OAKLAND, Calif. (CN) – A federal judge Tuesday tore into attorneys challenging San Francisco’s bail system as unconstitutional, saying they need to “think about a legal avenue” to achieve their goal, “to the extent that it exists.”
“I understand the big picture. What I’m looking for from you and what is your job is to figure out the legal avenue to get there. That’s not my job. And I don’t see it here,” U.S. District Judge Yvonne Gonzalez Rogers told Phil Telfeyan with Washington, D.C.-based Equal Justice Under the Law.
Telefeyan represents two women arrested in October 2015 – Riana Buffin,19, and Crystal Patterson, 29 – on suspicion of grand theft (Buffin) and assault (Patterson). Both were released without charges, after spending several days behind bars because neither could afford bail. Buffin’s bond was set at $30,000, Patterson’s at $150,000.
Their putative class action lawsuit claims the City and County of San Francisco unconstitutionally criminalize poverty by keeping poor arrestees in jail because they can’t afford to post bail. They also claimed that California violated their rights because it requires its 58 counties to set money bail schedules.
The women sought class certification and a preliminary injunction to end the practice of bail. They got neither.
Gonzalez Rogers gave Telfeyan and his co-counsel Katherine Hubbard 30 days to come up with a legal analysis of how the case can proceed in light of the fact that the California has not consented to be sued.
“You now don’t have a state defendant because they’re immune,” Gonzalez Rogers said, noting that bail is determined by the Superior Court judges, who are state officials.
“You don’t have the judges in this suit, and frankly, I don’t think you can sue them,” she said. “Your legal theory seems ambiguous and unformed.”
Hubbard replied: “We feel our theory is clear. San Francisco, which operates its county jail, is detaining arrestees pre-trial in violation of the Constitution. They are detaining arrestees based on wealth status because people who can’t afford it are permitted to walk out of jail and people who cannot must remain in jail.”
Gonzalez Rogers was not impressed: “I understand what you’re hoping to achieve, but you still have to do the legal analysis, and pontificating at the mike is not legal analysis.”
Telfeyan stepped in, saying a federal court could strike down a state order if it violates the Constitution.
Gonzalez Rogers, a former Alameda Superior Court judge, was not persuaded.
“You want me to issue an order to all of the judges in San Francisco telling them that their orders are unconstitutional?”
She continued: “I hear your argument, but when you have statements in your claim like the CCSF operates the Sheriff’s Department, county jail and Superior Court, it clearly suggests to me you don’t understand how it works. The Superior Court is a constitutional branch of the California government. It gives me no confidence in your ability to have articulated something that may be successful.”
Telfeyan told reporters later that he did not see the judge’s order as a setback.
“It sounds like we have 30 days to figure out exactly what she needs to hear,” he said. “She wants some clarification about what the City and County of San Francisco is liable for. If the judges are immune, then the only question is what liability does City and County of San Francisco have for keeping people in its jail illegally?”
He added: “The county cannot violate the federal Constitution even if ordered to do so by a state judge.”
Equal Justice has brought six successful lawsuits in cities and counties in Alabama, Mississippi, Louisiana and Missouri. Two actions in Georgia and Kansas are still being litigated.
Harmeet Dhillon, who represents the California Bail Agents Association, said Gonzalez-Rogers got it right by asking for a more definite statement of the case.
“Both my partner and I used to work at the same firm as her before she joined the bench, and she’s a pretty intelligent, thorough, hard-hitting, not-going-to-be-fooled judge, and she wasn’t having any of their half-baked arguments,” Dhillon said in an interview outside the Oakland Federal Courthouse.
Dhillon said the plaintiffs’ only way forward is to have the state’s bail statute declared unconstitutional.
“As the judge clearly articulated, she can’t order state court judges to do X, Y or Z. Today was a total loss for the plaintiffs,” Dhillon said.
“The county has to follow what the judges say. Sheriffs don’t have a right to ignore the judges, and a federal judge can’t order them to. What the state court judges are doing is applying a state statute passed by the legislators. What a federal judge can do is declare that statute unconstitutional, but that’s not the relief requested in this lawsuit.”
Dhillon said the bail association will try to intervene in the case if it moves ahead.
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