have no application here. Id. § 27-10-2-4.5(a).
Under HEA 1300, charitable bail organizations must receive certification from the Commissioner to operate in Indiana. Id. § 27-10-2-4.5(b), (g)(1). The Commissioner has discretion to certify a charitable bail organization if it: (1) is a business entity or nonprofit organization under the Internal Revenue Code or Indiana law; (2) is currently registered to do business in Indiana; (3) is located in Indiana; and (4) "exists for the purpose of depositing cash bail for an indigent defendant who: (A) is not charged with a crime of violence; or (B) if charged with a felony, does not have a prior conviction for a crime of violence." Id. § 27-10-2-4.5(b)(1)-(4). Once certified, charitable bail organizations are prohibited from paying bail for defendants who are either (1) charged with a crime of violence, or (2) charged with a felony and have a previous conviction for a crime of violence. Id. § 27-10-2-4.5(g)(2)(A)-(B). The law requires the Commissioner to "deny, suspend, revoke, or refuse to renew certification" for, among other things, "[a]ny cause for which issuance of the certification could have been refused had it then existed and been known to the commissioner." Id. § 27-10-2-4.5(f)(1).
Before HEA 1300 went into effect, The Bail Project sued the Commissioner in federal court, alleging that the law would violate its rights under the First Amendment's Free Speech Clause and the Fourteenth Amendment's Equal Protection Clause. The Bail Project moved for a preliminary injunction under Federal Rule of Civil Procedure 65, seeking to enjoin the Commissioner from enforcing HEA 1300 against it. The district court concluded that The Bail Project had failed to show a likelihood of success on the merits of either claim and denied the motion.
We review the district court's decision to...
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