D.C. Judge Weighs Constitutional Challenge to ‘Post and Forfeit’

U.S. District Judge Amy Berman Jackson
U.S. District Judge Amy Berman Jackson

Source: Legaltimes.com

By:Zoe Tillman

Posted: March 20th, 2012

U.S. District Judge Amy Berman Jackson heard arguments today about whether a legal challenge to a controversial post-arrest procedure in the District of Columbia known as “post and forfeit” should survive a motion to dismiss.

Under “post and forfeit,” a person arrested for certain low-level offenses in D.C. can post collateral and then agree to forfeit it in exchange for having the case essentially dropped. The Metropolitan Police Department has come under scrutiny in the past amid concerns that officers used “post and forfeit” to quickly close and cover up wrongful arrests.

Hamilton Fox III, an assistant Bar Counsel and former partner at Washington’s Sutherland Asbill & Brennan, sued the city and several police officers in U.S. District Court for the District of Columbia over his arrest for disorderly conduct in 2008. He opted to “post and forfeit” following his arrest.

Aside from individual claims surrounding his arrest, which he alleged was made without probable cause, Fox has moved to certify a class around the allegations that “post and forfeit” is coercive and unconstitutional. The class claims include unlawful seizure and violation of due process under the Fourth and Fifth Amendments, respectively.

Jackson heard oral arguments this morning on the city’s motion to dismiss (PDF) the constitutional claims.

The city’s Office of the Attorney General has argued that Fox failed to produce any facts or legal authority for his argument that “post and forfeit” is, on its face, an unconstitutional procedure.

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