# Appendix — Gerstein v. Pugh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0372%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 420 U.S. 103 ## Text 5 1974 _ JOMAGL ROBAK, JR.OL | a the Supreme Cou of the Gnited States OCTOBER TERM, 1973 NO. 73-477 RICHARD E. GERSTEIN, State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, Petitioner, v8. ROBERT PUGH and NATHANIEL HENDERSON, on their own behalf and on behalf of all others — | an THOMAS TURNER and GARY FAULK, on their own behalf and on behalf of all others similarly situated, Respondents, Appendix on Petitio, for Writ of Certiorari to __. United-States Court of Appeals for the Fifth Circuit Assistant State Attorney for the ——————_—_————————e eee MIAMI REVIEW — 371-4883 — 877-721 LMT LP CRIM 6 HS yt Rinse A I ADDENDUM TO DOCKET ENTRIES The following though not appearing in the docket entries in this case do constitute part of the official file of the United States Court of area" for the Fifth Circuit: June 1, 1973—Letter from Fifth Cir¢euit Court of Appeals To All Counsel of Record June 8, 1973—Joint Memorandum In Response To Court’s Letter of June 1, 1973. September 18, 1973—Order of Fifth Circuit Court of Appeals granting motion for stay of mandate. ba Ag ces tee Sgisth gY pled dl TRAINS, Sia Sa TERE kis SA dalla ATA ed a eT ere en ee ee Date 1971 Mar. 22 22 22 22 22 25 25 25 25 25 25 25 25 Il DOCKET ENTRIES Proceedings Complaint. Motion to Proceed in Forma Pauperis by Robert Pugh. Motion to Proceed in Forma Pauperis by Nathaniel Henderson. ORDER: Motion to proceed in forma pauperis by Nathaniel Henderson is GRANTED. (3/22/71-JLK) ORDER: Motion to proceed in forma pau- peris by Robert Pugh is GRANTED. (3/22/71-J LK) Summons ret’d exec. 3/23/71 as to Rocky Pomerance. Summons ret’d exec. 3/23/71 as to Ralph Ferguson, Justice of the Peace. Summons ret’d exec. 3/23/71 as to Morton - S. Perry, Judge, S.C. Court. Summons ret’d exec. 3/22/71 as to Ber- nard Garmire. Summons ret’d exec. 3/23/71 as to E. Wil- son Purdy. Summons ret’d exec. 3/23/71 as to Jason Berkman, Justice of the Peace. Summons ret’d exec. 3/23/71 as to Sidney Segall, Judge, S.C. Court. Summons ret’d exec. 3/24/71 as to Charles Snowden, Justice of Peace. Pages 1- 19 20- Zi 22- 23 24- 25 26- 27 28- 29 30- 31 32- 33 34- 35 36- 37 38- 39 40- 41 42- 43 ee eee III DOCKET ENTRIES (cont.) Date Proceedings Pages 25 Summons ret’d exec. 3/23/71 as to Richard E. Gerstein. 44- 45 25 Summons ret’d exec. 3/20/71 as to David Maynard, Chief of Police of Hialeah. 46- 47 25 Summons ret’d etxec. 3/23/71 as to James Rainwater, Judge, S.C. Court 48- 49 29 Summons ret’d exec. 3/24/71 as to Sylves- ter Adair, J.P. 50- 51 29 Summons ret’d exec. 3/25/71 as to Ruth Sutton, J.P. . 52- 53 Apr. 6 Answer of Deft. Richard E. Gerstein with Motion for Summary Judgment with Memo of Law and Notice of Hearing 5/10/71 at 2. 54- 67 7 Answer of Bernard E. Garmire, Chief of Police, City of Miami. 68- 69 9 Notice of taking depositions of E. Wilson Purdy, Bernard Garmire, Rocky Pomer- ance and David Maynard. 70- 72 12 Motion of Thomas Turner and Gary Faulk to Intervene as Pitfs. 73- 75 12 Supporting Memo. 76- 77 12 Motion of Thomas Turner to Proceed in Forma Pauperis. 78- 79 12 Motion of Gary Faulk to Proceed in Forma Pauperis. 80- 81 12 Notice of Hearing on Motions to Intervene and Proceed in Forma Pauperis. Diiticsisss ede Saisie Date 12 12 12 12 12 12 12 12 12 12 14 15 14 16 21 22 27 27 IV DOCKET ENTRIES (cont.) Proceedings Complaint of Intervening Pltfs. Motion of Deft. Purdy to Dismiss. Supporting Memo. Notice of Hearing on Motion te Dismiss 5/10/71 @ 2 p.m. e Motions of Defts. RAINWATER, SUT- TON for Summary Judgment. Supporting Memo. Notice of Hearing 5/10/71 @ 2 p.m. Answer of Defts. Rainwater and Sutton. Answer of Deft. Sidney Segall. Answer of Deft. Pomerance. Answer, by deft. Morton L. Perry. Motion of Dade County Bar Association for Leave to appear as Amicus Curiae, and Notice of hearing for 4/26/71 at 2:00 , Answer of Deft. David Maynard. Amended Answer of Deft. Sidney L. Segall. Letter to Judge King from Richard E. Gerstein. ORDER: Granting Leave to Appear as Amicus Curiae. (4/21/71-JLK) Motion Pltf for Partial Summary Judg- ment. Memo in Opposition to Deft. Gerstein’s Motion for Summary Judgment and in support of Pitfs’ Motion for Partial Summary Judgment. Pages 82- 94 95 96-103 104-107 108-114 115-117 118-119 120-122 123-125 126-128 129-130- 131-132 133-134 135 136-137 138-147 LO SARE RIT NORII SLI s SCN NE Vv DOCKET ENTRIES (cont.) Date Proceedings Pages 27 Memoto Pltf in Opposition to Deft. Purdy’s Motion to Dismiss. 148-149 27 Notice of hearing for 5/10/71 at 2:00 28 Motion of Deft. Rocky Pomerance for Judg- ment on the Pleadings. — 150 28 Memo in Support of Motion. (Certificate) of Service Attached) 151-155 28 Notice of hearing for 5/10/71 at 2:00. 4 Depositions of David Maynard, Theodore Schempp and A.J. McLaughlin. 156-198 29 Motion of deft. Bernard Garmire for Judg- ment on the Pleadings. . 199 29 Memo in support of Motion for Judgment on the Pleadings for the City of Miami Florida, filed by deft. Bernard Garmire. 200 29 Memo of Law, filed by City of Miami Beach. 201-203 29 Certificate of Service. 204-205 29 Notice of hearing for 5/10/71 at 2:00. 5 Pltfs’ Memo Opposing Motion for Judg- ment filed by Defts. Fomerance and Garmire. 206-210 6 Deposition of E. Wilson Purdy. 211-222 7 Certificate of Service, by defts. 223 % 10 . Notice of add’] Authority, filed by pitfs. 224-225 11 Order resetting time for rehearing on 5/10/71 at 4:30 226 11 Memo of Amicus Curiae, Dade County Bar Association. 227-239 Se ah 4 Kya Date VI DOCKET ENTRIES (cont.) Proceedings 12 Memo of Amicus Curiae, Dade County Bar Association. 12 Notice of Add’l Authority, filed by deft., E. Wilson Purdy. 13 Letter from Peter L. Nimkoff to Judge King re memorandum. 14 ORDER: 1 Deft. Gerstein’s Motion for 2. 3. Summary Judgment DENIED. Deft. Puruy’s Motion to Dismiss DENIED. Motions of Defts. Garmire, Pomerance for Judgment on Pleadings DENIED. . Motion of Pltfs Turner, Faulk GRANTED. Their motion for forma pauperis GRANTED. . Pitfs’ Motion for partial summary judgment against Deft Gerstein, taken under advisement. ' . Motion of counsel for Defts. Sutton and Rainwater to allow answer, mo- tion for summary judgment and memo stand as pleadings for Deft. Adair GRANTED. . Motion od Deft. Gerstein to allow answer, Motion for summary Judg- ment to apply to intervenors, GRANTED. (5/13/71-JLK) 17 Affidavit of Sylvester P. Adair, Dade Jus- tice of the Peace. Pages 240-252 253-254 255 256-257 258 PES ee ED vil DOCKET ENTRIES (cont. ) Date Proceedings 14 Order setting cause for final hearing and disposition on 6 14 71 at 10:30, with directions by the Court. (5 14/71-JLK) 28 Answer, filed by E. Wilson Purdy. June 1 Notice of taking deposition of James Rea- gan, Jr., Robert: Morgan, Jack Sand- strom, Judge James Rainwater, Judge Ruth Sutton and Judge Sylvester Adair. 8 Deposition of Hon. James S. RAIN- WATER. Deposition of J ack SANDSTROM. Deposition of Robert E. MORGAN.. Deposition of J AMES REAGAN, JR. (See next entry for exhibit) 9 Letter from Legal Services Program to the Clerk enclosing ‘Caseload Report for the year ended 12 31 71”, to be filed as an exhibit to the deposition of A. J. Regan, Jr. (Docket Entry No. 73). 9 Pltfs’ Supplemental Memo. 10 Memo of Amicus Curiae, Dade County Bar Association. 14 Notice of taking deposition of Judge Ruth Sutton. 22 Notice of taking depositions of Morton L. Perry, Judge, and Sidney L. Segall, Judge. co oO 7 Pages 259-260 261-264 265-267 268-304 305-314 315-327 328-352 353-354 355-366 367-378 379-381 382-384 i ae tile aaa LRM ALLE LLL LLL LLL LILLE Rewer Date 22 15 Sept. VIitI DOCKET ENTRIES (cont.) Proceedings Deposition of Deft. Ruth L. Sutton taken by Pitfs. 6/15/71. Deposition of Sidney L. Segall. Motion for Separated Trials and Transfer or Parties and Memo by counsel. Notice of Additional .Authority filed by pltfs. Deposition of Morton L. Perry. Motion for Separate Trials and Transfer of Parties and Memo, by Deft. Charles Snowden. Motion for Partial Summary eens filed by Pltfs. Memo in support of Motion for Partial Summary Judgment. Reply Memorandum, filed by defendants. OPINION & FINAL JUDGMENT: 1. This is a valid class action. 2. Named pltfs. shall be given a preliminary hearing to determine probable cause for their ar- rest by a committing magistrate unless their cases have been otherwise conclud- ed. 3. Defts., with 60 days of date hereof, Pages 385-448 423-448 449-450 452-453 454-468 469-470 471-472 473-483 484-487 Date Nov. DOCKET ENTRIES (cont.) Proceedings shall submit to the Court a plan provid- ing for preliminary hearings in all cases wherein prosecution is to be upon direct information. The preliminary hearing shall be within a reasonable time of the arrest. 4. Subsequent to final hearing certain motions for summary judgment, severance & transfer of party defts. to party pltf. were filed. These motions are hereby denied. 5. Court retains jurisdic- tion for a consideration ef the plan & en- forcement of the provisions of this final judgment. (10/12/71-JLK) R106 10 (Richard E. Gerstein, State Atty. for the Eleventh Judicial Circuit, Dade County, Florida, Deft.) Petition for rehearing and/or clarification andsupporting memo of law. 12 Notice of Appeal filed by Pltfs. (The por- tion appealed includes only two para- graphs on page fourteen of the Opinion and Final Judgment) Copies mld. Judge Ruth L. Sutton; Duke Winsor and James Jorgensen; Barry Richard, Esq.; Judge Sidney Segall; Judge Ralph B. Ferguson, Jr.; Judge Sylvester P. Adair; Alan Dia- mond, Esq.; Judge Charles Snowden; Judge Jason Berkman; Rocky Pomerance Pages 488-502 503-510 ne ee CW RON Me eae Ry Biren: 14 Dec. 13 14 16 21 21 22 DOCKET ENTRIES (cont.) Proceedings Chief of Police; Judge James Rainwater; Alan H. Rothstein, City Atty.; Bernard E. Garmire; Alden Berry and Judge Morton S. Perry, and U.S. Court of Ap- peals; Rogow. Response To Petition For Re-Hearing or Clarification, by Pltfs. Defendant E. Wilson Purdy’s Plan provid- ing for Preliminary Hearings. Adoption of E. Wilson Purdy’s Plan pro- viding for Preliminary hearings. (Deft.). ORDER: that a hearing to consider plan submitted by Deft., E. Wilson Purdy, set for Tues. 12-21-71, at 10:00 AM, before Judge King. (12-15-71-JLK). Pitf’s Response to Plan of E. Wilson Purdy. Response to Deft. E. Wilson Purdy’s Plan providing for Preliminary hearings. (Deft. James Rainwater.) ORDER: This cause came on for consider- ation upon the Court’s own motion, sua sponte, to extend the time for the trans- mittal by the clerk of the court of the record in this cause for purposes of ap- peal. In as much as this court has need for the use of said record for purposes of examining the proposed committing magistrate system as submitted to the Pages 511-512 513-518 519-529 530-531 532 533-537 538-540 er § DOCKET ENTRIES (cont.) 4 Date Proceedings Pages court by the Defts. in this cause, it is therefore, ORDERED that the time for transmitting the record on appeal is ex- tended to February 1, 1972. (12-/22/71- JLK) Certified copy mailed to 1J.S. Court of Appeals. 541 1972 Jan. 25 Order Adopting Plan to Provide Prelimi- nary Hearings. (See Order for details. (1/25/72-J LEK) 542-549 CLERK’S CERTIFICATE. 550 Certified to be a true and correct copy of the original. U.S. District Court Joseph I. Bogart, Clerk Southern Dist. of Fla. By /s/ Ruth M. Hood ~~ Deputy Clerk Date: 1-20-72 PNAS CLL OLN LID ANG ITN SS IONE IE AE CONC Pe ERNE ARORA, OT in OAS Maar eals Mine WE [1] UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA. CASE NO. 71-448-Civ-JLK ROBERT PUGH and NATHANIEL HENDERSON, on their own behalf and on behalf of all others similarly situated, Plaintiffs, vs. JAMES RAINWATER, MORTON S&S. PERRY, SIDNEY SEGALL, Judges of the Small Claims Court in and for Dade County, Florida; RICHARD E. GER- STEIN, State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida; RUTH “SUTTON, CHARLES SNOWDEN, JASON BERK- MAN, RALPH FERGUSON, and SYLVESTER ADAIR, Justices of the Peace in and for Dade County, Florida; E. WILSON PURDY, Sheriff of Dade County, Florida; BERNARD E. GARMIRE, Chief of Police of the City of Miami, Florida; DAVID MAYNARD, Chief of Police of the City of Hialeah, Florida; ROCKY POMERANCE, Chief of Police of the City of Miami Beach, Florida, Defendants. COMPLAINT [Filed March 22, 1971] SPIGA TOA PIN AYER Se Lk OE RS | Aye sche iNT. Heid FO 2 JURISDICTION (1) This is an action brought by the plaintiffs on behalf of themselves and all others similarly situated for declaratory judgment and for preliminary and permanent injunction as authorized by Title 42 U.S.C. §1983 and 28 U.S.C. $$2201 and 2202. The jurisdiction of this Court is invoked un.der Title 28 U.S.C. §1343(3) and (4). (2) The plaintiffs and all others similarly situated seek to secure the rights, privileges and immunities estab- lished by the Fourth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of [2] the Constitution of the United States. The plaintiffs and all others similarly situated have been deprived of such rights, privileges and immunities by: (1) the various x defendants’ refusal to provide preliminary hearings to*®% judicially determine probable cause for incarcerating plaing *’ tiffs; and (2) the arbitrary and irratione! procedures of defendants PURDY, GARMIRE, MAYNARD and POM- ERANCE, and their employees which creates two classifi- cations of defendants—i.e., those who receive a preliminary hearing in Justice of Peace Courts and those who are de- nied such a hearing altogether; and (3) the defendaut judges’ imposition of monetary bail upon indigents as a condition of release from custody pending trial. PARTIES (3) Plaintiff, ROBERT PUGH, is a male citizen of the United States and of the State of Florida. He is pres- ently incarcerated in the Dade County Jail charged with robbery, carrying a concealed weapon and possession of a firearm during the commission of a felony, and is await- 2 NPT A ght Oe Be 3 ing trial in the Criminal Court of Record in and for Dade County, Florida. Ne bond has been set in his case pursuant to F.S.A. Const. Art., 1, $14 since the main pending charge is robbery. (4) Plaintiff, NATHANIEL HENDERSON, is a male citizen ef the United States and of the State of Flor- ida. He is presently incarcerated in the Dade County Jail charged with breaking and entering, possession of narcot- ics, resisting arrest with violence and assault on a police officer, and is awaiting trial in the Criminal Court of Record in and for Dade County, Florida. Plaintiff remains © incarcerated solely because he is financially unable to post the Four thousand Five hundred Dollar ($4,500.) bond set in his case. [3] (5) The plaintiffs are members of a class com- posed of all persons arrested by law enforcement officers in Dade County, Florida, who are being detained in the Dade County Jail solely upon a direct information filed by the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, and who as a result have not been provided with: (1) an opportunity to be heard; (2) an opportunity to confront the witnesses against them; (3) an opportunity to have probable cause (if any exists) established by a judicial officer of the State of Florida. The persons in the class are so numerous that joinder of all persons is impractical; there are questions of law and fact common to the class; the claims of ine representative parties are typical of the claims of “he class; and the representative parties will fairly and ade- quately protect the interests of the class. (6) Plaintiff HENDERSON also represents a class of persons who are incarcerated in the Dade County Jail solely because of their financial inability to post monetary bail as a condition of release pending trial. The persons in this class are so numerous that joinder of all persons is impractical; there are questions of law and fact com- mon to the class; the claims of the representative party is typical of the claims of the class; and the representative party will fairly and adequately protect the interests of the class. (7) Defendant RICHARD E. GERSTEIN, is the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida. In such capacity he is charged with the authority and responsibility pursuant to Florida Statutes, Chapters 27 and 906 for filing informations against persons alleged to have committed criminal acts. [4] (8) Defendants RUTH SUTTON, CHARLES SNOWDEN, JASON BERKMAN, RALPH FERGUSON and SYLVESTER ADAIR are Justices of the Peace in and for Dade County, Florida and in such capacity have the authority and responsibility pursuant to F.S.A. §901.01 and Rule 1.122 of the Florida Rules of Criminal Procedure to. provide preliminary hearings for defendants accused of crimes in Dade County, Florida. (9) Defendants JAMES RAINWATER, MORTON S. PERRY, and SIDNEY SEGALL are Judges of the Small Claims Court in and for Dade County, Florida, and in such capacity are empowered pursuant to F.S.A. §901.01 and Rule 1.122 of the Florida Rules of Criminal Procedure to provide preliminary hearings for defendants accused of crimes in Dade County, Florida. $i Se Nn ee RA SRE RO UANN MO:Y 2 ” — (10) Defendant E. WILSON PURDY is the Direc- tor of the Public Safety Department, Dade County, Flor- ida. In such capacity defendant PURDY, his agents, serv- ants and employees enforce the statutes of the State of Florida and’.are responsible for arresting persons who allegedly have committed violations of said statutes. (11) Defendant BERNARD E. GARMIRE is the Chief of Police of the City of Miami Police Department and in such capacity defendant GARMIRE, his agents, servants and employees enforce the statutes of the State of Florida and are responsible for arresting persons who allegedly have committed violations of said statutes. (12) Defendant DAVID MAYNARD is the Chief of Police of the City of Hialeah, Florida and in such ca- pacity defendant MAYNARD, his agents, servants and employees enforce the statutes of the State of Florida and are responsible for arresting persons who allegedly have committed violations of said statutes. (13) Defendant ROCKY POMERANCE is the Chief of Police of the City of Miami Beach, Florida and in such capacity defendant [5] POMERANCE, his agents, serv- ants and employees enforce the statutes of the State of Florida and are responsible for arresting persons who allegedly have committed violations of said statutes. (14) At all times hereinafter mentioned, the acts complained of were carried out by the above named defend- ants, their agents, servants and employees in their official capacities under color of state law, regulation, custom and usage. | a Jap ua ORGS t ed SES ‘ste Ae 6 FACTS (15) Plaintiff ROBERT PUGH, was arrested on March 3, 1971 and charge with robbery, carrying a con- cealed weapon and possessicn of a firearm during the commission of a felony. On March 4, 1971 he was pre- sented to defendant SNOWDEN, who was sitting solely for the purpose of setting bond. Because plaintiff PUGH was charged with robbery, no bond was set pursuant to F.S.A. Const. Art., 1, § 14. At the bond hearing on March 4, 1971, no evidence was presented against the plaintiff to judicially determine probable cause for detaining the plaintiff. (16) Thereafter an information charging plaintiff PUGH with robbery and other offenses was filed by de- fendant GERSTEIN with the Clerk of the Criminal Court of Record in and for Dade County, Florida. A copy of said information is attached hereto as Plaintiffs’ Exhibit “A”. Plaintiff was not present, nor given an opportunity to be heard, nor to cross examine, nor to confront the witnesses against him upon whose testimony the attached informa- tion was issued. (17) Plaintiff NATHANIEL HENDERSON was arrested on March 2, 1971, and charged with breaking and entering, possession of narcotics, resisting arrest with vio- lence and assault on a police officer. On March 3, 1971, he was presented to defendant [6] BERKMAN, who was sitting solely for the purpose of setting bond. Bond was set in the amount of $4,500. At the bond hearing on March 3, 1971, no evidence was presented against the plaintiff to judicially determine probable cause for detain- ing the plaintiff. (18) Thereafter an information charging plaintiff HENDERSON with breaking and entering and other of- fenses was filed by defendant GERSTEIN with the Clerk of the Criminal Court of Record in and for Dade County, Florida. A copy of said information is attached hereto as Plaintiffs’ Exhibit “B”. Plaintiff was not present, nor given an opportunity to be heard, nor to cross examine, nor to confront the witnesses against him upon whv-<6 testimony the attached information was issued. THE POLICIES AND PRACTICES COMPLAINED OF COUNT I. (19) It is the policy, pattern and practice of defend- ants PURDY, GARMIRE, MAYNARD and POMER- ANCE, and their agents, servants and employees to fail to present arrested persons before judges without unneces- sary delay for the purpose of establishing probable cause at a preliminary hearing for the arrest of said defendant. (20) It isthe policy and practice of defendant GER- STEIN and his agents, servants and employees to file direct informations based upon testimony provided to an assistant state attorney by a police officer. Furthermore, it is the policy and practice of defendant GERSTEIN, his agents, servants and employees to refuse to provide a de- fendant in custody by virtue of a directly filed informatio: an opportunity for a binding preliminary hearing to deter- mine probable cause for his incarceration. [7] (21) It is the policy and practice of defend- ants RUTH SUTTON, CHARLES SNOWDEN, JASON BERKMAN, RALPH FERGUSON, SYLVESTER dy Pitt ee. ects ADAIR, JAMES: RAINWATER, MORTON S. PERRY, and SIDNEY SEGALL to refuse to provide a preliminary hearing to persons incarcerated in the Dade County Jail by virtue of a direct information filed by defendant GERSTEIN. (22) The above described actiors of the named de- fendants results in the incarceration of plaintiffs and members of their class solely upon a direct information filed. by the state attorney and deprives said plaintiffs of their liberty without an opportunity to be heard, to con- front the witnesses against them, or to have a judicial determination of probable cause made, all of which is in violation of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. COUNT II. (23) Plaintiffs repeat and reallege the facts set forth in paragraphs 1 through 22 above. (24) Defendants PURDY, GARMIRE, MAYNARD and POMERANCE, through their agents, servants and employees file charges upon persons they arrest with either a justice of the peace, in Dade County, Florida, or with the defendant, State Attorney GERSTEIN. (25) If said charges are filed with the defendant State Attorney, then as set forth in Count I, the plaintiff is deprived of his right to a hearing based upon the direct information filed by the defendant GERSTEIN. (26) If however, defendants PURDY, GARMIRE, MAYNARD and POMERANCE, through their agents, servants and employees choc3e to file the charges with a justice of the peace, then a pre- [8] liminary hearing will be accorded to the arrested person in due course. (27) Defendants PURDY, GARMIRE, MAYNARD and POMERANCE, ana their employees have unfettered discretion in choosing the authorities with whom they will file charges. No standards or rules guide said decisions. (28) The actions of defendants PURDY, GARMIRE, MAYNARD and POMERANCE and their agents. serv- ants and employees thereby creates two classes of arrested persons: (1) persons who are denied preliminary hearings because the arresting officer ‘1as filed. charges directly with the State Attorney’s Office, thereby causing an in- formation to issue, and (2) persons who are granted pre- liminary hearings because the arresting officer has filed charges with one of the J ustices of Peace of Dade County, Florida. (29) The creation of these two classes of arrested persons is arbitrary, unreasonable and capricious. The plaintiffs and members of their class, who are being denied preliminary hearings, are thus denied equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States as a result of the irra- tional, unreasonable, arbitrary and capricious actions of the agents of defendants PURDY, GARMIRE, MAY- NARD and POMERANCE. 10 COUNT III. (30) Plaintiff HENDERSON repeats and realleges paragraphs 1, 2, 4, 6, 8, 9, 14 and 17 set forth above. (31) It is the policy, pattern and practice of defend- ant judges RAINWATER, PERRY, SEGALL, SNOW- DEN, SUTTON, FERGUSON, ADAIR and BERKMAN to set monetary bail upon persons presented before them as a condition of release pending trial. [9] (32 Plaintiff HENDERSON has remaiied in- carcerated since March 3, 1971, solely because of his finan- cial inability to post the Four thousand Five hundred Dollar ($4500.) bail set to assure his future appearance. (33) The actions of the defendant judges creates two classes of arrested persons: (1) persons who are finan- cially able to post the monetary bail bonds set in their respective cases and thus secure their release from jail, and (2) persons who are financially unable to post the monetary bail bonds set in their respective cases and who must remain in ja‘! solely because of their poverty. (34) The creation of these two classes of arrested persons is arbitrary, unreasonable and capricious. It dis- criminates against poor persons solely because of their poverty without any rational basis. Plaintiff HENDER- SON. and members of his class are thus denied equal pro- tection of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. " Bais. Oita IAEA NTC rn ll NATURE OF RELIEF (35) There is between the parties and actual con- troversy as herein set forth. The plaintiffs and the classes they represent, are suffering irreparable injury and are threatened with irreparable injury in the future by reason of the acts herein complained of. The plaintiffs have no plain, adequate or complete remedy to redress the wrongs and unlawful acts herein complained of other than this action for declaration of rights and injunction. Any other remedies to which plaintiffs and members of their class ean be remitted would be attended by such uncertainties and delays as to deny them eybstaniial relief, would in- volve a multiplicity [10] of suits and cause further ir- reparable injury, damage and inconvenience of the plain- tiffs. Unless the acts complained of are declared uncon- stitutional and enjoined by this Court, thousands of per- sons will be similarly incarcerated without an opportunity to be heard and solely because of their poverty in violation of the Due Process and Equal Protection Clauses of the Constitution of the United States in the same manner as plaintiffs herein. ; PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray on behalf of themselves and all others similarly situated that this Court assume jurisdiction of this cause and: (1) Enter a declaratory judgment pursuant to Title 28 U.S.C. § § 2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure declaring that the practices of the de- fendants GERSTEIN, RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERK- 12 MAN of refusing to provide a hearing to determine prob- able cause for plaintiffs and their class immediately after arrest violates the Fourth Amendment and the Due Proc- ess Clause of the Fourteenth Amendment to the Consti- tution of the United States. (2) Enjoin defendants GERSTEIN, RAINWATER, PERRY, SEGALL, SNOWDEN, REGUSON, SUTTON, ADAIR and BERKMAN from failing to accord plaintiffs and members of their class due process hearings immedi- ately after arrest to determine whether or not probable cause exists for the detention of the plaintiffs and their class. (3) Enter declaratory judgment pursuant to Title 28 U.S.C. § § 2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure declaring that the practices of the defendants PURDY, GARMIRE, MAYNARD and POM- ERANCE and their agents, servants and [11] employees of arbitrarily filing charges against plaintiffs and mem- bers of their class with the State Attorney for the Eleventh Judicial Circuit in and for Dade County Florida or the Justices of the Peace of Dade County, Florida, creates an arbitrary and irrational classification in violation of the Equal Protection Clause of the Fourteenth Amend- ment to the Constitution of the United States. (4) Enjoin defendants PURDY, GARMIRE, MAY- NARD and POMERANCE and their agents, servants and employees from arbitrarily filing charges upon plaintiffs and members of their class with the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida or the Justices of the Peace of Dade County, Florida. RESIS OO Se. a ~~ « a i 13 (5) Enter declaratory judgment pursuant to Title 28 U.S.C. § § 2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure declaring that the practices of defend- ants, RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERKMAN of set- ting monetary bail upon plaintiffs and members of their class as a sole condition for their release pending trial results in an arbitrary and irrational discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. (6) Enjoin defendants RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERKMAN from using monetary bail as the sole means of granting pre-trial release for plaintiffs and mem- bers of their class. [12] (7) Grant such other and further relief as this Court may deem just and proper. a Respectfully submitted, /s/ Bruce 8. Rogow BRUCE S. ROGOW, ESQUIRE — RENE V. MURAL, ESQUIRE Legal Services of Greater Miami, Inc. 622 N. W.62 Street Miami, Florida 33150 Tel: 759-1608 . Patt Pee ane 14, /s/ Phillip A. Hubbart PHILLIP A. HUBBART ESQUIRE Public Defender of the Eleventh Judicial Circuit of Dade County, Florida Metropolitan Justice Building 1351 N. W.12 Street Miami, Florida 33125 Tel: 377-7156 COUNSEL FOR PLAINTIFFS [13] VERIFICATION STATE OF FLORIDA ). . SS: COUNTY OF DADE } THE UNDERSIGNED having personally appeared before me, a Notary Public, and after being duly sworn, deposes and says. that he is the named plaintiff in the foregoing complaint and that the facts alleged therein are true to the best of his knowledge, information and belief. /s/ Robert W. Pugh 15 SWORN TO AND SUBSCRIBED before me, this 11 day of March, 1971. /s/ E. L. Tribble NOTARY PUBLIC, STATE OF FLORIDA AT LARGE My Commission expires: Notary Public, State of Florida at Large. My com- mission expires Jan. 28, 1975. Bonded through Fred W. Diestelhorst. [14] VERIFICATION STATE OF FLORIDA ) . SS: COUNTY OF DADE ) THE UNDERSIGNED having personally appeared before me, a Notary Public, and after being duly sworn, deposes and says that he is the named plaintiff i: the foregoing complaint and that the facts alleged therein are true to the best of his knowledge, information an: belief. /s/ Nathaniel Henderson lhe siel TBR WRI se eet Raa 16 SWORN TO AND SUBSCRIBED before me, this 11 day of March, 1971. /s/ E. L. Tribble NOTARY PUBLIC, STATE OF FLORIDA AT LARGE My Commission expires: Notary Public, State of Florida at Large. My com- mission expires Jan. 28, 1975. Bonded through Fred W. Diestelhorst. 17 [54] [TITLE OMITTED] [Filed April 6, 1971] ANSWER OF DEFENDANT ~ RICHARD E. GERSTEIN COMES NOW Richard E. Gerstein, State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, and as his Answer to the Complaint states as follows: The defendant admits the allegations of para- graph one (1) of the Complaint. 2. The defendant denies the allegations of para- graph two (2) of the Complaint. 3. The defendant admits the allegations of para- graph (3) of the Complaint. 4. The defendant: admits the allegations of para- graph four (4) of the Complaint with the exception of the last sentence thereof. The defendant is without [55] knowledge of the financial ability of the plaintiff Nathan- iel Henderson and, therefore, cannot admit or deny the last sentence of paragraph four (4) of the Complaint. 5. The defendant_admits the allegations of para- graph five (5) of the Complaint. 6. The defendant is-without knowledge of the allega- tions of paragraph six (6) of the Complaint and, there- fore, cannot admit or deny. — tlh inci SOMA ts scons Mal I Rn OR 18 7. The defendant admits the allegations graph seven (7) of the Complaint. 8. The defendant admits the allegations graph eight (8) of the Complaint. 9. The defendant admits the allegations graph nine (9) of the Complaint. 10. The defendant admits the allegations graph ten (10) of the Complaint. 11. The defendant admits the allegations graph eleven (11) of the Complaint. 12. The defendant admits the allegations graph twelve (12) of the Complaint. 13. The defendant admits the allegations graph thirteen (13) of the Complaint. 14. The defendant admits the allegations graph fourteen (14) of the Complaint. 15. The defendant admits the allegations graph fifteen (15) of the Complaint. 16. The defendant admits the allegations graph sixteen (16) of the Complaint. 17. The defendant admits the allegations graph seventeen (17) of the Complaint. 18. The defendant admits the allegations graph eighteen (18) of the Complaint. PEGDA, “Cen NBR Se of para- of para- of para- of para- of para- of para- of para- of para- of para- of para- of para- of para- Cee Dak Aira 19 19. The defendant is without sufficient knowledge of the allegations contained in paragraph nineteen (19) so as to admit or deny the Complaint. [56] 20. The defendant admits the allegations of paragraph twenty (20) of the Complaint. 21. The defendant is without sufficient knowledge of the allegations contained in paragraph twenty-one (21) so as to admit or deny the Complaint. 22. The defendant denies the allegations of para- graph twenty-two (22) of the Complaint. 23. The defendant repeats and realledges the An- swers set forth in paragraphs one (1) throught twenty-two (22) above. 24. The defendant admits the allegations of para- graph twenty-four (24) of the Complaint. 25. In Answer to paragraph twenty-five (25) of the Complaint, the defendant admits that there is no hearing when charges are filed with the State Attorney, but denies that this constitutes any deprivation of any right of the plaintiffs or any class they may represent. 26. The defendant admits the allegations of para- graph twenty-six (26) of the Complaint. 27. The defendant denies the allegations of para- graph twenty-seven (27) of the Complaint. 28. The defendant denies the allegations of para- graph twenty-eight (28) of the Complaint. 20 29. The defendant denies the allegations of para- graph twenty-nine (29) of the Complaint. 30. In Answer to paragraph thirty (30) of the Com- plaint, the defendant repeats and realledges his Answer to paragraphs one (1), two (2), four (4), six (6), eight (8), nine (9), fourteen (14), and seventeen (17) set forth above. 31. The defendant is without sufficient knowledge of the allegations contained in paragraph thirty-one (31) so as to admit or deny the Complaint. 32. The defendant is without sufficient knowledge — of the allegations contained in paragraph thirty-two (32) so as to admit or deny the Complaint. [57] 33. The defendant denies the allegations of paragraph thirty-three (33) of the Complaint. 34. The defendant denies the allegations of para- graph thirty-four (34) of the Complaint. WHEREFORE, the defendant Richard E. Gerstein, having answered the Complaint, prays that the Court enter a final judgment in his favor. RICHARD E. GERSTEIN STATE ATTORNEY By: /s/ Jack R. Blumenfeld JACK R. BLUMENFELD Assistant State Attorney Brrciicccs:| RIED. gh on AOR 21 [58] [TITLE OMITTED] MEMORANDUM OF LAW AND MOTION FOR SUMMARY JUDGMENT COMES NOW the Defendant Richard E. Gerstein as State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, by and through the undersigned Assistant State Attorney and moves this Court for a sum- mary final judgment in his favor and states that there are no material disputed issues of fact and that the Defendant- Gerstein is entitled to a judgment in his favor for the reason stated in the attached Memorandum of Law. /s.. Jack R. Blumenfeld JACK R. BLUMENFELD, Esq. Attorney for Defendant-Gerstein Assistant State Attorney Metropolitan Justice Building 1351 Northwest 12 Street Miami, Florida 33125 96 Font A Ga RAIN STRODE DE 3 Ea Deitel, i ela A 22 [59] | ' [TITLE OMITTED] MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT-GERSTEIN’S. MOTION FOR SUMMARY JUDGMENT The undisputed facts in this case are as follows: 1. The Plaintiffs have both been charged with viola- tions of the Florida Statutes. 2. They have been charged by Information (which Informations are attached to the Complaint as Exhibits A and B), as permitted by Article I, Section.15 (a) of the Florida Constitution. 3. That prior to the filing of the Information there was no Preliminary Hearing. 4. That the Informations were filed by the Defend- ant-Gerstein, or by one of his duly appointed Assistant State Attorneys, under and by his authority. 5. It is the policy and practice of the Defendant- Gerstein, his agents, servants and employees to [60] file Information based on independent examination of the facts, notwithstanding the result of any Preliminary Hear- ing, if any, and notwithstanding that there has been no Preliminary Hearing. 6. It is the policy and practice of the Defendant- Gerstein, his agents, servants, and employees to resist any attempt to have Preliminary Hearing after an Informa- tion has been filed or an indictment has been found. * * * 23 [82] . [TITLE OMITTED] COMPLAINT JURISDICTION S (1) This is an action brought by the intervening plaintiffs on behalf of themselves and all others similarly situated for declaratory judgment and for preliminary and permanent injunction as authorized by Title 42 U.S.C. $1983 and 28°U.S.C. §$2201 and 2202. The jurisdiction of this Court is invoked under Title 28 U.S.C. $1343(3) and (4). [83] (2) The intervening plaintiffs and all others similarly situated seek to secure the rights, privileges and immunities established by the Fourth Amendment and the Due Process and Equal Protection Clauses of the Four- teenth Amendment of the Constitution of the United States. The intervening plaintiffs and all others similarly situated have been deprived of such rights, privileges and immuni- ties by: (1) the various defendants’ refusal to provide preliminary hearings to judicially determine probable cause for incarcerating intervening plaintiffs: and (2) the ar- bitrary and irrational procedures of defendants PURDY, GARMIRE, MAYNARD and POMERANCE, and their employees which creates two classifications of defendants —i.e., those who receive a preliminary hearing in Justice of the Peace Courts and those who are denied such a hear- ing altogether; and (3) the defendant judges’ imposition of monetary bail upon indigents as a condition of release from custody pending trial. ee. ee aan De ae reth - ~ OR Neen Ba ERE ae ae Baveinecie Vaid oh. 24 PARTIES (3) Intervening plaintiff THOMAS W. TURNER, is a male citizen of the United States and of the State of Florida. He is presently incarcerated in the Dade County Stockade charged with auto theft, and is awaiting trial in the Criminal Court of Record in and for Dade County, Florida. He remains incarcerated solely because he is un- able to post the $1,000 bond set in his case. (4) Intervening plaintiff GARY FAULK, is a male citizen of the United States and of the State of California. He is presently incarcerated in the Dade County Stockade charged with possession of marijuana and soliciting a ride (hitchhiking) and is awaiting trial in the Criminal Court of Record in and for Dade County, Florida and the Metro- politan Court in and for Dade [84] County, Florida. He remains incarcerated solely because he is financially unable to post the $1,525 bond set in his case. (5) The intervening plaintiffs are members of a class composed of all persons arrested by law enforcement officers in Dade County, Florida, who are being detained in the Dade County Jail or Stockade solely upon a direct information filed by the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, and who as a result have not been provided with: (1) an op- portunity to be heard; (2) an opportunity to confront the witnesses against them; (3) an opportunity to have prob- able cause (if any exists) established by a judicial officer of the State of Florida. The persons in the class are so numerous that joinder of all persons is impractical; there are questions of law and fact common to the class; the claims of the representative parties will fairly and ade- quately protect the interests of the class. SOE IRAN nl 09 a eS RAEN si — ae 25 (6) The intervening plaintiffs also represent a class — of persons who are incarcerated in the Dade County Stock- ade or Jail solely because of their financial inability to post monetary bail as a condition of release pending trial. The persons in this class are so numerous that joinder of all persons is impractical; there are questions of law and fact common to the class; the claims of the representative parties are typical of the claims of the class; and the repre- sentative parties will fairly and adequately protect the interests of the class. (7) Defendant RICHARD E. GERSTEIN, is the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida. In such capacity he is charged with the authority and responsibility pursuant to Florida Statutes, Chapters 27 and 906 [85] for filing informations against persons alleged to have committed criminal acts. (8) Defendants RUTH SUTTON, CHARLES SNOWDEN, JASON BERKMAN, RALPH FERGUSON and SYLVESTER ADAIR are Justices of the Peace in and for Dade County, Florida and in such capacity have the authority and responsibility pursuant to F.S.A. §901.01 and Rule 1.122 of the Florida Rules of Criminal Procedure to provide preliminary hearings for defendants accused of crimes in Dade County, Florida. (9) Defendants JAMES RAINWATER, MORTUN S, PERRY, and SIDNEY SEGALL are Judges of the Small Claims Court in and for Dade County, Florida, and in such capacity are empowered pursuant to F.S.A. §901.01 and Rule 1.122 of the Florida Rules of Criminal Procedure to provide preliminary hearings for defendants accused of crimes in Dade County, Florida. ee eee 2h Wines! EX FTE ie ee ee a ee ee Disdiaine bc. ' 26 (10) Defendant E. WILSON PURDY is the Direc- tor of the Public Safety Department, Dade County, Flor- ida. In such capacity defendant PURDY, his agents, servants and employees enforce the statutes of the State of Florida and are responsible for arresting persons who allegedly have committed violations of said statutes. (11) Defendant BERNARD E. GARMIRE is the Chief of Police of the City of Miami Police Department and in such capacity defendant GARMIRE, his agents, servants and employees enforce the statutes of the State of Florida and are responsible for arresting persons who allegedly have committed violations of said statutes. (12) Defendant DAVID MAYNARD is the Chief of Police of the City of Hialeah, Florida and in such capacity defendant MAYNARD, his agents, servants and employees enforce the statutes of the State of Florida and are re- sponsible for arresting perscis who allegedly have com- mitted violations of said statutes. ; [86] (13) Defendant ROCKY POMERANCE is the Chief of Police of the City of Miami Beach, Florida and in such capacity defendant POMERANCE, his agents, serv- ants and employees enforce the statutes of the State of Florida and are responsible for arresting persons who allegedly have committed violations of said statutes. (14) At all times hereinafter mentioned, the acts complained of were carried out by the above named de- fendants, their agents, servants and employees in their official capacities under color of state law, regulation, custom and useage. 27 FACTS (15) Intervening plaintiff THOMAS W. TURNER, was arrested on March 11, 1971 and charged with auto theft. On March 12, 1971 he was presented to defendant SNOWDEN, who was sitting solely for the purpose of setting bond. Bond was set in the amount of $1,000. At the bond hearing on March 12, 1971, no evidence was presented against the plaintiff to judicially determine probable cause for detaining the plaintiff. (16) An information charging the intervening plain- tiff TURNER with auto theft has been or will be filed by Defendant GERSTEIN with the Clerk of the Criminal Court of Record in and for Dade County, Florida. Interven- ing plaintiff will not be given an opportunity to be present, nor to be heard, nor to cross examine, nor to confront the witnesses against him upon whose testimony the informa- tion will be issued. (17) Intervening plaintiff GARY FAULK was ar- rested on March 19, 1971 and charged with soliciting a ride (hitchhiking) and possession of marijuana. On March 20, 1971 he was presented to defendant RAINWATER who was sitting solely for the purpose of setting bond. Bond was set in the amount of $1,500 on the possession charge and $25 on the hitchhiking charge. At the bond hearing [87] on March 20, 1971 no evidence was presented against the intervening plaintiff to judicially determine probable cause for detaining him. (18) An information charging intervening plaintiff FAULK with possession of marijuana has been or will be filed by defendant GERSTEIN with the Clerk of the Crim- Sicha ibiza in ORDER cee ESN Ra PROC RA Pie n° ix , bad 28 inal Court’ of Record in and for Dade County, Florida. Intervening plaintiff will not be given an opportunity to be present, nor an opportunity to be heard, nor to cross examine, nor to confront the witnesses against him upon whose testimony the information will be issued. THE POLICIES AND PRACTICES COMPLAINED OF COUNT IL. (19) It is the policy, pattern and practice of de- fendants PURDY, GARMIRE, MAYNARD and POM- ERANCE, and their agents, servants and employees to fail to present arrested persons before judges without unneces- sary delay for the purpose of establishing probable cause at a preliminary hearing for the arrest of said defendant. (20) It is the policy and practice of defendant GERSTEIN and his agents, servants and employees to file direct informations based upon testimony provided to an assistant state attorney for a police officer. Furthermore, it is the policy and practice of defendant GERSTEIN, his agents, servants and employees to refuse to provide a de- fendant in custody by virtue of a directly filed informa- tion an opportunity for a binding preliminary hearing to determine probable cause for his incarceration. (21) It is the policy and practice of defendants RUTH SUTTON, CHARLES SNOWDEN, JASON BERK- MAN, RALPH FERGUSON, SYLVESTER ADAIR, JAMES RAINWATER, MORTON S. PERRY, and SID- NEY [88] SEGALL to refuse to provide a preliminary Regi SAARI ONO ON LL NSO SA ARCA RCI AML A MORTON 29 hearing to persons incarcerated in the Dade County Jail by virtue of a direct information filed by defendant GERSTEIN. (22) The above described actions of the named de- fendants results in the incarceration of the intervening Jaintiffs and members of their class solely upon a direct information filed by the state attorney and deprives said intervening plaintiffs of their liberty without an oppor- unity to be heard, to confront the witnesses against them, or to have a judicial determination of probable cause made, all\of which is in violation of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. COUNT II. (23) Plaintiffs repeat and reallege the facts set forth in paragraphs 1 through 22 above. (24) Defendants PURDY, GARMIRE, MAYNARD and POMERANCE, through their agents, servants and employees file charges upon persons they arrest with either a justice of the peace, in Dade County, Florida, or with the defendant, State Attorney GERSTEIN. (25) If said charges are filed with the defendant state attorney, then as set forth in Count I, the interven- ing plaintiffs are deprived of their right to a hearing based upon the direct informations filed by the defendant GERSTEIN. PA ALL AS 30 (26) If however, defendants PURDY, GARMIRE, MAYNARD and POMERANCE, through their agents, servants and employees choose to file the charges with a justice of the peace, then a preliminary hearing will be accorded to the arrested person in due course. (27) Defendants PURDY, GARMIRE, MAYNARD and POMERANCE, and their employees have unfettered discretion in choosing the [89] authorities with whom they will file charges. No standards or rules guide said decisions. (28) The actions of Defendants PURDY, GAR- MIRE, MAYNARD and POMERANCE and their agents, servants and employees thereby creates two classes of — arrested persons: (1) persons who are denied preliminary hearings be ‘ause the arresting officer has filed charges directly with the State Attorney’s Office, thereby causing an information to issue, and (2) persons who are granted preliminary hearings because the arresting officer has filed charges with one of the Justices of the Peace of Dade County, Florida. (29) The creation of these two classes of arrested persons is arbitrary, unreasonable and capricious. The intervening plaintiffs and members of their class, who are being denied preliminary hearings, are thus denied equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States as a result of the irrational, unreasonable, arbitrary and capri- cious actions of the agents of defendants PURDY, GAR- MIRE, MAYNARD and POMERANCE. a ee i aa AAO OOP TAT DEAN PEARS EY SA OS A te LT A tl RE, ek na ate a5 OE aay WS: ee toh nam aR 2 eo wits 31 COUNT III. (30) Intervening plaintiffs repeat and reallege para- graphs 1, 2, 4, 6, 8, 9, 14 and 17 set forth above. ~(31) It is the policy, pattern and practice of de- fendant judges RAINWATER, PERRY, SEGALL, SNOWDEN, SUTTON, FERGUSON, ADAIR and BERK- MAN to set monetary bail upon persons presented before them as a condition of release pending trial. — (32) Intervening plaintiffs have remained incar- cerated solely because of their financial inability to post the monetary bail set to assure their future appearances. (33) The actions of the defendant judges creates two classes of arrested persons: (1) persons who are finan- cially [90] able to post the monetary bail bonds set in their respective cases and thus secure their release from jail, and (2) persons who are financially unable to post the monetary bail bonds set in their respective cases and who must remain in jail solely because of their poverty. (34) The creation of these two classes of arrested persons is arbitrary, unreasonable and capricious. It dis- criminates against poor persons solely because of their poverty without any rational basis. Intervening plaintiffs and members of their class are thus denied equal protec- tion of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Sate anata RN REA RAPA, CP RESTS S » Sxnuine 82 NATURE OF RELIEF (35) There is beween the parties an actual con- troversy as herein set forth. The intervening plaintiffs and the classes they represent, are suffering irreparable injury and are threatened with irreparable injury in the future by reason of the acts herein complained of. The intervening plaintiffs have no plain, adequate or complete remedy to redress the wrongs and unlawful acts herein complained of other than this action for declaration of rights and injunction. Any other remedies to which in4 tervening plaintiffs and members of their class can be remitted would be attended by such uncertainties and delays as to deny them substantial relief, would involve a multiplicity of suits and cause further irreparable injury, damages and inconvenience of the intervening plaintiffs. Unless the acts complained of are declared unconstitutional and enjoined by this Court, thousands of persons will be similarly incarcerated without an opportunity to be heard [91] and solely because of their poverty in violation of the Due Process and Equal Protection Clauses of the Constitu- tion of the United States in the same manner as interven- ing plaintiffs herein. PRAYER FOR RELIEF WHEREFORE, intervening plaintiffs respectfully pray on behalf of themselves and all others similarly situ- ated that this Court assume jurisdiction of this cause and: (1) Enter a declaratory judgment. pursuant to Title 28 U.S.C. §$2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure declaring that the practices of the de- fendants GERSTEIN, RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERK- - 33 MAN of refusing to provide a hearing to determine prob- able cause for intervening plaintiffs and their class im- mediately after arrest violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. (2) Enjoin defendants GERSTEIN, RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERKMAN from failing to accord interven- ing plaintiffs and members of their class due process hear- ings immediately after arrest to determine whether or not probable cause exists for the detention of the intervening plaintiffs and their class. (3) Enter declaratory judgment pursuant to Title 28 U.S.C. $$2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure declaring that the practices of the de- fendants PURDY, GARMIRE, MAYNARD and POM- ERANCE and their agents, servants and employees of ar- bitrarily filing charges against intervening plaintiffs and members of their class with the State Attorney [92] for the Eleventh Judicial Circuit in and for Dade County, Florida or the Justices of the Peace of Dade County, Flor- ida, creates an arbitrary and irrational classification in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. (4) Enjoin defendants PURDY, GARMIRE, MAY- NARD and POMERANCE and their agents, servants and employees from arbitrarily filing charges upon interven- ing plaintiffs and members of their class with the State Attorney for the Eleventh J udicial Circuit in and for Dade County, Florida or the Justices of the Peace of Dade County, Florida. NRE eae baw. Sida irritates cia ainetisaa ssntecatineinn tes tnt AOAC INS ad 34 (5) Enter declaratory judgment pursuant to Title 28 U.S.C. §§2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure declaring that the practices of defend- ants RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERKMAN of set- ting monetary bail upon intervening plaintiffs and mem- bers of their class as a sole condition of their release pending trial results in an arbitrary and irrational dis- crimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. (6) Enjoin defendants RAINWATER, PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR and BERKMAN from using monetary bail as the sole means of granting pre-trial release for intervening plain- \ tiffs and members of their class. (7) Grant such other and further relief as this Court ‘may deem must and proper. Respectfully submitted, /s/ Bruce 8. Rogow BRUCE S. ROGOW, ESQUIRE _ RENE V. MURAI, ESQUIRE Legal Services of Greater Miami, Ine. 622 N. W. 62 Street Miami, Florida 33150 35 PHILLIP A. HUBBART, ESQUIRE Public Defender Metropolitan Justice Building 1351 N. W. 12 Street | Miami, Florida 33125 [93] ’ VERIFICATION STATE OF FLORIDA ) | ) ss COUNTY OF DADE ) THE UNDERSIGNED, having personally appeared before me, a Notary Public, and after being duly sworn, deposes and says that he is the named Plaintiff in the foregoing complaint and that the facts alleged therein are true to the best of his knowledge, information and belief. /s/ Thomas W.. Turner SWORN TO AND SUBSCRIBED BEFORE me, this 31 day of March, 1971. /s/ Eanet L. Leibble Notary Public, State of Florida at Large’ My Commission Expires: NOTARY PUBLIC, STATE of FLORIDA at LARGE. MY COMMISSION EXPIRES JAN. 28, 1975. Bonded through FRED W. DIESTELHORST. Salat MR GE BRA IO RAI MER LS is na eso ens Yee REGIS 0 eh Red gE RTP LAE EDO OR 36 [94] VERIFICATION STATE OF FLORIDA, ) ) SS COUNTY OF DADE, ) THE UNDERSIGNED, having personally appeared before me, a Notary Public, and after being duly sworn, deposes and says that he is the named plaintiff in the fore- going complaint and that the facts alleged therein are true to the best of his knowledge, information and belief. /s/ Gary Faulk SWORN TO AND SUBSCRIBED before me, this 30 ' day of March, 1971. /s/ Earnest L. Liebble Notary Public State of Florida at Large My Commission Expires: NOTARY PUBLIC, STATE of FLORIDA at LARGE. MY COMMISSION EXPIRES JAN. 28, 1975. Bonded through FRED W. DIESTELHORST. * * * 37 [14] PUBLIC DEFENDER Eleventh Judicial Circuit of Florida Metropolitan Justice Building 1351 N.W. 12th Street Miami, Florida 33125 PHILLIP A. HUBBART | Telephone Public Defender ~ 377-7166 — May 12, 1971 The Honorable James L. King, Judge United States District Court for the Southern District of Florida Main Post Office Building Miami, Florida RE: PUGH V. RAINWATER, CASE NO. 71-448-Civ-JLK Dear Judge King, In.response to your Honor’s request that the Plaintiffs and the State Attorney, in conjunction with the other local officials in the above-styled cause, confer for the purpose of working out arrangements to provide preliminary hear- ings for all persons arrested for state offenses in Dade County, Florida, Mr. Jack Blumenfeld, representing the State Attorney’s Office, Phillip Hubbart, the Public De- fender for Dade County and co-counsel for the Plaintiffs, and Mr. Bruce Rogow, co-counsel for the Plaintiffs, have conferred for the above stated purpose. Here are the re- sults of our conversations. thee a WA Re A Re ait AA es =” = 4 _ 88 1. It has not been possible for the parties to agree on procedures to immediately implement preliminary hear- ings for all persons charged with state offenses in Dade County, Florida. It is the State Attorney’s position that it is impossible to provide such hearings immediately in all cases without cooperation of all elements of the criminal justice system and enabling legislation. 2. If the Court rules that preliminary hearings are constitutionally required for all persons arrested for state offenses in Dade County, Florida, the State Attorney would ask [15] that the State be given (90) days, from date of the Court’s order or from the date of the man- date of an appellate Court should there be an appeal, to implement the provisions of this order. This ninety (90) day period is requested so as to make the necessary ar- rangements with local officials to provide such preliminary . hearings and might act as impetus for the Florida State Legislature to pass pending legislation to provide a com- mitting magistrate system for Dade County, Florida. The Plaintiffs have no objection to this request. Respectfully submitted, /s/ Jack A. Blumenfeld JACK R. BLUMENFELD Assistant State Attorney 2 eR Ne i RIA Bem a a ee /s/ Phillip A. Hubbart PHILLIP A. HUBBART Public Defender PAH/fb = pete. rearing te Deter e 39 : Bruce Rogow, Esquire Judge Sidney Segall Judge Ralph B. Ferguson, Jr. Barry Richard, Esquire Alan H. Rothstein, Esquire Alan Diamond, Esquire Judge Morton S. Perry Judge Charles Snowden Judge Jason Berkman PORTED ee ne eee 40 [256] [TITLE OMITTED] ORDER [Filed May 14, 1971] THIS CAUSE came on to be heard before me on May 10, 1971, upon the various motions of defendants and plaintiffs. The Court had the benefit of memoranda and oral argument from counsel for the respective parties. Based upon said presentations, it is hereby ORDERED and ADJUDGED: 1. The Motion for Summary Judgment by Defendant GERSTEIN is DENIED. 2. The Motion to Dismiss by Defendant PURDY is DENIED. Defendant PURDY shall have 20 days from the entry of this Order in which to file an Answer. 3. The Motions for Judgment on the Pleadings by Defendant GARMIRE and POMERANCE are DENIED. 4. The Motion to Intervene as Plaintiffs by THOMAS W. TURNER and GARY FAULK is GRANTED. The Motion of the Intervening Plaintiffs to proceed in forma pauperis is also GRANTED. ~5. The Plaintiffs’ Motion for Partial Summary Judgment against Defendant GERSTEIN is taken under advisement be 41 6. The ore tenus Motion of counsel for Defendants SUTTON and RAINWATER to allow the Answer, Motion for Summary [257] Judgment and Memorandum of Law heretofore filed for those Defendants to stand as the pleadings for Defendant ADAIR is GRANTED. 7. The ore.tenus Motion of Defendant GERSTEIN to allow his Answer, Motion for Summary Judgment and Memorandum to apply to the intervening Complaint is GRANTED. The pleadings of the Defendant GERSTEIN shall be deemed applicable to the intervenors. é DONE and ORDERED in chambers, at Miami, Dade County, Florida, this 13 day of May, 1971. /s/ James Lawrence King U. §. DISTRICT COURT JUDGE NP ut iictew 42 [828] [Filed June 8, 1971] [TITLE OMITTED] DEPOSITION OF JAMES REAGAN, JR. The oral examination of James Reagan, Jr., taken pursuant to Notice of Taking Deposition on behalf of the Plaintiffs, before Melvin Gross, a Notary Public in and for the State of Florida at Large, on Thursday, the 3rd day of June, 1971, at 3:55 o’clock p.m., at the Office of the Public Defender, the Hon. Phillip A. Hubbart, 1351 Northwest 12th Street, Miami, Florida. [329] APPEARANCES: HON. PHILLIP A. HUBBART, Public Defender, and BENNETT H. BRUMMER, ESQ. Assistant Public Defender, and BRUCE ROGOW, ESQ. of Legal Services, 622 Northwest 62nd Street, Miami, Florida. On behalf of the Plaintiffs. ichasiainilisd Weis cicinaahinpeins lies bias oie ee XEN Nant Race Caves Pile HON. RICHARD E. GERSTEIN, State Attorney. , By: JACK R. BLUMENFELD, ESQ., : Assistant State Attorney. 1 On behalf of the Defendant Reagan. 43 BARRY RICHARD, ESQ. Assistant Attorney General, 1350 Northwest 12th Avenue, Miami, Florida. On behalf of the Defendants Rainwater, Sutton and Adair. ALAN T. DIMOND, ESQ. Assistant County Attorney, 1626 Dade County Courthouse, Miami, Florida. On behalf of Defendants Sandstrom and Reagan. [330] INDEX Witness Direct Cross James Reagan, Jr. 3 (H) a 8 (R) — 15 (H) — ae | ae - | ters _ 23 (R) — [331] Thereupon JAMES REAGAN, JR. a Defendant herein, was called as a witness by the Plain- tiffs and, after having been first duly sworn, was exam- ined and testified on his oath as follows: SRT ge ences “ DIRECT EXAMINATION BY MR. HUBBART: Q Would you state your name and official position, please? A A.J. Reagan, Jr. I am the Administrative Officer for the State Attorney of this Judicial Circuit. Q How long have you been so employed? A About 20 months. Q Mr. Reagan, at my request, did you make a search of the files and records of the State Attorney’s Office to determine how many criminal charges had been no ac- tioned by the State Attorney for the period of January Ist, 1970 through March 31st, 1971? A Ihad it done under my direction. Q Let me show you a memorandun, for the purpose of refreshing your recollection, concerning [832] the re- sults of that search of the records. First of all, while you are looking at that, and while your Counsel is looking at that, could you tell me what a No Action Notice is? A Yes. It is a statement by the State Attorney that he does not intend at this time, or at that time, to prose- cute further a particular charge upon which a Defandant has been booked by a police officer. Q And the determination is made by the State At- torney that there is not sufficient evidence at that time to proceed on that criminal charge? A That is correct, or for some other reason. There might be some impediment to the prosecution at that time. ea is iti oun — oan ee ene Q Could you tell me the results of this search of the records and this investigation that you made? ' A Yes. We found that during the period of January 1st, 1970 through March 3lst, 1971, we filed No Action Notices on eleven hundred and sixty-five individual charges. Q Would you say that the vast majority [333] of these No Action Notices are the results of police officers arresting Defendants where there was not sufficient evi- dence to justify the filing of the charge, A That is correct. Q Could you tell me what the procedure is in the State Attorney’s Office, as to how a case is No Actioned? What procedures are taken by the office before a deter- mination is made that a charge should be No Actioned? A Well, when the complainant appears before our Assistant to file the formal charge, to give us an affidavit concerning the facts of the case, the Assistant at that time evaluates the evidence — Q When you say Assistant, you mean an. Assistant State Attorney? A That is correct. He evaluates the evidence and makes a determination of what the proper charge to file is. If there is a charge that we do not intend to file, then he will initiate this No Action Notice. It is then reviewed by the Chief of our Complaint Division. [334] Q He is also an Assistant State Attorney? A That is correct. And it is finally reviewed by the State Attorney, Mr. Gerstein. Sabha Best 46 Q So it goes through three separate people; two Assistant State Attorneys and the State Attorney himself, in determining yhether or not a particular charge made by a police officer should be No Actioned, is that correct? A That is correct. Q When a decision is made that a charge will be No Actioned, then who is notified, if anybody? A Well, we immediately notify the jail, if the De- fendant is incarcerated. We send the original of the No Action to the Shift Commander of that particular shift of the jail. A copy is filed with the Clerk of the Criminal Court of Record and a copy is sent to the arresting officer, or the booking officer, and we keep a copy of it. Q Now, if a Defendant is booked in on, say five charges, and there is a determination that three of these charges should be No Actioned, 1 understand the procedure, you would then notify the jail, if he is incar- cerated, that you are going to No Action three of the five charges, and then you file an Information charging the Defendant with the remaining two charges? A That is correct. Q So the bonds that have been set by the Com- mitting Magistrate, or from the Master Bond List, what- ever, on the other three’ charges that you have No Actioned, would be dropped, is that coggect ? A That is correct. Q And the bonds would remain on the two charges : that you filed? A Well, no, it depends on what you mean by a bond. Do you mean if the bond would remain had the Defendant been released from jail? 47 Q Iam talking about— A —and already posted bond? Q I am talking about incarcerated Defendants? A No. The charges would be removed from the jail card and he would not be required to post bond on those charges, that is correct. [336] Q So the bond would be dropped on the three charges and the other two charges he would have to post a bond in order to get out of jail, is that correct? A That is correct. MR. HUBBART: I have no further questions. BY MR. ROGOW: Q Mr. Reagan, how soon after a person is arrested does the police officer present himself before the State Attorney to file the Information? A It varies in individual cases. From one day to several days. When you say several days, more than five? On occasions, yes. More than a week? On occasions, yes. More than ten days? On occasions, yes. More than two weeks? On occasions, yes. >OoO PO PO PO 4 9 * 2 % 2 9 2 1 A At SRN SS, eee SRI + <8 ED WE sod OR RCS 48 Q More than a month? [337] A I know of no such length of time as that. Q But it would be somewhere between two weeks and a month that you have seen cases where no complain- ant presented himself to the Assistant State Attorney? A. I cannot recall of anything over two weeks, per- sonally. Of course, I am not saying there have not been occasions. We have had rather extensive followup proce- dures to see that that does not happen. I have one girl who does nothing all day but call police officers and say, “You arrested this man, come in and file.” Q How soon after the arrest does she begin to make the followup telephone calls? A The next day. We have a rather elaborate system of cross-indexing our complaint. When a police officer comes to file, he is given a slip which is called a Referral Slip. It is a multicopy form and it has such information on it as the Defendant’s name, the nature of the complaint, the person who is filing the complaint. We cross-index [338] these by both complaint and defendant. The gfiginal slip goes with the complainant to the Assistant State Attorney. He takes the slip from him and, “on the back of it, indicates what action he has taken on the complaint. If he intends to file the Information, he will write, “Information filed.” This slip is then routed back through this young lady in our Jail Records Section. She makes the followup call as soon as she gets the slip. She says, “The case is filed.” 49 She then drops that one from consideration and follows up only on the ones that she hasn’t got an Information on. Q. Those are only for jail cases? A That is correct. Q If a man is out on bond, there is no procedure to encourage the police officer to come in and file the Infor- mation right away? A Unfortunately, I don’t have the personnel for that sort of followup. Do, Q After a complaining witness, or a complaint is made, the police officer comes in and talks to an Assistant State Attorney, and then the [339] Assistant State Attor- ney prepares the Information, if he thinks one should be filed, is that correct? A That is correct. Q What does he do after that with that Informa- tion? Where does he go with that Information? A First it goes through our Jail Reeords Section, as I mentioned before. The booking sheet is attached to the file at that point in time. It then goes to a processing sec- tion, to make sure that everything necessary for the prose- cution of this case is contained in it. Q How long does this, processing take? That is what I am getting at. | A In jail cases, we expedite them anywhere from 24 to 72 hours. Q What happens in these 24 to 72 hours? A The assistant takes the complaint, the complaint peat cs tei, Lak dane 1% « ms db bneacecie Sit ep RAIN aM EE te Todi METS 50 - is processed for other information, such as corporate cer- tificates or anything that we might need in court. Birth certificates, things of this nature. Then it is typed. Then it is sent back to the Assistant State Attorney that took the complaint for his approval. [340] If it is proper, he initials it. It is then reviewed by the Chief of our Complaint Division who also initials it. Then it is sent'to Mr. Gerstein, who signs it. It is then filed with the Clerk of the Criminal Court of Record. Q You say that at the outside it is 72 hours? A On jail cases, yes. Q On jail cases? A_ We allot absolute, top priority to jail cases. And the least priority we uave, of course, are people out on bond. Q. When the Information is finally signed by Mr. Gerstein, or one of the other Assistants, it is tnen sent up to the Clerk of the Criminal Court of Record? A That, is correct. Q It is then out of your hands at that point? A That is correct. Q You have no further contact with the Informa- tion, other than the general processes of the Court? [341] A Well, except in so far as we prepare the calendar. As soon as the information is divisioned, by that I mean that a Judge is assigned to it and a case number is assigned to it, the Clerk notifies us of these two factors _and we then set the jail cases. We then set it on the next day’s calendar for arraignment. nae hte RteE 51 Q So then you are depending upon when the Clerk gets the calendar and assigns it to a Judge? A Before we can sei it for arraignment, that is correct. Q That is out of your control? That is strictly in the Clerk’s control? A That’s right. Q What happens if someone is arrested on Friday? Does thai increase the length of time which the Informa- tion will be filed because of the weekend? A Yes. Q So that would increase the 72 hours to approxi- mately two more days? : A You are talking about working days? Q Yes. [342] A Yes. It would be the nearrs. working day for our office. Q So if a person were arrested on Friday, the In- formation might not be filed until the next Monday? A It is possible. Q And in bond cases, there is no timetable that you can give us? A No, not at all. Q Do you have any idea of the lag between arrest and — A We try to keep within a three-week period. In other words, we have the Information filed three weeks after the arrest, I would say, 95 per cent of the bond cases. etag MSS hia aS a reiak el Bisticttesandcacrcteninion. iain 52 Q Do you have any statistical breakdown on the percentage of cases in which you do have filed within 72 hours? : A No, sir, I don’t. Q Are there many cases which go beyond 72 hours? A That is hard for me to say, Mr. Rogow. I really don’t know. [343] MR. BLUMENFELD: You are referring to these eleven hundred and sixty-five No Action Notices and this procedure refers to direct files, is that correct? THE WITNESS: That is correct, Where arrests had been made without warrants. MR..BLUMENFELD: And if the officer elects to go to the Justice of the Peace and there is a bind-over from the Justice of the Peace and the Assistant elects not to file it, that is not included in these eleven hundred and sixty-five No Action Notices? THE WITNESS: That is correct, it is not included. MR. BLUMENFELD: That is another form of notice, is that correct? THE WITNESS: That is correct. BY MR. HUBBART: Q Mr. Reagan, where the police officer does not file directly with the State Attorney’s Office, but goes through the Justice of the Peace Court and files a com- ESOL ee RE ae Ate, ae gee : 58 plaint there, could you tell us what the procedures are, in so far as the State [344] Attorney’s Office is concerned, after the case has been bound over? How do you handle that? A Certainly we — the Justice of the Peace trans- mits all of these papers to the Clerk of the Criminal Court of Record. Q After they held a preliminary hearing on the matter? A That is correct. This is assuming there is a bind- over. The Clerk of the Criminal Court of Record sends us copies of all these papers. It is assigned to an Assistant who investigates, to determine the proper charge to file. After that determination is made, an Information is filed in that particular case. In this instance we already have a division and a case number so we don’t have the com- munication problem. : In the event that the Assistant decides that there is insufficient evidence to file an Information, or for any other reason he declines to file an Information, he insti- tutes a Notice called a No Information. This is a report similar to a No Action Notice. He sets forth the reasons why he is declining to file an Information in this case. [345] It is approved the same way the No Action is approved. Then the oral announcement is made in open court and that closes the JP bind-over, in so far as the Criminal Court is concerned. Q What is the lag in time, between the time of ar- rest and the JP bind-over case, and the time that the JP Puchi Mab antiods aparece = ‘ sens PAO Bee TMS 2. Ht BAY 4 ater What etelS LS te eth METRE ABE 8 o4 finally gets the papers to you and you file an Information against the Defendant? Do you have any approximation on-that? A Anywhere from seven days to six weeks. Yes. Q And that is between the time of the arrest of the Defendant and the time of the filing of the Information? A That is correct. s Q Could you give us an approximation as to the length of time in a No Action case, the length of time between the time of the Defendant’s arrest and the time that the matter is finally No Actioned? A I would say, in the great majority of cases, be- tween three and five days. , Q Of course, a weekend arrest would lengthen that time by twe days? [346] A Iam speaking of working days. Let me point out, too, that most of these No Actions don’t terminate the arrest. In other words, something is filed. Q That was just like I was talking about the five charges where you may drop three and file on two, in which case the bond is dropped on the three for the in- carcerated defendants? MR. BLUMENFELD: That likewise holds true on No Information. MR. REAGAN: On a No Information, there is an- other problem involved. The JP’s, historically, have only 55 one charge per case. They make separate cases out of every affidavit. They only put one charge on an affi- davit. So if the police officer goes in and charges a man with breaking and entering and grand larceny from the house he broke and entered, that comes out to two cases in the JP Court. It goes to the Criminal Court and it stays two cases. Once it gets to us, we consolidate it by filing one Information on one of the cases, charging both crimes and we have to No Information the [347] second case. It is really a misnomer. That is, we are filing a No Information in one cause of action but we are terminating the second case for the record. And that happens in a great number of cases. Q The Clerk of the Criminal Court of Record of Dade County is taking over the printing and preparing of the calendar, are they not? A Hopefully. Q That will happen this summer. So that you will no longer have the responsibility of notifying the Clerk as to a particular Defendant that you filed an Informa- tion on, that you need the division and the number? A That is correct. Q And then putting him on the calendar shortly after you get that Information back from the Clerk? A That is correct. MR. HUBBART: That’s all I have. CS AER DOV TR DS LON a TEMS sah - RIT sce Abbe an a at gl Fs NTN COR a ain hai tees te es ae ee bie ASS eo a ore eer BY MR. ROGOW: Q Along the same lines, Mr. Reagan, after you file the Information with the Clerk, how [348] long does it take him, if you know, to assign it to the division, get it on the calendar, and then get it back to you so that you will know it is going to appear in court? A That varies greatly. From as little time as the same day. If we file an Information early in the morning, it is possible that we would be notified that afternoon of the division, the number —I have also seen the work back- logged so that it takes as much as a week. Q Between the time you bring it over there and the time it is back on the calendar? A Right. MR. BLUMENFELD: No, not that it gets back on the calendar, that we get notified of the case number and the division so that we cannot put it on the calendar. Q (By Mr. Rogow) How long after you get noti- fied does it take you to put it on the calendar? A We put it on the calendar the next available day. Of course, you understand, if we get [349] this notice after three o’clock in the afternoon, then it cannot go on the next day’s calendar. You have got another 24 hour period. Q What I want to try to get from you is that at the tin-e the complaining party comes to you, everything starts at that time for you? A Yes. FF, gs 57 Q There is nothing you can do before that? From the time the complaining party comes to you, how much time elapses, usually, before the case is put on the calen- dar and the Defendant appears in court? A My notice would be — the average would be be- tween ten and fifteen days. Q Ten and fifteen days? A Yes. Q Plus whatever time it took for the complainant to come into your office? A That is correct. Q And if the man is in jail, he stays in jail during all that time and he doesn’t see a Judge at all in that time, except for the bonding judge that he saw the first morn- ing? [350] A That is correct. (Thereupon a discussion was held off the record.) BY MR. HUBBART: Q These No Actions figures that you have given us, the eleven hundred and sixty-five, is that in reference to incarcerated Defendants? A No, sir. Not all of these are caaeene Defend- ants. MR. BLUMENFELD: Excuse me. Not all of these are Defendants. Not all eleven hundred and sixty-five are Defendants. That is eleven hundred and sixty-five counts. “SBA AR RA ad hat baie A aA i io le Pt ea I EB TREE Geeks Sassen ccd Wc tach aN 58 Q (By Mr. Hubbart) Of the eleven hundred and sixty-five, from the No Actions filed from January Ist, 1970, until March 31st, 1971, this refers to the incarcer- ated Defendants as well as non-incarcerated Defendants? A That is correct. We also use this in order to clear bonds. For example, a Defendant is arrested and posts a bond on five charges, we only elect to prosecute him on two charges, and in order to release the bond on the other three charges, we [351] use this vehicle of a No Action. Q Do you have any idea, any approximation as to the number of incarcerated Defendants who are incar- cerated — Let me rephrase that. There are eleven hundred and sixty-five individual charges; do you have any idea of what percentage would involve incarcerated Defendants? A No, sir, I don’t. ! BY MR. ROGOW: Q Mr. Reagan, do you have any idea of how many eases are nol pros’d after an Information is filed? In other words, somewhere along the way a decision is made by the State Attorney’s Office not to proceed after the Information is filed? A Not in that particular category. I have statistics on how many cases are terminated by dismissal, nol pros’d or No Infornjation. Q Could you get those statistics for us, unless you have them in your head? A No, I haven’t. If you will excuse me, I will get them now. FV La aN yee 59 Q Are they written? [352] A Yes, they are in writing. Q Would you give us a memorandum on that, where your statistics show that, and we will attach that as an exhibit to the deposition? MR. BLUMENFELD: You want the calendar year 1970 as a base? Mi. HUBBART: That is all right. Could you give us any breakdown, also, on these eleven hundred and sixty- five, how many of these involved incarcerated Defendants, if there is any way of determining that? THE WITNESS: I could count them. MR. HUBBART: I would like for you to do that, if you don’t mind. THE WITNESS: I don’t mind. MR. HUBBART: I have no further questions, MR. ROGOW: No further questions. : MR. BLUMENFELD: No questions. (Reading, signing and notice of filing were waived by the witness.) (Thereupon the taking of the deposition was concluded at 4:15 p.m.) Sidivaane: re | Reet ees | TOMER INCREAS ON AY ER BOS SED Bee a attics SER Seah tire a Ra its Meat eek Ser RAN Se ae ae 60 CERTIFICATE OF NOTARY STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) I, MELVIN GROSS, a Notary Public in and for the State of Florida at Large, hereby certify that I reported the deposition of sAMES REAGAN, JR., at the time and place hereinabove set forth; that the witness was first duly sworn by me; that the foregoing pages numbered from 1 to 24, inclusive, constitute a true and correct tran- scription of my stenographic report of the deposition of said witness. I FURTHER CERTIFY that I am neither attorney nor counsel for, nor related to or employed by any of the parties connected with the action, nor financially inter- ested in the action. WITNESS my hand and seal in the City of Miami, Dade County, Florida, this 6th day of June, 1971. /s/ Melvin Gross Notary Public 61 [353] [Filed June 9, 1971] economic opportunity model cities office Legal 622 n.w. 62nd Street Services miami, florida 33150 Program, inc. telephone 759-1608 June 9, 1971 (area code 305) Clerk United States District Court 300 N.E. First Avenue Miami, Florida RE: PUGH V. RAINWATER Case No. 71-488-Civ-JLK Dear Sir: Enclosed please find a “Caseload Report for the Cal- endar Year Ended December 31, 1971” from the office of the State Attorney for the Eleventh Judicial Circuit. This is to be filed as an exhibit to the deposition of A. J. Regan, Jr., already on file with the Court. Very truly yours, /s/ Bruce S. Rogow BRUCE S. ROGOW, ESQUIRE ec: Jack R. Blumenfeld, Esquire Alan Diamond, Esquire Barry Richard, Esq. BSR/nlj oe we lS ge eS A aicraatncsadiaild ] Bo tite olan Se ee Sa Ae De Dea Eee et ~~ 62 [354] STATE ATTORNEY, ELEVENTH JUDICIAL CIRCUIT CASELOAD REPORT FOR THE CALENDAR YEAR ENDED DECEMBER 31, 1970 Dispo- In Process eitionp Fiscal Year Add New Cases for Quarter— Since Cases 1/1/70 From Informations and Indi 1/1/70 Capital Offenses .........00 65 93 158 90 Other Non-Capital PORIEIE sccisceniassseuvitiniiinne 21,403 12,804 34,207 5,401 Misdemeanors .......ssesceeseeee 12,760 3,741 16,501 2,365 TOTAL CASES ........ 34,228 16,638 50,866 7,856 TOTAL NUMBER of PERSONS NA TOTAL NUMBER OF CASES BOUND OVER Dispositions Totals No True Bills . Nolle Pros 194 Plea of Guilty (3,234) Convictions 4,716 Acquittals ; 1,565 *Other (Absentee Docket, etc.)..... 1,373 TOTAL DISPOSITIONS ...... 7,856 *Guilty Pleas included in convictions. (*) If these cases are reactivated at a future date, treat as new cases. Other Matters Appeals to Higher Courts ......0 311 Bond Validations ......cscsssesssseeeseeees 15 Bond Estreatures ....csscssssesssesseserees 1,918 Extradition Proceedings .........0+ 68 Rule I Motions w.ccccccssesecscseseeveees 160 Criminal Hearings ........cssesssesseeeee 12,771 Habeas Corpus Hearings .............. 159 Uniform Support Procedures ...... 1,250 Other Cases Not Enumerated (Specify) 1,696 TOTAL OTHER MATTERS .. 18,348 (Signature) lo Process At Period 12/31/70 68 28,806 14,136 43,010 Note: One form may be used for all four quarters. Just erase or Sno-Pake totals from the previous quarter, list the new quarter, then add Cases In Process at the beginning of the year; after subtracting: dispositions since the beginning of the year, a new total of Cases In Process at the ending of the new quarter will be obtained. Distribution: Four copies to Judicial Administrative Commission — which will retain one, and forward one each to the Governor's Office, the Attorney General, and the Budget Director. Pty ROE Uo Iho See LORENA TE Re LS F aN Ge } 63 [TITLE OMITTED] [Filed July 6, 1971] MOTION FOR SEPARATE TRIALS AND TRANSFER OF PARTIES AND MEMORANDUM Plaintiffs and Defendants, James Rainwater, Ruth Sutton, and Sylvester P. Adair, hereby jointly move this _ Court to order a separate trial on the issue of bail, raised by Count III of the Complaint and to grant leave to said defendants to transfer from party defendants to party plaintiffs on the issue of preliminary hearings, raised by Counts I and II of the i and as grounds there- for states: 1. The two issues are factually and legally unrelated. 2. Said defendants in their memoranda and in oral argument have argued in favor of the plaintiffs’ position on the preliminary hearing issue. 3. It is apparent from the pleadings that judgment against the defendants Rainwater, Sutton and Adair is not necessary in order for the plaintiffs to obtain the relief they seek on the preliminary hearing issue. 4. Transfer of the defendants Rainwater, Sutton and Adair from parties defendant to parties plaintiff would clarify the positions of the parties for the remainder of the 64 litigation in [450] this court and on appeal should one be taken. | . Respectfully submitted, BRUCE S. ROGOW, ESQUIRE Legal Services. of Greater Miami, Inc. — 622 N.W. 62nd Street oo '. Miami, Florida 33150 . PHILLIP A, HUBBART, . ESQUIRE Public Defender of the Eleventh ‘Judicial Circuit Metropolitan Justice Building 1351 N.W. 12th’ Street Miami, Florida 33125 By /s/ Phillip A. Hubbart - RSS See Se ene ROBERT: L. SHEVIN Attorney General t /s/ Barry Scott Richard BARRY SCOTT RICHARD Chief Assistant Attorney General -1350,N.W. 12th Avenue, Rm 530 Miami, Florida — ii Ri Mie i5i RS REAR AROS a 65 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion for Separate Trials and Trans- fer of Parties was mailed to the parties listed below this 25th day of June, 1971. Howard Levine and James Jorgensen Legal Unit 1320 N.W. 14th Street Public Safety Dept., Miami, Florida Judge James Rainwater 1351 N.W. 12th St. Room 444 Miami, Florida Judge Sidney Segail 1351 N.W. 12th St., Miami, Florida Ralph B. Ferguson, Jr., Justice of the Peace - 2001 N.W. 7th Street Miami, Florida Sylvester P. Adair Justice of the Peace 432 Washington Avenue Homestead, Florida Bruce Rogow, Esq. Legal Services of Greater Miami 622 N.W. 62nd St. Miami, Fla., 33150 Alan Diamond, Esq. Assistant County Attorney 73 West Flagler Street Miami, Florida Morton S. Perry, Judge 1351 N.W. 12 St. Room 440 Miami, Florida Charles Snowden Justice of the Peace 12210 N.W. 7th Ave. Miami, Fla. Ruth L. Sutton Justice of the Peace 220 Miracle Mile Coral Gables, Fla. Rocky Pomerance Chief of Police City of Miami Beach 100 Meridian Avenue Miami Beach, Florida [451] Bernard E. Garmire Chief of Police for the City of Miami 1145 N.W. 11th Street Miami, Florida Alan H. Rothstein City Attorney Larry J. Hirsch, Asst. City Attorney 65 S.W. 1st Street Miami, Florida 33130 66 Jason Berkman Justice of the Peace 407 Lincoln Road Miami Beach, Fla. ~ David Maynard Chief of Police for the City of Hialeah Hialeah, Florida Jack R. Blumenfeld, Esq. Asst. State Attorney 1351 N.W. 12th Street Miami, Florida 33125 /s/ Barry Scott Richard BARRY SCOTT RICHARD Chief Assistant Attorney General Miami Division 67 [469] [TITLE OMITTED] [Filed July 16, 1971] MOTION FOR SEPARATE TRIALS AND — TRANSFER OF PARTIES AND MEMORANDUM Defendant, Charles H. Snowden, hereby joins in the Motion of defendants James Rainwater, Ruth Sutton, and Sylvester P. Adair and plaintiffs, for separate trials on the issues of preliminary hearings and bail and to transfer said defendants from party-defendants to party-plaintiffs on the issue of preliminary hearings and defendant, Charles H. Snowden, hereby adopts the Memorandum filed with said Motion. ROBERT L. SHEVIN Attorney General /s/ Barry Scott Richard BARRY SCOTT RICHARD ~ Chief Assistant Attorney General 1350 N.W. 12th Avenue, Rm 530 - Miami, Florida Attorneys for Defendant, Charles H. Snowden Jia — ii lg ah? OP aah im Detece:. Bi linen tal a DO Sie co PRO a scars tl Baa 68 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion was mailed to the parties listed below, this 14th day of July, 1971. Howard Levine and Morton S. Perry, James Jorgensen _ Judge 1320 N.W. 14th Street 1351 N.W. 12th St. _ Public Safety Dept., Room 440 Miami, Florida Miami, Florida Sylvester P. Adair Justice of the Peace 432 Washington Avenue Homestead, Florida [470] Judge James Rainwater Alan Diamond, Esq. 1351 N.W. 12th St. Asst. County Attorney Room 444 73 W. Flagler Street Miami, Florida Miami, Florida Judge Sidney Segall _ Phillip A. Hubbart 1351 N.W. 12th St., Public Defender Miami, Florida 1351 N.W. 12th St. Miami, Fla. Ralph B. Ferguson, Jr. David Maynard Justice of the Peace Chief of Police 2001 N.W. 7th Street City of Hialeah Miami, Florida Hialeah, Florida Bernard E. Garmire Chief of Police for City of Miami 1145 N.W. 11th St. Miami, Fla. Alan H. Rothstein City Attorney Larry J. Hirsch, Asst. City Attorney 65 S.W. 1st Street Miami, Florida 33130 _ Rocky Pomerance Chief of Police- City of Miami Beach 100 Meridian Avenue Miami Beach, Florida Bruce Rogow, Esq. Legal Services of ' Greater Miami 622 N.W. 62nd St. Miami, Fla. 33150 69 Charlies Snowden Justice of the Peace 12210 N.W. 7th Ave. Miami, Fla. Ruth L. Sutton Justice of the Peace 220 Miracle Mile Coral Gables, Fla. Jason Berkman Justice of the Peace 407 Lincoln Road Miami Beach, Fla. Jack R. Blumenfeld, Esq. ‘Asst. State Attorney 1351 N.W. 12th Street Miami, Florida 33125 /s/ Barry Scott Richard BARRY SCOTT RICHARD Chief Assistant Attorney General 2 a ARORA a aR ANN j 70 [488] [TITLE OMITTED] [Filed Oct. 12, 1971] OPINION AND FINAL JUDGMENT Plaintiffs Robert Pug and Nathaniel Henderson brought this class action, in which plaintiffs Thomas Turner and Gary Faulk have intervened, seeking relief for the alleged deprivation of their rights as secured by the Fourth and Fourteenth Amendments to the Constitu- tion of the United States. Jurisdiction is founded upon 28 U.S.C. 1343 (3), (4) and grows out of a Constitutional attack (42 U.S.C. 1983) upon the procedure whereby plain- tiffs were incarcerated, upon information filed by the state attorney, and held for trial in Dade County, Florida, without review by a committing magistrate of the prob- able cause for their arrest. The defendants herein are sued in their official capacities (sheriff, police chiefs, state attorney, justices of the peace and judges of small claims courts of Dade County and several of its municipalities) as individuals charged with the responsibility of administering the system under which plaintiffs were incarcerated. The plaintiffs contend that they have been deprived of a Constitutional right to a preliminary hearing before a judicial officer to determine whether there is probable cause that they committed the offenses with which they are charged. 71 Under the present procedure the state attorney (or one of his assistants) considers the reports submitted [489] by police officers of the results of their investiga- tions and thereafter files a direct information and issues a capias for arrest of the individual charged with the offense. The person may be already in jail or is then arrested and waits in jail until either he is released on bond or is tried. There is no review by a judicial officer as to the probabie cause for the arrest and detention of a person charged by the state attorney in a direct informa- tion. Plaintiffs further allege they have been denied their constitutionally protected right to equal protection of the law in that in certain instances the police will process cases through the offices of the justices of the peace instead of going to the office of the state attorney as was done herein. A justice of the peace conducts a preliminary hearing for probable cause whereas the state attorney does not. It is contended that the unfettered discretion of the police in deciding whether to file criminal charges with the justice of the peace or the state attorney, results in an arbitrary and unreasonable creation of two classes of arrested per- sons, those who are afforded a preliminary hearing and those who are not. Lastly plaintiffs contend that the setting of a mone- tary bail bond as a condition for the release of persons financially unable to post the bond creates two classes of arrested persons and discriminates against poor persons, thereby violating their right of equal protection of the law. Plaintiffs Henderson, Turner and Faulk allege they re- main imprisoned because of their impoverished financial conditions. ere | in Pt 72 In the case of plaintiff Pugh no bond has been set pursuant to F.S.A. Constitution, Article 1, §14 since the main pending charge is robbery, a crime punishable by life imprisonment, F.S.A. 813.011. [490} On May 13, 1971 the Court, upon the request of all counsel took the plaintiff's pending motions for summary judgment under advisement. for the purpose of permitting the Florida Legislature an opportunity to con- sider pending legislation providing for the type of prob- able cause hearing sought herein. The Legislature ad- journed without enacting the proposed statute and this case was set for final hearing. In the course of arguing their respective positions during final hearing, all counsel agree that there are no issues of fact to be resolved in this suit and that the issues can, and should, be determined as a matter of law. Consistant with the philosophy of non-intervention in state criminal procedures the Court afforded the parties a reasonable time, subsequent to the final hearing, within which to attempt to agree upon the implementation of a system securing to all persons the protection of judicial review of the probable cause for arrest. This proved fruit- less. The time of restraint is past and the Court has no alternative except to act. UNDISPUTED FACTS A person may be charged with a crime in Dade County, Florida, in one of five ways: (1) A police officer witnesses the commission of a crime, places the accused under arrest and ‘ _— 73 takes him to jail. Sometime between 24 hours and two weeks later the arresting officer files a sworn affidavit with the office of the state attor- ney who, then files a direct information and issues a capias against the defendant. (2) A police officer conducts an investigation of an alleged criminal offense, decides he has suf- ficient evidence to arrest, and places the defend- ant in jail. The arresting officer then goes to the state attorney with his affidavit and a direct information is filed against the defendant by the state attorney. (3) A police officer conducts an investigation but takes the case to the state attorney before making the arrest and, after issuance of the di- rect information, arrests the defendant and places him in jail. (4) A police officer conducts an investigation, [491] presents the matter by affidavit to a justice of the peace, who issues a warrant for arrest and conducts a preliminary hearing to de- termine probable cause as to the commission of the alleged crime. The defendant is released if no probable cause is found to exist. (5) The results of an investigation are sub- mitted by the state attorney to the grand jury, which determines probable cause and returns an. indictment to a judge. After review, the judge either issues the arrest warrant and causes the indictment to be filed or dismisses the charge. oe 74 Under the process outlined in paragraphs 1, 2, and 3 above there is no judicial determination, prior to trial of whether or not there is probable cause to believe that the particular defendant under arrest did in fact, commit the offense for which he is being held in custody. The proce- dures outlined in paragraphs 4 and 5 provide for a prob- able cause hearing, by a judicial officer, prior to trial and are not therefore under attack in this litigation. When an accused person is informed agairst by the state attorney and arrested, processing of the information does not begin until the arresting officer appears before an assistant state attorney and files his affidavit of facts. In spite of the fact that officers are urged to file their affidavit with the state attorney as promptly as possible periods from twenty-four hours to more than two weeks elapse before the affidavit is filed and processing begins. The state attorney, between January 1, 1970 and March 31, 1971, decided not to file direct informations in 1,165 cases in which a person had been charged or ar- rested as a result of police investigation. The majority of these “no actions” resulted from arrests on charges lacking sufficient evidence to justify the filing of an information. Obviously, a judicial officer considering probable cause on a preliminary hearing would have promptly dis- posed of all of these cases with a tremendous saving of human misery (to all those who had been arrested on in- sufficient evidence) and of tax dollars (to the average citizen who is paying for the cost of a vastly overcrowded jail facility in Dade County, Florida). ‘ 75 [492] Once the state attorney’s office decides to file the information a period of twenty-four to seventy-two hours plus weekends is required to prepare the informa- tion for filing with the Clerk of the Criminal Court of Record. The information is then filed and set for arraign- ment with an average delay of ten to fifteen days from the time the arresting officer appears until the time the defendant is arraigned.* At no time prior to trial is a defendant who is pro- ceeded against by information afforded a hearing to de- termine the existence of probable cause. It is the policy of the state attorney to oppose any attempt to secure such a hearing. , JURISDICTION Where the Federal Court is asked to pass upon the validity of state criminal procedures, the question of jurisdiction requires careful scrutiny. Defendants urge that the Federal Anti-Injunction Statute, 28 U.S.C. 2283, along with the recent Supreme Court decisions in a. series of cases led by Younger v. Harris, 401 U.S. 37, 91 S. St. 746 (1971), remove this cause from the Court’s jurisdic- tion. See, Boyle v. Landry 400 U.S. 77, 91 S. Ct. 758, (1971); Dyson v. Stein, 400 U.S. 200, 91 S. Ct. 769 (1971) ; Samuels v. Mackell, 400 U.S. 66, 91 S. Ct. 674 (1971); Perez v. Ledesma, 400 U.S. 82, 91 S. Ct. 674 (1971) ; Byrne v. Karalexix, 400 U.S. 216, 91 S. Ct. 777 (1971). “Although the record does not reflect the ultimate disposition of the direct information cases alone, it does appear that of the total of 7.856 cases disposed of by the state attorney in 1970, there were 198 “nolle pros”, and 1,565 acquittals. ta 6 Mie ire Paton Pe eae ay 7 76 The Anti-Injunction Statute provides that “A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly author- ized by Act of Congress, or where necessary in aid of its jurisdiction, [493] or to protect or effectuate its judg- ments”, 28 U.S.C. §2288. The Younger case rested not upon an interpretation of this statute and the exceptions thereto but upon “the national policy forbidding Federal Courts to stay or enjoin pending State Court proceedings except under special circumstances”, 401 U.S. at 41. Under Younger, et al as well as under the statute the relief precluded is the enjoining of a prosecution or a declaratory judgment with the same effect, Samuels v. Mackell, supra. Moreover, in each of the Younger cases the requested relief included a declaration of unconstitu- tionality of a state substantive criminal statute. Plaintiffs at bar ask the Court neither to declare unconstitutional a state statute nor to enjoin a prosecution, but instead pray for a declaration of procedural rights and an injunction from the continued denial thereof. This case is therefore ‘ not in conflict with either Younger or 28 U.S.C. §2283. Furthermore, even were the relief requested herein con- sidered to be within Younger, the circumstances of this case would come within the exceptions to that principle. Mr.: Justice Black outlined in Younger the circum- stances under which a Federal Court can enjoin a state criminal proceeding. There must be a “great and imme- diate” “irreparable injury” other than the “cost, anxiety, and inconvenience of having to defend against a single criminal proceeding. There must be a “great and imme- cannot be eliminated by the defense therein, 401 U.S. at 46, S. Ct. at 751. Although Younger recognizes that . 77 jufadiction would exist where a state prosecution was brought in bad faith or for harrassment, as in Dombrow- ski v. Pfister, 380 U.S. 479 (1965), it is clear that these factors are not additional prerequisites to relief but are indicative of irreparable injury. See also Duncan v. Perez, No. 31089, 5 Cir. June 14, 1971. [494] In describing the harassment present in Dombrowski, the Court noted that “[t]hese circumstances . . . sufficiently establish the kind of irreparable injury sufficient to justify federal inter- vention”, 401 U.S. at 48, 91S. Ct. at 752. Plaintiffs at bar are challenging the validity of their imprisonment pending trial with no judicial determination of probable cause. These facts present an injury which is both great and immediate and which goes beyond cost, anxiety, and inconvenience. Furthermore, the state has consistently denied the right asserted, so that the injury _is irreparable in that it cannot be eliminated either by the defense to the prosecution or by another state proceeding. See Anderson v. State, 241 So.2d 390 (Fla. 1970); San- garee v. Hamlin, 235 So.2d 729 (Fla. 1970) ; Montgomery v. State, 176 So.2d 381 (1965) ; Bangus v. State, 141 So.2d 264 (1962)*. For the reasons stated the Court finds that it has jurisdiction in this cause. CONSTITUTIONAL QUESTIONS The principal constitutional issue for determination is, of course, whether one who is arrested and held for trial! upon an information filed by the state attorney is entitled to a hearing before a judicial officer on the question of probable cause. *The case law cited relates only to count I of the complaint. Lengthy consideration of counts II and III is unnecessary in light of the holdings which follow. ae eee ohn ad PBA DRE 6 ne eet AE 78 The Court is faced with a unique factual situation which does not appear to be controlled by the plethora of cases cited by counsel. Defendants rely on Woom v. Ore- gon, 229 U.S. 586, 33 S. Ct. 783 (1914) in which the Su- preme Court held that an Oregon defendant who was ac- cused by sworn complaint [495] before a committing magistrate had no right to an examination as a condition precedent to the filing of an information by the district attorney. In Woom the Court was concerned with the va- lidity of the information rather than the pre-trial deten- tion. Furthermore, that case did not consider a procedure resulting in lengthy detention after arrest, where neither a sworn complaint nor an information had been filed. It is significant that the Woom case relied on Hurtado v. California, 110 U.S. 516, 4 C. Ct. 111 (1884) holding that a grand jury indictment was not a prerequisite to a felony prosecution, and stating: . we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examina- tion and commitment by a magistrate, certifying to the probable guilt of the defendant with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law,” (em- phasis added) 110 U.S. at 587, 4 S. Ct. at 122. - Numerous opinions have been cited in which this circuit has held there is no due process right to a pre- liminary hearing. The issue in each of those cases how- ever, was the validity of the trial as affected by the ab- sence of a preliminary hearing and not the validity of the 79 pre-trial detention itself. In Scarborough v. Dutton, 393 F.2d 6 (5 Cir. 1968) the Court, upholding a conviction where the defendant had been incarcerated for seven months without a preliminary hearing, stated, “The fail- ure to hold a preliminary hearing, without more, does not amount to a violation of constitutional rights which would vitiate the subsequent conviction”. 393 F.2d at 7 (empha- sis added). See also: Murphy v. Beto, 416 F.2d 98 (5 Cir. 1969) ; McCoy v. Wainwright, 396 F.2d 818 (5 Cir. 1968) ; King v. Wainwright, 368 F.2d 57 (5 Cir. 1966); Worts v. Dutton, 395 F.2d 341 (5 Cir. 1968); Kerr v. Dutton, 395 F.2d 79 (1968); ef. Hamilton v. Alabama, [496] 368 U.S. 52, 82 S.Ct. 157 (1961). : In Anderson v. Nosser, 438 F.2d 183 (5 Cir. 1971), even though the Court did not consider the validity of a ‘conviction, the facts were analogous to those in the fore- going post-conviction cases. In each case cited supra the pre-trial detention had ceased to exist, and the trial itself being valid, there was no continuing deprivation of rights. The confinement in Anderson occurred over a period of two to four days with the various federal complaints being filed from three months to fourteen months after plain- tiffs’ release. Consequently, in Anderson, just as in the post conviction cases the Court was asked to grant relief ‘from a deprivation of rights no longer in effect. That the Anderson Court itself considered the case to come within’ the post conviction situation is apparent from its reliance upon Kulyk v. U.S., 414 F.2d 139 (5 Cir. 1969), and other cases, all of which turned upon the validity of a convic- tion, 488 F.2d at 196. % The instant case differs from the foregoing in that this Court is asked to determine the validity of a present —— EE wo ee ee Oo 4 Ei ate ail D CD ha Hf ed Ne a Ne A 8k 80 confinement. The complaint herein was filed during plain- tiffs’ incarceration. Unlike Anderson, .the confinement at bar is not an isolated event but is a recurring part of the state sanctioned prosecutorial system. Unless corrected the wrong complained of will continue to infringe upon the rights of the individyal plaintiffs and the class they represent. A criminal system wherein the: individual faces pro- longed imprisonment upon the sole authority of the police and/or prosecutor violates the principles which underly - this country’s founding and which are the essence of the constitutional guarantees of freedom from unreasonable seizure and from deprivation of liberty without due proc- ess of law. [497] The danger inherent in a system of this kind was described by Mr. Justice Frankfurter in McNabb v. United States: [Legislation requiring that arrested persons be promptly taken before a committing authority, appears on the statute books of nearly all of the states. The purpose of this impressively pervasive re-_ quirement of criminal procedure is plain. A democratic society, in which respect for the dig- nity of all men is central, naturally guards against the misuse of the law enforcement proc- ess. Zeal in tracking down crime is not itself an assurance of soberness of judgment. Disinter- estedness in law enforcement does not alone pre- vent disregard of cherished liberties. Experience ee has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reason- able promptness show legal cause for detaining arrested persons, constitutes an important safe- guard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. 318 U.S. 332, 343-44, 63 S. Ct. 608, 614 (1943). Over forty years ago the Florida Legislature (1939) enacted a statute requiring any officer arresting without a warrant to take the defendant before a committing mag- _ istrate without unnecessary delay, F.S.A. 901.23. Thus we see the requirement for a preliminary hearing is not a new - innovation in the law of the State of Florida. The Fourteenth Amendment provides that no state shall deprive any person of liberty without due process of law. The fundamental requisite of due process of law is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 34 8. Ct. 779, (1914). “It is an opportunity which must be granted at a meaninguful time and in a meaning- ful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965). SS 82 [498] It has been held that a hearing must he given before a drivers license and vehicle registration can be suspended, Bell v. Burson, 91 S. Ct. 1586 (1971) ; Salkay v. Williams, No. 30090 (5 Cir. June 22, 1971); before prohibiting the sale of liquor to an individual for one year, Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507; before termina- tion of welfare payments (even though a subsequent hear- ing was afforded), Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 ‘{1970); before garnishment of wages (even though there was a subsequent trial), Snidach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1920 (1969) ; be- fore a thirty day suspension from a public school, Williams v. Dade County School Board, 441 F.2d 299 (5.Cir. 1971); before refusal of admission to public hospital staff, Sosa v. Board of Managers, 437 F.2d 173 (5 Cir. 1971); and before termination of employment on college faculty, Fer- guson v. Thomas, 430 F.2d 852 (5 Cir. 1970). It would appear beyond question that due process demands a pre- liminary hearing within a reasonable time after an ac- cused has been deprived of his freedom. In Goldberg v. Kelly, the-Court summarized the test for providing procedural due process as follows: The extent to which procedural due process must be afforded the recipient is influenced by the ex- tent to which he may be “condemned to suffer grievous loss.” Joint Anti-Facist- Refugee Com- mitte-v. McGrath, 341 U.S: 123, 168, 71 S. Ct. 624, 647, (1951) (Frankfurter J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. 397 U.S. 254, 262-63, 90 S. Ct. 1011, 1017-18. 83 In this case the grievous loss is that one’s freedom and the countervailing governmental interest is that of the state in avoiding the burden of preliminary hearings. Although the state may incur additional expense in ex- panding its existing committing system to include hearings for direct information cases, this expense will be more than offset by the savings in jail and [499] trial costs regarding those persons heretofore jailed and/or tried without prob- able cause. Moreover, these financial considerations are so grossly overbalanced by the prolonged loss of freedom by innocent persons that further comment is unnecessary. The taxpayers of this community have labored under a near intolerable burden of the spiraling cost of combat- ing crime. The expense of maintaining 2. jail, with many persons who would never be there in the rir: instance if their case had been reviewed by a judge in an o“fective committing magistrate system, will be substantially less than its present cost and will certainly be a tangible bene- fit to all citizens of this community. A preliminary hearing in direct information cases is compelled by the Fourth Amendment, as well as by the Fourteenth Amendment. The Fourth Amendment provides that “The right of the people to be secure in their persons . . . against un- reasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation . . .” It has been established that this amendment is operable upon the states via the due process clause of the Fourteenth Amendment, Mapp. v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961) and that it ft > Cetin nina tometer didi aaeee ia oe hte a ntact! ait Hast ipo 84 applies to arrest warrants as well as to search warrants. Giordenello v. U.S., 357 U.S. 480, 78 S. Ct. 1245 (1958). The existence of a Fourth Amendment right to a probable cause hearing has been recognized in two opinions of the Court of Appeals for the District of Columbia Cir- cuit. In Cooley v. Stone, 134 U.S. App. D.C. 317, 414 F.2d 1213 (1969) the Court held that a juvenile in the custody of a detention home had the right to a probable cause hear- ing and cited approvingly the following language of the lower court: [500] No person can be lawfully held in penal custody by the state without a prompt judicial determination of probable cause. The Fourth Amendment so provides and this constitutional mandate applies to juveniles as well as adults. 414 F.2d at 1213. In Brown v. Fauntleroy, 442 F.2d 838 (1971) the Court found that the same right applied to a juvenile released pending trial to the custody of his mother. In that. opin- ion the Court emphasized that the basis of the right was in the Constitution @nd not in the Federal Rules of Crim- inal Procedure. Of the fact that the accused was not in physical state custody the Court said; “(T)he right to be free of a seizure made with- out probable cause does not depend upon the character of the subsequent custody. Appellant accordingly has the right to have the validity of the seizure determined since he will be called to trial for conduct which led to the seizure.” 442 F.2d at 842. > a certian aetna en 85 Recently the Supreme Court overturned a State Court conviction based upon evidence seized under a search war- rant issued by the state attorney general who was the chief investigator and prosecutor in the case. The war- rant was held to be invalid under the Fourth and Four- teenth Amendments because not issued by the “neutral and detached magistrate required by the Constitution”, Coolidge v. New Hampshire, 400 U.S. 814, 91 S.ct. 2022 (1971). If a prosecuting official cannot properly issue a search warrant in a case he is prosecuting, then he is a fortiori not a proper person for determining the existence of probable cause to hold an accused for trial. The Court finds that under the Fourth and Four- teenth Amendments, arrested persons, whether or not re- leased on bond, have the constitutional right to a judicial hearing on the question of probable cause. Count II alleges that the system which denies a pre- liminary hearing to plaintiffs’ class while granting [501] a hearing to other criminal defendants is violative of the right to equal protection of the law. Because of the Court’s holding that in all direct information cases the accused must be given a hearing as a right of due process and freedom from unreasonable seizure, it is unnecessary for the Court to determine whether the prior system was in- valid for failure to afford equal protection of the law. See Troy State University v. Dickey, 402 F.2d 515 (5 Cir. 1968). Plaintiffs contend in count III that where an accused is financially unable to post the required security for his release pending trial there exists an arbitrary and un- reasonable classification based solely upon wealth in viola- A ate OO bee 6 A etree Bradsoas.. LOR EE TR Cig e et 86 tion of the right to equal protection of the law. The record establishes that it is the policy of defendants to set bonds sufficiently low to allow accus?d persons their release while assuring their subsequent appearance at trial. The severity of the crime along with the accused’s ties to the community, past criminal record, and financial resources are all considered in the setting of bonds. There is no allegation that any bond in question was set in excess of that which the judiciial officer deemed necesary to assure trial appearance. In contending that they are denied release solely because of their poverty, plaintiffs ignore the other factors distinguishing them from released persons. The record shows that plaintiffs’ confinement is not the result ‘of a classification based solely upon wealth, consequently they have not been deprived of their right to -equal protection of the law. — . The Court recognizes the cooperative attitude of the state authorities and their desire to comply with the law. Obvio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0372%3A01. Public record. Not legal advice.