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Kincaid v. Government of District of Columbia

United States Court of Appeals, District of Columbia Circuit

April 25, 2017

Patrick Kincaid, on behalf of himself and all others similarly situated, et al., Appellants
Government of the District of Columbia, Appellee

          Argued February 15, 2017

         Appeal 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.

          Jason 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.

         This 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.

         In this 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.



         In 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.[1]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).

         An 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.

         By 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).

         An 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. ยง 23-584. If the Government ...

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