Disorderly conduct, the catch-all offense for all manner of human activity that annoys police, was getting out of hand in Washington, D.C.  After all, it’s a city filled with hostile, antagonistic, belligerent nutjobs, even when Congress isn’t in session.  The cops were overwhelmed.

A plan was needed to take the burden of trivial matters off the police and courts, while allowing the cops to maintain order.  They came up with one that worked spectacularly well, until now.  After the cops hauled you in for a dis con, all you had to do was pull $35 out of your pocket and you’re on your way. No muss. No fuss.

Until some lawyer (isn’t it always a lawyer?) took issue with the scheme and  sued  for $1.2 million (plus $700k for his wife).  Now there’s fuss, largely because this isn’t  some slippery lawyer trying to make a quick buck.

You might be rolling your eyes at this point at the idea of a lawyer kicking up that kind of a fuss over a $35 fee; this is the town that brought us the Infamous Pants Lawsuit, after all. But when I read the LT item, the lawyer’s name, Hamilton P. Fox III, sounded familiar, so I did what any self-respecting web writer would do: I Googled.

Hamilton Fox was an assistant prosecutor on the Watergate Special Prosecution Force. He was an investigator on the House Committee on Standards of Official Conduct in the 1983 Congressional page scandal. He was a defense attorney on appeal for Jonathan Pollard, the naval intelligence employee convicted of spying for Israel. My point is: this guy actually DOES have better things to do than sue the District over $35.

Isn’t it curious how some people can’t seem to stay away from scandal?  Fox took issue with a procedure called “post & forfeit,” an ingenuous little plan to cut out the middleman.

It’s sort of an abbreviation of usual procedure: Ordinarily, if you’re arrested, you can be released “on citation,” which just means you get a piece of paper telling you when to report for court; or you have to post some kind of collateral against your appearance at some future court date in the form of bail or bond. You either show up for court and get your money back, or you don’t, and you forfeit the money, along with any other consequences the court may impose for blowing it off.

If you get arrested for a trivial offense and the police decide they’d rather not deal with sending you to court, they can offer you another option. The officer hands you a form, tells you how much money you need to post-and-forfeit, and you can go home, directly from the station. You pay something that looks like bail, forfeit it in a way that keeps you out of court (or a real jail cell), but without the actual legal nicety of having the option to go to court and argue your case before a judge.

You gotta admit, it’s cheap and quick, though the cash pay out ranges rom $25 to $1000, the high end perhaps stretching a bit.  Still, certainly better than having to sit around in a jail cell awaiting arraignment.  Maybe even better than paying bail and being required to return to court, where you end up with a quickie plea for some silly conduct that disturbed a cop, and being fined anyway.  For many people, they would much prefer this option over the routine.

That doesn’t mean it’s without problems, however.  First, what if you didn’t engage in disorderly conduct, and aren’t in the mood to be railroaded because your conduct was perfectly lawful, like contempt of cop, and you’re not inclined to let the cop get away with it?  Your choice is to refuse the “post & forfeit” option and cool you heels in lockup until you’re arraigned.  Not a pleasant option, which means that a lot of folks who might otherwise fight the charge and say mean things about the police find themselves inclined to buy their way out rather than fight the good fight.

The second problem is more insidious, that it serves as an incentive for cops to arrest anybody they want, regardless of basis, knowing that no one will ever scrutinize or challenge their actions in court.  Sweep up a few hundred people who just won’t listen, then collect some cash and everybody’s happy.  The groundlings learned their lesson, the City made some money, and the judges aren’t bothered with any of it.  It’s win, win, win, provided you have blind faith in the police to never abuse their power and use it for less than savory purposes.

Though not quite a splashy sort of scheme, this “post & forfeit” plan can affect huge numbers of individuals with a fundamentally improper, and unconstitutional, deprivation of the ability to challenge their arrests.  The flagrantly coercive nature of the scheme, trading off the right to challenge for a night in jail, strikes just the right balance to make any reasonable person walk away from his rights.  It really is quite the brilliant scheme, but for its inherent impropriety.

Of course, if the cops issued citations, what we in New York call a desk appearance ticket, it would mean that all those naughty people would end up clogging the courts and being a terrible burden on judges.  Bummer. 

That would mean that judges would be compelled to do what they’re paid to do, adjudicate the propriety of arrests and charges, or, in the hopeful alternative, toss the cases of people whose only crime is pissing off police and hold the police up for public ridicule for their abuse of power. 

As for the moral of the story, it’s one thing to screw with a lawyer, but  don’t make his wife (or her husband) cry.