United States Court of Appeals, District of Columbia Circuit
Patrick Kincaid, on behalf of himself and all others similarly situated, et al., Appellants
Government of the District of Columbia, Appellee
February 15, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-00838)
Jeffrey Light argued the cause for appellants. With him on
the briefs were William Claiborne and Lynn E. Cunningham.
Lederstein, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the
cause for appellee. With him on the brief were Karl A.
Racine, Attorney General, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General.
Before: Kavanaugh, Circuit Judge, and Sentelle and Randolph,
Senior Circuit Judges.
Kavanaugh, Circuit Judge.
case concerns the District of Columbia's post-and-forfeit
statute. Under that law, certain individuals arrested for
misdemeanor crimes receive an opportunity to resolve their
criminal charges immediately by paying a relatively small sum
of money, typically $25 to $50. An arrestee who chooses to
use the post-and-forfeit procedure is released without the
need to attend any criminal proceedings and without any
admission of fault or record of conviction. An arrestee who
declines to use the post-and-forfeit procedure is entitled to
all criminal due process protections, including an initial
hearing before a judicial officer and a trial on the merits.
case, a group of individuals who resolved their misdemeanor
charges using the post-and-forfeit procedure later filed
suit, challenging the procedure and the statute authorizing
it as unconstitutional. They argue that the post-and-forfeit
procedure deprives arrestees of their property in violation
of the Due Process Clause of the Fifth Amendment. They also
contend that the statute authorizing the post-and-forfeit
procedure is void for vagueness under the Due Process Clause.
The District Court dismissed those claims, concluding that
the post-and-forfeit statute is consistent with the Due
Process Clause. We affirm.
2004, the Council of the District of Columbia adopted the
First Amendment Rights and Police Standards Act. The Act took
effect in 2005 following a 30-day period of congressional
review. See 52 D.C. Reg. 5417 (June 10, 2005). Among
other things, the Act codified D.C.'s longstanding
"post-and-forfeit" procedure. See D.C.
Code § 5-335.01.That procedure has
been used to resolve low-level criminal charges in the
District for more than 50 years. Under the post-and-forfeit
procedure, police officers may offer a misdemeanor arrestee
the opportunity to "obtain a full and final resolution
of the criminal charge" by posting and simultaneously
forfeiting an amount of money associated with the charge.
Id. § 5-335.01(a)(3). In other words, the
post-and-forfeit procedure allows an arrestee to pay a sum of
money to resolve his or her criminal charge without having to
proceed through the traditional criminal process. The
post-and-forfeit amounts are pre-determined by the Superior
Court of the District of Columbia and are available online.
Those amounts typically range from $25 to $50, but may in
some cases extend up to $500 or $1, 000 for certain
misdemeanor offenses. See Superior Court Bond and
Collateral List, Non-Traffic Offenses (June 11, 2014).
arrestee who chooses to use the post-and-forfeit procedure
must pay the amount associated with his or her misdemeanor
charge. Following payment, the arrestee's charge is fully
resolved and the arrestee need not attend any further
criminal proceedings. The statute makes clear that an
arrestee's choice to use the post-and-forfeit procedure
"is not a conviction of a crime and shall not be equated
to a criminal conviction." D.C. Code § 5-335.01(b).
The statute similarly specifies that resolution of a charge
using the post-and-forfeit procedure "may not be relied
upon by any District of Columbia court or agency in a
subsequent criminal, civil, or administrative proceeding or
administrative action to impose any sanction, penalty,
enhanced sentence, or civil disability." Id.
statute, an arrestee who receives a post-and-forfeit offer
must also be provided with a form that explains the
post-and-forfeit process. The form must make clear, among
other things, that the arrestee has "the right to
choose" whether to "[a]ccept the post-and-forfeit
offer and terminate the criminal case" or,
alternatively, "[p]roceed with the criminal case and a
potential adjudication on the merits of the criminal
charge." Id. § 5-335.01(e)(2); see
also id. § 5-335.01(e)(1), (3)-(7). In order to
accept a post-and-forfeit offer, an arrestee must indicate
his or her understanding and approval of the process by
signing the required form. Id. § 5-335.01(g).
arrestee may choose to decline a post-and-forfeit offer and
instead contest the criminal charges. If an arrestee does so,
the criminal process moves forward as usual. The arrestee is
afforded all of the traditional due process protections
associated with the criminal process. Those protections may
include, among other things, a hearing before a judicial
officer. Pending that hearing, an arrestee is released
"on citation" with instructions to return to court.
See id. § 5-335.01(e)(3); id. §
23-584. If the Government ...