Broussard v. Orleans Parish

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-31408
__________________________
KAYNE BROUSSARD, ETC; ET AL.,
Plaintiffs,
versus
THE PARISH OF ORLEANS, ETC; ET AL.,
Defendants.
LEONARD J. DAZET, JR., and all those
similarly situated; JAMES ANTHONY McDANIEL,
and all those similarly situated,
Plaintiffs-Appellants
versus
M.J. FOSTER, ETC; ET AL,
Defendants
KENNETH GOSS, Sheriff of Acadia Parish; ET AL,
Defendants-Appellees
DEMICO PERKINS, and all those similarly situated,
Plaintiff-Appellant
versus
M.J. FOSTER, ETC; ET AL,
Defendants
CHARLES C. FOTI, JR., Individually and in his
official capacity as the Criminal Sheriff of
Orleans Parish, State of Louisiana,
Defendant-Appellee
DEMICO PERKINS, and all those similarly situated,
Plaintiff-Appellant
versus
M.J. FOSTER, ETC; ET AL,
Defendants
EDWIN A. LOMBARD, In his official capacity as
Clerk of Criminal District for the Parish of
Orleans, State of Louisiana, THE CITY OF NEW ORLEANS,
Defendants-Appellees
-----------------------------------------------------------------
Cons/W 01-31410
KAYNE BROUSSARD, ETC; ET AL.,
Plaintiffs,
versus
THE PARISH OF ORLEANS, ETC; ET AL.,
Defendants.
DEMICO PERKINS, and all those similarly situated,
Plaintiff-Appellant
versus
M.J. FOSTER, ETC; ET AL,
Defendants
EDWIN A. LOMBARD, In his official capacity as
Clerk of Criminal District for the Parish of
Orleans, State of Louisiana, CITY OF NEW ORLEANS,
Defendants-Appellees
___________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
___________________________________________________
January 10, 2003
Before WIENER and STEWART, Circuit Judges, and RESTANI,1 Judge.
WIENER, Circuit Judge:
In this case, the Plaintiffs-Appellants (“arrestees”), are
members of a state-wide group of persons arrested within one year
prior to commencement of this suit. They now appeal the district
1
Judge of the U.S. Court of International Trade, sitting by
designation.
2
court’s rejection of their challenges to three Louisiana statutes,
each of which requires payment of a fee as a prerequisite to
release on bail. As we find that such fees are administrative
charges reasonably related to the functioning of the bail-bond
system, we affirm.
I. FACTS AND PROCEEDINGS
Plaintiffs-Appellants comprise three classes of arrestees who
challenge three Louisiana statutes (“bail-fee statutes”) that
impose specified charges or fees when an arrested individual posts
bail.2 Each class is limited to individuals who were arrested
within one year of filing suit. The Defendants-Appellees are the
sheriffs of almost every Parish in Louisiana (collectively, the
“sheriffs”), including the Sheriff of Orleans Parish (“Orleans
Sheriff”), and the Clerk of the Criminal District Court for Orleans
Parish (“Orleans Clerk”).3
The following provisions are the challenged portions of the
bail-fee statutes:
1. Section 1432(9) [hereinafter the “multi-sheriff statute”]:
The compensation, fees and costs allowed sheriffs, the parish
of Orleans excepted, for all services in criminal matters,
2
The first class consists of arrestees in every Louisiana
Parish except Orleans, Avoyelles, Livingston, St. James, and
Lafayette. The second class consists of arrestees of Orleans
Parish, and the third class consists of arrestees who paid the
bail fee to the Clerk of the Criminal District Court of Orleans
Parish.
3
Defendants-Appellees do not include the sheriffs of
Avoyelles, Livingston, St. James, or Lafayette Parishes.
3
shall be the following:
9) For taking appearance bond when required to do so,
fifteen dollars, unless suspended by a judge of the district
court of the parish. A judge of a district court of the
parish shall waive this fee if a defendant has been tried and
found not guilty or if the charges against the defendant are
dismissed.4
2. Sections 1520(3) and (6) [hereinafter “Orleans Sheriff
statute”]:
The criminal sheriff of Orleans Parish shall collect from the
parties, from witnesses, from sureties, and from sureties on
bonds forfeited, the following fees and charges:
(3) For serving notice of arraignment or of trial on
accused and surety, for each, and return, seven dollars;
(6) For taking appearance bond or recognizance bond when
required to do so, fifteen dollars, unless suspended by the
judges of the Criminal District Court of the Parish of
Orleans.5
3. Section 1381(3) [hereinafter “Orleans Clerk statute”]:
The following charges may be made for the services of the
clerk of the criminal district court:
(3) For filing and processing of appearance or witness
bond, five dollars.6
The bail-fee statutes are among a more extensive group of
statutes that provides for fees in a variety of situations. For
instance, the Orleans Parish sheriff may charge twelve dollars
“[f]or serving attachments to bring witnesses into court”7;
sheriffs of other parishes may charge two dollars “[f]or each
4
La. Rev. Stat. Ann. § 33:1432(9) (2002).
5
La. Rev. Stat. Ann. § 33:1520(3), (6) (2002).
6
La. Rev. Stat. Ann. § 13:1381(3) (1999).
7
La. Rev. Stat. Ann. § 33:1520(5) (2002).
4
warrant executed outside of the parish”8; and the Orleans Clerk may
charge two dollars “[f]or filing and recording [an] affidavit.”9
Taken together, the entire group reveals that Louisiana has
delegated to various parish officials a portion of the
responsibility for covering the expenses that they incur while
carrying out administrative tasks.
The bail-fee statutes, however, do not constitute the
exclusive legislative attempt to collect money through or for the
benefit of the bail-bond system. Section 1065.1 of Title 22 of the
Louisiana Revised States imposes a two percent “fee on premium for
all commercial surety underwriters who write criminal bail bonds in
the state of Louisiana.”10 This fee is distributed to the judicial
court fund (25%), the sheriff’s general fund (25%), the district
attorney’s operating fund (25%), and the Indigent Defenders Program
(25%).11 This provision, in fact, was enacted contemporaneously
with the repeal of similar but piecemeal legislation,12 and as a
result constitutes “the exclusive fee or tax on any criminal bail
8
La. Rev. Stat. Ann. § 33:1432(7) (2002).
9
La. Rev. Stat. Ann. § 13:1381(1) (1999).
10
La. Rev. Stat. Ann. § 22:1065.1(A) (2003).
11
La. Rev. Stat. Ann. § 22:1065.1(B) (2003).
12
See 1993 La. Acts 834, at 2212; La. Rev. Stat. Ann. §§
13:994(B), 996(B), and 1384 (1999).
5
bond premium.13 Finally, the Louisiana Legislature has provided for
the distribution of bond forfeiture amounts from district courts,
parish courts, and city courts to some parish sheriffs around the
state.14 In total, sheriffs receive funds to support the bail- bond
system from (1) a tax on bondsmen (which the bondsmen likely pass
on to arrestees), (2) fees imposed by the bail-fee statutes at
issue here, and, for some sheriffs, (3) bond forfeitures.
In the district court, arrestees invoked 42 U.S.C. § 1983 to
challenge the constitutionality of the bail-fee statutes under the
Fourth, Eighth and Fourteenth Amendments, both facially and as
applied. As matters outside the pleadings were presented to the
district court, it converted the sheriffs’ motion for judgment on
the pleadings into a motion for summary judgment, then rejected all
of arrestees’ claims.
On appeal, the crux of arrestees’ argument is the same as it
was before the district court: An arrested person should not have
to pay a statutory fee to the parish sheriff or clerk over and
above the amount of bail they are required to post. First, and
most significantly, they rely on Augustus v. Roemer to argue that
an arrestee has a fundamental right “not to be deprived of or
unreasonably inhibited from exercising [bail] once it has been
13
La. Rev. Stat. Ann. § 22:1065.1(A) (2003). There is one
exception to the exclusivity of this fee, but it is not relevant
here. Id.
14
1993 Acts, No. 834, at 2206, § 571.11(L).
6
favorably determined.”15 As a result, insist arrestees, the
government must have a compelling interest to restrict that right.
Imposing a monetary charge for the purpose of raising revenue, they
assert, is not an adequate compelling interest. This fundamental-
rights contention also provides a foundation for arrestees’ equal
protection and procedural due process claims.
Second, arrestees insist that charging bail-bond fees is akin
to imposing costs of prosecution on an acquitted defendant. Third,
they contend that the statutes are void on vagueness grounds
because different sheriffs charge fees in differing amounts and
maintain inadequate, ambiguous refund procedures. Fourth,
arrestees assert that the bail-fee statutes tempt sheriffs to stack
charges so as to fill their departments’ coffers. This temptation,
claim the arrestees, violates their procedural due process rights
to “an impartial determination of the number of bookings.” Fifth,
they contend that these fees constitute excessive fines under the
Eighth Amendment. Finally, they argue that charging a fee to
exercise bail constitutes an unreasonable seizure of their person
and property under the Fourth Amendment.16
15
771 F. Supp. 1458, 1468 (E.D. La. 1991).
16
The arrestees’ remaining three distinct claims are
meritless. They first argue that sheriffs are exceeding their
authority if the statutes are construed to impose fees after
conviction. The statutes, however, fairly clearly provide for
fee collection before conviction, as that is when a bond is
usually taken. Second, arrestees dispute the district court
statement that they failed to show that any charges on arrestees
had been dropped. As we explain, however, arrestees’ claims fail
7
In contrast, the sheriffs contend that the outcome of this
case, at least with regard to the multi-sheriff statute, §1432(9),
is governed by our holding in Enlow v. Tishomingo County.17 At
issue in that case was a bail-fee statute that was quite similar to
the one challenged here. The district court in Enlow rejected a
procedural due process challenge to that statute’s
constitutionality, and we summarily affirmed the district court,
concluding on the basis of our review of the briefs and record that
the opinion was “well reasoned and [the case] correctly decided.”18
The sheriffs contend that the only difference between the
Mississippi statute and Louisiana’s bail-fee statute is that the
Mississippi bail fee was calculated as a percentage of the bond,
and the statewide Louisiana bail-fee statute assesses a fixed
charge of fifteen dollars. This difference, they insist, is not
material.
The sheriffs also deny that there is any fundamental right to
free bail access, and rely on Schilb v. Kuebel to argue that the
bail-fee statutes merely authorize valid administrative fees to
because they are unable to show that the fees charged are
arbitrary or to show that the fees caused a delay in release.
Thus, whether any charges had been dropped is immaterial. Third,
arrestees argue that dismissing the City of New Orleans was
improper. Whether or not the City of New Orleans should be a
defendant, however, depends on the merits of arrestees’ claims.
As a result, this issue does not warrant discussion unless the
bail-fee statutes are held to be unconstitutional.
17
45 F.3d 885 (5th Cir. 1995).
18
Id. at 889.
8
support the bail-bond system.19 As the statutes charge only
administrative fees to defray the costs of the bail-bond system,
continue the sheriffs, such fees do not impermissibly impose court
costs; and for the same reason, such fees cannot violate the
excessive fines clause of the Eighth Amendment. Finally, the
sheriffs deny that (1) the statutes create any temptation to stack
charges, (2) such laws are unconstitutionally vague, or (3) they
effect a Fourth Amendment violation.
II. ANALYSIS
Louisiana’s bail-fee statutes do not fit snugly into any
established area of constitutional jurisprudence. This is quite
plausibly the reason why arrestees fired such a broadside of
constitutional claims at the sheriffs. As this is the third time
these types of statutes have been challenged in this Circuit, and
as the results of the previous efforts are in tension with each
other, we shall address each of arrestees claims. Even though, in
addition to the three laws at issue here, Louisiana’s statutory
framework provides multiple methods of funding its bail-bond
system, relevant Supreme Court precedent characterizing such
charges as reasonable administrative fees requires us to affirm the
district court on all matters, as we shall demonstrate.
A. STANDARD OF REVIEW
We review de novo a district court’s grant of summary
19
404 U.S. 357 (1971).
9
judgment.20 Summary judgment is only appropriate if the pleadings
and the additional evidence presented show that there is no genuine
issue as to a material fact, such that the moving party is entitled
to a judgment as a matter of law.21 A dispute about a material fact
is ‘genuine’ if there is enough evidence for a reasonable jury to
return a verdict in favor of the non-moving party.22 Like the
district court, when deciding upon a motion for summary judgment,
we review all factual questions in the light most favorable to the
nonmovant.23 We also review de novo all questions of law.24
B. EIGHTH AMENDMENT EXCESSIVE BAIL
Arrestees only assert in passing that the bail-fee statutes
amount to “excessive bail”. It is nevertheless worthwhile to
explain the inapplicability of the Eighth Amendment’s Excessive
Bail Clause to better frame these statutes under a more general
due-process analysis.
The Supreme Court has not frequently considered the contours
of the Eighth Amendment’s proscription of excessive bail. In fact,
its application to the States has occurred only indirectly.25 The
20
Stults v. Conoco, Inc. 76 F.3d 651, 654 (5th Cir. 1996).
21
Fed. R. Civ. P. 56(c).
22
Stults, 76 F.3d at 654.
23
Id.24
Id. at 655.
25
Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (finding that
“the Eighth Amendment’s proscription of excessive bail has been
10
Court has explained, nonetheless, that a prohibition against
excessive bail exists even though there is no absolute
constitutional right to bail. In Stack v. Boyle, the Court held
that “[b]ail set at a figure higher than an amount reasonably
calculated [to ensure the defendant’s presence at trial] is
‘excessive’ under the Eighth Amendment.”26 In applying this
standard, we have found that requiring $750,000 bail from a
defendant deemed to be a flight risk is not excessive even though
the defendant is unable to pay the bail.27
More recently, in United States v. Salerno, the Supreme Court
acknowledged that, in addition to the authority to detain for
flight risk, the government may pursue “other admittedly compelling
interests through regulation of pretrial release.”28 The only
potential substantive limitation on the ability of the government
to restrict bail, the Court concluded, is that “the Government’s
proposed conditions of release or detention not be ‘excessive’ in
light of the perceived evil.”29
assumed to have application to the States through the Fourteenth
Amendment”) (citations omitted); Baker v. McCollan, 443 U.S. 137,
145 n.3 (1979).
26
342 U.S. 1, 5 (1951).
27
United States v. McConnell, 842 F.2d 105, 107-08 (5th Cir.
1988).
28
481 U.S. 739, 753-54 (1987).
29
Id. at 754. The Court explained further that the
excessiveness of the government’s action is determined as well by
“the interest the Government seeks to protect by means of [its
11
The above-cited cases address whether the government can deny
bail altogether, or set it at a very high amount, for the reasons
it proffers. In contrast, this case concerns neither the State’s
attempt to deny bail nor an extremely high bail amount. Rather, it
concerns relatively modest fees imposed, over and above the amount
of bail, on all arrestees who exercise bail. Clearly, the sheriffs
are not advancing the compelling interests recognized by the Court
in the cases mentioned above. Rather, they reiterate that the fee
statutes are administrative charges imposed to cover costs of the
bail-bond system. The sheriffs argue additionally that the fees at
issue here are part of a more comprehensive statutory scheme that
imposes fees for other actions taken by parish sheriffs in the
criminal adjudication process.30
It is also clear that the restriction alleged in this case
does not implicate the kind of excessiveness of past decisions.
Rather, the charges are nominal, nondiscretionary, statutory fees
imposed on all arrestees. Indeed, the deprivation arrestees claim
here is more theoretical than actual. They have offered no hard
evidence that any arrestee who was otherwise able to make bail was
ever kept in jail because he or she did not, or could not, pay the
de minimis administrative fee. Presumably, if an arrestee is able
to secure bail, he or she would be able to pay the modest
restriction].” Id.30
La. Rev. Stat. Ann. 33:1432.
12
administrative fee required to exercise that right. And, even if
an arrestee were to remain in jail, it is still not clear that an
additional fifteen dollars would constitute excessive bail under
the Eighth Amendment. As a result, the interests at stake for both
the government and the individual are not easily taken account of
by the Salerno test.31
In sum, extant excessive-bail jurisprudence does not transfer
well to this issue. Salerno and previous cases have indicated that
the government must put forth a compelling interest to restrict or
deny bail. Here, there is neither a compelling purpose nor a
restriction on bail analogous to past instances. Rather there is
a largely theoretical, and effectively minimal, constraint on an
individual’s substantial liberty interest in release.32 Nothing in
31
An analysis of these facts in excessive bail terms would
result in an awkward application of the Salerno standard. The
“perceived evil” would be the lack of funding for the bail-bond
system rather than the flight risk, or danger to the community,
of an arrestee. Likewise, the restrictions on release are small
fees required to exercise bail instead of a large amount of
money, which effectively would prohibit release on bail. Even
though the “evil” does not amount to the compelling interest the
government has in preventing flight, the restraint imposed also
pales in comparison to high bail amounts.
32
The “excessive bail” jurisprudence does illustrate the
substantial interest an individual has in pretrial release from
jail. The Salerno court reiterated that “[i]n our society
liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” Salerno, 481 U.S. at
755. We have also recognized that interest, stating that “[d]ue
to weighty liberty interests, the typical pretrial detainee is
rarely detained prior to trial.” Hamilton v. Lyons, 74 F.3d 99,
105 (5th Cir. 1996). Thus, the need for a compelling purpose to
restrict such release implies that an individual maintains a
strong liberty interest.
13
these cases has suggested that a theoretically minor restriction
imposed for less than a compelling purpose, constitutes “excessive”
bail.
C. EIGHTH AMENDMENT EXCESSIVE FINES
There are two reasons why arrestees’ excessive-fines challenge
fails here. First, the Supreme Court has never directly applied
the Excessive Fines Clause of the Eighth Amendment to the several
states. Although scholars have suggested,33 and Justice O’Connor
has argued,34 that this clause applies to the states, to date no
such attribution has occurred. Second, even assuming that this
clause does apply to the states, the Court has concluded, and the
district court here recognized, that “the State does not acquire
the power to punish with which the Eighth Amendment is concerned
until after it has secured a formal adjudication of guilt in
accordance with due process of law.”35 Therefore, allegations of
punishment before adjudication of guilt must be addressed under the
33
2 Ronald D. Rotunda & John E. Nowak, Treatise on
Constitutional Law: Substance and Procedure, §15.6, at 622 (1999)
(arguing for the incorporation of this clause “because it is
intertwined with the other two clauses of the Eighth Amendment
and the Supreme Court has already regulated the imposition of
fines on indigents through the equal protection clause of the
Fourteenth Amendment”).
34
See Browning-Ferris Industries of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 284 (1989) (O’Connor, J. concurring
in part, dissenting in part) (urging that the ‘excessive fines’
clause should apply to the states).
35
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).
14
Due Process Clause of the Fourteenth Amendment.36
The Excessive Fines Clause of the Eighth Amendment, like the
Cruel and Unusual Punishment Clause, is applicable only if the
statutory fees at issue constitute punishment.37 But because the
bail-fee statutes impose a charge prior to the adjudication of
guilt, the Excessive Fines Clause, even if it did apply to the
states, would not be the appropriate provision under which to test
these statutes. As a result, we must assess the capacity of the
bail-fee statutes to constitute punishment through the lens of the
Due Process Clause.
D. DUE PROCESS —— BAIL FEES AS PUNISHMENT
As neither the Excessive Bail Clause nor the Excessive Fines
Clause of the Eighth Amendment is applicable to the bail-fee
statutes challenged here, we must address the arrestees’ more
amorphous contention that the bail-fee statutes violate the
fundamental right of bail-eligible arrestees to exercise bail
without any additional financial impediment. Before addressing
this due process contention directly, however, we must explain and
36
Id.37
The Court has found that the Excessive Fines Clause
“limits the government’s power to extract payments, whether in
cash or in kind, as punishment for some offense.” Austin v.
United States, 509 U.S. 602, 609-10 (1993)(internal quotation
marks omitted) (emphasis in original). Thus, whether the clause
applies depends on whether it is possible to describe the fees
imposed as punishment. See United States v. Bajakajian, 524 U.S.
321, 328 (1998) (finding that forfeitures are fines “if they
constitute punishment for an offense”).
15
distinguish three other cases relevant to this analysis on which
the parties rely.
In Schilb v. Kuebel, the Court addressed a provision with
effects remarkably similar to Louisiana’s bail-fee statutes.38
Illinois had instituted bail reform to enable arrestees to avoid
the usurious fees of professional bail bondsmen. As part of this
reform program, arrestees had the option of paying the court a
deposit equal to 10% of their bail amount and thus obtaining
release. Later, when they appeared at their hearings, such
arrestees were refunded all but 10% (1% of the total bail amount)
of the deposit, which the court retained as an administrative fee.39
The Court in Schilb addressed only an equal protection
challenge and an argument that the fees constituted imposition of
court costs prior to conviction. In rejecting both claims, the
Court started from the premise that this charge “smacks of
administrative detail and of procedure and is hardly to be
classified as a ‘fundamental’ right or as based upon any suspect
criterion.”40 The Court then analyzed, under the appropriate
rational-basis standard, the fee retention in relation to the
ability of arrestees to put up the entire amount of bail and
thereby avoid fees entirely. Charging this fee to only those
38
404 U.S. 357 (1971).
39
Id. at 359-61.
40
Id. at 365.
16
arrestees who elected to deposit an amount equal to 10% of their
bail, reasoned the Court, was rationally related to the State’s
interest in defraying expenses that are associated with bail-
jumping.41
The Court also distinguished this Illinois bail-fee statute
from the one considered in Giaccio v. Pennsylvania, wherein the
Court struck down a state law that allowed a jury to impose all
court costs on a defendant even though it had acquitted him.42 The
Schilb court reiterated that the Illinois charge was “an
administrative cost imposed upon all those, guilty and innocent
alike” who avail themselves of its benefit, which was distinct from
the “imposition of costs of prosecution upon an acquitted or
discharged criminal defendant,” illegal under Illinois law.43
Here, arrestees attempt to distinguish Schilb by highlighting
the fact that the statute there at issue was part of a legislative
movement to reform the Illinois bail-bond system and was but one
option from which arrestees could choose.44 Louisiana’s statutory
41
Id. at 367-68. When the state takes only 10% instead of
the entire 100% of the bail amount, it has less security in the
event of bail-jumping. It also may be more likely that bail-
jumping would occur under the deposit plan because the arrested
individuals would forfeit less financially if they failed to
appear in court.
42
382 U.S. 399, 403 (1966).
43
Schilb, 404 U.S. at 370-71.
44
Based on Augustus v. Roemer, 771 F. Supp. 1458 (E.D. La.
1991), arrestees argue that Schilb outlined a three factor test
for such bail statutes: they must 1) create a voluntary option,
17
scheme, by contrast, is not as reform-minded as the Illinois
program. The ability to distinguish Schilb from the instant case
on the extent to which the fees charged go toward a program
designed to benefit arrestees by reducing reliance on bail bondsmen
is inconsequential, however, because the Louisiana bail-fee
statutes involve no classification. The fee provisions at issue
here apply to all arrestees, regardless of whether they enlist the
services of a bail bondsmen or use their own funds to pay bail.
Thus, the fact that the Louisiana statutes fail to classify dooms
arrestees’ equal protection claims and prevents them from
positively distinguishing their challenge from the facts of Schilb,
at least on equal protection grounds.45
In addition to the Schilb court’s view that bail fees are at
most administrative charges, which fail to invoke any fundamental
right, the sheriffs argue that Enlow v. Tishomingo County, in which
we upheld a statute similar to those at issue in this case, should
govern our conclusion here.46 At issue in Enlow was a Mississippi
statute that imposed on every arrestee exercising his bail option
2) be intended to reform the bail system, and 3) confer a benefit
on arrestees.
45
As we will explain, the differences between reform-
oriented bail programs and Louisiana’s scheme are likewise
immaterial under the relaxed reasonableness standard that applies
to due process challenges.
46
45 F.3d 885, 889 (5th Cir. 1995).
18
a fee equal to the greater of $20 or 2% of the value of the bond.47
The Enlow district court considered whether that statute violated
procedural due process standards by imposing a fee prior to
adjudication of guilt.48 Applying Mathews v. Eldridge,49 the trial
court stated that payment of a bond fee did not amount to a
heightened level of private interest.50 It reasoned that requiring
a bond fee was legally indistinguishable from the accepted practice
of requiring a detainee to post bond as a prerequisite for
release.51 The district court in Enlow also noted that sufficient
standards and procedures existed to facilitate refunds after
acquittal.52 Finally, in addressing the government’s administrative
interests, the district court relied on Schilb’s conclusion that
not all administrative fees are unconstitutional.53
We affirmed the Enlow trial court’s holding and reasoning on
47
Enlow v. Tishomingo County, Civ.A.No. EC 89-61-D-D, 1990
WL 366913, at *2 (N.D. Miss. Nov. 27, 1990).
48
Id. at *5-6.
49
424 U.S. 319 (1976).
50
Enlow, 1990 WL 366913, at *5.
51
Id. (citing Gladden v. Roach, 864 F.2d 1196, 1200 (5th Cir.
1989) (upholding the ability to impose bail for a non-jailable
offense because the gravity of the offense does not alter the
purpose of bail to make sure defendants appear at trial)).
52
Enlow, 1990 WL 366913, at *6.
53
Id.19
appeal.54 After reviewing the briefs and record, we concluded that
“the district court’s opinion regarding the arrestees’
constitutional challenges to the statutes is well reasoned and
correctly decided.”55 Despite the absence of substantive
discussion, our affirmation of the district court’s holding governs
procedural due process challenges to similar bail-fee statutes,
unless they can be factually distinguished.
The only differences between the Mississippi statutes at issue
in Enlow and Louisiana’s bail-fee statutes that we consider today
are Mississippi’s use of a percentage fee rather than a flat fee,
and its statute’s provision for the State Auditor of Public
Accounts to promulgate regulations outlining a refund procedure,56
in contrast to the Louisiana statutes, which are more ambiguous in
their provisions for refunds. The first difference at best is
immaterial to a procedural due process analysis, because the
quantum of the Louisiana fees imposed, and thus the private
interest affected, is almost always going to be less than the
quantum of those imposed under the Mississippi scheme. The second
difference has an effect, if any, only when assessing the risk of
error in existing procedures.
Given Enlow’s conclusions that the private interests at stake
54
Enlow, 45 F.3d at 889.
55
Id.56
Miss. Code Ann. § 99-1-19(5), (6) (1990) (repealed by Act
of March 12, 1990, Ch. 329, § 12, eff. October 1, 1990).
20
are not great, that Schilb specifically rejected a fundamental
rights implication of such fees, and that arrestees have failed to
demonstrate any actual deprivation, we too conclude that the
Louisiana fees do not trigger any heightened level of private
interest. Although the liberty interest of an arrestee in release
from jail may well be significant, any deprivation attributable to
these administrative fees is minimal, if not non-existent.
Arrestees have introduced no evidence to suggest that any arrestee
has ever been detained because of an inability to pay the bail fee.
Arrestees have also failed to articulate a clear argument that
these fees constitute a deprivation of a property interest without
due process of law.57
The second factor is the so-called risk of error. In Mathews,
the Court explained this factor as “the fairness and reliability of
the existing pretermination procedures, and the probable value, if
any, of additional procedural safeguards.”58 The district court
here found a low risk of erroneous deprivation because the
assessment of fees simply was based on the number of charges on
57
A recent district court case from Southern District of
Ohio struck down a statute on procedural due process grounds
that imposed a flat thirty dollar book-in fee to cover the
administrative costs of confinement of pretrial detainees. Allen
v. Leis, 213 F. Supp 2d 819, 831-34 (S.D. Ohio 2002). In
conducting a Mathews analysis, the court held that this
deprivation of property, like most, required notice and a
hearing. Id. at 833-34. Here, however, Enlow has already
concluded that the private interest is insignificant, and
arrestees failed to pursue this line of argument.
58
424 U.S. 319, 343 (1976).
21
which an individual is arrested.59 The procedures for assessing
fees are indeed unambiguous; it is not clear, however, that this
completes the inquiry. This factor asks not only whether the state
will determine the correct amount of deprivation, but also whether
it will deprive the right individuals under the current procedures.
In Enlow, the district court concluded that the Mississippi
statute contained sufficient procedures and standards to facilitate
refunds to acquitted individuals. In contrast, the Louisiana
statutes as they now stand, impose a fee on every individual
arrested. Thus, the risk is fairly high that persons not
ultimately found guilty will have paid this fee. According to
Enlow, however, an adequate refund procedure would substantially
minimize the risk of this kind of error. Louisiana’s multi-sheriff
statute provides for a “waiver” of the bail fee by a judge if an
arrestee is acquitted or the charges dismissed. The Orleans parish
sheriff statute states that a judge may “suspend” this fee, but it
does not explain the grounds on which suspension is appropriate.
The Orleans clerk statue contains no procedure for obtaining a
refund on acquittal or dismissal of charges.
Arrestees argue that the waiver language provides an
insufficient procedure for obtaining a refund. Although the
Louisiana multi-sheriff statute appears to provide less detail on
59
Broussard v. Parish of Orleans, No. CIV.A..00-2318,
CIV.A.00-3055, CIV.A.00-2056, CIV.A.00-3057, 2001 WL 1335289, at
*8 (E.D. La. Oct. 29, 2001).
22
refund procedures than does the Mississippi statute, this does not
mean that it is wholly inadequate. The record indicates that in at
least three parishes, refunds were made on request and that none
were denied. Vernon Parish, for instance, which appears to have
collected more bail fees than any other single parish, provided
refunds for all thirty-seven requests made. This kind of evidence
supports a conclusion that the multi-sheriff statute is capable of
adequately providing a refund.
The arrestees also invoke the St. Charles Parish policy of
making booking fees nonrefundable as evidence that the statutory
waiver language is inadequate. The St. Charles Parish policy,
however, is expressly provided for in Article 324(3) of the
Louisiana Code of Criminal Procedure.60 This provision authorizes
St. Charles Parish to collect a deposit calculated as a percentage
of the bail amount but to charge a fee no greater than fifteen
dollars for processing a bond, which is the amount that the sheriff
actually charged. As such, the procedure resembles the remedial
program scrutinized in Schilb. We conclude that the possibility of
a refund under the multi-sheriff statute sufficiently mitigates any
error that might occur beforehand in charging the fee.
The likelihood of refunds under the Orleans Sheriff and
Orleans Clerk statutes is not as certain. The Orleans Sheriff
statute only provides that a judge may suspend the fee requirement.
60
La. Code. Crim. Proc. Ann. art. 324(A)(3) (2002).
23
This language suggests that there is some process before a fee is
assessed, or at least some opportunity to request that a judge
suspend the fee. The clerk statute provides for no suspension or
waiver of this fee, but it imposes a fee of only five dollars, the
least among the bail-fee statutes.
Finally, weighed against the deprivation and the risk of error
is the administrative burden resulting from additional procedural
requirements and the government’s interests in conserving scarce
resources.61 This case deals with the imposition of nominal fees,
and the government has an interest in continuing to assess such
fees to support its bail-bond system. Greater process could
ultimately reduce funding of the bail-bond system by increasing
administrative costs and decreasing government revenue from such
fees, because more acquitted arrestees are likely to obtain
refunds.62 Insufficient funding could detrimentally affect a
sheriff’s ability to supervise release on bail, which in turn could
mean that fewer individuals actually secure release or that those
released find it easier to jump bail. Thus, the government has an
interest in the extant procedures to hold down costs and fund a
61
Mathews, 424 U.S. at 347-48.
62
It would appear that the only effective procedures that
would reduce deprivation and error would be the criminal
adjudication itself or adequate refund procedures after
acquittal. The former would not likely involve any additional
procedures, but would delay the assessment of bail fees. The
latter would allow bail fees to be assessed immediately, but
might require more process later to dispense refunds.
24
sheriff’s office’s bail-bond system. The de minimis level of the
private interest, moreover, indicates that the government
administrative interest need not be great.
When we balance the Mathews factors, we conclude that none of
the bail-fee statutes violates procedural due process standards.
Although some risk of error exists for fees imposed under the
Orleans Sheriff statute and the Orleans Clerk statute, the private
interest at stake for all three statutes is minimal, as Enlow
instructs, and the government interests in funding the bail-bond
system and maintaining cost-effective procedures outweigh any error
that may result from inadequate refund procedures. Schilb’s
characterization of such charges as administrative fees lying
beyond the threat of heightened constitutional scrutiny again
influences our conclusion. It shows us that the government’s
administrative interest is reasonable and private deprivation so
minimal that the risk of acquitted individuals paying the bail fee
is an error without constitutional significance, akin to danum
absque injuria.
Having found arrestees’ equal protection and procedural due
process claims to be unavailing, we turn to their substantive due
process challenge. In contrast to the sheriffs’ reliance on Enlow,
arrestees ground their substantive due process argument on Augustus
v. Roemer, a 1991 federal district court case that addressed
another Louisiana statute, which imposed a charge on bail bondsmen
25
equal to the greater of $20.00 or 2% of the amount of the bond.63
In striking down these provisions, the trial court determined that
access to the bail system, once an arrestee was found eligible,
constituted a fundamental right that could not be constricted
absent a compelling governmental purpose.64 The district court was
not persuaded that raising revenue to run the criminal justice
system and to handle the administration of bond forfeitures
constituted compelling interests.65 The court distinguished Schilb
on the same grounds that arrestees rely on here: (1) The program
was voluntary; (2) it had a narrowly tailored statutory purpose;
and (3) it offered a benefit given in exchange for the fee.66
The district court’s fundamental rights analysis in Roemer
crumbles, however, under the weight of Schilb and other related
Supreme Court precedent which indicate that these fees do not
implicate fundamental rights and thus need only be reasonable.67
63
771 F. Supp. 1458, 1460-62 (E.D. La. 1991). In 1993, the
Louisiana legislature repealed the statutes at issue in this
case, but simultaneously enacted 22 L.S.A. R.S. §1065.1, which
imposes an identical 2% fee state-wide. See La. Acts 1993, No.
834, §§5, 6, eff. June 22, 1993.
64
Augustus,771 F. Supp. at 1467-68.
65
Id. at 1468.
66
Id. at 1470-71 & n.24.
67
Arrestees also attempt to analogize the bail-fee statutes
to the poll tax on voting that the Supreme Court struck down in
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966).
Harper, however, addressed the long-recognized fundamental right
of voting, which the Court considered “preservative of other
basic civil and political rights.” See id. at 667 (quoting
26
In Bell v. Wolfish, the Supreme Court addressed a substantive due
process challenge to a condition of confinement of a pretrial
detainee.68 Although Bell addressed specific conditions of the
confinement itself rather than potential barriers to release, its
approach is instructive to our analysis of the arrestee’s due
process challenge to the Louisiana bail-fee statutes. The Court
first rejected the lower court’s conclusion that the “presumption
of innocence” creates a fundamental right to be free from
conditions of confinement, absent the government’s compelling
necessity.69 The Due Process Clause, it reasoned, provides “no
basis for application of a compelling-necessity standard to
conditions of pretrial confinement that are not alleged to infringe
any other, more specific guarantee of the Constitution.”70
Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)). This case
addresses a fee imposed upon arrestees which neither the Supreme
Court nor we have found invokes a fundamental right. Instead, as
we explain here, this type of charge requires only a reasonable
relationship to a legitimate government purpose.
68
441 U.S. 520 (1979).
69
Id. at 532. We have recognized the subsequent limits
placed on Bell by the Supreme Court with regard to the level of
culpability required to find a due process violation. See Ortega
v. Rowe, 796 F.2d 765, 767-68 (5th Cir. 1986) (recognizing the
Supreme Court opinions post-Bell that found negligent behavior
insufficient to trigger due process protection, and as a result
requiring intentional or knowing action to conduct a Bell
analysis). These limits, however, are not relevant in this case
because the mental state of the sheriffs is not in question.
70
Bell, 441 U.S. at 533. As we explained supra, neither the
Excessive Fines Clause, nor the Excessive Bail Clause, nor any
other specific constitutional provision is applicable to the bail
fee statutes.
27
Rather, the Court concluded in Bell that when the right being
challenged is not one that is expressly guaranteed in the
Constitution, the issue merely concerns “the detainee’s right to be
free from punishment,” which “does not warrant adoption of [a]
compelling-necessity test.”71 Using factors laid out in Kennedy v.
Mendoza-Martinez, the Court ruled that if there is no express
showing of an intent to punish, and “a particular condition or
restriction of pretrial detention is reasonably related to a
legitimate governmental objective, it does not, without more,
amount to ‘punishment.’”72 On the other hand, if there is no
reasonable relationship between the restriction and a legitimate
interest, such that the restraint is “arbitrary or purposeless ——
a court permissibly may infer that the purpose of the governmental
action is punishment....”73 Addressing the condition at issue in
Bell —— the practice of double-bunking at a pretrial detention
facility —— the Court concluded that the condition did not
constitute punishment because the practice was instituted for the
purpose of dealing with increased numbers of detainees and the
burden on the detainees was minor.74
Bell may not be directly applicable to this case, because the
71
Id. at 534.
72
Id. at 538-39 (citing Kennedy v. Mendoza-Martinez, 372
U.S. 144 (1963)).
73
Bell, 441 U.S. at 539.
74
See id. at 525-26, 540-43.
28
bail-fee statutes might not constitute a condition or restriction
on confinement as envisioned by Bell and subsequent cases. Bell,
for instance, addressed the double-bunking of prisoners; and we
subsequently addressed denials of such items as visitation,
telephone access, recreation, mail, legal materials, and showers
for a three-day period.75 Other circuits applying Bell have
addressed such conditions as placement in solitary confinement
after attacking another inmate,76 administrative lockdown,77 and
administrative segregation.78 In short, these cases deal with more
restrictive confinement without release, not an added financial
burden to already-sanctioned release.
Nevertheless, Bell’s analytical framework, in addition to
Schilb’s conclusion that such fees appear to be administrative, is
helpful in resolving this case. Schilb instructs that this
category of fees fails to infringe any fundamental rights; Bell,
in turn, articulates a test that enables us to determine whether
such charges are reasonable administrative fees or impermissible
arbitrary punishment. Thus, the inquiry reduces to a
75
Hamilton v. Lyons, 74 F.3d 99, 106-07 (5th Cir. 1996).
The court’s application of Bell in this case was slightly
different because the plaintiff was a detained parolee instead of
the average pretrial detainee. Id. at 104. That distinction,
however, does not affect the type of confinement restriction
subject to the Bell standard.
76
Rapier v. Harris, 172 F.3d 999, 1001-02 (7th Cir. 1999).
77
O’Connor v. Huard, 117 F.3d 12, 15-16 (1st Cir. 1997).
78
Stevens v. McHan, 3 F.3d 1204, 1205-06 (8th Cir. 1993).
29
reasonableness analysis.
Reasonableness depends on both the nature of the government
interest itself and the extent to which the statutes at issue
supports that purpose. Section 1432(9), the multi-sheriff statute,
imposes a fifteen dollar fine for “taking [an] appearance bond.”
The other two statutes impose fees for similar tasks. The district
court indicated that these statues “are linked to a legitimate
government purpose of providing funds for the administration of the
bail-bond system....”79 In their appellate brief, the sheriffs cite
several provisions of the Louisiana Code of Criminal Procedure in
support of their contention that the bail-bond system is entirely
dependent on the services of the sheriff for its proper operation.
In particular, the sheriffs emphasize that Article 344 of the
Louisiana Code of Criminal Procedure requires the sheriff to serve
notice on a defendant and his surety of a required appearance in
court.80
The connection between these fees and the bail-bond system in
particular is less than clear. The sheriffs seem to use Article
344’s requirement that sheriffs give notice to arrestees to appear
in court to demonstrate the significance of sheriffs in bail-bond
matters. But even this requirement of sheriffs’ time appears to be
79
Broussard v. Parish of Orleans, No. CIV.A..00-2318,
CIV.A.00-3055, CIV.A.00-2056, CIV.A.00-3057, 2001 WL 1335289, at
*8 (E.D. La. Oct. 29, 2001).
80
La. Code Crim. Proc. Ann. art. 344 (2002).
30
overstated. Article 344 requires no additional notice when a bail
bond fixes the initial appearance date;81 it is only when the bond
does not fix such a date that additional notice required.82 Such
notice neither requires action by a sheriff nor personal service of
the notice. Rather, it states simply that an officer of the court
may deliver notice, or it may be sent via first class mail. 83 In
short, the sheriffs appear to exaggerate both the amount of work
involved and the time and effort required of sheriffs in this
process.
In addition, Louisiana already charges fees directly to bail
bondsmen. Section 1065.1 of Title 22 of the Revised Statutes
charges a 2% fee on “all commercial surety underwriters who write
criminal bail bonds in the state of Louisiana.”84 This statute
specifies that 25% percent of the amount collected goes to the
“sheriff’s general fund” and that other amounts go to the judicial
court fund, the district attorney’s operating fund and the Indigent
Defenders program. As a result, this provision seems to address
more directly the overall financing of the bail-bond system. It
specifies distribution of funds not just to the sheriff, but also
to the other groups that participate in the bail-bond system. In
81
Art. 344(A).
82
Art. 344(B).
83
Art. 344(B)(2).
84
La. Rev. Stat. Ann. § 22:1065.1 (2003).
31
short, there are reasons to question the extent to which the bail-
fee statutes at issue support the bail-bond system.
There are also reasons, however, that supply a rational
connection between these statutes and a legitimate government
purpose. Despite the sheriffs’ failure to elaborate on their
contention, we can imagine that bail fees help offset the costs of
paperwork and subsequent time required of sheriffs or clerks to
keep track of those arrestees who are out on bail. Arrestees have
presented no evidence to demonstrate that such fees are unnecessary
or to show that alone the funds received from the bail bondsmen tax
and from bond forfeitures are sufficient to support the bail-bond
system.
Furthermore, the broader statutory scheme of which these
provisions are a part provides additional support for the
characterization of these bail fees as reasonable administrative
charges. They are part of a comprehensive schedule of fees for
actions taken by a sheriff or clerk, including fees for serving a
subpoena duces tecum,85 for mileage when traveling outside the
Parish of Orleans,86 for executing warrants outside of the sheriff’s
parish,87 and for furnishing copies of indictments.88 Although the
85
La. Rev. Stat. Ann. § 33:1520(8) (2002).
86
§ 33:1520(10).
87
La. Rev. Stat. Ann. § 33:1432(7) (2002).
88
La. Rev. Stat. Ann. § 13:1381(24) (1999).
32
bail-fee provisions may be unique as the only provisions that
theoretically separate an arrestee from his or her release from
confinement, the amount of the fee does not appear to be unduly
burdensome. As noted, the record is barren of evidence indicating
that a single arrestee had to remain in jail because he or she was
unable to pay the required fees, as distinguished from the bail
itself.
Even though the connection between the bail fees charged and
the administration of the bail-bond system may be somewhat tenuous,
especially when compared to reform schemes in other states,
arrestees have failed to present evidence sufficient to show that
the fees imposed are arbitrary. Thus, we must reject arrestees’
substantive due process challenge as well.89
E. OTHER CONSTITUTIONAL CLAIMS
1. Vagueness Challenge
Arrestees contend that the bail-fee statutes are void on
vagueness grounds, relying on Giaccio v. Pennsylvania.90 Arrestees
89
Arrestees also rely on the ancient case of State ex rel.
Leche v. Waggner, 8 So. 209, 211 (La. 1890), which struck down a
statute almost identical to the Orleans Clerk statute. Although
to our knowledge no case has overruled Waggner, we discern two
reasons why its holding does not govern here. First, the Waggner
court failed to articulate the basis on which it found this
statute offensive, which makes it impossible for us to determine
whether it would even be persuasive precedent to our federal
constitutional analysis. Second, Schilb and Bell have been
decided subsequently by the United State Supreme Court, and quite
clearly characterize such charges as administrative fees, which
need only relate reasonably to a legitimate government interest.
90
382 U.S. 399 (1966).
33
also attempt to use Giaccio to support their argument that the bail
fees constitute impermissible court costs.
In Giaccio, the Supreme Court addressed a Pennsylvania law
allowing juries that had acquitted a defendant to determine whether
he should nevertheless pay all court costs of the prosecution.91
The Court struck down the law as vague because it gave juries
“broad and unlimited power in imposing costs on acquitted
defendants,” such that it allowed them to use “their own notions of
what the law should be instead of what it is.”92
The bail fees charged here, in contrast, are not factually
akin to the costs of prosecution. Although both situations might
involve fees charged to individuals who are ultimately acquitted,
the Giaccio court found particularly problematic the unfettered
power of jurors to impose their own view of the law in assessing
fees. The Louisiana statutes here at issue are well-defined laws
which clearly outline the fees charged. The fees themselves are
small, and no judicial or executive officers are empowered to
charge fees greater than those that are statutorily allowed.
Neither are these fee statutes unconstitutionally vague. In
Buckland v. Montgomery County, a case factually more similar to
ours than is Giaccio, the Third Circuit addressed a vagueness
challenge to a Pennsylvania program identical to the Illinois
91
Id. at 400.
92
Id. at 403.
34
program considered in Schilb, except that the Pennsylvania statute
provided for retention of a “reasonable fee,” instead of a set 1%
of the total bail amount.93 The Buckland court rejected the
vagueness challenge, finding that fees were established in the
public record and were applied uniformly and with advance knowledge
to those using the court bail program.94 Further, the variation in
fees simply reflected the differing local conditions and expenses
of the different geographical areas in which they were imposed.95
Similarly, the fee amounts we consider today are stated clearly in
the public records. Even though sheriffs may employ different
practices for assessing such fees, there is no evidence that any
sheriff has charged more than the statutorily allowed amount.
2. Temptation to Stack Charges
Arrestees also assert that these statutes tempt sheriffs to
stack charges against arrestees in violation of their due process
rights. Arrestees rely on Ward v. Village of Monroeville96 and
Tumey v. Ohio97 to argue that these statutes give sheriffs the
partisan incentive to make unnecessary charges to maintain
sufficient funding for their respective departments. Conceding
93
812 F.2d 146, 149 (3rd Cir. 1987).
94
Id.95
Id.96
409 U.S. 57, 59-60 (1972).
97
273 U.S. 510, 532 (1927).
35
that Ward and Tumey applied to judges and focused on the
requirement that they remain impartial, arrestees nevertheless
insist that this standard should apply to the Louisiana sheriffs
and clerks as well, and attempt —— unsuccessfully —— to distinguish
our holding in Brown v. Edwards.98 In making their argument,
arrestees seem to presuppose that the fees are analogous to
punishment or to a determination of guilt before trial. That is
the basis on which they argue that sheriffs impermissibly control
executive and judicial functions, in violation of due process. As
the preceding analysis has illustrated, however, imposing fees does
not constitute “punishment” under Bell; thus arrestees’ reliance on
Ward and Tumey is unavailing.
The district court’s dismissal of this challenge is sound. It
correctly noted that Ward and Tumey are inapplicable to this case,
because the focus of those cases was on individuals who exercised
a judicial function. “[T]he test is whether [the individual’s]
situation is one ‘which would offer a possible temptation to the
average man as a judge to forget the burden of proof required to
convict the defendant, or which might lead him not to hold the
balance nice, clear and true between the State and the
accused....’”99
In Brown v. Edwards, we reiterated the significance of the
98
721 F.2d 1442 (5th Cir. 1984).
99
Ward, 409 U.S. at 59 (citing Tumey, 273 U.S. at 532)
(emphasis added).
36
100
function exercised in determining a violation of due process.
Rejecting a challenge to a statute that enables Mississippi
constables to collect ten dollars for each charge that results in
a conviction, we emphasized that “an arrest by a constable is not
judicial action, but action under executive or legislative
authority.”101 We concluded, moreover, that peace offers are not
expected to exercise the same level of impartiality and neutrality
as judges and magistrates.102
Brown is controlling here. Neither the sheriffs nor the
clerks exercise, or are supposed to exercise, a judicial function.
Thus, like constables, they are not expected to maintain a level of
impartiality equal to that expected of judges. Consequently, a
decision to make multiple charges and impose concomitant fees would
not conflict, at least under relevant precedent, with any budgetary
control they might maintain. As in Brown, arrestees have not
challenged the lawfulness of the original arrests. Assuming the
existence of valid probable cause, which arrestees give us no
reason to question, the sheriffs are simply carrying out their
statutory prerogative of assessing fees based on the charges
100
721 F.2d at 1451.
101
Id.102
Id. Arrestees incorrectly argue that Brown stands for the
proposition that no temptation to stack charges exists when a
constable only received fees on successful charges and after
conviction. The Brown court, however, grounds much of its
holding in the fact that constables are not judges, nor do they
exercise a judicial function. Id.37
brought.
3. Fourth Amendment Challenge
Arrestees finally assert that being charged fees in
conjunction with bail release constitutes an unreasonable seizure
of their person and property under the Fourth Amendment. They cite
no cases to support this proposition; instead, they would liken the
bail-fee requirement to the crimes of aggravated kidnapping and
extortion, which is obviously inapt.
In rejecting this challenge, the district court relied on the
facts that arrestees neither challenged the validity of their
arrest and initial detainment, nor put forth any evidence that in
fact they were unreasonably detained as a result of the bail fee.103
We agree with the reasoning and holding of the district court on
this issue. As the arrestees do not challenge their initial arrest
and confinement, i.e. they do not allege that the sheriffs lacked
warrants or probable cause, and as there is no evidence of
unreasonable delay in release, there simply is no demonstration of
a Fourth Amendment problem. Thus, there is neither legal nor
factual support for arrestees’ Fourth Amendment argument.
III. CONCLUSION
We discern no merit in any of arrestees’ myriad arguments
attacking the constitutionality of the several Louisiana bail-fee
103
Broussard v. Parish of Orleans, No. CIV.A.00-2318,
CIV.A.00-3055, CIV.A.00-3056, CIV.A.00-3057, 2001 WL 1335289, at
*8 (E.D.La. Oct. 29, 2001).
38
statutes here at issue. Although the facts of this case differ
slightly from those addressed in Schilb and Bell, their holdings
nevertheless adequately frame our approach to this case. As bail-
fee statutes, these provisions are relegated to the mundane realm
of administrative concern, never mounting the high pedestal of the
kind of scrutiny required for fundamental rights. Furthermore,
even if these fees were to constitute restrictions on confinement,
they would only need to be reasonably related to a legitimate
government purpose. Even though the sheriffs’ reasons for charging
these fees are relatively weak, we nonetheless find that such fees
relate sufficiently to the bail-bond system to keep them from being
arbitrary. Finally, arrestees have failed to adduce evidence that
any among them was actually detained for a longer period of time
because of such fees, or that such fees lack any reasonable
connection to administration of the bail-bond system, without which
all their claims must fail. For the foregoing reasons, therefore,
the judgment of the district court is, in all respects,
AFFIRMED.
39