UPDATE: February 28, 2018 – Judge Re-opens Discovery Through June 30
A Case Management Conference was held on February 28, at which Robert Sims of Latham & Watkins LLP appeared as additional co-counsel with Phil Telfeyan of EJUL.
Judge Gonzalez Rogers considered CBAA’s request for additional discovery, and re-opened discovery effectively immediately through June 30, without restrictions.
Judge Gonzalez Rogers also considered Plaintiffs’ February 16 notice of “plausible alternatives,” and in acknowledgment of the parties’ disagreements concerning the nature of those alternatives and the implications for discovery and trial, ordered Plaintiffs to file either a revised notice of “plausible alternatives” or a statement indicating that their position on the matter rests on their prior notice, by March 9.
A further case management conference was held on April 11, 2018 at 2:00 p.m., at which the Court set the case for a September 17, 2018 bench trial, and also set related trial deadlines.
UPDATE: January 22, 2018 – Judge Provides Clarity on Next Steps In Bail Case
At a Case Management Conference on Monday, Judge Gonzalez Rogers confirmed that a trial will not be going forward on February 12, 2018, noting that “there is work to be done” to develop the record in the case.
Catherine Sevcenko of EJUL stated that in Plaintiffs’ view, the existing record is “adequate to meet the Court’s concerns.” Harmeet Dhillon for CBAA noted the ways in which CBAA’s participation in the lawsuit as an intervenor defendant had been limited, arguing that more discovery is needed to get the case ready for trial.
Judge Gonzalez Rogers ordered Plaintiffs to file a notice by February 16, describing their proposed “plausible alternatives” to money bail, and the witness(es) on whose testimony Plaintiffs intend to rely for this issue. The Court ordered CBAA to make a request for any specific evidence it would like to gather, and why CBAA believes such evidence is necessary, by February 23. A further hearing will be held on February 28 at 2:00 p.m.
Plaintiffs stated their intent to comply with the Court’s Scheduling Order filed January 16, which instructed Plaintiffs to “identify additional counsel with class action and trial experience to represent the proposed class jointly,” by February 8. The Court further indicated that an order on plaintiffs’ pending class certification motion will be forthcoming.
Finally, Judge Gonzalez Rogers issued an order relating the Dupree case with Buffin, and has invited the Dupree parties to attend the further hearing on February 28.
UPDATE: January 17, 2018 – Second Lawsuit Challenging Use of Money Bail in San Francisco County is Filed and Seeks Relation with Buffin
On Sunday, January 14, plaintiffs represented by the San Francisco Public Defender’s Office and Covington & Burling LLP filed a putative class action complaint challenging the use of money bail to detain poor arrestees. Dupree v. Hennessy, U.S. Dist. Ct., NDCA, Case No. 18-cv-310-MEJ.
Like Buffin, the Dupree case alleges that California’s bail laws are unconstitutional, and that the San Francisco Sheriff violates the Equal Protection and Due Process Clauses of the federal Constitution by enforcing the bail schedule against poor arrestees.
On January 17, 2018, the Dupree plaintiffs filed an Administrative Motion to Relate their case with the Buffin case, arguing that the two cases “largely overlap” in parties, factual and legal issues involved, and relief sought. If the motion is granted, the Dupree case would reassigned from Magistrate Judge Maria-Elena to Judge Gonzalez Rodgers.
UPDATE: January 16, 2018 – Judge Issues Split Ruling in Money Bail Case
In a split ruling, a federal judge denied summary judgment to both California bail agents and a proposed class of San Francisco arrestees challenging money bail as unconstitutional.
U.S. District Judge Yvonne Gonzalez Rogers said she could not rule that San Francisco County Sheriff Vicki Hennessy and her office violated detainees’ fundamental right to liberty by holding them because they could not afford bail.
“Given that even those who pay the set bail amount are detained for some measure of time, the court cannot find that any amount of detention per se is unconstitutional. Plaintiffs’ motion thus fails,” Gonzalez Rogers wrote, noting that “the evidence at trial must ultimately show the full context of the detentions at issue.”
She also found the plaintiffs hadn’t met their initial burden of showing some kind of plausible, less restrictive alternative to money bail, saying, “The current record is insufficient on this point.”
Once plaintiffs have made a showing of a plausible, less restrictive alternative, the burden will shift to the California Bail Agents Association, having stepped into the shoes of the Sheriff as intervenor defendant, to show plaintiffs’ proposed alternative would be less effective at serving the government’s compelling interest(s) and/or more restrictive than the existing methods.
CBAA looks forward to a trial on the merits of this important case, and in demonstrating in court that California’s bail law clearly meets constitutional muster.
Fight Against Money Bail In San Francisco Snagged On ‘Evidence’
December 12, 2017
In 2015, the nonprofit legal group Equal Justice Under Law brought a federal class action against San Francisco, claiming it unconstitutionally criminalizes poverty by keeping poor arrestees in jail. Lead plaintiffs Riana Buffin and Crystal Patterson spent 29 and 48 hours in jail, respectively, because they couldn’t afford bail.
The two women were arrested in October 2015 in San Francisco, Buffin on suspicion of grand theft and Patterson on suspicion of assault. Buffin’s bond was set at $30,000, Patterson’s at $150,000.
Phil Telfeyan with Equal Justice Under Law, arguing the case on behalf of a proposed class of arrestees who cannot afford bail but are otherwise eligible for pretrial release in San Francisco, argued other jurisdictions have effectively used other non-monetary methods to ensure arrestees appear in court.. Telfeyan and Equal Justice Under Law say this wealth-based detention scheme violate the 14th Amendment, and want an injunction prohibiting San Francisco from using a bail schedule to keep people behind bars because they cannot afford to buy their freedom.
U.S. District Judge Yvonne Gonzalez Rogers said she believes strict scrutiny, the highest standard of review in constitutional matters, should apply to the case. For the city’s money bail scheme to survive, it must be justified by a compelling state interest, be narrowly tailored to meet that goal, and there must be no other less restrictive ways of achieving it.
“If strict scrutiny applies, the plaintiffs only need show a number of plausible alternatives,” Telfeyan said, noting the goal of future court appearances can be achieved through a risk assessment tool by which arrestees are screened based on a number of factors, from the serious of their crimes to their past criminal convictions. Judges can use that tool to evaluate whether a detainee should remain in jail or be released pending their future court dates, with no money changing hands.
Krista Baughman of Dhillon Law Group, arguing for the bail industry, said there are other alternatives.
“The effectiveness of risk assessment tools is unknown and less effective than bail,” she said.
Gonzalez Rogers declined to rule Tuesday, and set a tentative bench trial date for Feb. 12, 2018.
The case comes as California is poised to likely eliminate bail through legislation, and San Francisco City Attorney Dennis Herrera has also said he will not defend the system. Chief Justice Tani Cantil-Sakauye called money bail unsafe and unfair in October, vowing to work with legislators to replace it with a reformed pre-trial scheme.
UPDATE: November 02, 2016 – City Attorney Won’t Defend San Francisco’s ‘Money Bail’ System – Matt Beagle, KQED
In an unprecedented move that may have implications beyond the Bay Area, San Francisco City Attorney Dennis Herrera announced he will not defend the use of the county’s monetary bail system in a federal class-action lawsuit that claims it is unconstitutional.
In a Tuesday court filing, Herrera argued that the current bail system, mandated by state law and set by individual counties, unfairly affects poor people.
In a press conference, Herrera said monetary bail “creates a two-tiered system, one for those with money and another for those without. It doesn’t make anybody safer, it’s not right, and it’s not in keeping with the constitution.”
In February, the Public Policy Institute of California cited data from State Court Processing Statistics (SCPS) showing California’s median bail amount in 2015 was $50,000.
Read comments by Harmeet Dhillon on our blog.
UPDATE: November 01, 2016 – SF city attorney Dennis Herrera condemns state’s bail system – SF Gate
A decades-old California law that keeps people in jail if they can’t afford bail after their arrest came under renewed attack Tuesday from San Francisco’s city attorney, who said the city wouldn’t defend the law in court, and a Bay Area legislator, who promised a bill to repeal it.
The law “creates a two-tiered system: one for those with money and another for those without. It doesn’t make anybody safer,” City Attorney said at a news conference as his office informed a federal judge that the city would not fight a civil rights group’s lawsuit challenging the cash bail system.
Defendants who can’t afford bail, or the 10 percent fee charged by bail bond companies, remain behind bars at least until they are formally charged and arraigned, usually 48 hours after arrest. At that point, a judge sets conditions for pretrial release based on the risk to public safety or the chance they might flee.
Bail bond companies say the cash bail system promotes public safety by giving defendants an incentive to show up in court. The civil rights group and other opponents say individual assessment of the potential risk a defendant poses, and supervision to make sure the defendant returns to court, is both fairer and more protective of the public than requiring people to pay for their release.
A lawyer for bail bond companies accused the city attorney and sheriff of violating their oaths of office by failing to support the law.
While the sheriff said she will enforce the law, Harmeet Dhillon, of the Dhillon Law Group, accused Hennessy and Herrera of “refusing to do their duty to defend California’s lawfully enacted statutes.”
“Whether a law is fair or unfair is really not for Dennis Herrera, or Vicki Hennessy, or really for a federal judge to say,” but is a question for the Legislature, Dhillon said. She also noted that the U.S. Supreme Court has upheld laws that treat poor and rich people differently.
UPDATE: November 01, 2016 – Dhillon Law Group Files Third Motion to Intervene in California Bail Agents Association Case.
UPDATE: January 27, 2016 – Lawsuit to Reform S.F. Bail System Hits Snag — But Will Continue
A federal judge in Oakland has dismissed a host of motions that would have fast-tracked a constitutional challenge to the use of monetary bail in San Francisco, but she allowed a Washington, D.C., group to continue a civil rights lawsuit that could have a nationwide impact.
The organization Equal Justice Under Law brought the lawsuit in October on behalf of two low-income women arrested in San Francisco but never formally charged. The lawsuit alleges Riana Buffin’s $30,000 bail and Crystal Patterson’s $150,000 bail amounted to a punishment that unequally hits poor people, in violation of the 14th Amendment guarantees of due process and equal protection under the law.
UPDATE: October 28, 2015 – Class Action Complaint Filed Against San Francisco’s Bail System
San Francisco is being sued for what a federal class-action lawsuit argues is an unjust bail system that penalizes the poor with unpayable amounts for small offenses, yet allows wealthy defendants charged with serious crimes back on the streets because they can afford to pay.
Six similar lawsuits have forced local jurisdictions across the country to amend their bail schedules.