Seventh Circuit skeptical of class action over old Chicago bail policy

CHICAGO (CN) — A Seventh Circuit panel appeared suspicious on Thursday that the Chicago Police Department should be liable for constitutional violations stemming from its old bail policy.

A class of Illinois residents filed a lawsuit against the city of Chicago in 2020 over a policy that prohibited police officers from accepting cash bail at the police station if a warrant was issued by a judge outside of Cook County, or if the arrest was made on a weekend or holiday.

The city previously allowed those arrested on warrants in nonfelony cases to post cash bail at the police station without having to appear in court. That is, until 2012, when Chicago issued the order being challenged by the class action, which prohibits officers from accepting cash bail at the police station if arrestee’s warrant was issued outside of Cook County or if the arrest was on a court holiday. That order remained in effect until September 2023, when Chicago became the first state to outlaw cash bail entirely with the passage of the SAFE-T Act.

A federal judge dismissed the class action last year and held that plaintiffs’ claim was foreclosed by the Seventh Circuit’s 2023 decision in Alcorn v. City of Chicago . In Alcorn , the Seventh Circuit determined that the Fourth Amendment was not violated by detaining a person arrested on a warrant for 48 hours before permitting the arrestee to post bail that had been set on the warrant.

Plaintiffs’ attorney Kenneth Flaxman maintained in court on Thursday that the Seventh Circuit’s opinion in Alcorn was not widely circulated and, as such, should be viewed as nonbinding dicta. He added that it also contradicts previous rulings from the appeals court, which held that the 48-hour rule is limited to warrantless arrests.

“Simply put, Alcorn should be the beginning and end of their Fourth Amendment claim,” said Ethan Merel, an attorney on behalf of the city of Chicago. He also called Flaxman’s characterization of the Alcorn decision “nonsense.”

Flaxman argued that the city’s old policy violates the Fourth Amendment because it’s equivalent to unreasonable seizure to halt someone from posting bond, while Merel maintained that Flaxman was misunderstanding the statute.

Flaxman, the titular attorney at his Chicago-based law firm, also maintained that the policy violates the equal protection clause of the 14th Amendment, particularly because it subjects people from outside of Chicago to more stringent bail requirements such as staying overnight and attending a bond hearing.

“There’s no distinction from someone arrested in Bolingbrook to someone arrested in Chicago,” he said.

To better drill down Flaxman’s Fourth Amendment claim, U.S. Circuit Judge Doris Pryor, a Joe Biden appointee, asked Flaxman: What about the policy is unreasonable?

Flaxman replied that it’s unreasonable to hold an arrestee (who could pay their bail at the police station) overnight just for them to appear at a bond hearing where they’re ordered to pay the same bail, they tried to pay at the police station.

But the panel remained dubious as to how exactly the Chicago police were liable for any constitutional violations.

“How are you getting to liability for the police department?” U.S. Circuit Judge Joshua Kolar, a Donald Trump appointee, asked.

Flaxman said in part because Illinois didn’t compel the city of Chicago to issue the 2012 policy.

“If we put this to a jury — the defense of, ‘Well, we were compelled by the circuit court order to adopt this policy’ — the jury would say, you’d think I hope, ‘Well, why did you adopt the policy in 2012? Why didn’t you adopt a different policy?’”

Chicago’s legal counsel, however, characterized what liability would look like in a different capacity.

“The factual basis of liability isn’t based on some widespread practice, it’s just the plain text of the city’s order, which appellants misread,” Merel said.

U.S. Circuit Judge John Lee, a Joe Biden appointee, noted that Flaxman provided the panel with a lot of information about what the bail rules shouldn’t be, and then he asked: What should it be?

Flaxman responded that unreasonableness is measured by a case-by-case basis, and for this class, unreasonableness was measured by being held overnight.

The three-judge panel took the case under advisement and did not indicate when it might rule.

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