Walker v. City of Calhoun, 082218 FED11, 17-13139

Docket Nº:17-13139
Opinion Judge:O'SCANNLAIN, CIRCUIT JUDGE
Party Name:MAURICE WALKER, on behalf of himself and others similarly situated, Plaintiff - Appellee, v. CITY OF CALHOUN, GA, Defendant-Appellant.
Judge Panel:Before MARTIN, JULIE CARNES, and O'SCANNLAIN, [ Circuit Judges MARTIN, Circuit Judge, concurring in part and dissenting in part :
Case Date:August 22, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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MAURICE WALKER, on behalf of himself and others similarly situated, Plaintiff - Appellee,

v.

CITY OF CALHOUN, GA, Defendant-Appellant.

No. 17-13139

United States Court of Appeals, Eleventh Circuit

August 22, 2018

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 4:15-cv-00170-HLM

Before MARTIN, JULIE CARNES, and O'SCANNLAIN, [*] Circuit Judges.

O'SCANNLAIN, CIRCUIT JUDGE

We must decide what process the Constitution requires in setting bail for indigent arrestees.

I

A

When this lawsuit began, Maurice Walker was a 54-year-old unemployed man with a mental health disability, whose income consisted only of $530 in monthly Social Security disability payments. On Thursday, September 3, 2015, Walker was arrested in the City of Calhoun, Georgia by the Calhoun Police Department for being a pedestrian under the influence of alcohol, in violation of Ga. Code Ann. § 40-6-95. A violation of that section of Georgia's code "is a misdemeanor and is punishable upon conviction by a fine not to exceed $500.00." The statute does not provide for any possible jail sentence.

Walker alleges that, after he was taken to jail, he was told by an officer that "he would not be released unless he paid the standard $160 cash bond" required for those charged with being a pedestrian under the influence. Walker says that neither he nor his family had enough money to post the bond. Walker alleges that while he was jailed, he was not given his necessary mental disorder medication, and he was confined to a single-person cell except for one hour each day.

Walker filed this suit five days after his arrest, while still detained, alleging on behalf of himself and a class of similarly situated indigent arrestees that the City was violating the Fourteenth Amendment of the United States Constitution by "jailing the poor because they cannot pay a small amount of money." On the day after filing suit Walker was released on a personal-recognizance bond by agreement with the City's counsel. A bond was subsequently tendered for Walker by one of his attorneys in this matter, and his criminal case was closed on October 20, 2015, by entry of a bond forfeiture.

B

Walker alleges that, at the time of his arrest, the City followed a policy of using a secured-money bail schedule with bond amounts based on the fine an arrestee could expect to pay if found guilty, plus applicable fees. Defendants who could afford to deposit the bail amount were released immediately, whereas those who could not pay were held until the next court session on the following non-holiday Monday. In Walker's case, because the Monday after his arrest was Labor Day, he would have had to wait eleven days after his arrest to see a judge for a bail hearing.

Shortly after Walker's suit was filed, the Municipal Court of the City of Calhoun altered the prevailing bail policy by issuing a Standing Bail Order, which adopted a bail schedule for State offenses within the Municipal Court's jurisdiction, with cash bail set at "amount[s] represent[ing] the expected fine with applicable surcharges . . . should the accused later enter a plea, or be found guilty." As alternatives to cash bail, the Standing Bail Order recognized an arrestee's ability to use a driver's license as collateral or to "make secured bail by property or surety" at an amount "twice that set forth in [the] schedule."

"For those individuals who do not obtain release pursuant to the secured bail schedule," the Standing Bail Order provides that they "shall . . . be brought before the [Municipal] Court" within 48 hours from their arrest, shall "be represented by court appointed counsel," and "will be given the opportunity to object to the bail amount . . ., including any claim of indigency." The Municipal Court will then "determine whether the accused is unable to post secured bail because he/she is indigent, making an individualized determination based upon the evidence provided." The Standing Bail Order adopts a standard of indigency as "earning less than 100 percent of the federal poverty guidelines, unless there is evidence that the person has other resources that might be reasonably used." If the court finds that the defendant is indigent under that standard, "then he/she shall be subject to release on recognizance without making a secured bail." If no hearing is held within 48 hours, "then the accused shall be released on a recognizance bond." Finally, the Standing Bail Order provides that those charged with a violation of the City Code (as opposed to State law) "shall be released on an unsecured bond in the amount established by the . . . bail schedule."

In summary, the Standing Bail Order envisions three forms of release depending on the type of offense charged and the financial means of the arrestee. First, arrestees charged with State offenses within the Municipal Court's jurisdiction will be released immediately on a secured bond if they are able and willing to deposit money bail in the amount set by the bail schedule. They can post cash bail themselves or use a commercial surety at twice the amount set by the bail schedule. Second, arrestees charged with State offenses who do not post bail immediately must wait for a bail hearing with court-appointed counsel, to take place within 48 hours from arrest. Those who can prove they are indigent at the hearing will be released on a recognizance bond-meaning no bail amount is set, either secured or unsecured. Third, all arrestees charged with violating City ordinances will be released on unsecured bond, meaning that they need deposit no collateral immediately but will be assessed the bail schedule amount if they fail subsequently to appear in court.

C

1

Several months after Walker filed suit, and after the Standing Bail Order had gone into effect, the district court entered a preliminary injunction ordering the City "to implement post-arrest procedures that comply with the Constitution." Walker v. City of Calhoun, Ga.

(Walker I), No. 4:15-CV-0170-HLM, 2016 WL 361612, at *14 (N.D.Ga. Jan. 28, 2016). As the legal basis for the injunction, the district court found that "[a]ny bail or bond scheme that mandates payment of prefixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause." Id. at *10. On the same day it issued the injunction order, the district court certified a class under Federal Rule of Civil Procedure 23, consisting of "[a]ll arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation."

2

We vacated such preliminary injunction, holding that it violated Federal Rule of Civil Procedure 65 because it was insufficiently specific. See Walker v. City of Calhoun, Ga. (Walker II), 682 Fed.Appx. 721, 724-25 (11th Cir. 2017) (per curiam) (unpublished). We declined at that time to consider "whether, substantively, [the] district court properly issued a preliminary injunction." Id. at 724.

3

On remand, the district court again found the City's bail policy under the Standing Bail Order to be unconstitutional and entered a new preliminary injunction. It reaffirmed its merits rulings from the original preliminary injunction order and found that the Standing Bail Order "still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond . . . to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing." Walker v. City of Calhoun, Ga. (Walker III), No. 4:15-CV-0170-HLM, 2017 WL 2794064, at *2-3 (N.D.Ga. June 16, 2017). The court enjoined the City "from detaining indigent . . . arrestees who are otherwise eligible for release but are unable, because of their poverty, to pay a secured or money bail." Id. at *4.

The order granting the new injunction prescribed an affidavit-based process for making such determination: If an arrestee indicates that he or she is unable to pay a secured or money bail, arresting officers, jail personnel, or Municipal Court staff must, as soon as practicable after booking verify the arrestee's inability to pay a secured or money bail by means of an affidavit sworn before an authorized official.

Id. Such affidavit must include information about the arrestee's finances and the opportunity for the arrestee to attest indigency, which the injunction order defines as "less than 100 percent of the applicable federal poverty guidelines." Id. An official must evaluate the affidavit "within twenty-four hours after arrest." Id. at *5. Those found indigent "shall be subject to release on . . . recognizance without making secured...

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