from the welcome-back-to-Techdirt,-Tom dept
Cook County (IL) Sheriff Tom Dart doesn’t appear to know much about the First Amendment. He also doesn’t understand Section 230. The grandstanding sheriff has graced Techdirt’s page multiple times for suing online marketplaces and strong-arming payment companies in a severely misguided attempt to combat sex trafficking. His assaults on Craigslist and Backpage were terminated by federal courts, which reminded the sheriff of the existence of both Section 230 immunity and the First Amendment. Law enforcement officers may not be required to know the laws they enforce, but they should at least have some passing familiarity with the Constitution.
Sadly, Sheriff Dart is still unfamiliar with Constitutional rights and protections. The sheriff’s latest violation of rights stems from his decision to engage in pretrial detention practices that ignore the Constitution, as well as changes to local law. The Seventh Circuit Appeals Court doesn’t care much for that. Its order [PDF], which allows plaintiffs to continue their lawsuit against the sheriff for violation of their rights, makes it clear the Sheriff’s freelancing isn’t doing the Fourth Amendment any favors.
The opinion opens up with an idealistic quote from the Supreme Court.
“In our society,” the Supreme Court has said, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).
Not so, says the Seventh Circuit, citing Bureau of Justice statistics showing two-thirds of all inmates have not been convicted of a criminal offense. As of 2018, that was 490,000 people in jails awaiting trial. Some can’t make bail. Others, like the ones suing Sheriff Dart, could make bail but were still denied release from detention. This happened despite revised county policies that were supposed to make it easier for those not yet convicted of crimes to be released until their court date.
After the new policy was put in place, Sheriff Dart challenged it. Recidivism rates for alleged gun felons rose from 0.7 percent of released arrestees to 2.5 percent. According to Dart, this was unacceptable. He told the Cook County Board of Commissioners he personally would oversee the release of anyone ordered to be released by the court. Dart told the county any personal disagreement with courts’ release orders would result in another visit to the court in hopes of securing additional pre-trial detainment. This was supposed to happen within 48 hours, according to Dart’s own assertions.
This is what actually happened, and it involved more than people charged with gun-related felonies.
On February 23, 2018 a nonprofit posted $5,000 bond on behalf of plaintiff Taphia Williams. Sixty hours later she had not been released. After repeated telephone calls, a jail officer informed the nonprofit’s agent that Williams’s case was “under review” and assured him: “Your person will be taken care of in the order that the bond was posted.” Williams’s counsel filed this lawsuit on the evening of February 26. Williams was released early the next morning. This was the first and shortest of these plaintiffs’ confinements.
Plaintiff Tony Mason posted $7,500 bond on February 26 but had not been released as of March 2, when his counsel moved for a rule to show cause why the Sheriff should not be held in contempt of the court’s bail order. A hearing on the motion was set for 9:00 a.m. on March 7. The Sheriff released Mason at 4:00 a.m., five hours before the hearing. Plaintiff Gregory Cooper’s story is essentially the same.
After posting $1,000 bond on his son’s behalf, the father of plaintiff Xavier Webster was reduced to pleading by text message with a policy staffer in the Sheriff’s office before his son was released nine days later.
Plaintiff Joshua Atwater, having spent a year on the Sheriff’s monitoring program already, was re-arrested on February 21 after mistakenly missing a court date. He had bail reinstated by the court on the same terms as before on March 6. The Sheriff did not release him to monitoring until March 12, on the condition that he have no contact with his five children—a release condition not imposed by the court but cut by the Sheriff from whole cloth.
There are a couple of rights in play here, as well as some state-level contempt of court allegations against Dart. The court points out no one is arguing law enforcement violated any rights by arresting the plaintiffs. The problem here is probable cause for continued detention evaporates once bail is posted or a court orders release.
Once the arrestee appears before the court, the purpose of the initial seizure has been accomplished. Further seizure requires a court order or new cause; the original probable cause determination is no justification.
The Fourth Amendment right to be free from unreasonable seizures remains intact, even if someone has been accused of a criminal act. The Sheriff’s arguments otherwise are nonsensical.
Whether, for how long, and at whose behest plaintiffs were detained thereafter are simply not matters of Fourth Amendment significance, according to the Sheriff.
We doubt the Sheriff would push this argument to the hilt. He could not plausibly argue the Fourth Amendment would pose no obstacle to his detention of plaintiffs after a non-prosecution decision on the same charges—or an acquittal, or a conviction. A court’s bail orders are of the same stripe. We have consistently accorded such orders Fourth Amendment significance…
To ensure rights are respected, Sheriff Dart needs to remove himself from this equation. Instead, he decided to insert himself into a process that’s supposed to be handled by a neutral party: the courts. The courts are a check against government abuse. Dart’s abuse of the plaintiffs’ rights are exactly the sort of thing the normal process — minus Dart’s interloping — would have prevented.
Put differently, the original probable cause was “exhausted” by the courts’ bail orders. Carlson, 342 U.S. at 546. This is the true sense of plaintiffs’ “degree of seizure” and “reseizure without probable cause” characterizations. It is only another way of expressing our original conclusion: courts, not sheriffs, make pretrial detention decisions.
The Appeals Court says it’s not there to micromanage the Cook County pretrial release program nor rewrite the policies Dart is supposed to be following. But it’s also not going to sit on the sidelines and allow Sheriff Dart to ignore court orders and impose his will on arrestees.
The Fourth Amendment does not require any particular administrative arrangement for processing bail admissions. It does require, however, that whatever arrangement is adopted not result in seizures that are unreasonable in light of the Fourth Amendment’s history and purposes. “[I]f the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty,” the Sheriff’s flat refusal to heed the courts’ bail orders alleged in this case, based on nothing more than a policy disagreement and resulting in unjustified detentions of multiple days, simply will not do.
The case heads back down to the lower court. And there’s still a chance Sheriff Dart will get rung up for contempt. That will be handled by the state but the Seventh Circuit says it seems likely the state’s Supreme Court will find Dart should have asked a court to modify any bail/release orders he didn’t agree with, rather than modifying them on his own to keep arrestees detained.
The Fourth Amendment is continuous. It doesn’t terminate after an arrest. It may be satisfied temporarily during an arrest, but it remains in place even after someone is jailed awaiting arraignment. Sheriff Dart — who claims to be bringing a “humane, compassionate and intelligent approach to law enforcement” to Cook County — doesn’t appear to understand that. Or, if he does understand, he just doesn’t care.